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Keynote: Promoting Disability Equality Behind Bars
No full textA few years back, I finished a five-year appointment as a “settlement monitor” in a state prison system for a civil rights case about deaf and hard-of hearing people incarcerated there. With the consent of the parties, I had been appointed by a federal court to spend time in the state’s prisons, talking to prisoners and staff, and reviewing records and facilities. I saw some obvious problems. I recall one deaf prisoner; he used American Sign Language to communicate and could not speak at all. He was found to have committed a disciplinary infraction at a proceeding where he could not communicate, because he was handcuffed. Or another deaf prisoner who signed, this one illiterate, who sat, incommunicado, at his parole hearing because no interpreter was provided—a state official instead passed him notes he could not read. Most prevalent early in the settlement period was that deaf prisoners were entirely unable to talk to their families because they could not use the prison telephones
Saving Agency Adjudication
No full textWhen discussing the federal judiciary, commentators typically fixate on the 800 or so “Article III” judges who are nominated by the President, confirmed by the Senate, and enjoy life tenure and salary protection. Yet most federal adjudication does not take place in federal courthouses at all. Instead, it occurs in nondescript hearing rooms in administrative agencies—if not telephonically. Indeed, the more than 12,000 agency adjudicators scattered across the federal government collectively issue millions of decisions per year on subjects ranging from Social Security and veterans benefits to immigration and patent rights. In recent years, however, scholars and agency adjudicators have raised alarms that agency adjudication may be reaching a crisis point. Following the Supreme Court’s lead, federal courts have begun holding that how agency adjudicators are appointed and removed violates Article II of the Constitution because these agency officials are not sufficiently subject to the President’s control. Political control, however, threatens the perceived legitimacy of the adjudicatory process. The more entrenched the unitary executive theory becomes, reformers argue, the greater the risk that decisional independence will collapse. Reformers therefore have advanced sweeping proposals to save agency adjudication, including most prominently creating a new “central panel” agency to house agency adjudicators, expanding the Article I courts, or even moving agency adjudication into Article III courts.
This Article examines these proposals to save agency adjudication and explains why none of them will work, at least as a general matter. Each proposed solution ultimately will not solve the problem and could have significant unintended consequences—some potentially catastrophic to the millions of individuals who participate in agency adjudication each year. One purpose of this Article therefore is to save agency adjudication from these well-intentioned but ultimately misguided reforms. But just because these proposals will do more harm than good does not mean that reformers are necessarily wrong to worry about the consequences of Article II for agency adjudication. Instead of fundamentally restructuring agency adjudication, however, we argue that Congress and federal agencies can more creatively use certain independence-enhancing tools that the Constitution itself provides, including prospectively raising the political costs of interference in adjudicatory decisions and adopting self-imposed restrictions on agency-head appointment and removal. Unlike more sweeping and untested proposals, these longstanding tools do not raise constitutional concerns and will not cause systemic disruption. Yet, they should help safeguard decisional independence, thus saving agency adjudication from both Article II challenges and imprudent reforms
The Law of Energy Abundance
No full textFor the first time in decades, electricity demand in the United States is increasing due to the growth of data centers to power artificial intelligence, new manufacturing hubs, and transportation electrification. At the same time, coalfired power plants have been closing in response to competition from lower cost natural gas and renewable energy. Clean energy is being rapidly deployed to replace fossil fuels but not quickly enough to address concerns about demand growth and grid reliability. Accordingly, there is a growing imbalance between electricity supply and demand in many regions of the country that threatens to increase electricity prices and undermine the clean energy transition needed to support an affordable, reliable electric grid in the face of climate-driven increases in severe weather.
The lagging supply of carbon-free energy is not caused primarily by technological or economic constraints, but rather by a set of artificial bottlenecks that are embedded in the current legal and regulatory frameworks governing domestic energy development. In this Article, we examine for the first time how the emerging abundance movement, which focuses on supply-side solutions to scarcity issues throughout the economy, may be well suited to address energy development barriers. Having already helped support a series of pro-housing zoning reforms throughout the country, the abundance movement presents a vision of growth, jobs, and lower prices that can appeal to a broad range of stakeholders and policymakers at a time of high political polarization in the United States.
We propose a theory of clean energy abundance that can combine the strengths of both the burgeoning abundance movement and the longstanding environmental protection movement. In contrast to other abundance thinkers that favor an “all-of-the-above” approach to energy that includes new fossil fuel plants, we believe the urgency of climate change and the benefits of building coalitions with environmental advocates require a different direction. We lay out a “Law of Energy Abundance” focused exclusively on building carbon-free energy and related infrastructure. We assess the current barriers to achieving clean energy abundance as we define it and propose targeted legal reforms that can reduce or eliminate these barriers
Blood Quantum and the Auto-Colonization of the Michigan Anishinaabek
No full textAnishinaabe storyteller Basil Johnston described the chronological path of life in four stages, what he called the four hills of life. The first stage, linked to the East, is infancy and early childhood, a time of preparation and listening. The second stage, linked to the South, is youth, a time of doing things. The third stage, linked to the West, is adulthood, a time of vision. The fourth stage, linked to the North, is Old Age, a time of the fulfillment of the vision and a time of sacred learning and teaching.
The twelve Michigan Anishinaabek tribal nations are in many respects ancient, pre-dating the United States by centuries or more. But the modern incarnations of those ancient tribal nations are only a few decades old. After all, Congress did not adopt and enable tribal self-determination policies until the 1970s. Michigan tribal nations are still in childhood, perhaps still infants. Most Michigan tribal constitutions are documents all but dictated to the tribes by the United States because of a federal law that grants approval power of new tribal constitutions to the Secretary of the Interior. As a consequence of self-determination practices that require tribal governments to meet federal standards, Michigan tribal governments are essentially federal government contractors, spending federal money under federal rules. As a result of being asked to follow federal rules, Michigan tribal governments have heavily borrowed state and federal laws to build their codes. They also borrowed state and federal models to build their justice systems. And the work is ongoing.
Critically, the federal government also coerced most Michigan tribal governments to adopt blood quantum requirements for enrollment, expressly to keep the numbers of tribal citizens to whom the United States owes a duty of protection to a minimum. It worked, to the twisted benefit of the federal government. Contemporary tribal governments do not have to maintain those requirements, but sadly most of the Michigan Anishinaabek and their ogemaag (leaders) have embraced blood quantum, internalizing and even fetishizing blood quantum. The embrace and internalization of a colonizer\u27s political principle like blood quantum is evidence of governmental immaturity, but there is great hope.
This essay surveys the origins and the substance of the blood quantum rules of representative Michigan Anishinaabe tribal nations. The essay then compares the modern rules to traditional Anishinaabe notions of belonging and citizenship, which are rooted in the core principles of Mino-Bimaadiziwin and the Nizhwaaswi Mishomis/Nokomis Kinoomaagewinawaan. The final part of this essay includes suggestions for moving forward, focusing on the possibility of tribal nations resetting their internal blood quantum determinations and on a recent Anishinaabe tribal court decision on enrollment matters
La Ignorancia Es Atrevida: \u3cem\u3eHernandez v. New York\u3c/em\u3e and the Mistaken Exclusion of Bilingual Jurors
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Winter 2025 - Free & Low-Cost Legal Research Resources
Full text linkThis workshop will discuss how to develop legal research strategies using a mix of subscription resources and free/low-cost alternatives. Fastcase is available for free through state bar associations for licensed attorneys, so knowing how to use it will make you a well-rounded legal researcher. This workshop will cover how researchers in many different contexts can access accurate and reliable legal information. What is available on each platform? Can you conduct research effectively using only free resources? This and more will be covered.
Resources covered: Lexis, Westlaw, Bloomberg, Fastcase, Google Scholar, and more!https://repository.law.umich.edu/legaltechseries/1006/thumbnail.jp
The Imposition of Constitutional Rights
Full text linkOne of the central principles of constitutionalism is that citizenship stands for equal rights under the law. According to this ideal, a U.S. citizen living in Puerto Rico or Guam should have the same constitutional rights as a citizen living on the mainland. However, throughout U.S. history, constitutional rights have been neither uniform nor centralized. While constitutional rights held importance, they coexisted with ideals of democratic self-governance and legal pluralism. Today, Supreme Court justices and legal scholars argue that all constitutional rights should apply in the territories. This view upholds citizenship, equal rights, and the rule of law. But the imposition of constitutional rights overshadows more critical discussions about democracy, pluralism, and decolonization in U.S. territories.
This Article critiques the imposition of constitutional rights in the American empire. It explores the historical and intellectual links between how the Supreme Court extended federal constitutional rights in the states and territories. The extension of constitutional rights was influenced by slavery and territorial expansion, culminating in two doctrines: the doctrine of selective incorporation (for states) and the doctrine of territorial incorporation (for territories). Through these doctrines, the Supreme Court decided to extend to the states and territories only those rights deemed “fundamental,” excluding “methods of procedure,” such as jury rights. Initially, the Supreme Court’s interpretation of fundamental rights aligned with democracy and legal pluralism. However, during the twentieth century, the Supreme Court incorporated nearly all of the Bill of Rights against the states. This raises the question: Would the same “fundamental rights” apply in U.S. territories? Federal courts and legal scholars have yet to provide a normative answer to the questions of which rights should be incorporated in U.S. territories and what, if anything, justifies a different system of rights in the states and territories.
This Article proposes a solution by emphasizing three normative values: democratic self-governance, pluralism, and decolonization. If we genuinely prioritize self-rule, the people living in the territories should determine for themselves whether and how constitutional rights apply there. By reevaluating the over-looked similarities with Native nations, this Article argues that democratic pluralism for colonized peoples is constitutional in the territories. This normative approach can take various institutional forms to resist judicial imposition: legislative override, legislative resistance, legislative avoidance, judicial resistance, and judicial avoidance. Through this normative approach, we can reappraise local debates and bills concerning unanimous jury trials, free speech, campaign financing, and gun control, among other issues. Thus, by theorizing from the territories, we can conceive new ways to reconcile constitutional rights with democracy, pluralism, and decolonization
The Puzzle of Biologics Manufacturing Platform Patents
No full textThe predominance of manufacturing process patents asserted in litigation by originator biologics companies against would-be biosimilar entrants has resulted in a number of Congressional and administrative agency proposals that could increase scrutiny and limit enforceability
