What We’re Reading

Here is some of the legal scholarship Benchwarmers is reading this week. Topics include federal Indian law, education, personal jurisdiction, and appellate certification of state law questions. Articles sourced from the latest issues of the Boston University Law Review, the Emory Law Journal, and the Northwestern Law Review, as well as last month’s issue of the Duke Law Journal.


1. Federal Indian law: McGirt v. Oklahoma

In 2020 the U.S. Supreme Court, voting 5:4, held that much of eastern Oklahoma is indigenous territory under an 1866 treaty between the Muscogee (Creek) Nation and the federal government. The decision was momentous. Over a million Oklahomans, most of whom had long assumed they were, well, normal Oklahomans, now found themselves living on tribal land. State courts, applying McGirt’s reasoning, have held that similar 18th and 19th century treaties with the Cherokee, Chickasaw, Choctaw, and Seminole Nations remain valid. And the machinery of criminal courts has been upended. McGirt may have erased thousands of convictions of state defendants whose crimes were committed on indigenous land, and federal and tribal authorities barely have the resources to prosecute even petty misdemeanors in Tulsa.

Robert Miller, professor at the Arizona State College of Law, and Torey Dolan, a fellow at the same law school and citizen of the Choctaw Nation, discuss McGirt’s ramifications in their recent article. They begin by recounting the history of the Creek Nation’s legal relationship to Oklahoma and the federal government. Next, they canvass McGirt’s majority and dissenting opinions. Professor Miller and Ms. Dolan analyze how closely the majority and dissent adhered to Solem v. Bartlett (1984), which established a three-prong test to determine whether Congress abrogates an Indian treaty. They also question the dissent’s reliance on facts that, in their words, “highlight the sordid history of ethnocentrism, manifest destiny, settler-colonial greed, and the confiscation/theft of Indians’ lands and assets.” After observing that federal, state, and tribal governments already have begun to shift personnel and resources to respond to McGirt, they end by arguing that all parties should embrace McGirt’s holding. Robert J. Miller & Torey Dolan, “The Indian Law Bombshell: McGirt v. Oklahoma,” 101 B.U. L. Rev. 2049 (2021).

Meanwhile, Matthew L. M. Fletcher, professor at the Michigan State College of Law, thinks McGirt has established a new breed of textualism in federal Indian law cases. Most judges’ preferred method of statutory interpretation in Indian law matters, he contends, has been “canary textualism”, under which judges parse statutes in accordance with what they think Indian law ought to be. His label has deep roots. A 1954 law journal article compared Indian law to a miner’s canary. Miners would carry the delicate yellow birds, which are more susceptible to poisonous gases than humans, into the mine with them; when the canary dies, it’s time to leave. So if the canary is the mine’s barometer, then the “treatment of Natives [is] the barometer for the constitutional soul of the United States.” But just as miners cage the helpless canary, Professor Fletcher claims, so canary textualists paint indigenous populations as helpless and cage them in protean jurisprudence. He argues McGirt is a sea change. The McGirt majority evinced a new form of textualism—“muskrat textualism,” he calls it—that is both grounded in interpretive canons and respectful of indigenous agency. All the better to use it, he maintains, because in Anishinaabe lore the muskrat “took courageous and thoughtful action to save creation.” Caged, no longer. Matthew L.M. Fletcher, “Muskrat Textualism,” 116 Nw. U. L. Rev. 963 (2022).

2. Education

Earlier this month a First Circuit panel rejected the claim that Rhode Island’s civics education is so deficient as to be unconstitutional. It was the latest in a string of decisions that there isn’t a right to a basic education in the U.S. Constitution. Even so, education-rights litigation continues apace. This blog doesn’t like their chances. We’ve said that attempts to find the right in lesser litigated clauses of the Constitution would require serious mental gymnastics and, therefore, probably will be unsuccessful. But Derek Black, a law professor at the University of South Carolina, thinks differently. He argues that a positive right to education exists in the Guarantee Clause and the Thirteenth and Fourteenth Amendments. Important, he says, is the historical context: Recall the American South’s practice of denying former slaves educational opportunities, as well as the Reconstruction Congress’ deal that confederate states must mandate education in order to see themselves readmitted to the union. Derek W. Black, “Freedom, Democracy, and the Right to Education,” 116 Nw. U. L. Rev. 1031 (2022).

Meanwhile, Meghan Lawrence, a law student at Boston University, writes about education not in itself but as a lens through which to analyze First Amendment rights. How are speech and expression faring in the classroom—or, more accurately, in the “Zoom” room? Every 1L learns that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Yet neither are schools powerless to stop speech or expression that disrupts the learning environment. Finding a middle ground, though not easy, has proved manageable in school. But what about in the virtual classroom? How should teachers (or courts) handle matters of speech and expression when the student is, say, in calculus virtually but in their own home physically? Ms. Lawrence’s Note focuses on a student’s background, that is, what appears on the computer screen behind the student’s face. Is it a physical background, such as the student’s kitchen wall or a poster in their bedroom? Or is it a virtual background, a greenscreen of the student’s choosing? Ms. Lawrence argues teachers should have more say over a virtual background than a physical background—assuming the student hasn’t turned their camera off. Meghan K. Lawrence, “Tinker Stays Home: Student Freedom of Expression in Virtual Learning Platforms,” 101 B.U. L. Rev. 2249 (2021).

Snapshots: In personam jurisdiction and appellate certification of state law questions

John Mikuta, a law student at Emory University, argues that Bristol-Myers Squibb Co. v. Superior Ct. of California (2017), which held that state courts lack personal jurisdiction over plaintiffs who opt in to a mass action but suffer no injury in the forum state, should not apply to class actions. Mr. Mikuta offers four reasons against the idea: (1) the pre-Bristol-Myers consensus would be upended; (2) there are inherent differences between plaintiffs in mass and class actions; (3) much of FRCP 23 would become redundant or feckless; and (4) it would defeat the purpose of class actions generally. (We wrote recently on Bristol-Myers in a different context: its application to federal mass actions. That’s an issue on which the circuits are split.) John Mikuta, “The Class Action Struggle: Should Bristol-Myer’s Limit on Personal Jurisdiction Apply to Class Actions?,” 71 Emory L.J. 325 (2021).

John Macy, a law student at Duke University, writes on certification, the process by which federal appellate courts, instead of making an Erie guess, ask a state supreme court to decide a question of state law where the answer is, or could be, dispositive. Certification currently goes one way: federal to state. Mr. Macy’s Note argues it can and should work the other way too. John Macy, “Give and Take: State Courts Should Be Able to Certify Questions of Federal Law to Federal Courts,” 71 Duke L.J. 907 (2021).

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