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Alaska\u27s Arm-of-the-Tribe Jurisprudence: Ito v. Copper River Native Association and Its Contribution to a More Uniform System of Justice in America
Get PDFThe Alaska Supreme Court recently overhauled its approach to arm-of-the-tribe sovereign immunity in Ito v. Copper River Native Association. The Court no longer utilizes financial insularity as a dispositive inquiry; instead, the Court has adopted a five-factor test that takes into account (1) the purpose of the entity’s creation, (2) the method of the entity\u27s creation, (3) the degree of control the tribe maintains over the entity, (4) tribal intent concerning sharing sovereign immunity, and (5) financial relationship. This decision serves as a positive development for two reasons: (1) it is a step towards the elimination of a dual-track justice system and (2) it lessens the undesirable degree of variability in the extension of sovereign immunity to quasi-public entities created by Native tribes and other sovereigns. Alaskan citizens will now be better situated to receive equitable court access regardless of their claim’s jurisdiction and regardless of the sovereign from which the potential immunity extends
State Sovereign Immunity After the Revolution
No full textThe Supreme Court’s 1996 decision in Seminole Tribe v. Florida opened an era of dramatic expansion of states’ sovereign immunity from suits by private parties. Nationalist Justices vigorously contested that expansion, vowing that they would never accept Seminole Tribe’s legitimacy or accord it stare decisis effect. In 2020, however, the unanimous decision in Allen v. Cooper did accept Seminole Tribe’s vision of state immunity, apparently ending the Court’s longstanding and bitter division on this issue. This Article assesses Seminole Tribe as a revolution in legal doctrine that established a new paradigm of state immunity law, analogous to the scientific upheavals that Thomas Kuhn examined in The Structure of Scientific Revolutions. It considers how the state immunity revolution came to an end, continuing threats to the Seminole Tribe paradigm posed by recent decisions like Torres v. Texas Department of Public Safety, and what the Court’s continuing debates about state immunity can tell us about the doctrine of stare decisis and the stability of legal paradigms. The most important lesson is that stare decisis may be insufficient to maintain a legal paradigm without acceptance of a precedent’s underlying rationale. The Article also examines the sorts of “normal science” puzzles that courts will have to grapple with, even if Seminole Tribe’s paradigm proves enduring
Abortion Disorientation
Get PDFThe word “abortion” pervades public discourse in the wake of Dobbs v. Jackson Women’s Health Organization. But do people know what it means? Not only do law and medicine define it differently, but state legislatures have codified wildly different definitions of abortion across jurisdictions. This Article exposes inherent ambiguities at the boundaries of the term, particularly as it intersects with other categories of reproductive health care often viewed as separate, like pregnancy loss and ectopic pregnancy. By juxtaposing statutory text with real people’s experiences of being denied care in states with abortion bans, this Article reveals how those ambiguities cause tragic results.
This Article’s analysis also tracks how antiabortion legislatures have responded to the tragedies of their own making by changing the definition of abortion. Thirteen abortion-hostile states have changed the definition of abortion since Dobbs, eleven of which have added at least one definitional exclusion, most commonly for ectopic pregnancy, miscarriage, or molar pregnancy. States that have expanded abortion rights, on the other hand, have moved in the opposite direction, broadening their abortion definitions as they expand reproductive rights.
The findings from this Article have a variety of normative implications. First, they demonstrate that “abortion” is an ambiguous term that lacks a fixed meaning. Given that many abortion bans and the long-unenforced Comstock Act leave the term undefined, courts will need to consider canons of construction, context, and history to resolve the term’s ambiguity. Second, the findings strongly support the conclusion that state abortion definitions and ban exceptions are unconstitutionally vague. This analysis cuts against a predominate antiabortion narrative that the laws are clear, yet doctors are willfully or unintentionally misinterpreting them. Finally, the findings underscore how Dobbs created an unworkable framework that moved the complicated experience of pregnancy from the medical to the legal domain, strengthening calls to overturn the decision
King, Christian Ethics, and the Promise of Positive Fundamental Rights
Get PDFOn February 6, 1968, leaders of the Southern Christian Leadership Conference drafted a letter addressed to the president, Congress, and the U.S. Supreme Court. The letter argued that the U.S. constitution facilitated economic and social second-class citizenship because the constitution did not protect economic and social rights but instead protected only civil and political rights. The letter’s authors demanded that the nation repent for its continued subordination of the poor and minorities and atone by recognizing economic and social rights. In this article, the authors recover the draft letter—a proposed economic and social bill of rights—and assert it was and remains a morally compelling call to recognize and protect positive fundamental rights under the constitution. The authors maintain that while the SCLC leaders who drafted the letter were clear that law alone could not end the sinful conditions that created racism and poverty, they were becoming more adamant that a radical redesign of the constitution was a necessary step toward building a beloved community
Still Broken : Alaska Rule of Professional Conduct 8.4(f) and (g)\u27s Insufficient Response to Workplace Harassment by Lawyers
Get PDFA report by Women Lawyers On Guard, entitled Still Broken, reported the results of a 2019 survey about sexual harassment and misconduct in the legal profession. It concluded that issues relating to sexual harassment and misconduct in the legal profession had not improved in the past thirty years. This Article looks at the Alaska Rules of Professional Conduct\u27s rule regarding harassment and discrimination by lawyers and argues that the rule does not sufficiently address workplace harassment by lawyers.
Alaska Rule of Professional Conduct 8.4(f), enacted in 2021, prohibits harassment or invidious discrimination by a lawyer in the lawyer\u27s dealings with the lawyers, paralegals, and others working for that lawyer or for that lawyer’s firm only if the lawyer\u27s conduct results in a final agency or judicial determination of employment misconduct or discrimination. But the nature of employment discrimination law and harassment in the legal profession means that very few instances of workplace harassment will result in formal findings by an agency or court.
The Article therefore recommends Alaska Rule of Professional Conduct 8.4(f) be amended to prohibit harassment or invidious discrimination in the lawyer\u27s dealings with the lawyers, paralegals, and others working for that lawyer or for that lawyer\u27s firm —subject to normal bar disciplinary proceedings and without any requirement of findings from an outside agency or a court. The Article also recommends adding a comment to the rule stating that firms, or at least large firms, should have and regularly disseminate an anti-harassment policy
Neglected Discovery
Get PDFIn recent decades, many states have expanded discovery in criminal cases. These reforms were designed to make the criminal process fairer and more efficient. The success of these changes, however, depends on whether defense attorneys actually use the new discovery opportunities to represent their clients more effectively. Records from digital evidence platforms reveal that defense attorneys sometimes fail to carry out their professional duty to review discovery.
Analyzing a novel dataset we obtained from digital evidence platforms used in Texas, we found that defense attorneys never accessed any available electronic discovery in a substantial number of felony cases between 2018 and 2020. We also found that the access rate varied by county, year, offense type, attorney category, attorney experience, and file type.
To better understand when and why attorneys neglect the available discovery, we supplemented the analysis of digital platform data with interviews of more than three dozen Texas criminal defense attorneys. We learned that defense attorneys were aware that many of their peers fail to review discovery in felony criminal cases. Our interviewees identified several explanations for the failure to access evidence. These include a lack of technological skills and support; the overwhelming volume of digital discovery; the client’s desire for fast resolution of the case; the lesser gravity of some cases; high caseloads; low compensation; and, in some cases, simple lack of diligence. We consider the implications of these attorney practices for ineffective assistance of counsel litigation, effective supervision of defense attorneys, and criminal law reform
LOAC in the Dark
No full textSpeaker: Prof. Laurie Blank, Special Counsel to the General Counsel, Department of Defense and Clinical Professor of Law, Emory Law Schoo
Finding a Core of Sustainability in Directors\u27 and Officers\u27 Fiduciary Duties
Get PDFDirectors and officers have a fiduciary duty to act in the best interests of a corporation and its shareholders. Yet corporations may be employing unsustainable, short-term business models that fail to properly account for financial and systemic risks that could harm the corporation in the long term. This paper asks whether there is, embedded within directors\u27 fiduciary duties, a greater duty to consider sustainability (as this paper defines it). Specifically, this duty would require directors and officers to return corporations to the established shareholder wealth maximization ( SWM ) norm of creating long-term shareholder value under Delaware law.
This paper argues that directors\u27 and officers\u27 fiduciary duties under Delaware corporation law include a duty to implement a minimum core of sustainability—a Sustainability Core. The Sustainability Core requires a fair and impartial consideration of all shareholders\u27 investment horizons, including long-term investment horizons. The Sustainability Core also requires directors to implement and oversee a system for monitoring environmental, social, and governance ( ESG )-related risks and opportunities, as identified, monitored, and managed via thoughtful materiality assessments. These include ESG-related risks and opportunities which may foreseeably become financially material on long-term investment horizons. Moreover, failure to implement the Sustainability Core may give rise to liability for breaches of fiduciary duty.
In these efforts, directors and officers retain significant discretion in how they choose to implement sustainability practices: many actions, decisions, and best practices enacted to implement or mainstream sustainability would fall within a Sustainability Periphery. The Sustainability Periphery contains a wealth of best practices which interested activists and stakeholders may draw on to push sustainability further, by working to shape the Sustainability Core in a manner which improves transparency and accountability