Civil Rights

Raymond J. Fadel

While Indian tribes bordering the United States and Canada may share the same culture, the same ancestry, and even the same name, a descendant of common heritage may not be recognized as “Indian” in the United States, and thus not eligible to receive federal benefits. The federal government has the power to recognize an Indian tribe’s sovereignty and determine who is an “Indian” for tribal services, but limits such recognition to those tribes falling within the geographic limits of the United States. With respect to members of “border tribes” that historically traversed the U.S.-Canada border, “Indian” recognition can be denied to an individual because each federally recognized tribe is subsequently required to limit its membership to those whose lineage can be traced directly to that particular tribe’s location within the United States, regardless of tribal heritage predating the border. The result is a gap in recognition: Many descendants of border tribes are born and raised on one side of the border but only recognized as “Indian” on the other. In the United States, ineligibility for affirmative action—both public and private—is one symptom of this gap in recognition. This Note argues that non-recognition of American Indians for affirmative action purposes illustrates how the federal government’s failure to account for descendants of border tribes prevents the United States from wholly meeting its trust obligation, and proposes ways the government can permanently repair its trust relationship with Indian tribes in this narrow context. It discusses three methods for establishing cross-border affirmative action for American Indians: ratification of a bilateral agreement or enactment of domestic statutory reform within the United States, intertribal recognition of membership between U.S. and Canadian tribes, and a potential short-term solution calling upon private initiatives to embrace a broad cross-border definition of “Indian.” This Note concludes that intertribal recognition is impractical due to existing hostility— both on the part of tribes and their respective federal trustees—to the concept of dual tribal enrollment. Further, while private-sector mechanisms may provide a stopgap solution to the problem, they cannot adequately address the federal standards that perpetuate the gap in recognition. In order to fully cure this defect and fulfill the government’s enduring trust responsibility, Congress must take legislative action to close the gap in recognition and provide equal opportunity for affirmative action to all American Indians in the United States.

Brooke D. Coleman & Elizabeth G. Porter
Luke P. Norris

A series of changes within civil procedure over the past few decades—including the rise of private arbitration, the accompanying decline of public adjudication, and the erection of barriers to class actions—have diminished the economic power of workers, consumers, and diffuse economic actors. This Article demonstrates that avoiding these economic consequences was a central goal of those who crafted American federal civil procedure in the first place. Driven to action by the procedural issues involved in labor injunction cases, leading procedural reformers behind the modern regime strove to make American federal civil procedure sensitive to questions of political economy and designed it to mitigate rather than reflect economic power imbalances. This Article connects their procedural reform efforts in the enactment of the Norris-LaGuardia Act of 1932 to the rise of the Federal Rules of Civil Procedure of 1938, and, in so doing, reveals the unexplored progressive economic foundations of federal civil procedure.

This history provides a platform for a more conceptual analysis about civil procedure and economic power. The Article embeds the Norris-LaGuardia Act’s procedural provisions in the rise of the federal government’s facilitation of the “countervailing power” of workers, and begins to articulate the procedural dimensions of economic empowerment. While countervailing power is typically thought of as being facilitated by substantive law, the Norris-LaGuardia Act demonstrates how civil procedure can facilitate the exercise of countervailing power by providing economically less-resourced parties with open hearings and structuring procedure to protect their ability to amass power through association. More broadly, and returning to present issues, this Article argues that the recent transformations in civil procedure both undermine the economic purposes that were central to the regime’s rise and diminish the ability of diffuse economic actors to exercise counter- vailing power—threatening once-enduring procedural commitments.

 

Richard Diggs

Political gerrymandering has been a feature of our republic since the early days of the United States. The majority of states in the U.S. allow state legislators to draw the district lines for legislative elections. Legislator-led redistricting is plagued with legislator conflict of interest, producing elections that are spectacularly uncompetitive and rampant with partisanship. In the process, the interests of voters are in conflict with the party and individual interests of legislators, threatening the legitimacy of our republican form of government. The results are often incumbent entrenchment in “safe seats” and overt partisan-based district manipulation. While not necessarily indicative that the will of the people is being usurped by the ambitions of legislators, one must inevitably ask, are voters choosing their legislators or are legislators choosing their voters? Until recently, the Supreme Court has taken a “hands-off” approach to remedying the negative effects of the partisan gerrymandering that occurs in states employing legislator-led redistricting. In Arizona State Legislature v. Arizona Independent Redistricting Commission, the Supreme Court upheld Arizona voters’ right to transfer redistricting authority from state legislators to an independent commission of citizens via ballot initiative. This Note argues that the delegation theory applied by the Court in the Arizona Independent Redistricting Commission decision, and the authority of voters to be the supreme regulators of the political market, is supported by the Framers’ vision of political competition and accountability as articulated in The Federalist Papers.

Jessica A. Clarke

Courts routinely begin their analyses of discrimination claims with the question of whether the plaintiff has proven he or she is a “member of the protected class.” Although this refrain may sometimes be an empty formality, it has taken on real bite in a significant number of cases. For example, one court dismissed a claim by a man who was harassed with anti-Mexican slurs because he was of African American rather than Mexican ancestry. Other courts have dismissed sex discrimination claims by LGBT plaintiffs on the ground that LGBT status is not a protected class. Yet other courts have dismissed claims by white people alleging they were harmed by white supremacist violence and straight people alleging they were harmed by homophobic harassment. This Article terms this phenomenon “protected class gatekeeping.” It argues that protected class gatekeeping is grounded in dubious constructions of antidiscrimination statutes, and that its routine use prevents equality law from achieving its central aim: dismantling sexism, racism, homophobia, religious intolerance, and other such biases. While past scholarship has identified certain forms of protected class gatekeeping, it has not recognized the scope of the problem or addressed the progressive intuitions that underlie it. Critical examination of protected class gatekeeping is of pressing importance as legislatures, courts, and legal scholars debate new statutory language and doctrinal frameworks for discrimination claims. 

 

Richard Diggs

Political gerrymandering has been a feature of our republic since the early days of the United States. The majority of states in the U.S. allow state legislators to draw the district lines for legislative elections. Legislator-led redistricting is plagued with legislator conflict of interest, producing elections that are spectacularly uncompetitive and rampant with partisanship. In the process, the interests of voters are in conflict with the party and individual interests of legislators, threatening the legitimacy of our republican form of government. The results are often incumbent entrenchment in “safe seats” and overt partisan-based district manipulation. While not necessarily indicative that the will of the people is being usurped by the ambitions of legislators, one must inevitably ask, are voters choosing their legislators or are legislators choosing their voters? Until recently, the Supreme Court has taken a “hands-off” approach to remedying the negative effects of the partisan gerrymandering that occurs in states employing legislator-led redistricting. In Arizona State Legislature v. Arizona Independent Redistricting Commission, the Supreme Court upheld Arizona voters’ right to transfer redistricting authority from state legislators to an independent commission of citizens via ballot initiative. This Note argues that the delegation theory applied by the Court in the Arizona Independent Redistricting Commission decision, and the authority of voters to be the supreme regulators of the political market, is supported by the Framers’ vision of political competition and accountability as articulated in The Federalist Papers.

 

Jessica A. Clarke

Courts routinely begin their analyses of discrimination claims with the question of whether the plaintiff has proven he or she is a “member of the protected class.” Although this refrain may sometimes be an empty formality, it has taken on real bite in a significant number of cases. For example, one court dismissed a claim by a man who was harassed with anti-Mexican slurs because he was of African American rather than Mexican ancestry. Other courts have dismissed sex discrimination claims by LGBT plaintiffs on the ground that LGBT status is not a protected class. Yet other courts have dismissed claims by white people alleging they were harmed by white supremacist violence and straight people alleging they were harmed by homophobic harassment. This Article terms this phenomenon “protected class gatekeeping.” It argues that protected class gatekeeping is grounded in dubious constructions of antidiscrimination statutes, and that its routine use prevents equality law from achieving its central aim: dismantling sexism, racism, homophobia, religious intolerance, and other such biases. While past scholarship has identified certain forms of protected class gatekeeping, it has not recognized the scope of the problem or addressed the progressive intuitions that underlie it. Critical examination of protected class gatekeeping is of pressing importance as legisla-tures, courts, and legal scholars debate new statutory language and doctrinal frameworks for discrimination claims. 

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