Land Tenure Complications and Development Challenges on Indian Reservations

Jessica A. Shoemaker, Complexity’s Shadow: American Indian Property, Sovereignty, and the Future, Mich. L. Rev. (forthcoming), available at SSRN.

This is both a good and a bad moment to be working at the intersection of property law and Indian law. Positively, there are a number of scholars exploring this intersection, showing how the rights of Indians should influence our understanding of property and how property law impacts tribes.

Professors Kristen Carpenter, Sonia Katyal, and Angela Riley have done important work on the significance of Indians’ collective rights and identity when it comes to intellectual property.1 Professor Elizabeth Kronk Warner has become her own publishing house when it comes to climate change and tribal land.2 And Professor Alex Skibine has argued that federal control over Indian land must be diminished.3 Most law students begin their study of property with Indian law,4 and several states now even include Indian law on their bar exams.5

But it is also a bad moment: many reservations continue to be mired in poverty, marked by underdevelopment that can be traced in part to problems in how reservation land is governed. The self-determination era has reached maturity, yet an “Indian problem” remains when it comes to economic growth. As popular and political awareness of the association between reservation poverty and trust land grows, tribes face the prospect that reactionary thinking will once again threaten the tribal land base.6

Jessica Shoemaker’s recent article, Complexity’s Shadow: American Indian Property, Sovereignty, and the Future, does a great job detailing and explaining the web of rules and overlapping governance structures that contribute to the underdevelopment of Indian land. Although Complexity’s Shadow draws upon property theory and the work of scholars interested in legal complexity, the real strength of the piece is just how grounded it is in reservation land restrictions. Continue reading "Land Tenure Complications and Development Challenges on Indian Reservations"

 
 

Who Should Set the Anti-Trafficking Agenda?

As immigrant communities and immigrants’ rights advocates stare down the barrel of the Trump administration, anti-trafficking appears to be the sole immigration-related issue that might gain bipartisan traction. As has historically been the case with refugees and asylum seekers, Democrats and Republicans may find common ground in concern over the situation of trafficked individuals, especially those subject to sexual trafficking. Refugee advocates and scholars have long raised concerns about the impact of collaborations with strange bedfellows on law and policy-making. Janie Chuang’s article, Giving as Governance? Philanthrocapitalism and Modern-Day Slavery Abolitionism, raises a similar set of worries around the anti-trafficking agenda, introducing a new character to the cast: the philanthrocapitalist. This piece presents a comprehensive and thoughtful set of concerns about the outsized and largely unaccountable role of a new generation of hyperengaged donors in shaping the anti-trafficking policy agenda.

In Prof. Chuang’s words, philanthrocapitalism is a “relatively new form of philanthropy, born of a new generation of the ultra-rich who aspire to use their business skills to fix the world’s social problems.” She explains that these donors play a much more direct role in shaping responses to societal issues than philanthropists in previous eras, who gave money to support third parties’ efforts to effect social change. This is a sound analysis, though it then raises the question of whether these are differences of degree or of kind. Philanthropists have always had some control over policymaking agendas through their selection of projects and varying levels of control through reporting and funding mechanisms. What is different about these new philanthrocapitalists? Continue reading "Who Should Set the Anti-Trafficking Agenda?"

 
 

The Impact of Wal-Mart v. Dukes on Employment Discrimination Class Actions Five Years Out: A Forecast That Suggests More a Wave Than a Tsunami

Michael Selmi & Sylvia Tsakos, Employment Discrimination Class Actions After Wal-Mart v. Dukes, 48 Akron L. Rev. 803 (2015).

The Supreme Court’s decision in Wal-Mart v. Dukes set off a groundswell of concern among many scholars, lawyers, and legal commentators about its potential impact on employees’ capacity to collectively pursue relief, particularly for systemic intentional discrimination claims. As one of those concerned parties, I enjoyed reading the five-year retrospective by Michael Selmi and Sylvia Tsakos, which seems to suggest that Wal-Mart’s impact on such claims has been more of a wave than a tsunami. Selmi and Tsakos recognize the ways in which the Court’s ruling has taken its toll, but they highlight how much Wal-Mart’s impact is a matter of degree rather than kind. Pre-Wal-Mart, the class action landscape was characterized by skepticism toward nationwide class actions, greater merits-focused class certification, and jurisdiction-dependent class treatment. Post-Wal-Mart, those trends have expanded to the detriment of civil rights claims. While this expansion is normatively problematic, this article makes an important contribution to the literature by situating Wal-Mart historically and putting it into a broader perspective. In addition, Selmi and Tsakos identify a forward trend of class certification jurisprudence involving certain kinds of subjective employment practices, which have been found to satisfy Rule 23’s commonality requirement even under current class action jurisprudence.

The authors’ sobering observation that employment discrimination class actions alleging subjective practices have been struggling, combined with their positive observation that some of these class actions remain viable post-Wal-Mart, lead the authors to conclude that Wal-Mart’s effect thus far has been modest. Continue reading "The Impact of Wal-Mart v. Dukes on Employment Discrimination Class Actions Five Years Out: A Forecast That Suggests More a Wave Than a Tsunami"

 
 

Exceptions and Baselines in American Political and Legal History

In The Great Exception: The New Deal and the Limits of American Politics, Jefferson Cowie has written a slim, brisk work of historical synthesis in which he seeks to reframe how we understand twentieth-century American political history. In this essay, I describe Cowie’s insightful and provocative revisionist account of the New Deal and its place in American history. At the end of the essay, I consider some questions the book raises for legal historians.

Cowie’s target in The Great Exception is the idea that the New Deal was a definitive turning point in American political history. Most historical accounts describe the New Deal as the period when, after decades of struggle, liberals pushed back laissez-faire ideology, installed the American version of the social welfare state, and transformed the nation’s political culture along more egalitarian and pluralistic lines. Today liberals praise the New Deal, conservatives criticize it, but all sides generally agree it marked a significant and lasting shift in the relationship between the American people and their government. Continue reading "Exceptions and Baselines in American Political and Legal History"

 
 

Property and the Rule of Law

Paul Gowder, Equal Law in an Unequal World, 99 Iowa L. Rev. 1021 (2014).

Paul Gowder’s article Equal Law in an Unequal World is an exceptionally fine piece of scholarship, and a terrific addition to the growing philosophical and jurisprudential literature on the Rule of Law. It sets out to accomplish several tasks—and largely succeeds. The first and major goal of the piece is to introduce a novel conception of the Rule of Law that is grounded in the widely accepted norm that law must be general. This is a familiar understanding of the meaning of the “Rule of Law,” but Gowder gives it distinctively unfamiliar—but ultimately quite compelling—content. Any law, Gowder argues, drawing on an emergent moral-philosophical literature elucidating related concepts, to be “general” and therefore compatible with the Rule of Law, must be backed by public reasons that can be rationally understood by all citizens, but most important, by all citizens it directly targets. Those reasons, in turn, must be consistent with each such citizen’s basic equal worth and equality (among other requirements as well: the law must also be justified by reasons that are aimed at a sound public policy, and third, by reasons that reflect loosely the community’s self-conception and values). A law justified by reasons that can be understood by the law’s presumed targets only by first accepting the claim that they are inferior to others—such as a law requiring black citizens to sit in the rear of buses, or a vagrancy law forbidding both rich and poor from sleeping under bridges (etc.) in the face of widespread homelessness, or theft laws that forbid the theft of food, given the existence of severe poverty—therefore, violate the Rule of Law. These laws can only be understood by those whom they target as resting on or justified by reasons that in turn presuppose affective commitments of the lawgiver and of the community to the inferiority, or unacceptability, or indeed the contemptibility of black people, or the homeless, or the poor. Particularly for those who have no choice but to commit the prohibited act—such as homeless people who must after all sleep somewhere, or poor people who are hungry and must eat to survive—the laws prohibiting these acts cannot be understood in any way other than as resting on a claim that their very existence is offensive, or at best that their status is lower. This claim is in turn inconsistent with the generality required by the Rule of Law, when that generality is properly understood as requiring not any formal or linguistic property, but rather, a commitment to the general equal worth of all citizens. Therefore, Jim Crow laws, and literacy requirements for voting, but also quite ordinary laws prohibiting theft or vagrancy, are violations of the Rule of Law because in each case, they are premised on reasons that in turn rest on affective attitudes that presuppose the inferiority of the groups they target—and, thus, their lack of “generality.”

This is, Gowder shows, a far more ambitious and robust understanding of the “generality” required by the Rule of Law than the “formal” interpretation one more commonly finds at the heart of dominant interpretations of the Rule of Law and the Equal Protection Clause both—interpretations that typically require (at least in the legal literature) only that “likes be treated alike,” with no substantive reference to either substantive equality, or the equality of citizens. An interpretation of the Rule of Law that requires the latter, Gowder argues, rather than the former, is both more consistent with the history of the ideal itself (drawn from English legal history) and more consistent with the politically and morally ambitious goal of a substantively equal and fair society—a goal that is least arguably at the heart of this country’s reconstruction amendments, as well as our history of progressive politics. Continue reading "Property and the Rule of Law"

 
 

Are Intellectual Property Retaliations Against Violators of WTO Agreements Ineffective?

Sarah R. Wasserman Rajec, The Intellectual Property Hostage in Trade Retaliation, 76 Md. L. Rev. 169 (2016), available at SSRN.

Twenty-some years ago, there was much speculation about how well the World Trade Organization (WTO) dispute resolution process would work, and in particular, whether developed countries would be more likely to comply with their WTO obligations in respect of developing nations because the latter would have the right, subject to approval by the relevant WTO Dispute Settlement Body (DSB), to retaliate against violations of WTO obligations by suspending enforcement of intellectual property rights (IPRs) affecting the violator’s industries.

A central premise of creating the right to retaliate against IPRs was that developed countries’ interests in ensuring respect for its nationals’ IPRs would create a more powerful inducement to treaty compliance than the opportunity to retaliate only against similar types of goods (e.g., bananas or cotton).

So here we are in 2016. After more than two decades of experience with dispute settlements under the WTO agreements, there is a tale to be told about IPR cross-retaliation, and Rajec tells that tale very well. The WTO agreements established a dispute resolution procedure under which nations can formally complain about another nation’s claimed violations to a DSB that will then adjudicate the dispute. If the complaint has merit, the DSB will consider what remedial measures the complainant should be able to take against the violator if it does not respond by coming into compliance. Rajec reports that in a substantial majority of cases, nations decide to comply with their treaty obligations once the DSB has ruled that a violation has occurred, although in about nine percent of cases, violators have remained “unabashed[ly]” noncompliant. Continue reading "Are Intellectual Property Retaliations Against Violators of WTO Agreements Ineffective?"

 
 

Targeted, Concise Treatments for the American Health Care System

  • David Orentlicher, Controlling Health Care Spending: More Patient “Skin in the Game?”, 13 Indiana Health L. Rev. 348 (2016), available at SSRN.
  • Barbara A. Noah, The (Ir)rationality of (Un)informed Consent, 34 Quinnipiac L. Rev. 691 (2016), available at SSRN.

From a health law and policy perspective, the recent presidential election results have undoubtedly ushered in a new period of tremendous uncertainty. With President-elect Trump ascending to the office this year, it is likely that the health care delivery and financing system—to say nothing of the numerous health law syllabi in health care law courses across the country—will look radically different in the years to come. As I write, policymakers and prognosticators are debating which—and how many—pieces of the Affordable Care Act will survive. Nevertheless, no matter the makeup of American health care system in the future, many challenges the system currently faces will endure—and likely intensify. Chief among those concerns revolves around the strangling cost of American health care.

Examining the issue in two separate manifestations and focusing on patient decision-making in two separate contexts, David Orentlicher and Barbara Noah provide practical and succinct suggestions in well-written, recently-published essays, Controlling Health Care Spending: More Patient “Skin in the Game?” and The (Ir)rationality of (Un)informed Consent, respectively. Both tackle problems that contribute to the nagging challenge of cost—Orentlicher largely with an eye on influencing patient decision-making through coverage incentives and penalties, and Noah with an eye on improving patient clinical decision-making at the end-of-life. As overutilization and cost are a focus of much of my scholarship, I was delighted to discover both pieces and to engage with their insights as we overlook a new period of yawning uncertainty in health law and policy. Continue reading "Targeted, Concise Treatments for the American Health Care System"

 
 

How Can We Resist? Suppression of Evidence and the Limits of State Coercion

Back in the heady days after Mapp imposed the exclusionary rule on the states, Yale Kamisar made a prescient pronouncement: once the rule is framed as a way to deter police misconduct, instead of a way to preserve the integrity of the judicial system and its verdict, the fourth amendment loses. The benefits of deterring the police always seem to pale in comparison to the need to convict wrongdoers. And once the rule is tied to predicting police behavior, the situations in which courts predict the police will actually be deterred become fewer and fewer. And, ironically, once the rule is framed as a limit on the police in particular, it begins to feel very unfair to single the police out for criticism. Alice Ristroph argues that the erosion of the exclusionary rule can be traced to a larger problem: the misguided notion that regulating the police is the primary focus of the fourth, fifth and sixth amendments.

One important focus of criminal procedure scholarship over the last several years has been the inadequacy of constitutional litigation as a tool for regulating police. Ristroph takes up the inverse question: why should police regulation be the main focus of constitutional criminal procedure? She argues that the amendments limiting investigatory power were never meant to focus on the police in isolation (indeed, when the amendments were adopted, professional police forces as we know them today did not even exist). Instead, they are meant to enforce individual rights against government overreach. Continue reading "How Can We Resist? Suppression of Evidence and the Limits of State Coercion"

 
 

Being Interconnected

Drucilla Cornell & Karin van Marle, Ubuntu Feminism: Tentative Reflections, 36 Verbum et Ecclesia (2015).

For a number of years, Drucilla Cornell has been studying and reflecting upon ubuntu,1 an African term expressing the idea that humans come into being through interconnectedness and that therefore they have a being, understanding, and set of obligations that emerge in their interconnections. The 2015 article authored by Cornell and South African scholar Karin van Marle summarises ubuntu, compares it with classical Western individualist notions of the self, and considers what it has to offer to Western feminism. The article not only serves as an introduction to a significant African concept, but also challenges Western legal feminism to reflect on its foundational concepts. Although this particular article is relatively short, it is very rich in detail and offers a number of intriguing directions for further reflection and action. In this brief review, I will summarise some key features of ubuntu as presented by Cornell and van Marle, and offer a few comments about its broader significance. My intention is to inspire readers to go to the original article: the ideas are new to me and my rendition of them is short and lacking in depth.

By contrast to Western philosophy, the idea of ubuntu does not permit questions such as “who am I?,” “what do I know?,” and “what ought I to do?” to be addressed separately in the abstract. We are not abstract beings, but become beings in a time and a place, and are always already surrounded by others. Who we are, what we know, and our ethical obligations are connected. As Cornell and van Marle explain, Continue reading "Being Interconnected"

 
 

A Compassion for the Law

Susan Bandes, Compassion and the Rule of Law, 13 Intl. J. Law in Context (forthcoming 2017), available at SSRN.

U.S. Supreme Court Justice Sonia Sotomayor faced a roadblock to confirmation because she had once said in a speech, “I would hope that a wise Latina woman, with the richness of her experiences, would more often than not reach a better conclusion than a white male who hasn’t lived that life.” The statement was read by supporters in concert with President Obama’s well-known view that empathy is an important requirement for judges. Her opponents put a different spin on the statement, arguing that this kind of view meant she would be biased in interpreting the law.

Professor Susan Bandes’s fascinating article, Compassion and the Rule of Law, deals well with a closely related topic. Her examples are drawn mostly from constitutional law, but the analysis has broader implications. (Bandes has authored prominent books and articles on the role of passion and emotions in the law.)

Bandes’s initial premise is that the “rule of law” should prevent arbitrary decision-making based on unpredictable emotions. Compassion is problematic—if it incorrectly distorts substantive legal rulings. But she says it can also serve a different purpose. Compassion’s “most important contribution, is as a way of understanding what is at stake for others. Or to put it another way, seeing the rights of others from the inside; as they experience them.” (P. 3.) Continue reading "A Compassion for the Law"