Volume 86, Number 4

October 2011

The Promise of Mancari: Indian Political Rights as Racial Remedy

Addie C. Rolnick

In 1974, the Supreme Court declared that an Indian employment preference was
based on a “political rather than racial” classification. The Court’s framing of Indianness
as a political matter and its positioning of “political” and “racial” as
opposing concepts has defined the trajectory of federal Indian law and influenced
common sense ideas about what it means to be Indian ever since. This oppositional
framing has had specific practical consequences, including obscuring the
continuing significance of racialization for Indians and concealing the mutually
constitutive relationship between Indian racialization and Indian political status.
This Article explores the legal roots of the political classification doctrine, its
ongoing significance, and the descriptive limits and normative consequences of the
ideas that it contains. Specifically, this Article argues that the political classification
doctrine constructs race as an irrelevant matter of ancestry and Indianness as a
simple matter of civic participation. This Article suggests a new framework for considering
Indian issues and federal Indian law that draws on a more robust and
realistic understanding of both race and Indianness to acknowledge the cyclical
relationship between Indian racialization and Indian political status.

Guns, Inc.: Citizens United, McDonald, and the Future of Corporate Constitutional Rights

Darrell A.H. Miller

The Supreme Court began its 2009 Term by addressing the constitutional rights of
corporations. It ended the Term by addressing the incorporated rights of the
Constitution. In Citizens United v. Federal Election Commission, a five-member
majority of the Court held that corporations have a First Amendment right to spend
their own money on political advocacy. A corporation generally is no different than
a natural person when it comes to the First Amendment—at least as it relates to
political speech. In McDonald v. City of Chicago, a plurality of the Court held that
the Second Amendment to the United States Constitution is incorporated through
the Due Process Clause and applies to states and municipalities. Neither the federal
government nor states may prevent persons from keeping and bearing arms in their
homes for self-defense.

Given this new world in both senses of incorporation, the time has come to explore
the issue of Second Amendment rights and the corporate form. This Article will
offer an analysis of the potential Second Amendment rights of the corporation.
And it will, in the process, provide a more systematic critique of corporate constitutional
rights in general.

Sunlight and Settlement Mills

Nora Freeman Engstrom

Accident compensation, and particularly auto accident compensation, is typically
thought to take one of two dichotomous forms: either no-fault or traditional tort.
Further, conventional wisdom holds that while pure no-fault may be an option in
theory, it is not one in practice. No pure no-fault auto regime has ever been enacted
in the United States, and states these days are repealing, rather than enacting, modified
no-fault legislation. Yet something peculiar is happening on the ground. Far
out of the light of day, high-volume personal injury firms that I call “settlement
mills” are quietly achieving many of no-fault’s objectives—speeding recoveries,
lowering systemic costs, and delivering relatively standardized sums to an apparently
expanded set of clients—while ostensibly operating within traditional tort.
What settlement mills are accomplishing, then, is in some respects astonishing—and
certainly commendable. Yet, the fact settlement mills’ distinctive operations are out
of the light of day and rarely revealed to clients is problematic, raising profound
issues of informed consent and highlighting severe information deficiencies in the
market for legal services. A well-designed disclosure regime can preserve settlement
mills’ substantial benefits, ameliorate their unique costs, and, more broadly,
improve the tort system’s operation and address the vexing problem of attorney


Medical Devices and Preemption: A Defense of Parallel Claims Based on Violations of Non-Device Specific FDA Regulations

Elliot Sheppard Tarloff

In Riegel v. Medtronic, Inc., the Supreme Court held that because the FDA
imposes device-specific requirements on the most sophisticated medical devices, tort
claims that would impose different or additional requirements on such devices are
preempted. The Court created an exception to this preemption rule for claims that
parallel federal requirements. However, it failed to define precisely what constitutes
a parallel claim. Lower courts have split on whether claims based on violations of
non–device specific, industry-wide federal regulations survive preemption. Several
courts, including the Eighth Circuit, and at least one scholarly article, have concluded
such claims are expressly and/or impliedly preempted. However, the Fifth
and Seventh Circuits, and a handful of district courts, have taken a more liberal
approach, holding that these claims should survive preemption. This Note explores
the split and argues that the liberal approach is preferable for doctrinal and public policy

PACs Post-Citizens United: Improving Accountability and Equality in Campaign Finance

Jeremy R. Peterman

In this Note I argue that the Federal Election Campaign Act’s $5000 limitation on
individual contributions to political committees should be removed. I advance two
main arguments. First, in light of recent campaign finance decisions, the limitation
appears to be unconstitutional as it imposes a limit on First Amendment rights
without being tailored to the government’s interest in preventing quid pro quo corruption.
Second, eliminating the contribution limitation will have previously unrecognized
normative benefits. Smaller PACs representing a variety of viewpoints will
be more able to compete with established corporate and union PACs, and the
volume of accountable political speech may increase as more money is channeled
through PACs to candidates’ hands.

The Federal Trade Commission on the Frontier: Suggestions for the Use of Section 5

Amy Marshak

With its creation of a statutory mandate to ban all “unfair methods of competition,”
Congress granted the Federal Trade Commission broad power to reach antitrust
violations, as well as conduct that violates the “spirit” of the antitrust laws and
conduct that is against public policy more broadly. The breadth of the
Commission’s use of this statutory authority has ebbed and flowed over time, and
recent indications signal that the FTC may be entering a period of expansion in
attacking new forms of anticompetitive conduct. In light of this development, a
renewed debate over the appropriate use of section 5 of the FTC Act has arisen—
how can the Commission best use its broad section 5 authority to protect against
consumer harm while avoiding the risk of deterring procompetitive conduct
through arbitrary and standardless enforcement? This Note argues that the FTC
should focus on tackling “frontier cases”—cases that meet all the legal requirements
of the Sherman Act but involve new forms of anticompetitive conduct that fall
outside traditional categories of antitrust law such that there may be little precedent
to guide the Commission’s analysis. This Note then expands the frontier rationale
beyond the selection of cases involving new forms of anticompetitive conduct, as
previously advocated, to include efforts to integrate developing models of economic
thought in order to influence the theoretical underpinnings of antitrust law and to
insert the Commission’s voice in developing the contours of evolving Sherman Act

Untangling the Twombly-McDonnell Knot: The Substantive Impact of Procedural Rules in Title VII Cases

Angela K. Herring

Lower courts are still sorting out the consequences of the Supreme Court’s decisions
in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, which together
heralded a heightened factual pleading standard. Though many have focused on
the impact of the new standard on plaintiffs facing significant information asymmetries,
this Note focuses on the potential substantive impact on federal civil rights
claims resulting from application of the Iqbal standard. Specifically, this Note
argues that, when strict interpretations of the evidentiary standards used in claims
based on the McDonnell Douglas framework clash with a stronger factual pleading
standard, the effects can be distortive, closing out theories of discrimination for
which there was relief before Iqbal.

Reviewing potential solutions, this Note concludes that the most significant source
of the distortion is in the evidentiary standards themselves and argues that a more
practical and less rule-oriented approach can keep the civil rights laws broad in
reach while requiring a reasonable level of factual pleading.

Life Without Parole: An Immigration Framework Applied to Potentially Indefinite Detention at Guantanamo Bay

Laura J. Arandes

The Supreme Court ruled in Boumediene v. Bush that detainees at Guantanamo
Bay have the right to challenge their detention in habeas corpus proceedings and
that the courts hearing these claims must have some ability to provide “conditional
release.” However, in Kiyemba v. Obama, the United States Court of Appeals for
the District of Columbia ruled that if a detainee cannot be released to his country of
origin or another country abroad, a court sitting in habeas cannot grant the
detainee release into the United States. The court based its determination on the
assumption that the plaintiffs’ request for release implicated “admission,” generally
considered within the purview of the political branches and inappropriate for judicial
review. This Note argues that “parole,” a more flexible mechanism for release
into the United States, is not limited by the admission precedents requiring extreme
deference. This Note then surveys cases in which the judiciary has granted parole as
a remedy, and argues that courts have done so primarily in cases of executive misconduct.
Thus, courts confronting requests for domestic release from executive
detention without a legal basis should consider parole as a remedy distinct from
admission—one that serves a valuable purpose in maintaining a meaningful check
on the Executive.