E. Gary Spitko

This Article explores the important but largely unexplored relationship between workplace artificial intelligence (AI) and human flourishing. More specifically, the Article examines the potential impact of workplace AI decision tools on such critical matters as workers’ human dignity, workplace and personal autonomy, and the opportunity for upward mobility. AI can analyze data far more quickly and efficiently than humans. Moreover, AI computer models are far superior to people in uncovering subtle correlations in large amounts of data and learning from those correlations. Thus, workplace AI decision tools teach themselves to choose the criteria for recruitment, hiring, compensation, promotion, and termination of workers and ground their employment decisions firmly in empirical data that humans fail even to perceive. At the same time, these AI tools may insult human dignity, threaten worker autonomy, and serve as an agent of social ossification. Continue reading →

William S. Fallon

Government technology that exclusively detects illegal conduct is per se constitutional. Today, the Fourth Amendment provides no protection—zero—against government technology that identifies illegality without also revealing private, innocent behavior.

Meanwhile, alarmingly, government is rapidly developing—and deploying— technology that bypasses the need to examine private, innocent behavior in its detection of wrongdoing. Government can know there is contraband in your bedroom drawer without the need to rummage through that drawer, your home, or any of your private information and possessions. Government can know there is illegal content on your phone without the need to search through that phone or any of your private accounts and data. If enforcement technologies continue to develop apace, under existing law, government will be able to detect—and punish—every instance of illegal behavior, every time, without violating the Fourth Amendment. This imminent, staggering government power is called “perfect enforcement of law.” Continue reading →

Florence T.B. Simon

In March 2023, the Intergovernmental Panel on Climate Change (IPCC) released its Sixth Assessment Report and confirmed unequivocally that human activities are the cause of climate change. Greenhouse gas emissions over the next few years are capable of causing irreversible and catastrophic damage to our planet. Catalyst litigation plays an important role in tackling climate change by prodding governments to assume a role in implementing adaptation and mitigation measures. Despite the extreme consequences that climate change will have on humanity, jurisdictional issues—such as standing—impose considerable hurdles for climate litigants. And these hurdles ultimately keep plaintiffs from obtaining a ruling, or even a discussion, on the merits of their case. Continue reading →

Casey M. Corvino

Words often carry an intuitive meaning that defies explicit definition. While this vagueness typically poses no issue in our daily lives, it presents distinct challenges within the legal realm where words and their definitions wield the power to influence the course of justice. One abstract concept is notoriously elusive: what is an accident? Despite the apparent simplicity of identifying what is commonly understood implicitly, there are inherent challenges in “giving substance to a concept which is largely intuitive.” Continue reading →

Laura Briggs

In June 2023, the Supreme Court upheld the constitutionality of the Indian Child Welfare Act (ICWA) of 1978 in Haaland v. Brackeen, making it harder for (some) Indigenous families and communities to lose their children. The decision left one key question unanswered, however: whether protections specifically for American Indian households served as an illegitimate “racial” preference. Justice Amy Coney Barrett’s opinion for the majority argued that the petitioners lacked standing to raise this issue. Thus, the Court left the door open to continuing challenges by those who have an interest in using ICWA’s cute children and clean-cut evangelical Christian parents to try to put an end to this and all related statutes that give so-called “preferential treatment” to American Indians—including in gaming compacts, employment, federal treaties, and essentially all of Indian law. Continue reading →

Ian Heath Gershengorn

In this Essay, as I did at the Connecticut Law Review’s Symposium, I draw on my experience representing Tribes in Haaland v. Brackeen to discuss more broadly the effective presentation of tribal arguments to the Court. I touch briefly on four main topics. First, I discuss how we collaborated with amici to ensure that the Court would have the full context as it considered the issues in Brackeen. Second, I discuss how we thought about preparing for the argument and the particular importance of understanding the practical operation of the Indian Child Welfare Act. Third, I offer a few observations on the oral argument itself, focusing on how the structure of the argument influences the substance of the argument. And fourth, I step back and discuss why this is a particularly interesting and challenging time to argue Indian law cases before the Supreme Court. Continue reading →

Casey M. Corvino & Julia R. Vassallo

In October 2023, the Connecticut Law Review hosted the Symposium “Interrogating Haaland v. Brackeen: Family Regulation, Constitutional Power, and Tribal Resilience.” The symposium was centered on the state of federal Indian law in the wake of the Brackeen decision. This decision was a victory for Indigenous families and Native nations as it left the Indian Child Welfare Act (ICWA) unscathed and affirmed the constitutional relationship between tribal nations and the United States. However, threats to tribal sovereignty continue as a handful of states and interest groups continue to seek ways to challenge tribal authority and federal laws that support it. Continue reading →

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 →