Law Commons^™

Innovative Sovereignty: California Tribes' Use Of The Nonprofit Corporation, Stephen F. Diamond, Jennifer W. Kuan

South Dakota Law Review

Native American tribes have long sought, but not always received, federal recognition as sovereign Indian Nations. Recognition confers substantial financial and legal benefits including access to federally funded health services, education and housing. Sovereign status allows tribes to pursue business activity. Tribal sovereignty, however, has significant limitations. The recognition process is costly, time-consuming, highly politicized, and often uncertain. Federal law enforcement and health services that should follow recognition are chronically underfunded. We examine the efforts of Indian tribes in California’s Monterey County to use the nonprofit corporation form to establish clear property rights to land. We interview key participants and …

Increasing Access To Justice Through The Use Of Indigenous Restorative Justice And Trauma Informed Practices, Carrie E. Garrow, Danielle J. Mayberry, Micaelee Horn

South Dakota Law Review

Tribal judiciaries are paramount to tribal sovereignty and accessed by court users for many purposes. Access to justice ensures that everyone should be able to understand and assert their rights in a fair tribal justice system. This can be a challenge for rural areas, but even more so in Indian Country due to the complex web of factors such as legal and jurisdictional complexities, the colonization of Indian Nations by federal and state governments, and resource restraints. Due to these barriers and as an effort to serve their communities, tribal justice systems develop mechanisms that are solution based and at …

Under-Enforcement Of Tribal Land Use Regulations, Ezra Rosser

South Dakota Law Review

This brief Article explores the advantages and disadvantages of the under-enforcement of land use regulations by the Navajo Nation. Though scholarship on economic development, including tribal economic development, tends to emphasize the importance of well-defined and predictable rules, homeowners and entrepreneurs seeking land use permissions confront an environment on the reservation marked by under-enforcement. As this Article shows, the limited resources available to many tribal members help explain the tribe’s decision to selectively under-enforce otherwise required land use permitting processes. The purpose of this Article is to neither praise nor condemn an under-enforcement strategy, but instead to provide a framework …

Pretrial Justice In Indian Country And Bordertowns-Including Rural Tribal Communities In The Bail Reform Conversation, Jordan Gross

South Dakota Law Review

Pretrial detention rates in the United States are down, except in rural counties. Indigenous people are both over-represented and under-protected in settler-colonial criminal justice systems. Yet the criminal justice needs and experiences of rural and Indigenous people are largely overlooked in criminal justice reform research and discourse. I examined the role of rurality in bail administration in Pretrial Justice in Out-of-the-Way Places – Including Rural Communities in the Bail Reform Conversation. There I explained how bail reform measures centered on urban and suburban needs and demographics fail to address pretrial justice challenges and opportunities unique to rural communities. This Article …

Freedom Of Tribal Association, Andrea Nishi

South Dakota Law Review

In Morton v. Mancari, the Supreme Court upheld a statute granting hiring preference to Indian candidates on the grounds that it did so not on the basis of race but on the basis of affiliation with a tribe as a political entity. As the Court recognized, if such a law were struck down on equal protection grounds, the basis for all federal policy protecting Indian interests would be undermined. In Mancari, this reasoning was used to uphold a law that benefitted Indian candidates pursuant to the federal government’s recognized trust responsibility to Indian tribes. The logic of Mancari has since …

Artificial Intelligence, Tribal Sovereignty, And The Criminal Justice System, Kevin Angelo Brown

South Dakota Law Review

As artificial intelligence (“AI”) has become increasingly integrated into everyday life in Indian Country and into governmental functions, including policing, courts, and corrections, it is creating new circumstances that can undermine tribal sovereignty. The 575 federally recognized Tribal Nations are under significant pressure to maintain their sovereignty while adapting to new AI-based technologies. With the implementation of AI, tribes should retain control over how it is used to benefit their communities, without compromising their legal rights or well-being, particularly in light of past harms caused by inadequate legal protections that allowed technological developments to damage tribal health, environments, economies, and …

The Tribal Wills At Usd's Knudson School Of Law: A Study In Mutuality, Nimbleness, And Persistence, Thomas E. Simmons

South Dakota Law Review

No abstract provided.

Dividend Distribution Tax: More Than Meets The Eye - A Critical Analysis Of Polycab India Ltd. V. Assistant Commissioner Of Income-Tax, Ashrita Prasad Kotha

Articles

The case emanates from the dividend distribution tax (DDT) paid by Polycab on shares held by International Finance Corporation (IFC), one of its shareholders. IFC was set up by an international agreement to support the private sector in developing countries and was granted tax immunity on its income and transactions under the founding multilateral treaty and supporting domestic law. Polycab sought refund of DDT owing to IFC's immunity. The Income Tax Appellate Tribunal (ITAT) ruled in favour of Polycab by considering dividend distribution within the immunity clause and reading in an exemption into the income tax legislation. Significantly, the DDT …

Omnibus Law Sebagai Strategi Mengatasi Disharmonisasi Peraturan Di Indonesia, Tuti Tri Hastuti S., Zainal Arifin Hoessein

Jurnal Hukum & Pembangunan

This article discusses the challenges in implementing the Omnibus Law (OL) both as a regulatory system and as a tool for harmonizing regulations within Indonesia’s legal positivist tradition and its complex, non-simple regulatory hierarchy, from the perspectives of legislative consolidation theory, regulatory coherence theory, and multilevel regulation theory. This study is based on the assumption that OL, within the framework of legal positivism (norm hierarchy system), faces problems in applying these three theories. The research employs normative juridical and comparative methods, analyzing national regulations and international research findings. The results indicate, first, that the positioning of OL, which does not …

The Ambitions Of History And Tradition In And Beyond The Second Amendment, Joseph Blocher, Reva B. Siegel

Faculty Scholarship

This Article examines the ambitions of history-and-tradition review in and beyond the Second Amendment. In Bruen and Rahimi, the Roberts Court rejected means-end review in favor of a historical-analogical approach, claiming to constrain the exercise of judicial discretion and thus to promote the democratic decisions of the founders. But our examination of these cases shows that the Court has created new opportunities for judges to advance their values in considerably less transparent ways. We identify contexts in which Second Amendment doctrine enables judicial discretion, key among them that it allows judges to reason about gun rights and regulation at disparate …

Rethinking The Fund Termination Sanction, Samuel R. Bagenstos

Articles

Title VI of the Civil Rights Act of 1964 is often referred to as the “sleeping giant” of civil rights law. It is a “giant” because it prohibits any form of race discrimination engaged in by any recipient of federal financial assistance, and because the remedy set forth in the statute for a violation is the termination of federal funds. And it is “sleeping” because, except for a brief moment during the desegregation era, the federal government had never seriously attempted to terminate a recipient’s federal grants for a violation of the statute. Nor had the federal government seriously attempted …

What's The Point Of Reparation?, Daniel Fryer

Articles

Despite its ancient history in philosophical and legal thought, importance to progressive social movements, and relative simplicity as a notion of fairness—if you break something, you ought to fix it—reparative justice is largely misunderstood. This is problematic given increasing calls for reparation from historically disadvantaged groups. Rather than assessing the validity of these claims, this Article addresses a fundamentally antecedent issue: what’s the point of reparation? Rejecting arguments that claim reparation is about compensation, supplementing distributive justice, and reconciliation, I argue that the point of reparation is to repair unjust social relations created by past wrongdoing. The relational theory of …

From Relic To Relevance, The Resurgence Of Tariffs, Reuven S. Avi-Yonah

Articles

Modern legal scholarship has largely relegated tariffs to economic analysis, overlooking their legal and policy significance. This Article challenges that view by examining tariffs as a potential pillar of fiscal policy, exploring their viability as a revenue source alongside or in place of traditional income and corporate taxation. While historically central to U.S. government funding, tariffs’ importance diminished with the rise of income taxation and trade liberalization. However, their recent resurgence as a tool for trade protection raises broader questions about their role in national economic strategy.

This Article critically assesses the feasibility of a tariff-based tax system, drawing on …

Romanist-Bourgeois Property And The Development Of The Modern Capitalist World System, Anna Di Robilant

Faculty Scholarship

This article examines the role of Romanist-bourgeois property law in the development of the modern capitalist world system, focusing on how nineteenth-century jurists deliberately crafted and adapted Roman law-based property doctrines to address the evolving social relations of production in both Europe and its peripheries. Rather than viewing legal concepts as merely reflective of broader economic transformations, the author highlights the active role played by a professional class of jurists in shaping property law to legitimize and structure emergent capitalist class dynamics. The article critically engages with competing scholarly perspectives that either privilege market expansion or downplay class relations, arguing …

Universities, Capital, And Democratic Vulnerability, Steven Dean, Dana Brakman Reiser

Faculty Scholarship

For many, the university serves as a crucial guardian of democracy. Still, the capitulation of leading American private universities to authoritarian pressure from the Trump Administration should not be terribly surprising. This Essay offers one reason why. It does so by focusing on the law governing private nonprofit universities. It examines both the origins and the impact of a fundamental tension between their charitable missions and their need for capital. It shows how the legal framework designed to protect these nonprofit universities from market pressures can actually intensify their vulnerability.

The so-called “nondistribution constraint” stands at the core of U.S. …

The Innocence Trap, Caitlin Glass, Julian Green

Faculty Scholarship

What makes a conviction wrongful? Developments in DNA science have led to a wave of exonerations over the past thirty years, revealing sources of error in the criminal legal process. Innocence organizations proliferated to represent people whose convictions could be overturned by newly discovered evidence. This is vital work for the individuals who are released and for the purpose of systemic change. At the same time, a focus on exonerations constructs a relatively narrow conception of wrongful convictions -- one that is synonymous with factual innocence.

Memory Warriors, Pluralists, And Abnegators In Constitutional Interpretation: An Essay On Jack Balkin's Pluralist Originalism In Memory And Authority, Jed Handelsman Shugerman, Zachary Shugerman Handelsman

Faculty Scholarship

Jack Balkin’s Memory and Authority: The Uses of History in Constitutional Interpretation brings into conversation the scholarly insights of constitutional theory, history, and the growing field of “the politics of memory,” especially the concept of the “memory entrepreneur.”

Balkin appropriately connects the memory wars in American constitutional law back to Eastern

European memory wars during the World Wars and their aftermath. Prompted by Balkin, we turn to Jan Kubik and Michael Bernhard edited volume Twenty Years After Communism (2014), which has become even more widely influential after Putin’s invasion of Ukraine and a new round of Eastern European memory wars. …

The Impact Of Substance Abuse Problems And Serious Mental Illness/Serious Emotional Distress On Post-Discharge Residential Status Among Clients With Behavioral And Cognitive Disorders: Evidence From Samhsa Mh-Cld Data, Eden Moges, Norma Rochez, William Peycha, Aditya Chakraborty

Epidemiology, Biostatistics, & Environmental Health Faculty Publications

BACKGROUND: Behavioral and cognitive disorders can undermine housing stability, a key determinant of mental health recovery, with persistent disparities across demographic and socioeconomic groups. This study examined the associations of substance abuse problems (SAP) and serious mental illness/serious emotional distress (SMISED) with residential status at discharge from mental health facilities.

METHODS: This cross-sectional study used the utilized data from the Substance Abuse and Mental Health Services Administration (SAMHSA). Descriptive statistics were used to summarize demographic characteristics, whereas univariate and multivariable logistic regression models were employed to assess associations between the covariates and the residential outcome, adjusting for a variety of …

When The Internet Attacks, Craig Cowie

Cardozo Law Review

Courts have struggled with applying personal jurisdiction in cases involving intentional torts where the defendants act outside the forum, and the problem is particularly apparent and acute when the defendants use the internet to commit the tort. For example, is there jurisdiction when a defendant doxxes someone and calls for violence? What if they leave a bad Yelp review? Or tweet a defamatory statement? Courts have used many tests for determining whether personal jurisdiction is appropriate in these situations, but there has been relatively little recent scholarship on whether these tests are appropriate for analyzing personal jurisdiction in these contexts. …

Much Ado About Misjoinder: An Alternative To Fraudulent Misjoinder To Preserve Defendants’ Right To Removal In Pharmaceutical And Medical Device Products Liability Cases, Alexander Flaum

Cardozo Law Review

Unresolved questions surrounding the contours of the fraudulent misjoinder doctrine have understandably led to reluctance by courts to adopt it, despite its utility in protecting defendants’ access to federal court. This is particularly troubling in the context of pharmaceutical and medical device products liability cases. It is common in these actions for plaintiffs, whose only connection is having consumed a particular pharmaceutical product at different points in time and for different durations, to strategically join in one action to defeat complete diversity and prevent removal to federal court. However, federal courts are not powerless to prevent such procedural gamesmanship. By …

The Permanent Bar(S): The Unprincipled Cage Of Retribution For Immigrant Youth, Dianara Ramirez Ibarra

Cardozo Law Review

This Note argues that a minor’s diminished decisional capacity should be recognized as an affirmative defense when a permanent bar that is triggered during minority strips away a noncitizen’s opportunity to gain lawful status in the United States. Dreamers and Deferred Action for Childhood Arrivals (DACA) recipients, individuals who arrived in the United States as children, are victims of punitive immigration laws that have extinguished any possibility of securing lawful residency in the United States. Even more egregiously, Dreamers and DACA recipients are subject to these permanent bars despite lacking the intent and capacity to fully understand the long-term consequences …

Brain–Computer Interfaces: Opportunities And Challenges, Stephanie Plamondon

Faculty Scholarship

Neurotechnology has entered a period of transformation. Brain–computer interface devices that collect and sometimes influence brain activity, while once confined mainly to research and clinical spheres, are now being marketed to individual and institutional consumers for a range of uses. At the same time, AIdriven data analysis systems are rendering brain activity increasingly comprehensible to machines and humans, presenting the potential for new and improved applications of neurotechnology but also raising privacy concerns. At this exciting juncture, thoughtful attention to the ethical issues surrounding neurotechnology and considered and coordinated policy approaches are warranted to ensure the neurotechnology industry reaches its …

It’S (Not All) Personal: Civil Litigation And The Values Of Rights Of Action, Hanoch Dagan, Avihay Dorfman, Issi Rosen-Zvi

American University Law Review

Existing approaches to civil litigation, both regarding its theoretical underpinnings and its practical instantiations, take diametrically opposing perspectives on the value of personal rights of action. Some view them as inviolable and thus vehemently oppose any mandatory arbitration clauses and treat class actions as presumptively dubious. Others have no principled objection to either, as they perceive personal rights of action as mere technologies that are painlessly dispensable if the substantive values underlying the claim at hand can be realized more effectively through a more efficient mechanism.

In this Article, we reject both of these ‘all or nothing’ approaches and offer …

Enfranchising Fluoride: A Case For Democratic Decision-Making In What We Drink, Samuel N. Dick, R. Chase Bailey

Wyoming Law Review

For years, the addition of fluoride in drinking water has been hailed as a powerful agent for dental health. But the closer you look, the more cracks appear—making the truth that much harder to swallow.

This Article is the first to look objectively at the benefits and risks of water fluoridation following Food & Water Watch, Inc. v. EPA. Notably, the court there held that fluoride poses an unreasonable risk to human health, marking a striking departure from those who, as recently as 2024, have continued to herald water fluoridation as one of the greatest public health interventions of …

The Networked City: City Climate Change Networks And U.S. Climate Governance, Caroline G. Cox

American University Law Review

City climate change networks complicate common narratives about the local role in environmental and climate change governance in the United States. These networks—organizations with three or more member cities or representative city staff that share information and resources—are crucial actors in supporting the increasing interest in local climate change mitigation. Building upon prior scholarship addressing mayor-led networks and municipal collaborations, this Article considers how city climate networks challenge notions of local parochialism and rebut some critiques of local climate action. The Article also evaluates the growing importance of these networks in light of changes in federal climate policy, including the …

Restorative Restitution, Lula A. Hagos

American University Law Review

How to best meet the needs of crime victims while also furthering the imperative of decarceration has long vexed advocates and scholars alike. This dilemma comes into sharp focus when one examines two developments in criminal procedure that, until now, have been analyzed separately: victim restitution and restorative justice.

Criminal restitution, the monetary payments ordered from defendants to victims, often fails both groups. Because most defendants are indigent, restitution obligations lengthen defendants’ involvement with the criminal legal system without delivering meaningful compensation to victims, making restitution more symbolic than restorative. At the same time, interest in restorative justice has surged …

Playing It Safe Or Playing Favorites? Miller Act Bonds And The Cost Of Exclusion Of Women- And Minority Owned Businesses, Fernando Mendoza López

American University Law Review

As federal contracting policy has moved away from race- and gender-conscious contracting initiatives, the need to identify and remove facially neutral requirements that create disparate impacts has assumed heightened significance in shaping access to government contracting law. In construction projects, the federal government has long required contractors to purchase surety bonds under the Miller Act to protect subcontractors and the government in cases of prime contractor default. While that original purpose remains valid today, bonding requirements are widely believed to unnecessarily limit participation by women- and minority-owned businesses.

Federal, state, and local governments have tacitly accepted the claim that bonding …

“Necessary” Jurisdiction: Veterans’ Rights In Article Iii Courts, Dana Montalto

American University Law Review

U.S. veterans should possess the same access to courts as other Americans, but a misreading of a federal law has led many veterans to be denied an opportunity to assert their civil rights in any judicial forum. That law—38 U.S.C. § 511—grants exclusive jurisdiction over certain federal veterans benefits appeals to a specialized Article I court, the Court of Appeals for Veterans Claims. But federal judges and Department of Veterans Affairs leaders have mistakenly interpreted that grant of exclusive jurisdiction to also close the door to Article III courts, leading veterans’ meritorious claims of systemic discrimination and injustice to be …

Ticking Toward Reform: Rethinking The Material Difference Exception In The Luxury Watch Resale Market And Beyond, Mallory K. Hogan

American University Law Review

The rapid growth of the luxury resale market has heightened tension between trademark holders and secondary-market sellers. Courts are increasingly left to apply the material difference exception to first sale doctrine defenses, to find trademark infringement when resold goods differ from the original product, even in de minimis ways. Originally designed to protect consumers from confusion where post-sale modifications affected product quality or safety, the exception has evolved into a broad enforcement tool that luxury brands leverage to challenge resellers over minor or cosmetic alterations. In the luxury watch and accessories markets in particular, courts have deemed even minimal differences …

Antidiscrimination Law Against Labor, Jordan Laris Cohen

American University Law Review

In recent years, employer compliance with antidiscrimination law has emerged as a major justification for limiting the rights of employees to organize and engage in collective action in the workplace. In IBM Corp., a Republican majority of the National Labor Relations Board cited “laws addressing workplace discrimination and sexual harassment” as a primary reason to deny nonunionized employees the right to a coworker representative during investigatory interviews. In General Motors, a Republican Board majority invoked antidiscrimination law in upending four decades of precedent regarding employer discipline of employees engaged in “opprobrious conduct” in the course of protected organizing …