Seth Davis

There is no nondelegation doctrine for Native nations, nor should there be one even if the Supreme Court revives the nondelegation doctrine for federal agencies and private parties. The Court has never struck down a statute on the ground that it delegated legislative power to a Native nation. Instead, it has held that Congress may recognize the sovereignty of Native nations and that their independent authority sustains statutes that rely upon Native governments to implement policy goals that they share with the United States. Continue reading →

Gregory Ablavsky

In Haaland v. Brackeen, the Supreme Court returned to the foundational question of federal authority over relations between the United States and Native nations, long known as “Indian affairs.” The decision reaffirmed well-established precedent affirming broad federal authority in the area, but it also underscored ongoing disagreement, as Justices Gorsuch and Thomas offered lengthy and dueling investigations of the original understanding.

This Essay explores one aspect of that history: the original meaning of “commerce” in the Indian Commerce Clause. Nearly a decade ago, I wrote an article that sought, as its title indicated, to move “beyond the Indian Commerce Clause.” The Clause, I argued, was only one small component in how the early American political elite understood federal authority in this area. Continue reading →

Andrew Jordan

Many contract theorists argue that contracts are promises. This view is appealing because it can justify the institution of contract law—contract law allows parties to vindicate their promissory rights. But contract-as-promise advocates have seriously misunderstood how promises work. They assume a cartoon version of promises, one that is overly abstract, individualistic, and is singularly fixated on the obligation to do what one promised. Continue reading →

Brad Baranowski

A deluge is coming. The Supreme Court’s two most recent personal jurisdiction cases—Ford Motor Co. v. Montana Eighth Judicial District and Mallory v. Norfolk Southern Railroad—have thrown this area of law into even more flux than before. Because of these cases’ heavy emphasis on the fact-intensive nature of personal jurisdiction law, plaintiffs facing down motions to dismiss based on Federal Rule of Civil Procedure 12(b)(2) are going to start asking an obvious question: If the Supreme Court thinks facts are so important to personal jurisdiction, then should I try to get access to more facts? The result will be more requests to conduct jurisdictional discovery, and more courts having to figure out how to decide those requests. Continue reading →

Lauren Rogal

Neighborhood organizations often advocate for land use policies and decisions that curtail development and entry into the neighborhood. This “not in my backyard” (NIMBY) disposition echoes a long history of exclusionary activity by these organizations and reflects a broader tendency to operate in furtherance of property values and other private interests. Due to substantive and procedural deficiencies in federal tax policy, these organizations often operate as 501(c)(3) tax-exempt charities, a status rightly reserved for organizations that generate broad public benefits. This Article argues for the adoption of clear substantive and procedural rules that restrict charitable status to organizations that either provide tangible benefits to the general public or target their benefits to a materially distressed community. Continue reading →

Elizabeth Lee Thompson

We should be wary of reforms that are attractive in terms of saving time but have unnoticed substantive effects. . . . The great end for which courts are created is not efficiency. It is justice.

Charles Alan Wright (1966)

Some of the most significant—and by some estimations the most controversial— transformations of the federal appellate system occurred in the late 1960s and 1970s. Many of the effects are still felt today, including the shift from oral argument for all appeals and the view that study and disposition of each appeal were exclusively judicial tasks, to the adoption of a tiered appellate system where the great majority of appeals receive no oral argument and instead receive summary disposition often involving staff attorneys. These transformative internal efficiency procedures have been the subject of intense debate. Proponents have praised their efficiency and ability to avoid a backlog while critics complain that the procedures created a bureaucratic appellate process—rather than one focused on justice—and instituted an inequitable multi-tiered process that particularly disadvantages novice and unrepresented litigants. Continue reading →

Manoj Mate

Proponents of fair districting reforms continue to face challenges in seeking to address the problem of partisan gerrymandering. Even in states that have successfully enacted redistricting reforms, state actors have been able to evade compliance, and state courts have been unable to guarantee fair districts. In addition, the Supreme Court’s decision in Moore v. Harper could also limit state court efforts to guarantee fair districts. This Article argues that state evasion and Moore threaten to undermine the efficacy of fair districting norms recognized by state courts or enacted through either state political processes. Moore could create a one-way ratchet by weakening state courts’ role in policing partisan gerrymandering, while allowing state courts to dismantle fair districts and fail to address the problem of evasion. Continue reading →

Victor A. Bolden

In this seemingly apocalyptic age, when the rule of law appears under siege, the way forward should involve reaffirming our belief in the rule of law, through reaffirming the importance of proof to the rule of law. Indeed, proof is the rule of law’s most essential element, a significance codified in legal rules, exemplified by legal theory, and reflected in the main source of belief in the rule of law, its effectiveness. Continue reading →

Kiel Brennan-Marquez & Riley Breakell

Since 1999, Getting to Maybe has served as a key resource for first-year law students. Professors Michael Fischl and Jeremy Paul wrote the definitive guide on how to excel on law school exams and master legal reasoning. Professors Fischl and Paul have not only had a massive impact at UConn Law, but they’ve also influenced thousands of law students nationally and legal education as a whole. Continue reading →