UCLA Law Review Volume 57, Issue 2

Reaffirming Indian Tribal Court Criminal Jurisdiction Over Non-Indians: An Argument for a Statutory Abrogation of Oliphant

This Comment challenges Oliphant v. Suquamish Indian Tribe, which precludes Indian tribal courts from criminally prosecuting non-Indians. Given that non-Indians often comprise the majority of reservation populations, and that the current upswing in tribal gambling enterprises brings scores of non-Indians onto reservations, it is no longer feasible for the federal or state governments to maintain the predominant criminal jurisdictional authority over Indian country. Non-Indian authorities are often situated far from reservations and do not have the manpower to thoroughly investigate and prosecute the high number of reservation crimes that fall under their jurisdiction post-Oliphant. In response, this Comment proposes a politically and constitutionally acceptable statute that would abrogate Oliphant and return criminal jurisdiction to the tribes. In addition, this Comment analyzes a topic that has not yet been addressed by courts or scholarship: whether reaffirming Indian tribal court jurisdiction over non-Indians would recognize inherent tribal authority, rather than delegate federal prosecutorial power. A delegation of federal prosecutorial power would force tribal courts to adopt all of the procedural and doctrinal rules of federal courts. Although the Supreme Court has written that statutorily overruling Oliphant would be considered a federal delegation of authority, this Comment argues that the Supreme Court has incorrectly assessed the nature of tribal sovereignty. Instead, it suggests that Indian tribal court jurisdiction over non-Indians has been a dormant tribal power ever since the tribes were incorporated into the United States, and that this power is merely held in trust by the federal government until such time as tribes are able to assume such jurisdictional responsibility. Therefore, Congress may relax its control over the tribes without delegating federal power. A congressional reaffirmation of tribal court jurisdiction, under inherent tribal sovereignty, would allow tribal courts to maintain their culturally sensitive procedures while ensuring justice on reservations.

An Economic Crisis is a Terrible Thing to Waste: Reforming the Business of Law for a Sustainable and Competitive Future

In this Comment, I analyze how the current economic crisis has exposed many of the vulnerabilities of the conventional business model for law firms. After years of unprecedented but unsustainable growth, large law firms are stagnating, shrinking, or even disappearing entirely. Many law firms flourished amidst a frenzy of cheap and easy debt, high leverage, and inexhaustible billable hours—but were left without a net when work and collections rates dried up with the credit markets. Law firms are now left with only a few unpalatable options to raise working capital. I aim to link the crippled state of the legal profession with the traditional prohibition on external investment in law firms. Cut off from investor capital, law firms are forced to rely on perilous amounts of debt and inefficient business practices in order to simply survive. Contrary to the conventional justification for prohibiting outside investment, regulating the business structure of law firms is neither necessary nor sufficient to ensure ethical lawyering. Without access to modern capital structures, U.S. law firms are handicapped in building transnational legal presences and remain trapped in a failing business model. I propose a system in which law firms can access an outside pool of capital as publicly traded partnerships, while adopting more formal ethical structures that protect professional standards and prevent possible conflicts of interest. The U.S. legal profession should take advantage of an ongoing paradigm shift to emerge from the crisis with liberalized business structures that allow firms to build sustainable, competitive practices that deliver more efficient services to their clients. I hope my discussion of these issues adds a new perspective to the debate concerning outside investment in U.S. law firms, and strikes a balance between ethical considerations and the evolving market for legal services.

The (Constitutional) Convention on IP: A New Reading

All have thus far considered the Constitutional Convention’s record on intellectual property puzzling and uninformatively short. This Article revisits that conventional wisdom. Using various methods of analysis, including a statistical hypotheses test, it solves historical puzzles that have long accompanied the events at the Convention leading to the framing of the IP Clause, and shows that hitherto neglected portions of the Framers’ debates are relevant to interpreting it. Its findings shed light on four unsettled questions of constitutional interpretation; they provide qualified support for the constitutionality of business method patents, patents for products of nature, and copyright protection for unoriginal factual ompilations, and suggest that the IP Clause should be read as one unit rather than two independent powers for copyrights and patents.

Unborn & Unprotected: The Rights Of The Fetus Under § 1983

When the action of a state agent results in the deprivation of the federal rights of any “person” within the jurisdiction of the United States, that person may bring a civil action under 42 U.S.C. § 1983. In Roe v. Wade, the Supreme Court held that a fetus is not a constitutional “person.” As a result, an unborn child injured by a state agent may not raise a claim under § 1983. This result, however, has at times appeared unjust. The bar on fetal 1983 claims has obstructed access to state-funded prenatal care, denied fetuses the protection of the police, and insulated state agents from liability where their reckless or abusive actions have resulted in physical injuries to the unborn. Conceding that the language of Roe presents a virtually insurmountable obstacle to fetal 1983 actions, this Comment argues that neither the facts nor the reasoning of Roe logically support a regime that refuses to compensate unborn children for injuries occasioned by state actors. This Comment proceeds to analyze how the prohibition on fetal 1983 claims generates legal inconsistencies and is unsound from a policy perspective. A principled examination of the unavailability of damages to compensate for in utero injuries reveals that the longstanding bar on fetal 1983 claims should be reconsidered.

The Unexceptionalism of “Evolving Standards”

Conventional wisdom is that outside the Eighth Amendment, the Supreme Court does not engage in the sort of explicitly majoritarian state nose-counting for which the “evolving standards of decency” doctrine is famous. Yet this impression is simply inaccurate. Across a stunning variety of civil liberties contexts, the Court routinely—and explicitly—determines constitutional protection based on whether a majority of states agree with it. This Article examines the Supreme Court’s reliance on the majority position of the states to identify and apply constitutional norms, and then turns to the qualifications, explanations, and implications of state polling as a larger doctrinal phenomenon. While the past few years have seen an explosion of constitutional law scholarship demonstrating the Supreme Court’s majoritarian tendencies, the most powerful evidence of the Court’s inherently majoritarian nature has been right under our noses all along: its widespread use of explicitly majoritarian doctrine.