Scholarship

Erwin Chemerinsky on Michigan’s Prop 2

Matthew L.M. Fletcher

Erwin Chemerinsky’s talk about direct democracy and Prop 2 (with the Orwellian name “Civil Rights Initiative”) has been published in our own Michigan State Law Review. The talk is called “Challenging Direct Democracy.”

Here’s the introduction:

The Civil Rights Initiative in Michigan was adopted the day before this symposium on direct democracy was held at Michigan State University College of Law.

Let there be no doubt of its effects: it’s going to be a devastating event for individuals of color throughout Michigan. I can back this up by the experience of California, after a similar initiative, also championed by Ward Connerly, was passed there in 1996. Statistics are available about the effect on admissions at the University of California Law Schools in the five years immediately after the passage of what was called their Proposition 209. The percentage of minority students at state law schools, like UCLA and Boalt, is a fraction of what it was at comparable private schools like Stanford and U.S.C. The same effects have been seen in government contracting and employment.

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Ellen Kohler on Water Management in Michigan

Matthew L.M. Fletcher

Ellen Kohler has published “Ripples in the water: judicial, executive, and legislative developments impacting water management in Michigan” as the lead article in Volume 53 of the Wayne Law Review.

Here is the introduction to this interesting paper:

Michigan is defined by water. The two peninsulas touch four of the five Great Lakes, creating 3,300 miles of Great Lakes shoreline. We enjoy 35,000 inland lakes and ponds, and 34,000 miles of rivers. Michiganders are very aware of our surface waters-we swim, fish, and boat in them. We see them on our maps of the state.

The water underground is more of an afterthought. Most of us don’t know how far underground the water is, where it is, or how it moves. Yet, groundwater is essential for our public health, safety, and welfare.

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Empirical Research on Tribal Courts and Customary Law Posted on SSRN

Matthew L.M. Fletcher

My working paper, “Tribal Courts, the Indian Civil Rights Act, and Customary Law: Preliminary Data,” has been posted on SSRN. Chi-miigwetch to Alicia Ivory for all her hard work in helping with the research (you can see her contributions in the lengthy appendices at the end of the paper).

Here’s the abstract:

This study is an attempt to assess the validity of my theory that tribal courts do not apply “unusually difficult” laws in cases involving nonmembers. I theorized that in most cases (if not the vast, overwhelming majority), tribal courts apply a kind of “intertribal common law,” which consists of the application of tribal statutes that mirror federal and state statutes and the federal and state cases that interpret them.

Of the 120 cases involving an ICRA issue, tribal court judges applied federal and state case law as persuasive (and often controlling law) in 114 cases (95 percent). And, of the six cases in which the tribal court explicitly refused to apply federal or state case law, either the parties involved tribal members in a domestic dispute or else the tribal court held that its interpretation of the substantive provisions of ICRA were stronger or more protective of individual rights than would otherwise be available in parallel federal or state cases.

Goldsmith on the Agua Caliente State Election Case

Matthew L.M. Fletcher

Gary Goldsmith has published “Big Spenders in State Elections–Has Financial Participation by Indian Tribes Defined the Limits of Tribal Sovereign Immunity From Suit” in the William Mitchell Law Review.

From the introduction:

In every election cycle, Indian tribes vigorously attempt to influence such critical matters of state governance as to who will be the state’s governor, who will be elected to the state’s legislative bodies, and what will be the provisions of the state’s constitution. These incursions into the realm of state governance have renewed questions about the sovereignty of Indian tribes in relation to the states’ sovereignty.
In order to understand those conflicting rights, this article will review the historical roots of legal doctrine regarding the position of Indian tribes with respect to the United States government and each state’s government. It will then trace significant doctrinal changes that arose as the result of changing political and cultural attitudes toward Indians. Finally, it will address new theories raised in Agua Caliente v. California FPPC and will comment on the California Supreme Court’s resolution of the constitutional issues and the parties’ eventual Stipulation for Judgment in that matter.

Fenner on Indian Country in Cyber Space

Matthew L.M. Fletcher

Ben Fenner of Fredericks Peebles & Morgan, LLP has published “Indian Country in Cyber Space: Bella Hess and Commerce Clause Constraints on Interstate, Mail Order Transactions” in the Albany Law Review.

From the introduction:

When political processes fail, the rule of law prevails or people rise to power. When the political process fails between tribes and the United States, defined as it is by federal statutes and case law, there is no rule of law and, therefore, leaders emerge. So it is that the panoply of tribal leaders is vast and ranges from ordinary men and women in seemingly mundane circumstances to warriors and negotiators who are household names.

***

The ability of the government to justify the annihilation of whole cultures was, and is today, driven by a perceived lack of resources (a euphemism for greed). And no resource is as scarce today, it seems, as money; few areas of federal Indian law are as contentious as states’ ability to tax and regulate tribal activity. While tribal immunity from state taxation is well-settled, what of state ability to tax Internet transactions originating on reservations? Part II of this Article is an overview of preemption in federal Indian law. Part III looks specifically to taxation and regulation of mail-order transactions. Part IV concludes that tribes may structure online transactions fulfilled on-reservation to preclude state taxation.

Miller and Ruru: A Comparative View of the Doctrine of Discovery

Matthew L.M. Fletcher

Bob Miller and Jacinta Ruru have posted “An Indigenous Lens into Comparative Law: The Doctrine of Discovery in the United States and New Zealand” on SSRN.

From the abstract:

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Wildenthal on Donovan v. Coeur d’Alene Tribal Farm — MSU Law Review

Matthew L.M. Fletcher

Bryan Wildenthal has posted “How a Ninth Circuit Panel Opinion Overruled a Century of Supreme Court Indian Law Jurisprudence — And Has So Far Gotten Away With It” on SSRN. This paper is part of the Michigan State Law Review’s symposium on federal labor law and tribal sovereignty.

Here’s the abstract:

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Kevin Washburn testimony re: New Guidance on Off-Rez Gaming Lands Acquisitions

Matthew L.M. Fletcher

Kevin Washburn has posted on SSRN his testimony for tomorrow’s hearing before the House Resources Committee on the new guidance for the acquisition of off-reservation trust lands for gaming purposes.

Eric Biber (Boalt) on the Dysfunctions of Multiple-Goal Agencies

Matthew L.M. Fletcher

Friend of the blog Eric Biber has posted “Too Many Things to Do: How to Deal with the Dysfunctions of Multiple-Goal Agencies” on SSRN. Here’s the abstract:

All federal agencies must cope with the challenges of trying to achieve success on the multiple goals laid out for them by Congress, the President, or the public-at-large, with varying degrees of success. Recent economics and political science literature has laid out a theoretical framework that helps us understand why agencies might succeed in achieving some goals and fail in achieving other goals: Agencies will systematically underperform on goals that are hard to measure and that conflict with the achievement of other more measurable goals. The lack of information about these hard-to-measure goals means that there will be fewer rewards to agencies for any success on those goals. While agencies in theory might be able to overcome this lack of information problem through technological and organizational innovation (where feasible), in many cases agency missions, historical inertia, and the professional orientation of agency staff will interfere with innovation, as shown by a case study of the U.S. Forest Service. Having diagnosed the source of the problem, the paper then examines various options that principals (such as Congress) might have to address it.

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Singer (Harvard) on “Normative Methods for Lawyers”

Matthew L.M. Fletcher

Joe Singer has posted “Normative Methods for Lawyers” on SSRN.

From the abstract:

How can we defend arguments about what the law should be based on considerations of morality, justice, fairness, liberty, rights, or human values? Are such arguments anything more than assertions of personal preferences? In this article, I argue that normative arguments are crucial for the rule of law and that both lawyers (and law students) need to know how to make and defend claims of morality and justice. In recent years, cost/benefit and efficiency analysis appear to have taken over most legal scholarship and many law school classroom discussions. Such analysis suggests that the sole goal of the legal system should be to maximize human welfare and that we can best accomplish this goal by deferring to individual preferences, whatever they happen to be, valuing the relative strength of those preferences by reference to market values, and then choosing results whose social benefits outweigh their social costs. In contrast, I argue that such analysis is wholly without any normative weight unless it occurs within a framework of institutions, laws, and practices that are consistent with minimum standards for social and economic relationships in a free and democratic society. Normative arguments are designed to define that legitimate framework. Moreover, such arguments are not merely expressions of personal preference but are evaluative assertions and moral demands we are entitled to make of each other. Moral and political theory provide resources to help lawyers make evaluative assertions about human values that the legal system should respect. At the same time, lawyers possess substantial expertise in analyzing, shaping, and defending normative claims and the methods used by lawyers should be of interest to moral and political theorists.

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