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Given the emerging consensus that solitary is a weapon used with distressing frequency in U.S. prisons, researchers and practitioners must seriously consider existing tools that allow prisoners to contest their confinement. Thus, although most states now have policies and procedures detailing how prisoners are assigned to solitary, this Comment analyzes policies on the opposite end of the...

Public protests from Occupy to Ferguson have highlighted anew the offense of unlawful assembly. This Article advances the simple but important thesis that contemporary understandings of unlawful assembly cede too much discretion to law enforcement by neglecting earlier statutory and common law elements that once constrained liability. Current laws also ignore important First Amendment norms...

In recent years, a particular strain of argument has arisen in response to decisions by courts or the government to extend certain rights to others. Grounded in religious freedom, these arguments suggest that individuals have a right to operate businesses or conduct their professional roles in a manner that conforms to their religious identity. For example, as courts and legislatures have...

Public companies in the United States must comply with both federal securities law and state corporate law. This division of labor is premised on the assumption that there is a meaningful distinction between securities and corporate law. The most common view is that securities law is characterized by its use of disclosure, while corporate law sets forth substantive requirements. Critics respond...

This Comment seeks to reframe Obergefell v. Hodges as a product of kinship formation and interest convergence. Obergefell v. Hodges is not merely a case about LGBTQ and marriage equality, or the moral triumph of oppressed sexual minorities over the majority. It is through marriage that unrelated people come together and form a legal relationship that surpasses any other in terms of state...

This Comment brings together scholarship from feminists, criminal justice reformers, and social theorists to understand sexual violence in carceral settings and to evaluate reforms to prevent rape in prisons and jails. After introducing the sexual nature of modern incarceration itself, the Comment explains a framework for understanding prison and sexual assault that emerges from social thinkers...

Scholars of Federal Indian law have often celebrated President Richard Nixon for advancing tribal interests through legislation and policy initiatives. Far less attention has been paid to his impact on Federal Indian law through the appointments he made to the U.S. Supreme Court. During the time his four appointees served together, the Supreme Court rendered three decisions that are among the...

A growing body of international legal principles recognizes the right of indigenous people to water resources as a key component of their rights to self-determination, land, and economic self-sufficiency. These legal norms impose obligations on states both to recognize this right and to take affirmative steps to allow indigenous people to realize it. While the United States has not formally...

Criminal jurisdiction in Indian country is defined by a central, ironic paradox. Recent federal laws expanding tribal criminal jurisdiction are, in many respects, enormous victories for Indian country, as they acknowledge and reify a more robust notion of tribal sovereignty, one capable of accommodating increased tribal control over safety and security on Indian reservations. At the same time...

The boundaries of modern tribal criminal jurisdiction are defined by a handful of clear rules—such as a limit on sentence length and a categorical prohibition against prosecuting most non-Indians—and many grey areas in which neither Congress nor the Supreme Court has specifically addressed a particular question. This Article discusses five of the grey areas: whether tribes retain concurrent...

This Article explores the dynamics of U.S. citizenship and indigenous self-determination to see whether, and how, the two concepts are in tension and how they can be reconciled. The Article explores the four historical frames of citizenship for indigenous peoples within the United States—treating indigenous peoples as citizens of separate nations, as wards of the federal government, as American...

In June 2016, the Supreme Court held in United States v. Bryant that uncounseled tribal court convictions could serve as predicate offenses under 18 U.S.C. § 117(a). Citing the public safety crisis in Indian country, the limitations of tribal court sentencing, and the legislative history of Section 117(a), the Court upheld the federal statute enacted to address domestic violence offender...

Natural resource extraction has become an appealing form of economic growth for many Native nations. Nations have experienced booming economic growth and prosperity from oil and gas development, but this has come at the expense of environmental and social harms to their communities. These environmental and social harms develop because the oil and gas industries and the Native nations’ governments...

For decades, scholars have debated the extent to which financial sanctions cause government officials to improve their conduct. Yet little attention has been paid to a foundational empirical question underlying these debates: When a plaintiff recovers in a damages action against the government, who foots the bill? In prior work, I found that individual police officers virtually never pay anything...