Articles, notes, and symposia pieces published in CLR’s print volumes.
Print Edition
“Systemic Breakdown”: Obscuring Crisis in Speedy Trial Right Analysis
Courts across the country force indigent criminal defendants to spend absurd amounts of time in pretrial detention, where they endure the horrors of incarceration, the stigma of guilt, and the diminished ability to mount an effective defense. These defendants spend months, years, even decades, waiting for their innocence to be vindicated. The consequence of this delay is that the poor, regardless of their innocence, are de facto prisoners, and their public defenders, once imagined as the fulfillment of our Constitution’s loftiest ideals, are the unknowing foot soldiers of chronic crisis. The criminal legal system forces these public defenders to endure crushing caseloads that jeopardize their clients’ lives. Yet the legal community has become acclimated to this status quo, a “systemic breakdown” in indigent criminal defense—one that punishes the poor and subjects them to unreasonable and unconscionable delay. This Note brings attention to the madness. Centered around the Supreme Court’s decision in Vermont v. Brillon, which coined the term that inadequately addresses this unconscionable delay, this Note argues that there has indeed been “systemic breakdown” in our public defender system. The government hamstrings public defender offices by wrongfully blaming them and their indigent clients for the same delay these offices and defendants decry. But many courts, including the highest court in the land, refuse to see this breakdown and instead construe the law to absolve the government of its own inadequacy. Beginning with the country’s history of indigent criminal defense, this Note connects political choices with Supreme Court decisions to argue that public defenders, like their clients, are the victims of constitutional root rot.
Speaking Freedom: Black Liberation, Abolitionism, and Substantive Justice
Subordinate groups form social movements to contest societal norms and practices that sustain inequality. Social mobilization by subordinates can spark countermovements by privileged classes who perceive egalitarianism as a threat to their economic, political, and social power. Privileged-group countermovements often seek to suppress speech that challenges oppression, known as liberation speech. In the nineteenth century, defenders of enslavement suppressed “liberation speech” by legal and extralegal means in order to maintain Whites’ social dominance. Abolitionist resistance to speech suppression helped foster a culture of free speech that created a foundation for First Amendment doctrines developed in the twentieth century. Drawing from this history, legal scholars counsel against any restrictions on speech—including racist speech. These arguments, though powerful, tend to submerge the ultimate goal of abolitionism. Abolitionists struggled to achieve emancipation and full citizenship for Blacks, not simply freedom of speech. If abolitionist views on speech should influence First Amendment interpretation, then this same history should have even greater importance for contemporary equality theories.Although the Roberts Court attempts to situate its equality doctrine within a civil rights tradition, the Court’s conception of equality has no support in abolitionism or subsequent antiracism movements. On the contrary, the Court’s equality framework contradicts the vision of equality that Blacks deem essential for freedom and full citizenship.
Leisure Justice
To date, antidiscrimination law has centered on specific domains widely believed to be most central to human life and democratic participation: education, voting, employment, housing, and public accommodations. The right to vote, the ability to receive an education, and the capacity to obtain shelter and employment are essential to human survival, particularly within a market economy. But while voting, education, employment, housing, and travel might be necessary for human survival and democratic participation, they are not sufficient for human flourishing. People need more than an education, a steady job, a roof over their heads, and the right to vote—they need things in their lives that will bring them joy and satisfaction. They need time and space for recreation, for play, or even merely for relaxation. In short, they need leisure. It is an obligation of a just polity to provide leisure opportunities for its citizens. If a polity is obligated to ensure that its citizens have the capacity for leisure, then it is obligated to do so in an equitable and nondiscriminatory manner. The availability of leisure should not vary on the basis of race, gender, or disability any more than the right to vote or the right to an education. It is past time to begin considering the question of leisure justice: Are all citizens able to access sufficient opportunities for leisure, and can they do so on a nondiscriminatory basis? This Article provides the first systematic account of leisure law—the wide array of legal doctrines that structure Americans’ access to leisure opportunities and the distribution of those opportunities. Leisure intersects with a surprising array of legal fields, from foundational areas such as constitutional law, tort law, property law, and criminal law to specialized domains like employment law, civil rights law, administrative law, and intellectual property law.
Civilized Enough to Tax: Natives as Federal Income Taxpayers
What does it mean to condition federal tax liability on the degree to which a Native American has assimilated? Native Americans have been long presumed to be subject to federal income taxation despite the absence of express congressional authorization. This presumption obscures the complicated history by which Native Americans were incorporated into the federal tax base. This Article provides a normative, long-overdue description of Native federal income tax liability by situating that historical path within the longer trajectory of federal Indian law. This Article traces how an assimilative framework that includes allotment policy, competence determinations, and the Indian Citizenship Act of 1924 collectively transformed Tribal members from “Indians not taxed” into presumed taxpayers. Historical federal taxation jurisprudence required that Native Americans abandon their Tribal membership to be taxable. But now, courts quietly ignore this requirement. The failure to resolve the impact of dual citizenship—the coexistence of U.S. citizenship with continued Tribal citizenship—collapses political distinctness into presumptive assimilation. By excavating this history, this Article demonstrates that Native federal income taxation is neither inevitable nor doctrinally coherent. It argues that courts have misapplied statutory canons of interpretation by privileging the presumption of taxability over Indian canons of construction, which require express congressional intent for courts to impose a statute of general applicability on Tribal citizens. But more fundamentally, this Article contends that taxation doctrine has failed to account for the implications of Native dual citizenship, thereby erasing the sovereign-to-sovereign relationship that the law otherwise recognizes.
Financial Assimilation
Immigrants’ lives are measured and debated along many axes: language acquisition, neighborhood choice, and even family formation. But another overlooked form of assimilation persists. I use “financial assimilation” to capture noncitizens’ inclusion within American financial markets, for better or for worse. The law defines financial assimilation in different ways for different types of migrants. Federal law can tie migrant resettlement to private sponsorship—as Americans’ financial stature supports newcomers—or protect work-authorized noncitizens under financial antidiscrimination laws. Federal law can also deter, if not prohibit, financial assimilation when it limits lending in marquee markets like housing, even as state laws forge a different path. The law offers a far less glossy form of financial assimilation by conditioning detained immigrants’ freedom on financial bonds. Immigration law’s exclusive forces do not preempt financial assimilation. Beyond defining and describing financial assimilation, this Article uncovers its risks. Financial assimilation generates visibility, and therefore surveillance and immigration enforcement, especially as legal safeguards falter in markets for money transmission and carcerality. I argue that a safer future for financial assimilation is possible, even amid heightened immigration enforcement. Noncitizens and their financial transactions will endure.