Federalism has long been celebrated for its ability to foster policy innovation, transforming states into “laboratories of democracy.” Yet, federalism discourse has largely neglected Indian tribes, the third sovereign in the American constitutional order. Tribes regularly implement novel policies. However, tribal policy innovation is hindered by uncertainty over whether tribes or states govern Indian country activities. The most influential framework for determining the scope of tribal versus state regulatory power in Indian country is derived from the Supreme Court’s opinion in California v. Cabazon Band of Mission Indians—the case that launched Indian gaming. Cabazon held that tribes cannot permit an activity if the surrounding state prohibits it, but they can permit an activity if the surrounding state regulates it. For example, tribes in California can authorize gaming because California regulates it. However, Utah’s gaming ban prevents tribes within its borders from permitting casinos. The distinction between regulatory and prohibitory is often ambiguous; thus, state specificity invites endless litigation that stifles tribal policy experimentation. To remedy this uncertainty and fully integrate tribes into the federal system, this Article proposes a “Cabazon-plus” paradigm. Under Cabazon-plus, if any state regulates an activity, all tribes would have exclusive regulatory authority over that activity. This paradigm provides the jurisdictional certainty vital for tribal self-determination and policy innovation. Furthermore, this Article argues Cabazon-plus will ignite tribal economies and benefit state economies, validating tribal sovereignty as a feature—not a bug—of a dynamic federal system.
Private rights have returned to play a central role in public law. In the last few years alone, courts have invoked private rights to elaborate the elements of Article III standing, interpret the scope of 42 U.S.C. § 1983’s cause of action, articulate the limits of the administrative state, and give meaning to enumerated constitutional rights. But unlike private law—which has confronted a similar fall and rise of private rights with wide-ranging discussion over their meaning—public law has not been subjected to a fulsome debate about what exactly private rights are. Both proponents and critics of the return of a private rights model of public law adjudication share a basic understanding of private rights rooted in William Blackstone’s eighteenthcentury writings. But Blackstone’s view fails to capture the full significance of private rights in the common law. Overemphasizing it muddles the stakes of the return of private rights in public law. This Article articulates the historical and doctrinal limits of the default Blackstonian view of private rights. Blackstone’s conception of private rights was based on an underlying view of liberty as noninterference that was controversial even when he was writing in the 1760s. Instead, the dominant view of liberty in the common law at the time was the republican view of liberty as independence. That view of liberty supported a distinct republican conception of private rights, which has coexisted in the common law tradition alongside the Blackstonian conception. After outlining the oft-elided republican conception of private rights and tracing its influence on legal discourse, rhetoric, and case law, this Article illustrates its possible implications for public law doctrine. Recognizing the distinction between these two conceptions of private rights casts new light on Article III standing, damages, Section 1983, and adjudication outside Article III courts. This distinction also provides a corrective to the scholarly debates over private and public rights: Just as it is a mistake to suppose there was a single unified historical conception of private rights, it is also a mistake to dismiss private rights altogether as inherently confused or obfuscatory.
Informed consent is the law’s mechanism for protecting patient autonomy by requiring disclosure of facts that bear on the decision to accept or refuse care. Artificial intelligence now helps decide what is medically true for patients, yet informed consent law still assumes that diagnostic judgment is rendered by a human mind whose reasoning is at least in principle communicable. Radiology has become the leading setting for this tension. AI systems triage worklists, flag suspected abnormalities, and anchor first-pass impressions in ways that guide radiologists’ attention and, in practice, can coauthor diagnostic conclusions while remaining invisible to patients. When patients are kept unaware that nonhuman systems materially shaped the judgment they receive, consent risks preserving its form while losing its animating premise of human agency at the point of judgment. This Note argues that such nonhuman judgment is itself a material fact under Canterbury v. Spence’s reasonable-patient standard. Courts already treat the identity and role of the decisionmaker as autonomy-relevant when surgeons are substituted, trainees participate, or a diagnostic reading is outsourced. Algorithmic medicine triggers the same principle. This Note proposes an Algorithmic Disclosure Rule (ADR) that requires acknowledgment when AI crosses from background tool to meaningful participant in diagnostic or treatment judgment. ADR does not demand technical explainability, a veto over AI, or a human-only pathway. It instead recenters informed consent on evaluative legitimacy: the patient’s right to know who—or what— exercised authority over their care. Using radiology as the core case study, this Note shows how black-box systems already shape clinical judgments upstream of patient awareness. It then maps implementation pathways through professional guidance, hospital governance, regulatory labeling, and patient decision aids. Finally, it explains how ADR can scale as AI moves beyond imaging into pathology, oncology, and general clinical decision support.
A review of The Bluebook: A Uniform System of Citation. Edited by Columbia Law Review Association, Harvard Law Review Association, University of Pennsylvania Law Review and The Yale Law Journal.
