Federal Jurisdiction Research Articles

How Constitutional Concerns Framed the US Contribution to the International Human Rights Regime From Its Inception, 1947–53

The United States has been reluctant to agree to binding international human rights instruments ever since the very first meeting of the United Nations Commission on Human Rights in 1947. This article explores structural causes for that reluctance. Internal government papers show that US government officers worried that a human rights treaty might expand federal jurisdiction at the expense of the jurisdiction of the United States' constituent states and could provide an opening for judicial activism by the courts. These concerns made domestic political sensitivities more acute and raised principled questions about the desirability of pushing domestic reforms through international law-making. US representatives made repeated efforts to ensure that an international bill of rights was drafted as an aspirational declaration rather than a legally binding treaty. They also proposed clauses designed to delay or limit the domestic effects of any agreement, while reassuring the US Senate that domestic power balances would not be disturbed. Constitutional concerns thus framed the United States' contribution to the creation of an international human rights system from the very beginning.

Textualism and Jurisdiction

Recent legislation has reinvigorated the scholarly debate over the proper relationship between Congress and the federal courts in matters of federal-court jurisdiction. The traditional view of jurisdiction-stripping is that Congress has virtually plenary power to determine the jurisdiction of the federal courts. Others have argued that there are substantial limits on Congress's authority to deprive the federal courts of jurisdiction over certain matters. A similar debate has raged over the obligation of federal courts to exercise jurisdiction that Congress ostensibly has conferred. Since the debate over Congress's role in crafting a jurisdictional regime last flared in full force, textualism has been ascendant as a methodology for interpreting statutes, and has had a profound impact on the way that judges - textualists and non-textualists alike - read statutes. The rise of textualism provides an important opportunity to update the long-standing debate over the proper roles of Congress and the courts in matters of federal-court jurisdiction. Like the debate over congressional control of the federal jurisdictional regime, textualism is largely about the judicial role in a democracy. Textualists argue that their methodology recognizes the properly limited judicial role, and they insist that judges must be faithful agents of the legislature, guided by the plain meaning of statutory text. To the extent that textualism has had a significant impact on judicial decision-making, particularly by the Supreme Court, we might expect to see a move towards strict interpretation of jurisdictional statutes, and a vindication, at least as a descriptive matter, for the strong congressional-control models. After all, if the textualist judge is supposed to act as a faithful agent of Congress, following the plain meaning of statutory text, then when Congress plainly withdraws jurisdiction, faithfully textualist judges can be expected to decline to exercise authority; and if Congress confers jurisdiction without qualification, then we might expect textualist judges to eschew arguments for implicit exceptions to the exercise of jurisdiction. In practice, however, textualism has been applied somewhat unevenly to jurisdictional statutes. Although the Court's textualists have strictly read statutes that purport to divest the federal courts of jurisdiction, they have not been as consistent in applying textualism to statutes that appear, based on their plain language, to confer expansive grants of jurisdiction. Textualism's goal to limit the judicial role in a democratic society is advanced by strict interpretations of statutes purporting to divest the courts of jurisdiction. But when Congress appears to confer broad grants of authority - such as in the general federal-question statute - being a truly faithful agent based on statutory language will result in a more robust judicial role than some textualists might otherwise prefer. The treatment by the Court's textualists of jurisdictional statutes suggests that the textualists' urge to constrain judicial power has sometimes trumped the textualists' demand that courts act as faithful agents of Congress by considering only the plain meaning of statutory language in deciphering Congress's instructions. This has implications both for textualism and for the larger question of the proper relationship between Congress and the courts in crafting a jurisdictional regime. It should force textualists to defend their approach more explicitly as a device for constraining judicial authority, and perhaps less as the optimal means for implementing a theory of faithful agency in statutory interpretation. And it suggests that, at least as a positive matter, the strong congressional-control models of federal jurisdiction have not yet fully prevailed, at least with respect to the question of the courts' authority to decline to exercise jurisdiction that Congress ostensibly has granted.

Water and Indigenous Peoples: Canada’s Paradox

The condition of water safety and quality on reserve has been a growing concern in Canada. Despite a substantial amount of funding allocated toward improving water infrastructure on reserve, an alarming proportion of communities face boil and drinking water advisories. To understand why this paradox and problem persists, this article will work through the issues and nuances that have created unsafe drinking water on reserve, proposed remedies, and policy implications. To do so, the role of the Government of Canada is reviewed first because reserve land is under federal jurisdiction. Following this, the article will discuss the standpoints of the Assembly of First Nations and other Indigenous groups on the water crisis, and will draw upon focus groups within First Nations that we conducted. To contextualize the water issue on reserve in Canada, a comparison with the United States is then drawn. One of the main themes of this paper with regard to the issue of safe drinking water on reserve is how the legacy of colonization has limited community capacity. This theme is then discussed in depth by comparing Indigenous to non-Indigenous communities, looking to the social determinants of water quality, and possibilities and limitations of building sustainable development allowing for safe drinking water on reserve. To understand what processes consistently intervene in the way of sustainability of safe water in Indigenous communities, regulatory frameworks are examined, funding mechanisms are reviewed, and Aboriginal governance is discussed along with the direction that policy should take.

Responding to Organized Crime in Australia and New Zealand

On 22 March 2009 a brawl erupted at Sydney domestic airline terminal between two outlaw motorcycle gangs (OMCGs), the Hells Angels and Comancheros, during which a participant was stabbed and bludgeoned to death with a metal bollard in front of travelers. A few days later his brother, a Hells Angel who had also participated in the melee, was shot and seriously wounded outside his home. The extraordinary open violence at the airport was the subject of intense media attention already attracted by longstanding tensions between the Hells Angels and Comancheros and incidents of armed conflict between rival OMCGs the Bandidos and Notorious. The public spectacle of this murder constituted a turning point in Australia’s approach to OMCGs. It was the trigger for changing a measured inquiry into controversial new laws on serious and organized crime passed in South Australia in 2008 into the rapid adoption of laws similar to those in South Australia in three other Australian jurisdictions, with others foreshadowing such laws. The Premier of New South Wales reflected public alarm when he announced new legislative measures to address the OMCG problem the following day: I was sickened by this brazen attack. Violence of this nature particularly in front of families and children is nothing short of disgusting (Welch 2009). Although the additional police powers (discussed below) were widely criticized, bi-partisan political support enabled them to be rushed into law. It was also a catalyst for a wider debate about organized crime in Australia, and hastened the adoption of a nationally coordinated approach between each of Australia’s nine jurisdictions (comprised of six states, two territories and the federal jurisdiction) to combat organized crime.

Making Law with Lawsuits: Understanding Judicial Review in Campaign Finance Policy

Campaign finance law presents quite a puzzle: it is an area of federal policy very closely tied to the interests of incumbents in the political branches, and yet it is controlled to a great extent by unelected federal court judges. While we tend to assume that First Amendment considerations drive judicial review here, scholars have yet to account for political leaders’ decisions to establish federal court jurisdiction in the first place, allowing lawsuits that either challenge or enforce the law. Can it be that Congress went to great lengths to write statutes regulating the use of money in elections, but had nothing to say about how and to what extent courts would review the law? This article examines the role of political leaders in judicializing campaign finance policy. In a survey of nearly a century of law, and in a close analysis of the legislative record, I make a number of surprising findings. I discover that there has been great variation in judicial review over this history and that it correlates directly with the choices activists and political leaders have made to mobilize legal institutions in the making of campaign finance policy. Moreover, I find that political leaders have maintained the upper hand in this: where the efforts of independent policy activists ran counter to their interests (as they did for a brief period prior to Watergate), legislators quickly changed jurisdiction rules to foreclose the groups’ access to federal courts. But, even as they restricted public interest litigation in the field, legislators actually moved to judicialize the policy still more – and continued to do so even after the Supreme Court substantially altered the law with its Buckley v. Valeo ruling. In fact, from 1974 onward, the judiciary’s power to interpret, enforce and, ultimately, remake policy has been deliberately delegated to it by Congress. This history reveals that campaign finance reform has long been a process of making law with lawsuits, where courts enjoy significant discretion to revise policy not primarily because of their own activism, but because political leaders have given them the job.

Economic Ideology and the Federal Judicial Task

Richard Posner has produced an ambitious of the federal judicial system in which he now officially participates (p. 322). Its reach is better reflected in the broad, if less catchy, title of the book (The Federal Courts) than in the subtitle (Crisis and Reform). Though a major portion of the book (chapters three through five) analyzes the dramatic expansion of the federal court caseload in the past twenty-five years and assesses a wide variety of reform proposals aiming to alleviate the caseload crisis, the work as a whole ranges far beyond these topics. Posner begins with two chapters analyzing the federal court system as an economist or sociologist might study an industrial organization. He describes the system's functions, the demand for and supply of its services, its hierarchical and pyramidal organization, its personnel, and its jurisdiction. He addresses the caseload crisis and palliatives designed to cure it in the next three chapters, but the second half of the book branches out in several different directions. Chapter six elaborates an economic and political theory of federalism as a basis for reconsidering the optimal use of federal courts. Chapters seven through ten present essentially normative arguments for ways to improve the quality of judicial performance wherever federal jurisdiction is retained. Here, Posner argues for judicial self-restraint to reduce federal court power, more institutional and less individualistic judicial opinions, statutory and constitutional interpretation more sensitive to legislative compromises when text and history are not determinative, and the systematic use of economic analysis in judging (pp. 220-21). A concluding chapter calls for more social science research into legal institutions to be performed in the law schools' and for new law courses in judicial administration, opinion writ-

Distinguishing the 'Truly National' from the 'Truly Local': Customary Allocation, Commercial Activity, and Collective Action

This Essay makes two claims about different methods of defining the expanse and limits of the Commerce Clause. My first claim is that approaches that privilege traditional subjects of state regulation are unworkable and undesirable. The approaches are unworkable in light of the frequency with which the states and the federal government regulate the same subject matter in our modern world of largely overlapping federal and state legislative jurisdiction. The approaches are undesirable because the question of customary allocation is unrelated to the principal reason why Congress possesses the power to regulate interstate commerce: solving collective action problems involving multiple states. These problems are evident in the way that some federal judges invoked regulatory custom in litigation over the constitutionality of the minimum coverage provision in the Patient Protection and Affordable Care Act. The areas of “health insurance” and “health care” are not of exclusive state concern, and it is impossible to lose — or to win — a competition requiring skillful lawyers or judges to describe them as more state than federal, or more federal than state. Nor is it most important what the answer is. More promising are the approaches that view congressional authority as turning on either commercial activity or collective action problems facing the states. My second claim is that these two approaches have advantages and disadvantages, and that the choice between them exemplifies the more general tension between applying rules and applying their background justifications. I have previously defended a collective-action approach to Article I, Section 8. My primary purpose in this Essay is to clarify the jurisprudential stakes in adopting one method or the other, and to identify the problems that advocates of each approach must address.

Alien Tort Claims and the Status of Customary International Law

Much of the recent debate about the status of customary international law in the U.S. legal system has revolved around the alien tort provision of the Judiciary Act of 1789, currently section 1350 of Title 28. In Filártiga v. Peña-Irala, the decision that launched modern human rights litigation in the United States, the Court of Appeals for the Second Circuit relied on the view that customary international law has the status of federal common law in upholding section 1350’s grant of federal jurisdiction over a suit between aliens. The court’s position that customary international law was federal law was the prevailing view at the time—a view that has subsequently been dubbed the “modern position.” It was the view set forth in the black letter of the Restatement (Third) of Foreign Relations Law. Filártiga triggered a revisionist challenge to the modern position, with revisionists arguing that customary international law has the status of federal law only if given that status through statute or treaty, or perhaps through sole executive action; in the absence of such incorporation, customary international law has, at best, the status of State law in our legal system.

'The Ordinary Diet of the Law': The Presumption Against Preemption in the Roberts Court

In a preemption case decided over a decade ago, Justice Breyer wrote that “in today’s world, filled with legal complexity, the true test of federalist principle may lie . . . in those many statutory cases where courts interpret the mass of technical detail that is the ordinary diet of the law.” This article surveys the Roberts Court’s preemption jurisprudence, focusing on five cases decided in OT 2010. I argue that Justice Breyer was right — that is, that because current federalism jurisprudence largely eschews any effort to define exclusive spheres of state and federal regulatory jurisdiction, the most important federalism cases involve efforts to determine the preemptive scope of federal legislation. The key doctrinal tool in preemption cases is the “presumption against preemption” — a canon of statutory construction recognized by the Court in the 1947 case of Rice v. Santa Fe Elevator Corp. The Rice presumption is under nearly constant siege today from both litigants and commentators. This article explores the Roberts Court’s use (and non-use) of the presumption and defends the presumption against its academic critics. In particular, I address Caleb Nelson’s important argument that Rice’s presumption is inconsistent with the original meaning of the Supremacy Clause, concluding that Professor Nelson’s historical argument does not rule out the presumption as it is presently applied. Even if the original history did disfavor the presumption, Rice is a necessary doctrinal innovation that balances other developments in federalism doctrine, such as the contemporary Court’s unwillingness to enforce a robust enumerated powers doctrine. Nelson’s argument has a second aspect, however, which would considerably raise the bar for conflict preemption. In a series of separate opinions, Justice Thomas has adopted this approach and rejected the contemporary notion of “purposes and objects” preemption. I argue that this approach can and should coexist with Rice’s presumption against preemption in express preemption cases, and that in any event one cannot consistently cite Nelson’s historical argument to reject Rice and, at the same time, maintain broad notions of implied preemption. The article concludes with a discussion of the politics of preemption cases, which frequently find conservative and liberal justices reversing their usual stances on federalism. Although a number of factors contribute to this ironic reversal, the fact that federal preemption is generally de-regulatory in its effect. I suggest that a libertarian theory of federalism favoring widespread preemption is shortsighted, because robust state institutions remain necessary to our system of vertical checks and balances.

The Endangered Empire: American Re- sponses to Transnational Organized Crime

Transnational organized crime in the United States represents the dark side of globalization. This chapter attempts to identify the key problems that face US law enforcement in its efforts to cope with the challenges posed by transnational crime. While the realities of global crime require a broad, comprehensive law enforcement response, unfortunately, even in the United States, law enforcement agencies still tend to turn to local organizations and resort to local remedies to combat international criminal activity. In recent years the size of illegal markets and the resources of transnational crime networks have imposed financial burdens on governments that must devote resources to this struggle. Furthermore, the needs for flexible international trade initiatives and commercial investment frameworks makes the task of US law enforcement agencies engaged in criminal containment and control strategies more difficult to develop and sustain. US law enforcement is multi-layered with jurisdictional authority that is sometimes overlapping and reinforcing which in turn strengthens responses to crime. On the other hand, there are serious issues concerning decentralized enforcement authority that affects federal, regional, and state jurisdictions. Complicating matters still further are the external threats that transnational crime poses that lay beyond the official reach of U. S. criminal justice. Other US issues that complicate and indeed thwart adequate enforcement responses include: the politicization of law enforcement budgets and central government allocations of resources for law enforcement which too often depend upon political partisanship and party loyalties. And media-engendered fears about transnational crime phenomena are often confused with genuine social problems such as immigration and illegal aliens. Too frequently, media distort public attention about crime problems such as urban street gangs operating across national borders.

Buying Votes, Building Identities: Federal Social Policy Responses to Sub-State Nationalism in Québec

In the mid-1990s, the Canadian federal government was challenged by the ascendence of nationalist politics in Québec. This article will show how the federal government has used social policy to create and maintain a broader pan-Canadian identity in the face of sub-state nationalism in Québec. Linking literature on nationalism, identity, federalism, and regime support, it will examine the impact of social welfare policies on political identification in Québec to determine the extent and efficacy of the Canadian federal government's social policy responses to sub-state nationalism. Findings include a marked preference for direct service delivery by the federal government and a coincident rise in affective and instrumental support for federal spending and jurisdiction in areas of sole provincial responsibility. Using the cases of child care and post-secondary education, this article argues that the Canadian government has been successful in reinforcing attachment to a pan-Canadian identity through direct transfers to citizens.

An Overview of Government Ethics Standards

Federal, state and local governments impose detailed ethics restrictions on their employees. The substantive ethics restrictions vary in their details across federal, state and local jurisdictions. Some place significant restrictions on the kinds of partisan political activities their employees can engage in; others do not. The precise contours of gift restrictions vary considerably, from how broadly the gift ban is defined to how many exceptions exist. While most jurisdictions have anti-nepotism statutes, there is considerable variation regarding what types of relatives are covered. These variations reflect the fact that ethics standards are generally the result of legislative action, and legislatures often come up with different solutions to the same problem. This memorandum describes restrictions on the financial interests, associations and activities of current and former government employees that fit under the rubric of “government ethics.” It does not catalog every government ethics restriction adopted by all federal, state and local jurisdictions. Instead, it uses as a template the standards that apply to the federal government’s executive branch. The federal executive branch ethics standards may not be a perfect model for other jurisdictions to emulate, but it is a mature system of government ethics regulation, having been developed and implemented over several decades. It provides one example of what a comprehensive system of ethics regulation looks like. Part II of this memorandum describes in some detail the full range of ethics restrictions that apply to federal executive branch employees, from conflicts of interest to restrictions on the types of work they can perform after leaving the government. In discussing government ethics, it is important to focus not just on substantive restrictions but also on the mechanisms and structures that implement those restrictions. Ethics laws are not self-executing, and a jurisdiction that has tough ethics standards but fails to implement them leaves itself vulnerable to corruption and abuse. The third part of this memorandum discusses these different designs for implementing government ethics restrictions. The fourth part of the memorandum then examines the degree to which other jurisdictions have adopted variations of these restrictions. For example, with regard to financial interests, the federal government imputes to the employee the financial interests of some – but not all family members: the employee’s spouse and minor children. Other jurisdictions have taken a broader approach, imputing the interests of domestic partners, adult children, siblings, parents, or members of an employee’s household. While there is a consensus that governments should regulate the financial interests of their employees, there is not a consensus about how broadly or narrowly to define those interests.

DECENTRALIZACJA STRUKTURY POLITYCZNEJ W UJĘCIU NOWEJ EKONOMII POLITYCZNEJ

The aim of the article is to analyze decentralization political structure, under the corner of reduce economical incentives influence of organized interests on the distribution of public resources. The theoretical deliberations presented in the article are based on the research achivements of the new political economy (NPE). The author argue that the federal jurisdiction when the administration have the power to tax is the nearest to the nondiscriminatory politics.

Is Cooperation with the EEOC an Implied Requirement for Exhaustion of Administrative Remedies?

Prior to filing a lawsuit against an employer for discrimination, a complainant must first file a complaint with the EEOC in order to exhaust all available administrative remedies. Federal employment discrimination statutes do not explicitly require complainants to cooperate with EEOC investigations prior to filing suit in federal court; rather, the plain language of the statutes provides that so long as the complainant files a complaint with the EEOC and subsequently receives a right-to-sue letter from the EEOC, she may proceed to file suit. The circuits are split as to whether a cooperation requirement should be read into the statutes. This Note advocates that future decisions should follow the Seventh Circuit's reasoning and not require that complainants cooperate with the EEOC in order to establish federal subject-matter jurisdiction. Although counter- intuitive at first glance, allowing noncooperation better serves the primary purpose of the federal anti-discrimination statutes—eliminating discrimination in employment, while affording claimants fair notice of their responsibilities when pursuing claims.

The Exceptions Clause as a Structural Safeguard

Scholars have long treated the Exceptions Clause of Article III as a serious threat to the Supreme Court’s central constitutional function: establishing definitive and uniform rules of federal law. This Article argues that scholars have overlooked an important function of the Clause. Congress has repeatedly used its broad “exceptions power” to facilitate, not to undermine, the Supreme Court’s constitutional role. Drawing on insights from social science, this Article asserts that Congress has an incentive to use its control over federal jurisdiction to promote the Court’s role in settling disputed federal questions. Notably, this argument has considerable historical support. When the Supreme Court’s mandatory appellate docket grew to the point that it was unmanageable for a single tribunal, Congress responded by exercising its authority under the Exceptions Clause. Congress made “exceptions” to the Court’s mandatory appellate jurisdiction and replaced it with discretionary review via writs of certiorari — precisely so that the Court could concentrate its limited resources on resolving important federal questions. Thus, contrary to conventional wisdom, Congress has often used its broad exceptions power to safeguard the Supreme Court’s role in the constitutional scheme.

You Can't Go Holmes Again

Under the standard interpretation of 28 U.S.C. § 1331, the so called Holmes test, pleading a federal cause of action is sufficient for finding federal question jurisdiction. In January 2012, the Supreme Court, in Mims v. Arrow Financial Services, LLC, recharacterized this standard test for § 1331 jurisdiction as one that considers whether “federal law creates [both] a private right of action and furnishes the substantive rules of decision.” In this first piece to address the Mims Court’s significant change to the § 1331 canon, I applaud its rights-inclusive holding. I contend that this rights-inclusive view rests upon a firmer jurisprudential framework than does the Holmes test, as the latter is intertwined with an anachronistic pairing of causes of action and rights with Justice Holmes’s overall “bad man” approach to the law. I argue further that Mims’s rights-inclusive approach more accurately describes § 1331 doctrine as a whole, helping to illuminate that — contrary to the Holmes test — merely pleading a federal cause of action is neither necessary nor sufficient for taking statutory federal question jurisdiction. I also demonstrate that this rights-inclusive view is more solicitous of the intent of the 1875 Congress, which passed § 1331, and of the intentions of later-in-time Congresses, which passed legislation against the presumption that federal rights provide grounds for taking federal question jurisdiction, than is the Holmes test.

Federalists, Federalism, and Federal Jurisdiction

Historians and legal scholars generally agree that during John Marshall's tenure as chief justice of the United States Supreme Court from 1801 to 1835, the federal judiciary expanded its power to interpret the Constitution and asserted with increasing force its authority to speak on behalf of the Union. This single story of judicial nationalism, however, contains two distinct and largely non-overlapping strands. Historians have tended to focus on the Supreme Court alone, to the exclusion of the lower federal courts, and have largely treated early national controversies over the lower federal courts as outgrowths of the political turmoil that accompanied the emergence of the first party system. Legal scholars in the fields of federal courts and constitutional law, meanwhile, have devoted significant attention to the lower federal courts but have largely neglected the history of how those courts developed beyond the key early moments of the Constitutional Convention and the First Congress.

Rethinking Recognition: Mi’kmaq and Maliseet Poets Re-Write Land and Community

Land and community are two ongoing concerns of contemporary Native American literature and literary criticism, and with good reason; if indigenous writing and theory are to remain genuinely useful to indigenous people, they must stay grounded in these two fundamental pillars of tribal culture. At the same time, given that many Native people do not live on reservations or in their traditional homelands and many individuals have unacknowledged or somehow contentious status in their tribes, we might consider how those experiences speak to indigenous territories and group identities and how they inform new indigenous writing. This essay looks to new Mi'kmaq and Maliseet poets to see how recognition affects Native peoples' self-representation. (1) By recognition, mean the formal, colonial governmental processes that acknowledge indigenous territories, identities, and self-governance. In the United States, beginning in the early 1970s, Mi'kmaqs and Maliseets were among the many tribes vigorously pursuing federal recognition. The Maliseets won recognition under the 1980 Maine Indian Settlement Claims Act (MISCA), along with the Penobscots and Passamaquoddies. The Mi'kmaqs did not receive recognition until 1991, even though they worked closely with the Maliseets on this goal. In Maine as elsewhere, recognition has produced mixed results. On the plus side, it has enabled tribes to buy back small parts of their traditional land bases. It has opened the door to resources that are supposed to be guaranteed to Native people as restitution for those lands, especially improved housing, health services, and education. Furthermore, recognition signifies a formal, government-to-government relationship between tribes and the US, which has arguably helped bring some tribes a good deal of positive visibility and power. On the negative side, MISCA disrupted some communities and alliances and in some cases even took away hard-won benefits. Some Maine Indians were against the settlement act from the outset. Others find today that it has actually created new barriers to the exercise of sovereignty or that it has weakened a previous sense of community. On the twenty-fifth anniversary of the settlement act, Passamaquoddy elder Madonna Soctomah remarked, I can remember when everybody took care of everybody else and that's how we survived. We used to gather regularly and play games. Now there's no community life here. It's like everybody's a recluse (Tuttle). (2) Thus, while recognition is often sought, it can also do violence to Native people, dividing them from their homelands and kin. Competing investments in and stories about recognition are dramatically illustrated in the writing produced by Mi'kmaq and Maliseet people before and after their federal recognition cases. In this essay, focus on a short-lived collaborative newsletter, The Aroostook Indian, produced out of Houlton, Maine, between 1969 and 1976. then turn to two contemporary poets: Alice Azure (Mi'kmaq) and Mihku Paul (Maliseet). Both women presently live in urban areas of the United States, have connections in northern Maine, and have band affiliations in Canada, where most of the Mi'kmaq and Maliseet reservations are located. This pair of writers lets us ask how off-reservation Native people with varying relationships to recognition write about land and community. While there is no simple or unified answer to this question, suggest that the poets in particular describe wider territories and more capacious communities than recognition or its implementation normally implies or fosters. Federal recognition has been an overriding goal of northeastern indigenous people in the US since the 1960s and 1970s. Tribes can be unrecognized for any number of reasons. Some were officially terminated under the federal termination and relocation policies of the 1950s. (3) In the Northeast, where settler colonialism was well-entrenched before the United States formally came into being, many tribes already had treaties and land cessions with early colonial governments and tended to remain outside of US federal jurisdiction until they started pressing for recognition in the late twentieth century. …

“The Ordinary Diet of the Law”: The Presumption Against Preemption in the Roberts Court

In a preemption case decided over a decade ago, Justice Breyer wrote that “in today’s world, filled with legal complexity, the true test of federalist principle may lie . . . in those many statutory cases where courts interpret the mass of technical detail that is the ordinary diet of the law.” This article surveys the Roberts Court’s preemption jurisprudence, focusing on five cases decided in OT 2010. I argue that Justice Breyer was right — that is, that because current federalism jurisprudence largely eschews any effort to define exclusive spheres of state and federal regulatory jurisdiction, the most important federalism cases involve efforts to determine the preemptive scope of federal legislation. The key doctrinal tool in preemption cases is the “presumption against preemption” — a canon of statutory construction recognized by the Court in the 1947 case of Rice v. Santa Fe Elevator Corp. The Rice presumption is under nearly constant siege today from both litigants and commentators. This article explores the Roberts Court’s use (and non-use) of the presumption and defends the presumption against its academic critics. In particular, I address Caleb Nelson’s important argument that Rice’s presumption is inconsistent with the original meaning of the Supremacy Clause, concluding that Professor Nelson’s historical argument does not rule out the presumption as it is presently applied. Even if the original history did disfavor the presumption, Rice is a necessary doctrinal innovation that balances other developments in federalism doctrine, such as the contemporary Court’s unwillingness to enforce a robust enumerated powers doctrine. Nelson’s argument has a second aspect, however, which would considerably raise the bar for conflict preemption. In a series of separate opinions, Justice Thomas has adopted this approach and rejected the contemporary notion of “purposes and objects” preemption. I argue that this approach can and should coexist with Rice’s presumption against preemption in express preemption cases, and that in any event one cannot consistently cite Nelson’s historical argument to reject Rice and, at the same time, maintain broad notions of implied preemption. The article concludes with a discussion of the politics of preemption cases, which frequently find conservative and liberal justices reversing their usual stances on federalism. Although a number of factors contribute to this ironic reversal, the fact that federal preemption is generally de-regulatory in its effect. I suggest that a libertarian theory of federalism favoring widespread preemption is shortsighted, because robust state institutions remain necessary to our system of vertical checks and balances.

Complete Preemption and Copyright: Toward a Successive Analysis

District courts in most circuits face a problem: does the so-called “complete preemption” doctrine apply to the Copyright Act — that is, does the complete preemption doctrine allow a defendant to remove a case that states only state law claims from state court to federal court if the Copyright Act seems to cover the subject matter of the claims? This Article proposes that courts and practitioners need to start arguing the merits of both the complete preemption doctrine and the tests that apply to the doctrine — the congressional intent test, the exclusive federal cause of action test, and the extra element test.Commentators and courts disagree on the merits of using the complete preemption doctrine in context of the Copyright Act. Plaintiffs prefer state courts, and defendants prefer federal courts. Therefore, defendants often remove cases to federal courts, and plaintiffs move to remand cases to state courts. In cases that involve copyrights, sometimes plaintiffs file cases in state courts and omit claims of copyright infringement to avoid federal court jurisdiction, while defendants increasingly assert that causes of action of breach of contract claims and other claims that involve copyrights relate to the Copyright Act. Thus, the complete preemption doctrine allows the defendant to remove the case to federal court. The competing views of commentators and courts inform plaintiffs and defendants sufficiently to allow them to argue the merits of each step of the analysis.