Federal Indian Law is Racist

From land theft to child removal to cultural genocide, the horrors and harms of federal Indian law have been well-documented. In his recent article, Professor Crepelle acknowledges this history and literature and asks: “Is it ethical to cite cases that are factually wrong and racist?” (P. 533.) He concludes that federal Indian law practice is “incompatible with modern standards of legal ethics.” (P. 532.) I couldn’t agree more.

Professor Crepelle identifies cases that rely on racial slurs, inaccurate stereotypes, and white supremacist language to reach legal conclusions that undermine Tribal jurisdiction or Indigenous rights. These cases—the Marshall trilogy, US v. Rogers, Ex Parte Crow Dog, US v. Kagama, among others—are regularly relied upon in modern federal Indian law practice.

Professor Crepelle analyzes how the Model Rules of Professional Conduct (MRPC) could be applied to lawyers who cite racist federal Indian law cases or judges who rely on them. For example, the MRPC requires claims to be based in law and fact (r. 3.1); prohibits the use of false statements or inaccurate information (r. 3.3, r. 4.1, r. 8.4(c)); and bars conduct that discriminates based on race, sex, or national origin (r. 8.4(d)). Continue reading "Federal Indian Law is Racist"

Harvard’s Model of Legal Education

Bruce A. Kimball & Daniel R. Coquillette, The Intellectual Sword: Harvard Law School, The Second Century (2020).

This mammoth (858 page) book, The Intellectual Sword: Harvard Law School, The Second Century, is the sequel to the same authors’ On the Battlefield of Merit: Harvard Law School, The First Century. That volume broke the boundaries of conventional institutional histories, which are mostly coffee-table celebrations of successive deans and of the buildings erected during their tenure. The authors situated the Harvard Law School (HLS) in the middle of ferocious party-political struggles and the Civil War. They produced the most thorough and searching description and analysis of C.C. Langdell’s famous experimental reforms of the 1870s and 80s in legal education. And they advanced the argument—pursued at much greater length in their new book—that HLS set the template not just for legal, but for professional education generally in the 20th century.

The structural argument. The central argument of the book is that financial structure determined the character and destiny not only of HLS and other American law schools, but to some extent of medical and business schools as well. HLS from the start was locked into a syndrome of dependence on tuition for revenue, which meant that it had to admit a large number of students. To service those students, it had to hire more faculty and acquire more building space, to pay for which it needed to continue to keep its enrollments high. At the same time, to maintain quality and plausibly certify its graduates as the cream of meritocratic competition, it had to flunk out many of the entering class and ruthlessly sort and rank those who remained. The results of high enrollments were very large faculty-student ratios and large classes, dependent on teacher interactions with the most aggressive and articulate students in them to keep Socratic dialogue going; a harsh boot-camp training method, leading to Darwinian competition; equation of “merit” (universal legal competence) with performance on first-year exams, and demoralization and alienation of the non-elite students. Continue reading "Harvard’s Model of Legal Education"

Family-Making in an Age of Scarcity

Sara Matthiesen’s Reproduction Reconceived offers a dark but crucial perspective on the idea of privacy at the heart of Roe, a liberty from government interference that the Supreme Court resolutely insisted did not carry any entitlement to support for family-making. Matthiesen reconceptualizes Roe’s central concept—a privacy right to make the decision to terminate a pregnancy—as a willingness to sign off on government neglect of those at the margins. Reproduction Reconceived offers a fascinating glimpse of the real-world costs of negative rights and explores how grassroots movements seeking support for families navigate a legal system that often rejects the idea of any entitlement to government support.

Matthiesen traces the obstacles facing lesbians and incarcerated people seeking parental rights, who confronted a combination of incomprehension and neglect. Reproduction Reconceived also documents the dangers of family-making for those to whom the state was indifferent, particularly pregnant people with AIDS or Black people confronting spiraling rates of infant mortality. The obstacles facing many of those making the choice to have a family, Matthiesen argues, helped propel one of the most successful initiatives of the antiabortion movement—the creation of crisis pregnancy centers (CPCs). Far from being unwitting dupes convinced that they were visiting abortion clinics, as some pro-choice leaders suggested, the people who turned to CPCs saw them as “the last line of defense against poverty, homelessness, and food insecurity.” (P. 21.) Continue reading "Family-Making in an Age of Scarcity"

The Democratic Disposition of Law

Seana Valentine Shiffrin, Democratic Law (2021).

In Democratic Law, Seana Valentine Shiffrin argues that law, in its full and proper form, is essentially democratic. Shiffrin analyzes the relationship between law and democracy in intimate detail, and explores implications of that relationship for some familiar doctrinal problems in the U.S. context. The book is based on Shiffrin’s Tanner Lectures, which she gave at Berkeley in 2017, and includes an introduction by the editor of the volume, Hannah Ginsborg—which provides a beautiful orientation to the book—as well as lively and incisive commentaries from Niko Kolodny, Richard R.W. Brooks, and Anna Stilz, and a vigorous reply to them from Shiffrin.

In the first of two Parts, Shiffrin argues that each of us has a duty to recognize one another’s equal moral status and to express this recognition to one another. Her argument here builds on Rawls’s account of our fundamental moral equality as persons. For Shiffrin, we are both entitled and obligated to communicate our recognition of one another’s equality—not only discursively (since, as Brooks elaborates in his commentary, talk is cheap) but also through our commitments and actions. Continue reading "The Democratic Disposition of Law"

Should (Some) Political Uses be Presumptively Fair?

Cathay Y. N. Smith, Political Fair Use, 62 Wm. & Mary L. Rev. 2003 (2021).

According to conventional wisdom, fair use factor two plays a minor role, if any, in copyright cases. But, as Cathay Smith shows in Political Fair Use, this factor plays a major role—and may even be dispositive—in cases involving “political uses” of copyright-protected works. Through a series of case studies, Smith “identifies a pattern in political fair use decisions: in disputes arising from the unauthorized political uses of copyrighted works, courts appear to implicitly modify their analyses and balancing of the fair use factors under section 107 of the Copyright Act.”

Fair use is a fact-intensive, case-by-case inquiry. The Copyright Act sets forth four factors that courts should weigh in determining whether a use of parts or all of another author’s work is fair: Continue reading "Should (Some) Political Uses be Presumptively Fair?"

The Italian Contribution to Comparative Studies of Multilevel Governance

Erika Arban, Giuseppe Martinico, & Francesco Palermo, Federalism and Constitutional Law: The Italian Contribution to Comparative Regionalism (2021).

Italy is one of the most fascinating case-studies of both modern state-formation and the management of territorial pluralism in the world. Massimo d’Azeglio, Prime Minister of Sardinia from 1849 to 1852, announced after territorial unification in the nineteenth century – “We have made Italy. Now we must make Italians.” This elegant aphorism encapsulates the entire discourse and practice of classical modernist nation-state building that has underpinned the creation of the post-World War II global order. Italy itself established its contemporary constitutional model of territorial pluralism in this period and has since evolved in intriguingly asymmetric, incremental, pragmatic, and imperfect ways. For other democratic countries where territorial pluralism is the foundation of the state and the central fact of politics and public law, the study of almost every dimension of the Italian model pays rich dividends. However, much of the more sophisticated literature on Italian constitutional politics has so far not been in English, the lingua franca of comparative constitutional studies. As a result, even though a major proportion of the post-Cold War era’s intensification of transitional constitution-making has concerned the resolution of territorial conflicts, it is fair to say the Italian experience has featured very little as a useful comparator.

The recent collection of essays edited by Erika Arban, Giuseppe Martinico, and Francesco Palermo, Federalism and Constitutional Law: The Italian Contribution to Comparative Regionalism, fills this longstanding lacuna with aplomb. In addition to the three editors, the book brings together a wide range of law and politics expertise to describe, analyse, and critique the historical, cultural, normative, and institutional dimensions of Italian regionalism. The structure allows for comprehensive coverage, and each chapter yields engaging discussions replete with detail and nuance, yet without overwhelming unfamiliar readers with esoterica. The book meets and exceeds the editors’ aims of situating Italy within the field of comparative federalism and regionalism studies, by identifying both exportable strengths as well as cautionary lessons and by bringing law and politics into conversation in expounding the Italian experience. Continue reading "The Italian Contribution to Comparative Studies of Multilevel Governance"

Charting a New Path for Health Care Reform

Lindsay F. Wiley, Elizabeth Y. McCuskey, Matthew B. Lawrence, and Erin C. Fuse Brown, Health Reform Reconstruction, __ U.C. Davis L. Rev. __ (forthcoming, 2022), available at SSRN.

Since the 1960s, debates over health reform in the United States have focused on expanding access to health care, improving its quality, and lowering its costs. In their forthcoming article, Health Reform Reconstruction, Professors Lindsay Wiley, Elizabeth McCuskey, Matthew Lawrence, and Erin Fuse Brown argue that this so-called “iron triangle” framework has led to an unjust health care system by marginalizing equity, solidarity, and public health concerns. Building on their prior work, the authors call for a new set of principles to guide health care reform that centers around health justice. The Article also identifies legally and logistically entrenched fixtures of the U.S. health system and shows how they have structurally constrained health reform and undermined social justice goals. This provocative Article is a must-read for those interested in health reform, and the authors’ reframing of the issues pushes stakeholders to ask whether reform proposals will reinforce these problematic fixtures or dismantle them (albeit partially), thereby moving us closer to a more just health care system.

The Article is organized around four lessons that the authors pull from the U.S. health care system’s deficient and inequitable response to the COVID-19 pandemic. Part I presents the first lesson ─ “that health care reform requires new principles rooted in solidarity, equity, and justice.” (P. 5.) The authors argue that the pandemic has revealed weaknesses in our health care system that have increased COVID-19’s public health and economic harms, such as failing to fairly allocate, adequately supply, and constrain prices for COVID testing, treatment, and vaccines. The pandemic’s disproportionate impact on low-income, Black and Brown communities also has made highly visible the health care system’s failure to reduce long-standing disparities in health. In addition, the pandemic highlighted our interdependence across racial and socio-economic lines. The authors argue that evaluations of future health reforms therefore should be guided by three core criteria ─ anti-subordination, equitable distribution, and community empowerment ─ criteria often overlooked or marginalized by the iron triangle framework. Specifically, they believe we should ask whether reforms (1) dismantle or reinforce structural racism, economic injustice, and other forces of social subordination; (2) ensure the just distribution of the burdens and benefits of public investments in health care and public health; and (3) allow for decision-making processes that give recognition to and empower subordinated groups that too often are excluded from collective self-determination. Continue reading "Charting a New Path for Health Care Reform"

Nonmarital Equality in a New Light

Nausica Palazzo, Marriage Apostates: Why Heterosexuals Seek Same-Sex Registered Partnerships, __ Colum. J. Gender & L. __ (forthcoming, 2022), available at SSRN.

The classic story of marriage equality figures same-sex couples’ various maneuvers to enter the legal institution of marriage through the courts, claiming the right to be treated the same as opposite-sex couples and repudiating the counter-claim that same-sex couples ought to be treated differently. Its narratives are dominated by the first part of Aristotle’s equality axiom “likes alike,” yet haunted by the second part of the axiom: “unlikes unlike.” Its counter-stories embrace diverse demands for nonmarriage equality, arguing for alternative forms and mechanisms of relationship recognition based on the objection to the supremacy of marriage and the Aristotelian axiom.

A UK couple, Steinfeld and Jeidan, and an Austrian couple, Ratzenböck and Seydl, went to courts seeking legal recognition of their relationships in forms other than marriage. They are opposite-sex couples seeking to register for same-sex civil partnerships. Their court challenges reverse the equation in the classic marriage equality model. Here are opposite-sex couples demanding to be treated like same-sex couples, not the other way around. Their stories became part of the emerging case law in Europe that is the subject of Nausica Palazzo’s article Marriage Apostates: Why Heterosexuals Seek Same-Sex Registered Partnerships. Continue reading "Nonmarital Equality in a New Light"

Against Functional Approaches

Katharine K. Baker, Equality and Family Opportunity, __ Univ. of Penn. J. of Const. Law __ (forthcoming), available at SSRN.

As Katharine Baker recounts in her excellent article, Equality and Family Autonomy, functional analysis was once part of a positive progressive narrative within family law: it was through a functional analysis that scholars and courts (and some legislatures) found a way to give legal recognition – and legal protection – to individuals and families whom legal formalities would not protect. As Baker writes: “Contemporary family law scholarship … often assume[s] that a functional approach to family law … is the best way to secure equal treatment for people who live in relationships that have not been recognize legally as familial.” (P. 2.)

However, functional approaches always had their disadvantages, and now that same-sex partners and parents can generally protect their interests through marriage or adoption after Obergefell v. Hodges,1 Baker shows how those disadvantages – “pluralistic, self-determination and privacy values that can be lost” (p. 4) – often outweigh the benefits for the legal treatment of parenthood. Functional analyses require state evaluation of the family, which is too often “invasive, ineffective, and . . . damaging” (p. 4). Baker argues that “[a]s family forms grow more diverse, judges become ever less qualified and less capable of assessing what constitutes appropriate family behavior.”2 (P. 5.) Continue reading "Against Functional Approaches"

The Promise of Radical Crime Policy

Jessica Eaglin, To “Defund” the Police, 73 Stan. L. Rev. Online 120 (2021).

To the surprise of no one, the Defund the Police campaign has been subject to attack on several fronts—by political conservatives, police unions, and any number of Democratic Party politicians. How did Defund proponents respond to this high leverage moment? As the national debate about police budgets reached its apex, the Defund campaign seemed to scatter in several policy directions while clinging to the Defund mantra.

In To “Defund” the Police, Jessica Eaglin tracks these directions and draws a conceptual map of the various ongoing political projects designed to stem the flow of public money to police departments. To this end, Eaglin delivers a four-part typology of recent initiatives that plausibly fall under the Defund mantle: Police Abolition, Police Recalibration, Police Oversight, and Fiscal Constraints. Continue reading "The Promise of Radical Crime Policy"

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