Indian Water Rights, Practical Reasoning, and Negotiated Settlements

Indian reserved water rights have a strong legal foundation buttressed by powerful moral principles. As explained more fully below, the Supreme Court has implied reserved tribal water rights when construing treaties and other similar legal instruments. The precise scope and extent of these rights in any treaty are unknown until quantified by a court ruling […]

The Continuity of Statutory and Constitutional Interpretation: An Essay for Phil Frickey

This conference on the work of Philip Frickey as scholar, teacher, and institutional citizen has been an education””a somewhat daunting one””in how to achieve greatness as an academic. As a relatively junior person in this company, I have little to contribute to that discussion. But what I can perhaps document is Phil”˜s intellectual influence on […]

Legislation that Isn’t – Attending to Rulemaking’s Democracy Deficit

Philip Frickey”˜s commitment to practical legal studies won my admiration early on in his career. In this welcome celebration of his extraordinary career, it seems fitting to essay something “practical”””to attempt a constructive approach to an enduring problem””that has some bearing on his lifelong attention to the problem of “interpretation.” If it will not make […]

Second-Generation Textualism

In his perceptive histories of the late-twentieth-century revival of interest in statutory interpretation theory, Philip P. Frickey, always modest, predictably failed to account for his own large contribution to the debate. Assessing this contribution, of course, would present difficulty for anyone, as the work spans so widely. With his frequent coauthor, William Eskridge, Professor Frickey […]

The Last Indian Raid in Kansas: Context, Colonialism, and Philip P. Frickey’s Contributions to American Indian Law

This Article will first describe, in Part I, the trajectory of Phil”˜s Indian law scholarship, tracking in particular the development of the major themes just described””the centrality of the structural relationship between tribes and the federal government, and the importance of context. In Part II, it will delve into the story of Oberlin, Kansas, and […]

A Final Toast to My Network

In the last year of his life, Professor began a book about his personal spiritual journey to serenity in the face of a terminal diagnosis. Forced by circumstances to confront the instinctive fear of death we all share, he had found a way to normalize it, with help from a remarkable network of colleagues, students, […]

Response to Martha Nussbaum

I find much to agree with in Professor Martha Nussbaum”˜s elegant and lucid Essay, “A Right to Marry?” However, I will not begin by responding to it directly, but will instead start my analysis by taking a step back from the debate. Many observers believe that the politics of the gay marriage issue in the […]

A Right to Marry

Marriage is both ubiquitous and central. All across our country, in every region, every social class, every race and ethnicity, every religion or non-religion, people get married. For many if not most people, moreover, marriage is not a trivial matter. It is a key to the pursuit of happiness, something people aspire to””and keep on […]