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A House Divided: The Minnesota Experimental City and Competing Narratives of Conservation
No full textMinnesota’s Twin Cities have long been powerful engines of change. From their origins in the early nineteenth century, the Twin Cities helped drive the dispossession of the region’s Native American peoples, turned their riverfronts into bustling industrial and commercial centers, spread streets and homes outward to the horizon, and reached well beyond their urban confines, setting in motion the environmental transformation of distant hinterlands. As these processes unfolded, residents inscribed their culture into the landscape, complete with all its tensions, disagreements, contradictions, prejudices, and social inequalities. These stories lie at the heart of Nature’s Crossroads. The book features an interdisciplinary team of distinguished scholars who aim to open new conversations about the environmental history of the Twin Cities and Greater Minnesota.https://digitalcommons.law.uw.edu/faculty-chapters/1039/thumbnail.jp
Brief of Tribal Nations and Indian Organizations as Amici Curiae in Support of the Navajo Nation, U.S. Supreme Court Docket No. 21-1484
Get PDFSUMMARY OF ARGUMENT: The Winters Doctrine recognizes and gives effect to the promises made by the United States in treaties, congressionally ratified agreements, and executive orders that Tribal Nations would retain permanent and viable homelands. These promises, made in exchange for the Tribal Nations’ cession of billions of acres of land, paved the way for the non-Indian settlement of the West. Although every tribal homeland is unique, invariably, each requires water to be livable. Applying the canons of construction this Court has developed as part of its federal Indian law jurisprudence, as well as the history and circumstances surrounding the creation of each individual reservation, the Winters Doctrine holds that the United States promised to provide water sufficient to fulfill the purposes for which the reservations were created.
Concomitant with the promise to reserve water rights is the corresponding duty to protect and deliver on that promise and avoid rendering those rights meaningless through obstruction, depletion, or diversion to more junior users. In this way, the Winters Doctrine is a pathway for ensuring the United States fulfills its solemn obligations to Tribal Nations. The United States—through both Congress and the Executive—has repeatedly and expressly reaffirmed its understanding of these obligations. Petitioners here articulate no reason why the Lower Colorado River Basin should be treated differently. This Court should once again ensure the United States honors its obligations.
In the 115 years since Winters v. United States, the Doctrine solidified into an integral part of the fabric that makes up Western water management. The Winters Doctrine forms the basis for extensive adjudication and settlement of claims by Tribal Nations to water rights. Today, millions of tribal and non-tribal citizens benefit from the certainty provided by the Winters Doctrine
Taking the Long Road: The Excessive Fines Clause as a Tool for Protecting Washington\u27s Unsheltered Population
Get PDFOver the last decade, Washington State has seen a substantial increase in its unhoused population and an increase in laws that harm this group. Many of these laws subject unhoused and unsheltered people to fines, fees, and forfeitures that are exceedingly difficult for them to afford. The ExcessiveFinesClauses in the United States and Washington Constitutions protect citizens from fines deemed constitutionally excessive and could be used to shield unsheltered people from the burden of paying unjust fines they cannot afford. In City of Seattle v. Long, the Washington State Supreme Court analyzed the ability to pay of a person who lived in his vehicle when deciding whether the fines imposed on him violated the state or federal Excessive Fines Clauses. This Note contends that the Long decision offers a strong constitutional foundation for arguments against the enforcement of many laws and policies that adversely affect vehicle residents and unsheltered people. Part I reviews the housing crisis in Washington and the legal ramifications unhoused people face. Part II discusses the historical jurisprudence of the Washington State and the federal Excessive Fines Clauses and their relation to a person’s ability to pay. Part II also outlines the Long case and how it fits into the framework of the Excessive Fines Clause. Finally, Part III argues that an expansive reading of the Long decision is both constitutionally appropriate in light of current jurisprudence and an important tool for advocating for unsheltered people
Carceral Socialization as Voter Suppression
Get PDFIn an era of mass incarceration, many people are socialized through interactions with the carceral state. These interactions are poweful learning experiences, and by design, they are contrary to democratic citizenship. Citizenship is about belonging to a community of equals, being entitled to mutual respect and concern. Criminal punishment deliberately harms, subordinates, and stigmatizes. Encounters with the carceral system are powerful experiences of anti-democratic socialization, and they impact peoples\u27 sense of citizenship and trust in government. Accordingly, a large body of social science research shows that eligible voters who have carceral contact are significantly less likely to vote or to participate in politics. Hence, the carceral system\u27s impact on political participation goes well beyond those who are formally disenfranchised due to convictions. It also suppresses participation among the millions of legally eligible voters who have not been formally disenfranchised-people who have had more fleeting encounters with law enforcement or vicarious interactions with the carceral system.
This Article considers the implications of these findings from the perspective of voting rights law and the constitutional values underlying it. In a moment when voting rights are under siege, voting rights advocates are in a heated discussion about how our federal and state constitutions protect ideals of democratic citizenship and political equality. This discussion has largely (and for good reason) focused on how the law should address what I call de jure suppression: tangible election laws and policies that impose legal barriers to voting, or dilute voting power. Eliminating these formal barriers to voting is vital. But, I argue, fully realizing the constitutional values underlying voting rights will also require also addressing what I call de facto suppression, or suppression through socialization. This occurs not through formal legal restrictions on voting, but when state institutions like the carceral system systematically socialize citizens in a manner that is incompatible with democratic citizenship.
I show how de facto suppression threatens the constitutional interests protected by the right to vote just like de jure suppression does. In short, by systematically socializing people in a manner that is fundamentally incompatible with democratic citizenship, the state can effectively strip a citizen of much of the instrumental and intrinsic value conferred by the right to vote. Those who are concerned about advancing and protecting voting rights should understand the carceral system\u27s anti-democratic socialization as a form of political suppression-one that should warrant constitutional scrutiny for the same reasons that de jure suppression should warrant scrutiny
\u3ci\u3eDuren v. Missouri\u3c/i\u3e: A Post-Peremptory Path to Representative Juries
No full textPractitioners who have made a successful Batson challenge—a prima facie case that an adversary used a cause-less “peremptory” strike to block an otherwise eligible juror from service because of their race, ethnicity or sex—will tell you it was anything but easy. Nearly four decades since Batson v. Kentucky, the Supreme Court’s test for establishing juror discrimination has proven notoriously ineffective.
Abiding racial disparities in jury selection prompted the Supreme Court of Arizona to improve on how we conduct voir dire. On January 1, 2022, Arizona became the first state to completely eliminate the use of peremptory strikes. Our judiciary’s laudable efforts to mitigate racial discrimination in jury composition by abolishing cause-less strikes could not, however, completely rectify the disparate exclusion of people of color from jury service. If we can no longer use even the imperfect Batson framework, where can litigants find relief from petit juries that continue to suffer from demonstrable systemic underrepresentation?
Now that parties must establish actual cause for every juror they seek to preclude, the solution may be simply to safeguard fair venire composition. Rather than arguing that some invidious motive underlies an individual strike, why not use Batson’s often overlooked predecessor, Duren v. Missouri, to ensure the entire pool fairly reflects our local diversity? While we’re at it, let’s institutionalize Duren for future actions by routinely publishing our jury selection methods and statistics, as many courts did voluntarily in 2020
Honest Belief and Proof of Unlawful Motive
Get PDFA large number of federal statutes impose liability on a defendant if it acted with a forbidden motivation. Intent is also central to the meaning of a number of constitutional provisions, including many applications of the First Amendment and the Equal Protection Clause. The large volume of litigation under these provisions does not turn on doctrinal differences about the meaning of intent or purpose, but on disputes about the types of evidence that are and are not sufficient to establish the existence of the forbidden purpose. Those standards, as a practical matter, determine the efficacy of the prohibition at issue and can illustrate tactics which a potential defendant can use to evade compliance.
In litigation about whether such an unlawful motive existed, defendants frequently seek to avoid liability by contending that their action, even if unwarranted, was based on an honest (although perhaps mistaken) belief. The socalled honest belief doctrine has been raised in a wide variety of circumstances, and there are a large number of decisions evaluating that issue.
Some commentators have strongly criticized the honest belief doctrine, but it is a well-established part of litigation in a wide range of fields. For judges and litigants, what matters is when the doctrine could apply, what types of evidence would be probative of whether the requisite honest belief existed, and how to analyze a number of recurring areas of confusion.
Part I explains the difference between a defendant\u27s claim that the factual premise of its action was correct (the explanation was objectively valid ) and a defendant\u27s claim that its action, even if based on an incorrect factual premise, was the result of an honest belief. Part II describes the types of evidence that courts have recognized can demonstrate that a defendant did not actually hold an asserted belief, including whether it is significant that a claimed belief was unreasonable. Part III summarizes the various ways in which an asserted belief could be shown not to be honest, including why deficiencies in a defendant\u27s investigation may be relevant. Part IV explains how courts should determine whether the issue in a particular case is objective validity or honest belief. Part V sets out the types of situations in which the existence of an honest belief would not preclude a finding of liability and discusses whether an honest belief instruction would be appropriate in a jury trial
Startup Biases
Get PDFThis Article provides an original descriptive account of bias in the startup context and explains why litigation is eschewed and what happens when it is used as a mechanism to combat bias in the venture capital ecosystem. Further, this Article identifies two particular phenomena in the startup context that exacerbate gender and racial bias. First, homophily—the idea that like attracts like—abounds and has been part of the DNA of venture capital since its inception. The thick networks that developed as venture capital made its way from the East Coast to the West Coast were limited to an elite group that were predominantly white and male. Second, because startups are not subject to a robust set of rules and regulations, they operate under a private ordering structure which allows startups to focus on growing the company. Therefore, whether gender or racial bias is addressed (if at all) depends on the company’s priorities. This lack of rules and regulations is both a blessing and a curse in the startup world. While it allows startups maximum flexibility, it also prevents startups from being subject to a set of laws like it would be in a public company setting. Indeed, evolving practices in the public company realm have limited applicability in the private company setting. This Article offers both legal and non-legal tools to address startup biases, including legal reform applicable to unicorns and investors of a certain size, the diversification of deal leads and referrals, the recruitment of more investors who are women and racial and ethnic minorities, among others. The proposed solutions are intended to disrupt the homophily-influenced infrastructure of startups so that long-lasting changes can occur. Otherwise, we will be where we always are—with women and racial and ethnic minorities receiving a paltry share of venture capital funding
Theseus in the Labyrinth: How State Constitutions Can Slay the Procedural Minotaur
Get PDFCivil procedure is one of the biggest hurdles to access to justice. An array of rules and interpretations of those rules have turned lawsuits into meandering mazes with a procedural minotaur waiting to gobble up meritorious claims. The problem is especially acute for the many Americans without abundant resources or access to a lawyer. Fortunately, there is a ready remedy, albeit one access to justice advocates have ignored: state constitutions. Forty state constitutions, which protect hundreds of millions of Americans, generally guarantee “[t]hat all courts shall be open, and every person, for an injury done him in his person, property or reputation, shall have remedy by the due course of the law.” All litigants, no matter how much money or education they have, are entitled both to meaningful court access and to meaningful remedies when they suffer legally cognizable injuries. These provisions hold such special promise both because the vast majority of lawsuits take place in state court, and because the U.S. Constitution lacks a similar guarantee.
For too long, the conversations about how to achieve access to justice and how to interpret these state constitutional provisions have happened in isolation. This Article contributes to both of these conversations and then brings them together to generate a novel solution to America’s access to justice problem. Countless scholars and judges have lamented that convoluted procedures lead to litigants losing on meritorious claims. They have also shown that those procedures increase the cost, length, and complexity of litigation, which makes hiring an attorney too expensive and deters some litigants from bringing deserving claims in the first place. This Article creates a new constitutional framework that legislatures should consider when writing civil procedure codes and that courts should use when deciding how to apply those codes. It then demonstrates how that framework will allow litigants to finally leap over the biggest procedural impediments facing them––pre-suit screening panels, strict time limits on claims, rigorous pleading standards, and stringent class action certification rules––by arguing that these impediments are frequently unconstitutional as applied in particular cases. This Article contends that there will be two principal benefits. The first will be that more litigants can win their claims on the merits instead of losing them on procedural technicalities. The second is that litigation will become cheaper and less time-consuming such that more litigants can vindicate their legal rights in court, regardless of whether they can afford counsel.
Finally, this Article situates its proposal in the context of current efforts to achieve access to justice such as advocacy for appointing counsel in all civil cases—civil Gideon— and letting litigants get an attorney’s help on discrete tasks. This Article’s proposal is much more feasible politically and financially for legislatures and courts to implement than civil Gideon, even as it decreases the need for an attorney’s assistance, and more wide-reaching than attempts to unbundle legal services. Ultimately, though, access to justice advocates need not adopt this Article’s proposal to the exclusion of all others. They will hopefully see, however, how the proposal can enable major progress in ending the access to justice crisis
Gone Fishing: Casting a Wide Net Using Geofence Warrants
Get PDFTechnology companies across the country receive requests from law enforcement agencies for cell phone location information near the scenes of crimes. These requests rely on the traditional warrant process and are known as geofence warrants, or reverse location search warrants. By obtaining location information, law enforcement can identify potential suspects or persons of interest who were near the scene of a crime when they have no leads. But the use of this investigative technique is controversial, as it threatens to intrude upon the privacy of innocent bystanders who had the misfortune of being nearby when the crime took place. Innocent bystanders are swept up in a geofence warrant because the warrant seeks information about all devices within a certain area at a certain time, instead of a more traditional search warrant, which focuses on a specific individual.
The Washington Constitution provides heightened individual privacy protections compared to what the Constitution of the United States affords. As a result, some law enforcement techniques may be allowable under the federal constitution but forbidden within Washington under the Washington Constitution. This Comment considers whether geofence warrants are compatible with the Washington Constitution and recommends a framework for courts in Washington to adopt when reviewing a geofence warrant request. Alternatively, this Comment calls on the Washington State Legislature to regulate the use of geofence warrants