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Brief of Legal Scholars as Amici Curiae in Support of Respondents, Becerra v. San Carlos Apache Tribe, Becerra v. Northern Arapaho Tribe, U.S. Supreme Court Docket Nos. 23-250 & 23-253
Get PDFCongress has enacted into law thousands of statutory provisions containing rules of construction. These rules direct courts to the permissible interpretations of the statutes that Congress enacts.
With respect to the self-determination contracts between Indian tribes and the United States at issue in these cases, the Indian Self-Determination and Education Assistance Act (ISDA) prescribes two interpretive rules that serve as congressional directives to this Court. First, each provision of the self-determination contract must be construed liberally for the benefit of the tribe. Second, the same is true of the statute itself: each provision of the ISDA must be construed liberally for the benefit of the tribe. The ISDA’s interpretive rules were intended to ensure agency compliance with Congress’s policy to promote tribal self-determination and are consistent with well-established rules guiding interpretation of treaties, agreements, and statutes that address Indian affairs and implement the United States’ unique responsibilities to Indian tribes. Congress enacted these rules in response to the executive branch’s repeated cramped readings of the relevant provisions of law and the resulting failures to ensure adequate federal financial support for tribes’ self-determination contracts. The parties here agreed to these rules as part of their contracts, and Congress codified these rules in the ISDA, as it has codified substantially identical rules for other agreements between tribes and the United States under other parts of the ISDA.
Under ordinary principles of both contractual and statutory interpretation, these rules control in these breach-of-contract cases. The goal of interpretation— whether of a contract or statute—is to discern the authors’ intent from the written text. The plain text of the contracts and statute makes clear the parties’ and Congress’s intent regarding how the terms of their agreement and the applicable provisions of law are to be construed.
As this Court has previously explained in a similar case, to prevail under these rules of construction, the government must demonstrate that its reading “is clearly required by the statutory language.” Salazar v. Ramah Navajo Chapter, 567 U.S. 182, 194 (2012). The government has made no such showing here. Instead, its arguments seek to bypass the ISDA’s text and read into the statute and contracts restrictions on the government’s financial-support obligations that are based solely on inferences drawn against Indian tribes. Congress gave no indication, much less a clear one, that any of the government’s suggested inferences should be drawn. And adopting such inferences would require this Court to disregard Congress’s unequivocal directives to construe each provision of the ISDA and self-determination contract liberally in the tribe’s favor.
Applying the ISDA’s rules of construction is consistent with longstanding principles of federal Indian law and congressional and judicial practice in other statutory contexts. In the context of federal Indian Law, the Indian canon already requires liberal construction of the ISDA and the agreements as a matter of the United States’ trust responsibility and duty of protection to Indian tribes. The canon’s well-settled application to agreements between the United States and tribes and to statutes affecting their interests further supports enforcement of these express congressional rules.
Congressionally mandated provisions telling courts to construe a provision liberally in favor of one party are a familiar feature of government contracting law. Federal courts have similarly applied Congress’s rules of construction in cases concerning the Employee Retirement Income Security Act, the Federal Arbitration Act, the Religious Land Use and Institutionalized Persons Act, the Miller Act, and numerous other statutes. Moreover, these are breach-of-contract cases in which the Court is construing statutory provisions incorporated into a contract. It is commonplace to enforce contractual provisions setting forth rules of interpretation, just like courts enforce any other provision of a contract. Indeed, that is precisely what this Court did in Salazar.
It is unexceptional thus that the ISDA—a law authorizing and governing a specific type of government contracting with tribes—directs a liberal construction of those contracts for tribes’ benefit. The Court should enforce the ISDA’s rules of construction and affirm the decisions below in respondents’ favor
Presentation of the Note on Aligning States Duties and Business Responsibilities with the Guiding Principles on Business and Human Rights
No full textThe Kids Are Not Alright: Negative Consequences of Student Device and Account Surveillance
Get PDFIn recent years, student surveillance has rapidly grown. As schools have experimented with new technologies, transitioned to remote and hybrid instruction, and faced pressure to protect student safety, they have increased surveillance of school accounts and school-issued devices. School surveillance extends beyond school premises to monitor student activities that occur off-campus. It reaches students’ most intimate data and spaces, including things students likely believe are private: internet searches, emails, and messages. This Comment focuses on the problems associated with off-campus surveillance of school accounts and school-issued devices, including chilling effects that fundamentally alter student behavior, reinforcement of the school-to-prison pipeline, and disproportionate impacts on certain groups—including low-income students, LGBTQIA2S+ students, and students with disabilities. This Comment argues that the current legal landscape—federal and state laws, the Fourth Amendment, and the First Amendment—inadequately protects student privacy.
Drawing on aspects of existing privacy frameworks, this Comment proposes solutions that could be implemented by the Supreme Court, federal and state legislators, and school districts. All of these solutions aim to increase student privacy protections. First, the Supreme Court should clarify whether speech on school-issued devices is protected by adopting clear categories of “school speech” that are subject to discipline. Second, new federal and state protections could bolster student privacy. Such laws should limit data sharing when collected from school-issued devices used at home, mandate data minimization and further limitation of data collected, and implement mandatory tracking of the impacts of student surveillance. Third, school districts should conduct audits and increase transparency to demonstrate their commitment to protect student privacy
From Precedent to Policy: The Effects of Dobbs on Detained Immigrant Youth
Get PDFIn June 2022, the United States Supreme Court released the historic decision Dobbs v. Jackson Women’s Health Organization, holding that the U.S. Constitution does not protect an individual’s right to an abortion. Dobbs overturned many cases, including J.D. v. Azar, which previously protected abortion rights for unaccompanied migrant youth in federal detention facilities. Post-Dobbs, the Office of Refugee Resettlement (ORR)—the agency responsible for caring for detained immigrant children—still protects abortion rights as part of its own internal policy. Without judicial precedent, however, this policy lacks the stability to truly protect the rights of the children in its care.
This Comment discusses the impact of Dobbs on the rights of unaccompanied immigrant children (UCs) detained in immigration custody by ORR. Now that detained UCs’ right to abortion is only protected by agency policy, it can be changed by ORR without going through notice and comment rulemaking. This Comment explains the historical context of the rights of migrant children and the right to an abortion. It advances the argument that states that want to protect abortion for detained immigrant youth must incorporate those rights in child welfare laws
Distinguishing Privacy Law: A Critique of Privacy as Social Taxonomy
Get PDFWhat distinguishes privacy violations from other harms? This has proven a surprisingly difficult question to answer. For over a century, privacy law scholars labored to define the elusive concept of privacy. Then they gave up. Efforts to distinguish privacy were superseded at the turn of the millennium by a new approach: a taxonomy of privacy problems grounded in social recognition. Privacy law became the field that simply studies whatever courts or scholars talk about as related to privacy.
Decades into privacy as social taxonomy, the field has expanded to encompass a broad range of information-based harms—from consumer manipulation to algorithmic bias—generating many rich insights. Yet this approach has come at a cost. This Essay diagnoses the pathologies of a field that has abandoned defining its core subject matter and offers a research agenda for privacy in the aftermath of social recognition.
Our critique is overdue. It is past time to think anew about exactly what work the concept of privacy is doing in a complex information environment and why a given societal problem—from discrimination to misinformation— is worthy of study under a privacy framework. Only then can privacy scholars articulate what we are expert in and participate meaningfully in global policy discussions about how best to govern information-based harms
GOOGLE SEARCHING FOR THE TRUTH: EXAMINING THE ADMISSIBILITY OF INTERNET SEARCH HISTORY
Get PDFThe internet has become more ubiquitously available than ever before, with search engines serving as the portals to an unparalleled amount of information. As a byproduct of this phenomenon, a vast amount of internet search history has also begun to enter legal proceedings as evidence. The most intimate questions that defendants have asked their search engines have begun to be examined under the scope of the Federal Rules of Evidence or a state equivalent. This Comment examines the admissibility of internet search history and provides a general legal framework based on the Federal Rules of Evidence. Drawing upon six cases, this comment navigates the different ways that courts have determined relevance and probative value against their prejudicial effects. Following the introduction, the second section will provide background about the complex nature of digital evidence and a general overview of the Federal Rules of Evidence that will be discussed in subsequent sections. The third section of this Comment will examine six evidence cases that have specifically addressed the admissibility of internet search history. This section is divided temporally with two cases each addressing internet search history that occurred before, during, and after the alleged criminal activity. The fourth section restates the general evidentiary safeguards of internet search history based on these cases. Moreover, this fourth section also provides a suggestion to utilize the underlying technological ranking systems from internet search engines to provide a more objective basis when evaluating the admissibility of internet search history. Finally, the concluding section summarizes the general findings from the preceding sections
Radical Visions for the Law of Peace: How W.E.B. Du Bois and the Black Antiwar Movement Reimagined Civil Rights and the Laws of War and Peace
Get PDFThis Article reconstructs the history of Black antiwar activism in the twentieth-century United States and argues that Black antiwar activists played a significant but largely forgotten role in the development of both modern civil rights law and the international law of war and peace. The Article focuses on the career of W.E.B. Du Bois, tracing how he built coalitions between civil rights and antiwar organizations to pursue a series of shared legal campaigns. Du Bois’s antiwar work was also representative of a larger tradition, and his career illuminates how a range of Black activists and civil rights lawyers like Pauli Murray, Prentice Thomas, Ella Baker, and Martin Luther King, Jr. creatively merged civil rights and antiwar protest.
These activists redefined the very idea of peace, as both a legal and a political category, to include racial equality. As a result of that conceptual shift, they also advocated for a much richer set of legal proposals to regulate warfare. While mainstream white peace activists and international lawyers in the first half of the twentieth century emphasized a formalistic legal ban on war, Du Bois and other Black activists consistently pursued a much more radical set of structural interventions in the socio-economic system that they believed would, functionally, help to prevent war. Their proposed interventions included global decolonization, economic redistribution, and equal civil, political, and socio-economic rights, which they saw as the path to lasting peace.
This Article recovers the legal and intellectual history of that more radical vision for the law of peace. It shows how a “long antiwar movement” collaborated with the better-known “long civil rights movement” across the twentieth century, and it traces how those collaborations helped remake civil rights and global governance. The Article then explores the normative lessons this history holds for vital debates today about movement building, movement lawyering, and the best legal tools to secure racial equality and constrain the use of military force