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All Bets Are On: It\u27s Time for Wisconsin to Up the Ante and Legalize Mobile Sports Wagering
No full textA City’s Day in Court: Using Class Action Principles to Protect Cities’ Due Process Rights
No full textIn a recent trend in public law, municipalities are increasingly bringing “affirmative litigation,” suing large corporations to protect municipal residents and increase revenue. As affirmative litigation becomes popular among municipalities, more and more municipalities have found that their respective states (e.g., the State of Illinois for the City of Chicago) have already sued the would-be defendant for the same action. Because of the state’s prior action, the defendant can raise the common law defense of res judicata against the municipality to preclude the municipality’s lawsuit. If a defendant wants to raise the defense and preclude a subsequent lawsuit, then the defendant must show that the first lawsuit is final, that the claims between the first lawsuit and the second lawsuit are the same, and that the plaintiff in the first lawsuit is the same as the plaintiff in the second lawsuit. The would-be defendant claims that the municipality and the state are one and the same in raising the defense of res judicata to preclude the municipality’s lawsuit.
Courts often agree with the defendant, blocking the municipality’s lawsuit. Some courts, however, rule in favor of the municipality, finding that the municipality is a separate entity from its state. These divergent results are not doctrinally incorrect because the status of municipalities is contested. The problem with these divergent results is that they can lead to unfair results for both the municipality and for the defendant. It can lead to unfair results for the municipality because if the state does not adequately represent its municipality, then the municipality will be precluded from bringing its lawsuit without ever having its day in court, a violation of its procedural due process rights. It can lead to unfair results for the defendant because the defendant may be subject to inconsistent judgments or double liability, also raising due process concerns.
This Article recommends that courts adopt class action principles when dealing with consecutive state and municipal lawsuits to avoid divergent and unfair results. Federal Rule of Civil Procedure 23 governs class actions brought in federal courts and requires that a class representative adequately represent other class members. If courts apply Rule 23 when analyzing whether a municipality can sue a defendant after its state has already sued for the same cause of action, then a prior state lawsuit will only preclude a subsequent municipal lawsuit if the state adequately represented its municipality’s interests
FOIA Fellows as Freedom Fighters: An Independent and Privately Funded FOIA Commission of Rotating Professionals
No full textThe Freedom of Information Act (FOIA) is a hallmark of U.S. democracy, designed as an outsider element that foists transparency on a government bureaucracy whose centripetal forces spin inexorably toward self-preservation and secrecy. The United States pioneered the worldwide Freedom of Information (FOI) movement in 1966, but other countries have since surpassed the United States in FOI design and performance. For example, when the author’s colleague sent parallel FOI requests to six Western democratic countries, all but the United States responded substantively within days, weeks, or months; the United States took four and a half years.
This Article analyzes the FOI regimes of the six countries and emphasizes the political pressures that led each country to enact FOI legislation, despite persistent executive and bureaucratic opposition. Yet even while identifying other countries’ successful FOI innovations, the Article also pinpoints the inherent conflicts of interest that today’s flawed FOI models retain.
Consequently, the Article’s thesis advances a unique, outsider proposal to remedy such intractable conflicts of interest. First, an independent FOIA commission in the United States should be led by FOIA Fellows—professionals from the private sector, such as technologists, lawyers, organizational managers, and journalists—who rotate into short-term government fellowships to implement FOIA with an independent mindset, on behalf of the people, not on behalf of the bureaucracy. Second, FOIA Fellows should be funded by wealthy private parties that have an interest in preserving and protecting democracy and transparency, such as individuals like Elon Musk or organizations like George Soros’ Open Society.
The Article’s proposal is exceptionally timely in view of the recent and ongoing work of the Department of Government Efficiency (DOGE), initially headed by Elon Musk. DOGE’s goals are complementary to this Article’s FOIA proposal, as DOGE is intended to “take suggestions and concerns from everyday Americans” and post all its actions “online for maximum transparency.” As Musk declared in reference to DOGE, “Threat to democracy? Nope, threat to BUREAUCRACY!!!” Building on the outsider momentum of DOGE, now is the opportune time to redesign FOIA so that outsiders can bring transparency to the inside of a stubbornly opaque bureaucracy
#TaxBack? Prohibiting State Real Property Taxes on Land in Indian Country
No full textLand is a critical asset of Indian tribes. As tribes wrestle with how to create sustainable economies to support their sovereignty, the use and management of tribal land is integral. Taxation is a key component of economic development. This Article is about taxation of land within Indian country. It considers existing law that allows for state taxation of some land within Indian country. It makes a normative claim as to who the proper taxing sovereign should be based on tax policy principles and principles that support tribal self-governance and tribal sovereignty.
In Part II, this Article provides the background for the analysis. It starts with explaining ad valorem property taxes, describing the key features and highlighting the importance such taxes serve in funding sub-federal level governments. Next, the Article provides the history of the relationships between Tribal Nations and the federal and state governments, specifically on Allotment and the legacy of Allotment policies that shaped the law limiting a tribal government’s ability to tax and expanding a state government’s ability to tax real property in Indian country. Part III of this Article analyzes the legal and policy arguments that could be made to dismantle the expansion of state power to tax real property owned by tribes and/or their members in Indian country. The analysis critiques the jurisprudence expanding state taxation of real property in Indian country and analyzes the negative impact on tribal sovereignty. It sets forth the alternative to expanding state power based on both territorial jurisdiction and tax policy principles. Part IV concludes