Green Bag

Green Bag Highlights Two Key Indian Law Opinions in 2009’s Exemplary Writing

Matthew L.M. Fletcher

Here is the Green Bag’s announcement, which includes Judge Kozinski’s dissent in United States v. Cruz, and Justice Souter’s concurrence in United States v. Navajo Nation.

We’ve highlighted Judge Kozinski’s dissent in the context of the interesting question about whether a jury (of usually entirely non-Indians, see Dean Washburn’s scholarship) can really make a determination using a series of common law factors that someone is an Indian beyond a reasonable doubt. Most Indians have doubts about other Indians all the time. In Cruz, the court held that an Indian with 22 percent Indian blood was not an Indian. A short time later, in another case we highlighted — United States v. Stymiest, the court held that an Indian with less Indian blood than Cruz was an Indian.

The inclusion of Justice Souter’s concurrence seems to be a but pithy on the part of the Green Bag selection committee. Here it is, in the entirety:

I am not through regretting that my position in United States v. Navajo Nation, 537 U. S. 488, 514–521 (2003) (dissenting opinion), did not carry the day. But it did not, and I agree that the precedent of that case calls for the result reached here. Continue reading →

Erwin Chemerinsky’s Review of the 2008 Supreme Court Term

Matthew L.M. Fletcher

Here, published in the Green Bag.

An excerpt:

CTOBER TERM 2008 LACKED the blockbuster decisions
of the prior Term, in which the Court ruled that the
Second Amendment protects a right of individuals to
possess firearms apart from militia service,1 held a key
portion of the Military Commissions Act of 2006 to be an unconstitutional
suspension of the writ of habeas corpus,2 and concluded
that the death penalty for child rape is cruel and unusual punishment.
3 But the recently completed Term contained an exceptionally
large number of decisions that changed the law in areas that affect
lawyers and judges in their daily work. Strikingly, practically all of
these rulings – in areas such as the federal-court pleading standards
in civil cases, the scope of the exclusionary rule, and the protections
from employment discrimination – moved the law in a more conservative
direction.
There is an easy explanation

OCTOBER TERM 2008 LACKED the blockbuster decisions of the prior Term, in which the Court ruled that the Second Amendment protects a right of individuals to possess firearms apart from militia service, held a key portion of the Military Commissions Act of 2006 to be an unconstitutional suspension of the writ of habeas corpus, and concluded that the death penalty for child rape is cruel and unusual punishment. But the recently completed Term contained an exceptionally large number of decisions that changed the law in areas that affect lawyers and judges in their daily work. Strikingly, practically all of these rulings – in areas such as the federal-court pleading standards in civil cases, the scope of the exclusionary rule, and the protections from employment discrimination – moved the law in a more conservative direction.