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.
