Abstract Disability, preexisting conditions, or underlying conditions might seem like uncontroversial factors to cite when determining an individual’s cause of death. However, many death investigators have also cited these conditions in deaths caused by state violence or neglect. For example, a 2021 study found that medical examiners cited sickle cell trait, a gene mutation, as a cause or...
The Law of Racial Resentment
Abstract Racial resentment, stemming from perceptions that one racial group has unfairly lost opportunities to another, has profoundly shaped decades of affirmative action law. Affirmative action programs emerged in the 1960s to counteract racial discrimination and expand opportunities for racial minorities. However, some white applicants soon viewed these programs with resentment, believing they...
White Comfort and the Constitution
Abstract The psychological comfort of white Americans is essential to the sustenance of white supremacy. The relationship between white psychological comfort and the U.S. Constitution is rich, and yet it has gone almost entirely unexplored in legal scholarship. In fact, the term “white comfort” is grossly undertheorized in law journals; few even mention the phrase, and none define it in a context...
Colorblind Immigration Racism
Abstract The Fifth Amendment equal protection doctrine has never been effective at curtailing racialized harm in immigration law. While not expressly drafted to address racially differential impact, the administrative law doctrine known as arbitrary and capricious review has the potential to enable courts to set aside discretionary immigration enforcement decisions as arbitrary and capricious...
The Class Action After Trump v. CASA
Abstract To every court to consider its merits, Donald Trump’s order purporting to end birthright citizenship for children born to undocumented parents violates the Fourteenth Amendment. But in Trump v. CASA, the U.S. Supreme Court vacated a “universal” injunction that had shielded all children from the order’s enforcement. The federal courts had issued dozens of universal injunctions before...
The Sovereignty Problem in Federal Indian Law
Abstract There is a sovereignty problem in federal Indian law—namely, that the federal government’s sovereign defenses prevent tribal nations and individual Indian people from realizing justice in the courts. Often, compelling tribal and Indian claims go nowhere as the judiciary defers to the interests of the United States, even where Congress has expressly stated its support for tribal interests...
Homelands Not Graveyards
Abstract Within the last five years, the U.S. Supreme Court has taken up several transformative cases affecting Native nations and federal Indian law jurisprudence. The Supreme Court’s decision in Arizona v. Navajo Nation is no different. This Article examines that decision and situates it within that legal history as well as the realities of present-day water resource availability. While recent...
Tribal Law Innovations in Native Governance
Abstract This Article examines how tribal law has become a critical tool in advancing Native self- determination and good governance across Indian country. I analyze three key areas of innovation: the incorporation of the United Nations Declaration on the Rights of Indigenous Peoples into tribal legal systems, the rapid expansion of tribal laws protecting cultural property, and the implementation...