This essay examines the United States Supreme Court’s July 9, 2020 decision in McGirt v. Oklahoma, which held that the historic boundaries of the Creek reservation remain intact, and argues that the decision likely signals a sea change in the course of federal Indian law of the magnitude of Obergefell v. Hodges in the LGBT rights arena. The essay shows how the opinion lays a very strong foundation for a much-needed return to traditional federal Indian law principles, respectful treatment of tribal governments as a third sovereign in the American system, and an understanding of fairness from the perspective of tribes and Native individuals. The possible effects of Justice Barrett's replacement of Justice Ginsburg on the Court's future federal Indian law jurisprudence are also explored. The essay concludes with the hope that Justice Gorsuch’s majority opinion will foster predictability in the wildly unstable area of disestablishment and diminishment jurisprudence, as well as in other facets of federal Indian law.
This Essay is part of the 26th Annual Georgia State University Law Review Symposium, "Social Equality and Racial Justice: What's Next?" It integrates Professor Claire Jean Kim’s racial triangulation framework, Professor Derrick Bell’s interest-convergence theory, and W.E.B. Du Bois’s notion of double-consciousness, all to examine the racial positioning of Asian Americans and the dilemmas we face as a result. To do so, it considers the history of Asian immigration to the U.S., the model minority and perpetual foreigner stereotypes, Asian Americans’ positioning in the affirmative action debate, COVID-19 related hate and bias incidents, and Andrew Yang’s 2020 Democratic presidential candidacy. The Essay examines how racial stereotypes of Asian Americans have emerged through historical cycles of valorization and ostracism, as analyzed through the racial triangulation framework. It analyzes how the political interests of the U.S. government converged with those of educated professionals in Asian countries, leading to changes in immigration policy and the emergence of the model minority stereotype. The Essay considers various ways that Asian Americans have been simultaneously valorized as model minorities and ostracized as perpetual foreigners. It highlights the affirmative action debate, where Asian Americans have been cast as high-achieving victims of race-conscious university admissions policies and pitted against other groups of people of color, culminating with the current Students for Fair Admissions v. Harvard lawsuit. Finally, the Essay focuses on Andrew Yang’s presidential bid—particularly how his navigation of racial stereotypes reflected a double-consciousness that parallels the dilemmas faced by many Black Americans. The Essay concludes by arguing that to build coalitions and work towards racial justice, Asian Americans, Black Americans, and other people of color need to recognize their own double-consciousness and also see how it relates to the double-consciousness experienced by others.
The common law doctrine of issue preclusion, also known as collateral estoppel, prevents parties from re-litigating an issue in subsequent lawsuits if a prior judgment already conclusively decided the issue. Issue preclusion traditionally required strict mutuality of parties; the first and second lawsuits had to involve the exact same litigants. Although the majority of jurisdictions now allow nonmutual issue preclusion, Georgia continues to require "identity of parties." Despite recently reaffirming this requirement, the Georgia Supreme Court has not thoroughly analyzed the merits of the rule. This paper examines the history and evolution of issue preclusion and the mutuality element, distinguishes offensive and defensive assertions of issue preclusion, reviews the current application of nonmutual preclusion in federal courts, compares Georgia mutuality law to the case law of other states, considers the policy arguments favoring and disfavoring strict mutuality, and explores why the Georgia Supreme Court has not addressed the nationwide trend towards allowing nonmutual issue preclusion. The paper argues for changing Georgia law to allow nonmutual defense issue preclusion in civil litigation and advises practitioners on practical avenues for achieving that goal.
Property law has traditionally relied on tangible boundaries to delineate legal thinghood and to inform the bounds of in rem rights and duties. Unfortunately, property doctrines have fossilized around tangibility, causing fragmentation in the legal treatment of digital assets. In the United States, for example, cryptocurrencies and non-fungible tokens (NFTs) may simultaneously be classified as commodities, securities, currencies, assets, or not property at all, depending on the jurisdiction, domain, or specific asset in question. This fragmented system of overlapping legal treatments increases the information cost of using digital assets, decreases efficiency, and ultimately hinders future innovation.In this piece, I propose a unified and tech neutral approach to legal thinghood, providing a theoretically coherent and robust way to increase property law’s resilience in adapting to future technologies. Specifically, I deconstruct the conceptual purpose of tangibility in traditional doctrines of legal thinghood, uncovering its role as a technology (i.e., a tool) in property law to delineate rights. From this insight, I derive a coherent doctrinal test for distinguishing between digital assets that fulfill all conceptual requisites to be legal things and assets that do not. By doing so, I conclude that the traditional ontological categories of property law, such as choses in possession, are sufficiently robust to incorporate new and evolving digital assets. This tech-neutral approach paves the way toward an elegant and efficient legal treatment of digital assets and digital resource management in the twenty first century.
The Theranos saga encompasses many discrete areas of law. Reporting on Theranos, most notably John Carreyrou’s Bad Blood, highlights the questionable ethical decisions that many of the attorneys involved made. The lessons attorneys and law students can learn from Bad Blood are highly complex. The Theranos story touches on multiple areas of professional responsibility, including competence, diligence, candor, conflicts, and liability. Thus, Theranos serves as a helpful tool to explore the limits of ethical lawyering for Professional Responsibility students. This Article discusses the author’s experience with using Bad Blood as an extended case study in a new course on Legal Ethics in Contemporary Practice. It begins by discussing the pedagogical justifications for including Theranos in the course, and the unanticipated ways in which Bad Blood highlighted particular topics and questions. The Article then describes student reaction to using Bad Blood as a primary text to communicate ethical principles in legal practice, and the strengths and weaknesses of doing so. It concludes by contextualizing the use of Theranos as a case study in the larger history of other uses of popular texts in legal education, and what lessons other instructors might take from doing using such case studies.
Hundreds, likely thousands, of babies have been born years after a parent has died. Thousands more people have cryopreserved their sperm, ova, and embryos, or have requested that a loved one's gametes be retrieved after death to produce still more such children. Twenty-three states have enacted statutes detailing how these postmortem conception children can inherit from their predeceased parents. And yet, few of these children will be able to inherit. The statutes create a bewildering array of standards, with over a dozen definitions of consent, variations in signature and witnessing requirements, and hurdles imposed in one state but not another. With our mobile population, the odds that a consent executed in one place will be accepted in another are small. With one exception--a New York amendment effective in February 2021--the states exclude most LGBT persons from being a postmortem parent. By failing to define when conception occurs, the statutes provoke a fight with those who use in vitro fertilization while both genetic parents are alive. This Article is the first time that the laws of all 50 states are examined to provide a comprehensive look at whether a postmortem child inherits and determine how wildly disparate the legal standards are from public sentiment. The Article details the precise ways the law fails the problem and proposes four concrete solutions for states to adopt.
The intersection of secular, Western intellectual property law and Islamic law is undertheorized in legal scholarship. Yet the nascent and developing non-Western law of one form of intellectual property—patents—in Islamic legal systems is profoundly important for transformational innovation and economic development initiatives of Muslim-majority countries that comprise nearly one fifth of the world’s population. Recent scholarship highlights the tensions of intellectual property in Islamic law because religious considerations in an Islamic society do not fully align with Western notions of patents. As Islamic legal systems have begun to embrace patents in recent decades, theories of patents have presented conceptual and theological debates under classical Islamic law, creating an undefined scope of patent protection under international agreements. On the one hand, patents are not mentioned in sources of Islamic law, which, unlike Western systems, gives a religious guide to Muslim societies, and which some Muslim scholars argue create impermissible monopolistic effects. On the other hand, patents should be implicitly derived based on human reasoning of a divine law with theoretically and theologically sound commercial justifications. This Article’s thesis is that patents are permissible in an Islamic legal system. It develops a positive, normative framework and justifications for the construct of a theory of patents within Islamic law, provides normative implications within a commercial lens, and provides prescriptions for patentable subject matter and public interest considerations in a modern Islamic legal system. Recognizing the role and need of patents in Islamic legal systems is a pressing issue for innovation policy and requires articulation of conceptual, theological, and theoretical principles.
Digital video evidence has exploded into criminal practice with far-reaching consequences for criminal defendants, their attorneys, and the criminal legal system as a whole. Defense attorneys now receive police body-worn camera footage, surveillance video footage, and cell phone video footage in discovery in even the most routine criminal cases. This Article explores the impact on defense attorneys of reviewing this avalanche of digital evidence. The author posits that the outsized role of digital evidence in criminal cases is taking a toll on defense attorneys in general—and public defenders in particular—resulting in increased burnout and secondary trauma. This Article includes results from a recent survey by the author that indicate that public defenders are increasingly exposed to disturbing digital content—videos capturing violence by clients, police, and others. The survey further suggests that these images are impactful, increasing the emotional workload of defense attorneys and exacerbating burnout. Videos with violent or emotional content can also strain the attorney–client relationship by collapsing the distance between attorney, client, and crime. Implicit racial bias can also color what we see when viewing violent videos. These trends raise new concerns about defense attorneys’ abilities to advocate zealously for their clients and meet constitutional standards, particularly for public defenders whose caseloads require more frequent interaction with digital video evidence and whose day-to-day practices have been reshaped dramatically by its presence. Finally, this Article suggests strategies to address the added toll of digital content on defense attorneys to ensure that defendants receive effective representation in the digital age.
The United States Constitution prohibits federal officials from receiving any “present, Emolument, Office or Title” from a foreign state without the consent of Congress. In interpreting the Constitution’s text, we are to be guided “by the principle that ‘[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning’.” However, in trying to determine the “normal” meaning of emolument in the Founding Era we are confronted with a term that might as well be a foreign word from an unknown language. The word emolument has virtually vanished from contemporary American English. In this article, we investigate the mysterious meaning of “emolument” by doing computer-assisted searches and linguistic analyses of a massive data base of texts from the time of the Constitution: the Corpus of Founding Era American English (COFEA), which contains in digital form over 126,000 texts created between 1760 and 1799, totaling more than 136,800,000 words. We found strong patterns of usage that reveal how the word was used at the time the Constitution was drafted and ratified. There is virtually no judicial precedent about the meaning of “emolument” because there has been no significant court litigation over the Emoluments Clauses since the founding – that is until the Presidency of Donald J. Trump. There is little doubt that President Donald J. Trump owns businesses that have received millions of dollars from foreign governments during his time in office, including revenue from The Trump International Hotel Washington, D.C., located a few blocks from the White House. Lawsuits have been filed in federal courts in New York, Maryland and the District of Columbia claiming that President Trump’s continued ownership of the Trump Hotel and other businesses violates the emolument clauses of the Constitution. The three are in various stages of litigation. President Trump claims in each of the three that one usage of “emolument” that was common in the Founding Era – to refer to something received from a government for performance of official duty or employment – is the exclusive meaning dictated by the Constitutional context. These prompted us to frame our research question as: “Is there evidence that Americans in the Founding Era could have used the word “emolument” to describe revenue derived from ownership of a hotel?” The research findings discussed above do provide evidence that Founding Era Americans could have used emolument to describe revenue derived from ownership of a hotel. Using the word in such a way would have been consistent with what has been shown to be the broad meaning and wide usage of emolument. We further conclude that in each of the three clauses in the Constitution that use the word emolument, the structure of each clause indicates that the emoluments are not received for performing an official duty. Indeed, the common theme of all three clauses is to guard against federal officials receiving emoluments that are separate and outside of the compensation they are properly entitled to receive for performing their office. Although emolument is no longer in the vocabulary of modern Americans, it appears that it was a very useful word in the Founding Era: useful indeed precisely in the ways it was used in the Constitution. If the drafters and ratifiers of the Constitution were concerned that foreign states could be endlessly ingenious in conceiving ways to corrupt federal officials, then there was wisdom in using a term of general inclusion like emolument. In January 2019 the authors filed an amicus brief in support of neither party reporting our research results. The brief was submitted in the case filed against President Trump in Maryland, then pending on appeal before the US Court of Appeals for the Fourth Circuit. The brief can be downloaded from Cunningham’s home page (internet search “Clark Cunningham”) following the links for “Law & Linguistics” and then “The original meaning of cases in Article III of the US Constitution.” The research results discussed in this article were submitted to the United States Court of Appeals for the Fourth Circuit and District of Columbia Circuit in two of the pending alleging that President Trump is violating the Emoluments Clauses: Brief for Professor Clark D. Cunningham & Professor Jesse Egbert as Amici Curiae Supporting Neither Party, In re Trump, 928 F.3d 360 (4th Cir. 2019) (No. 18-2486), reh'g en banc granted, 780 F. App'x 36 (4th Cir. 2019), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3334017; Brief of Amici Curiae Professor Clark D. Cunningham and Professor Jesse Egbert in Support of Neither Party, Blumenthal v. Trump. No. 19-5237 (D.C. Cir. argued Dec. 9, 2019), https://papers.ssrn.com/abstract=3475650.
Human trafficking (HT) is increasingly recognized as a public health issue, and its severe consequences affect some of society’s most vulnerable members. Prioritizing prevention is a critical component of a public health framework when addressing HT, and the health care delivery system plays a crucial role in operationalizing primary, secondary, and tertiary prevention interventions. As a significant part of the primary care system in the U.S., Federally Qualified Health Centers (FQHCs) are uniquely positioned to be the first point of contact with the health care system for people at risk for and affected by HT. FQHCs provide many preventive services, health education programs, and community outreach initiatives; therefore, FQHCs have a great reach into the populations at risk of and affected by HT. Furthermore, FQHCs recognize the importance of leveraging legal expertise and services to address their communities’ health-related social needs. There are many models for medical legal collaboration, including formal co-located medical–legal partnerships, as well as broader, community-based relationships. This Article will discuss types of medical–legal efforts and highlight individual patient and organizational case studies from Banteay Srei (a youth development program for Southeast Asian young women and girls at risk of commercial sexual exploitation, a program of Asian Health Services (AHS), an FQHC in Oakland, California). Finally, there will be a discussion about the intersection of HT with intimate partner violence (IPV), and how community partnerships and legal partnerships have * Kimberly S.G. Chang, MD, MPH, Asian Health Services; Hamida Yusufzai, Banteay Srei; Anna Marjavi, Futures Without Violence. 1 Chang et al.: Medical-Legal Collaboration and Community Partnerships: Prioritiz Published by Reading Room, 202
This Article explores the relationship between taxes and inter-generational equity. At the outset, Part I of the Article provides an overview of sustainable inter-generational justice and tax policy. Part II then provides an overview of the U.S. tax system, deficits, and public debt. Part III then considers how taxes can influence the level of resources that are available to future generations, and Part IV considers how taxes can influence the mix of resources that are available to future generations.
