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Article III and Indian Tribes
Get PDFAmong the most basic principles of our federal courts is that they are courts of limited jurisdiction, exercising only those powers delegated to them in Article III. In 1985 the Supreme Court inexplicably created an exception to this constitutional tenet and unilaterally declared a plenary judicial power to review the exercise of an Indian tribe\u27s inherent sovereign authority. This exception is unmoored from all other Supreme Court precedent outside Indian law and unjustifiably assumes the judicial power in direct contrast to the Court\u27s ordinarily thoughtful jurisprudence on Article III and deference to the separation of powers. This Article concludes that the Supreme Court was wrong in 1985 when it assumed a plenary judicial power over Indian affairs. The consequences are profound and suggest a reconceptualization of the entire field of Indian law. Canon-creating cases like Oliphant, Montana, and Cabazon should never have been decided because the exercise of a tribe\u27s inherent authority does not create a federal question conferring subject-matter jurisdiction on the federal courts. The inherent power of Indian tribes to criminally prosecute or civilly regulate non-Indians in Indian country should not subject them to the judicially imposed limits set by the Supreme Court because the Court lacks subject-matter jurisdiction to decide those cases. Until a treaty or statute creates an affirmative basis for federal court review, an Indian tribe\u27s inherent powers are subject to the checks and balances imposed by tribal government and no others
Answering the Call: How Reconfiguration of the Nation’s Mental Health Crisis Call Line Can Facilitate Reimagination of Community Well-Being and Public Safety
Get PDFWhen the 988 Suicide and Crisis Lifeline went live in Summer 2022, communities across the country began to confront the question of how this new, expanded behavioral health resource would integrate into the country\u27s preexisting, emergency response systems. The program seemed to promise the solution to an increasingly visible problem--as communities demanded changes in how we respond to emergent situations, the national government announced a solution that promised to significantly expand our mental health emergency response system. This sort of shift presents a once-in-a-generation opportunity to implement innovative policy measures that provide meaningful mental health resources to a wide array of people across the country, while at the same time actually responding to the demands of grassroots organizers that have been thinking about the same issues. This Note, using the Lifeline as a central case study, is concerned with the question of what community response in the face of acute behavioral health challenges and severe mental illness can and should look like across the country. This Note advances the argument that, though the Lifeline may present a promising infrastructure, to achieve a person-centered, non-carceral, and high-quality system, police officers must be removed from behavioral health response calls. Beginning with a description of the nation\u27s approach to behavioral health crisis response programs in order to illuminate how we arrived at today\u27s status quo, and then exploring the shifting and expanding role of police officers in the context of behavioral health crises, this Note uses the Lifeline as a case study for how to implement a nationwide behavioral health response system that operates separate from police officers
Firearms Carceralism
Get PDFGun violence is a pressing national concern. And it has been for decades. Throughout nearly all that time, the primary tool lawmakers have deployed to stanch the violence has been the machinery of the criminal law. Increased policing, intrusive surveillance, vigorous prosecution, and punitive penalties are showered on gun offenders. This Article spotlights and specifies this approach--what it calls “firearms carceralism”--and details how a decades-long bipartisan consensus generated a set of state-centered solutions to gun violence that has not meaningfully impacted the problem. Instead, those policies have exacerbated racial inequity and compounded civic and community harms. The Article traces the escalating punitive measures imposed on gun offenders over the past half century. It first peers down into one microcosmic exemplar of firearms carceralism etched into federal mandatory minimum provisions and Supreme Court case law magnifying those penalties. It describes how criminal justice reforms have traditionally excluded those whose offenses are categorized as violent, and specifically and emphatically those who offend with guns by their side. It then draws out promising hints of a path to including gun offenders in efforts to reform or reimagine the criminal legal system. Most fundamentally, however, the Article wages a sustained critique of the system of firearms carceralism that fronts aggressive law enforcement and draconian terms of incarceration. It describes the unjustifiable breadth and depth of these practices and the harmful, racialized, and exclusionary values they simultaneously draw from and reinscribe. Finally, the Article argues in favor of three alternative paths to equitable peace and safety. First, it outlines private sector steps to, for example, dampen illicit firearms supply. Second, it highlights civil legal interventions like red flag laws and tort lawsuits against irresponsible gun sellers. Third, and most prominently, it underscores the promise of community violence intervention and restorative justice programs to bring meaningful safety apart from the carceral tools of coercive control
Corpus Enigmas and Contradictory Linguistics: Tensions Between Empirical Semantic Meaning and Judicial Interpretation
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Reconstruction, and the Unfulfilled Promise of Antitrust
Get PDFWealth inequality remains as wide, and as troubling, as it was a half-century ago. While scholars have offered various explanations, there is a contributor that has escaped serious scrutiny: state monopoly power. It is not just that there is a long history of states and municipalities using their monopoly power to protect dominant interests, from enacting Black Codes to shuttering Chinese laundries to barring women, immigrants, and minorities from certain professions. It is also that states continue to use their monopoly power in ways that entrench inequality, from zoning restrictions to eminent domain to regulations that, in effect, bar Black women from braiding hair, Latino immigrants from operating food trucks, and more. To raise revenue, states even monopolize markets primarily patronized by vulnerable communities. And yet for the most part, antitrust law—concerned only with efficiency and consumer welfare—has ignored state monopolies. In fact, the Supreme Court has ruled that states are immune from antitrust review even though there is nothing in the Sherman Antitrust Act’s text to support this position. This Article takes a different tack. It recovers the Sherman Antitrust Act’s neglected connection to anti-state monopolism, and to the Reconstruction Amendments, to show that righting the wrongs of slavery and the Black Codes—both a type of monopoly, a type of price fixing—was a core motivation for the Sherman Antitrust Act. Far from believing states should be able to use their monopoly power with impunity, the Act’s sponsor and namesake saw antitrust as a way to rein in discriminatory state monopolies. In short, this Article makes the case for bringing Reconstruction to bear on antitrust. Doing so would not only bring antitrust law closer to its original goal of economic opportunity for all. It would also help fulfill the lost promise of Reconstruction. We say this because, given how the courts have weakened the Fourteenth Amendment, enabling antitrust law to scrutinize a state’s discriminatory monopolies would achieve an original purpose of the Reconstruction Amendments
Planning for Pandemic and Epidemic-Related Scarcity of Medicines
Get PDFThis chapter proposes an ex ante approach to tackling drug scarcity. Entities funding pandemic- and epidemic-related research should contractually require recipients to produce sufficient quantities of resulting medicines. The recipient would agree in the event of a future shortage to share its technology and know-how with a qualified third-party manufacturer, in exchange for compensation. Alternatively, funding entities could more broadly utilize dormant licenses, which activate in the event of a pandemic or epidemic, and which require rights holders to license out technology and know-how to alleviate shortages. Such provisions could go even further, integrating reasonable pricing assurances and ensuring access in low-income countries. By tying funding to such rights, governments and nongovernmental organizations could help reduce shortages, improve global access to medicines, and ultimately save lives
