Issue 6

Who’s In and Who’s Out: Congressional Power Over Individuals Under the Indian Commerce Clause

For over two hundred years, Congress has enjoyed plenary power over Indian affairs under the Indian Commerce Clause. This Clause has allowed preferential treatment for Native Americans to bypass strict scrutiny despite the evolution of modern race law. But in late 2015, the Bureau of Indian Affairs (“BIA”) published new regulations requiring courts to follow a strict set of procedures that ensure Native American children will be placed with tribe-affiliated families. This sparked immediate backlash. Adoption agencies argue that the BIA’s new regulations impose undue burdens on Native American children because of their race. This litigation has profound implications for the continued existence of modern Indian law, which rests on the assumption that government regulations affecting Native Americans is a “political”—not “racial”—classification. So far, current scholarship has failed to foresee or respond to these equality-based attacks. 

This Note proposes a new response, and a new interpretation of Congress’s powers under the Indian Commerce Clause. It focuses on the word “Indian” in Article I to argue that the Constitution contains a latent ambiguity highlighted by the BIA’s rulemaking. It proposes that the term “Indian” refers to an individual’s political, social, and cultural connections rather than their ethnic heritage. This novel interpretation accords with historical practice, the evolution of judicial precedent, and intra-textual analysis of the Constitution. The effect of this interpretation is to recognize a previously unarticulated constitutional limit on Congress’s power to regulate individual Native Americans, granting the ultimate recognition of tribal citizenship to the eligible individual. 

 

The Common Law of Contract and the Default Rule Project

The common law developed over centuries a small set of default rules that courts have used to fill gaps in otherwise incomplete contracts between commercial parties. These rules can be applied almost independently of context: the market damages rule, for example, requires a court only to know the difference between market and contract prices. When parties in various sectors of the economy write sales contracts but leave terms blank, courts fill in the blanks with their own rules. As a consequence, a judicial rule that many parties accept must be “transcontextual”: parties in varied commercial contexts accept the courts’ rule by writing contracts that contain just the gap the rule could fill. A long-standing project of academics and lawyers attempts to supplement common law contract rules with substantive default rules and default standards. This project has produced Article 2 of the UCC and the Second Restatement of Contracts and the project plans to produce more privately created contract law. We show that the “default rule project” could not create substantive default rules because the contract terms for which the rules would substitute are commonly context dependent: the terms’ content either is a function of particular parties’ circumstances or a particular trade’s circumstances. Members of the default rule project, whom we call “drafters,” could not access the information needed to create efficient rules that require such local knowledge. Instead, the drafters supplied commercial parties with default standards that courts can apply transcontextually in addition to or as replacements for the common law rules. Contracts sometimes do contain standards, but only when the standards are accompanied by substantive terms from which courts can infer the parties’ contracting goals and thus apply the standards to advance them. The drafters’ decision to adopt unmoored standards was a mistake because commercial parties do not accept, and thus contract out of, the statutory and restatement default standards. In contrast, the common law’s transcontextual default rules continue to stand. Our analysis explains the default rule project’s past failures and their current consequences: the Article thus illuminates the contract law we have even as it cautions that the default rule project must materially change else it risk repeating past errors.

What’s Wrong With Sentencing Equality?

Equality in criminal sentencing often translates into equalizing outcomes and stamping out variations, whether race-based, geographic, or random. This approach conflates the concept of equality with one contestable conception focused on outputs and numbers, not inputs and processes. Racial equality is crucial, but a concern with eliminating racism has hypertrophied well beyond race. Equalizing outcomes seems appealing as a neutral way to dodge contentious substantive policy debates about the purposes of punishment. But it actually privileges deterrence and incapacitation over rehabilitation, subjective elements of retribution, and procedural justice, and it provides little normative guidance for punishment. It also has unintended consequences for the structure of sentencing. Focusing on outcomes centralizes power and draws it up to higher levels of government, sacrificing the checks and balances, disaggregation, experimentation, and localism that are practically baked into sentencing’s constitutional framework. More flexible, process-oriented notions of equality might better give effect to a range of competing punishment considerations while still policing punishments for bias or arbitrariness. They also could bring useful nuance to equality debates that swirl around restorative justice, California’s Realignment experiment, federal use of fast-track plea agreements, and other contemporary sentencing practices.

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