Note

The Unrealized Promise of Section 1983 Method-of-Execution Challenges

Prior to Hill v. McDonough, federal courts largely viewed method-of-execution challenges as being cognizable only through a petition for habeas corpus. Because federal habeas doctrine involves significant restrictions, such challenges were often difficult, if not impossible, to bring. This was particularly true, for instance, where an inmate had already litigated his first habeas petition and attempted to bring a later habeas corpus execution-protocol challenge: the rules against successive petitions nearly always prevented it, regardless of any newly-revealed factual or legal predicates for the challenge.

But Hill (and a predecessor case, Nelson v. Campbell) changed this framework: inmates could now challenge their method of execution through § 1983. By freeing inmates from many of habeas corpus’s restrictions, this ought to have made a significant difference for litigants.

As is often the case, though, theory and practice can diverge. This Note will show that lower courts seeking procedurally to limit the litigation resulting from Hill often fall back on habeas doctrine, importing aspects of it into these § 1983 suits. Given the very different policies and rules that underlie each of these doctrines, this importation frustrates the promise of Hill’s § 1983 vehicle for method-of-execution challenges. And even where courts do not engage in such importation, they frustrate Hill’s promise in other ways not required by applicable § 1983 doctrine, such as by formulating unduly harsh timing rules or overlooking the applicable standard of review. Thus, to date Hill’s § 1983 vehicle has done little to loosen the method-of-execution challenge vise.

Return on Political Investment: The Puzzle of Ex Ante Investment in Articles 3 and 4 of the U.C.C.

When, why, and how does a firm decide to invest its resources in political capital? What factors inform the firm’s decision to lobby political bodies? How important is the resulting durability of law in making this calculus? Although these questions have been largely unanswered in the legal literature, they are fundamental to a complete understanding of public choice theory. Using Articles 3 and 4 of the Uniform Commercial Code as a framework for examining these questions, this Note identifies four threshold inquiries each firm must answer before engaging in political investment. It then develops those factors that a firm may consider in estimating its return on political investment (ROPI). A puzzle emerges, however, when one considers the default nature of the U.C.C. Economic theory and the right to contract suggest that the ex post distribution of such terms will achieve general equilibrium regardless of their ex ante value. Without ex post legal durability in the form of mandatory rules, it is difficult to imagine just how commercial banks are capable of harnessing long-term permanent returns from their political investment in the U.C.C. While the current legal literature simply assumes that banking interests can harness a non-negative return on political investment, this Note relies upon behavioral economics and the notion of bounded rationality to conclude that private banking interests are likely to capture a positive ROPI, even where default rules with seemingly little durability govern their contracts. In arriving at this conclusion, it first identifies the political investment threshold inquiries a firm must answer prior to contributing capital to a political investment, as well as the substantive returns that firms are likely to realize as a result.

An Argument for the Partial Abrogation of Federally-Recognized Indian Tribes’ Sovereign Power Over Citizenship

For many Native Americans, membership in a federally-recognized Indian tribe represents an affiliation as fundamental as American citizenship to Americans generally. Tribes are not only crucial conduits of economic and social services, but also tangible and vital connections to ancient racial and national affiliations. Yet as important as they are, in most tribes these connections may be summarily severed without appeal. 

Unlike either the state or federal governments, most Indian tribes retain the right to disenfranchise members from specific benefits, or simply to disenroll (forcibly expatriate) and banish from tribal lands even native born members. Federal case law suggests that these abuses are almost wholly irremediable both within the tribe and in the federal courts. Despite strong arguments to the contrary, the federal courts have consistently held that the powers provided to them under the Indian Civil Rights and Indian Gaming Regulatory Acts are essentially incapable of reaching tribal membership disputes.

This is not just an issue that affects scattered individuals. The nature of expatriation power is such that even if unexercised, it has the potential to significantly curb the political life of the tribe. Even a small number of instances can educate a large population on the costs and benefits of political dissent. Thus it is not just Indians as individuals who suffer when tribes abuse citizenship rights, but the tribe as a whole, as well as the legitimacy of the federal-Indian system of which it is a part. The power to disenroll removes from tribes the democratizing burden of working to compromise, stifling the development of populist values and participatory government. This Note first describes the historical and jurisprudential background of tribal citizenship, before arguing on the basis of individual civil rights and tribal republican development that the federal-Indian system would be well-served by affirmative Congressional action to remove from tribes the power to disenroll, disenfranchise and banish their members.

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