This Article challenges evidence law's entrenched trial-centricity, arguing that this orientation has rendered the field increasingly misaligned with the reality of a criminal justice system in which trials are rare and plea bargaining predominates. It begins by excavating how the historical and jurisprudential foundations of evidence law have narrowed our legal imagination, naturalizing the assumption that evidentiary regulation is the province of trial. It then advances a normative case for reorienting evidence law to the plea stage, where the most consequential determinations of guilt and punishment currently occur. This framework is translated into concrete reforms, including mandatory pre-plea evidentiary hearings, modeled on preliminary and suppression hearings, but repositioned to occur before plea entry; extending Crawford's confrontation and crossexamination rights to the pre-plea stage; and expanding Brady obligations to mandate that the prosecution make all relevant evidence available prior to finalizing a plea.
Federal Indian law is experiencing a crisis of faith. In United States v. Kagama, decided 140 years ago, the Supreme Court granted Congress a "plenary" power over Indian affairs, rooted not in the Constitution, but rather in a paternalistic duty to protect Indians deemed incapable of self-government. That power-exclusive and unlimited in subject matter-has been condemned as racist, hostile to tribal sovereignty, and incompatible with limited government. Yet it continues to undergird most of Title 25-the portion of the U.S. Code governing Indian healthcare, education, housing, and more. That tension recently manifested in Haaland v. Brackeen, which challenged the Indian Child Welfare Act ("ICWA"). Uneasy with a constitutionally unmoored plenary power, the Court canvassed discrete constitutional provisions that might sustain ICWA but ultimately left the legislation's constitutional foundation unresolved. This Note offers the Court a way forward, arguing that the Treaty Clause of Article II and the Necessary and Proper Clause of Article I provide a firm basis for legislation like ICWA. In doing so, this Note makes two novel contributions to existing scholarship. First, it argues that the Necessary and Proper Clause gives Congress elastic authority to execute existing treaties through legislation that reaches all federally recognized tribes, including those that have no treaties with the United States. Second, it operationalizes that claim to show how Indian legislation could be sustained, articulating a constitutional defense of statutes like ICWA, which lack the nexus to economic activity required to be sustained under the Commerce Clause.
The Fourth Amendment's ban on unreasonable searches and seizures has been interpreted by the Supreme Court to require many location-specific rules. There are different rules for searching homes, cars, spaces near people, and at the border. The Fourth Amendment's place-based rules create a puzzle: What rules apply when property is moved from one place to another? Can the police expand their search powers by grabbing a person's property and moving it to a new place where protections are weaker? And can suspects impede investigations by moving their property to new places where protections are stronger? This is the moving property problem of Fourth Amendment law.This Article identifies the moving property problem, shows that it is a recurring issue, and offers a framework for solving it. It links a range of cases that have not been linked before, and it shows how courts have often divided when faced with facts involving moving property. It then develops a two-part framework for how courts should solve moving property cases. First, courts should ask whether the movement is consistent with the rationales for the place-based rules of the starting and ending places. Second, courts should ask whether the movement itself was lawful, which should depend on whether the movement violated the Fourth Amendment or was the result of government coercion.
This Article reexamines the relationship between liability insurance and tort law to answer a deceptively simple but foundational question: What is insurance for tort law? Building on prior work and responding to the recent call by Kenneth Abraham and Catherine Sharkey to close the "glaring gap" in tort theory, the Article makes both descriptive and normative contributions. It summarizes how liability insurance structures tort law in action-determining which claims are brought, who defends them, and who pays-as well as how insurance shapes tort doctrine by channeling litigation toward insured defendants and insured causes of action. It analyzes how that insurance influences tort law's potential foundations, justifications, functions, or objectives: compensation, deterrence, corrective justice, retribution, or civil recourse. And it argues that liability insurance is not merely a mechanism for satisfying tort judgments but a constitutive force that shapes the distribution of correction and civil recourse. Drawing on the work of Stephen Perry and John Gardner, the Article introduces a framework for understanding how insurance law and market practice define who has meaningful access to corrective justice and civil recourse. It urges influential tort theorists to reconsider their exclusion of insurance from normative analysis and calls for courts to weigh the presence of liability insurance when evaluating whether to expand tort doctrine-while cautioning against judicial efforts to predict insurance market responses. By integrating insights from insurance law, tort practice, and moral theory, the Article strengthens the case for treating liability insurance as central to understanding what tort law is, does, and ought to be.
People seeking to vacate their criminal convictions face bleak prospects. The reasons for this are myriad, from deferential standards of review to blanket bans on entire categories of claims. Yet lurking beneath these contributors is another, lesser-studied problem: when petitioners seek post-conviction relief, their cases are often decided by the same judges who presided over their trials or accepted their guilty pleas. That practice-which this Note calls "judge channeling"-is widespread, with most jurisdictions adopting it through either formal rules or informal practices. Proponents argue that judge channeling maximizes judicial economy because the trial judge's familiarity with a case enables more efficient claim resolution. However, a robust body of social science research reveals a devastating trade-off: unconscious biases prevent judges from recognizing their own errors, hobbling petitioners seeking to challenge their convictions and vindicate meritorious claims. Prior scholarship has emphasized normative problems with judge channeling, but the analysis ends there. This Note intervenes in that narrow discourse by making two novel contributions to existing literature. First, it offers the first comprehensive study of state channeling procedures, explaining what they do and how they differ across jurisdictions. Second, this Note lays out alternative procedures that balance independent review with deliberative efficiency, and it considers which institutions are best poised to bring those procedures to life.
