Articles

THIS LAND IS MY LAND, THIS LAND IS YOUR LAND: MARKETS AND INSTITUTIONS FOR ECONOMIC DEVELOPMENT ON NATIVE AMERICAN LAND
Ezra Rosser

This paper presents the current land regime and nature of economic development found on most Native American reservations, drawing predominantly from the Navajo Nation. It then considers the situation according to (1) neo-classical economics and (2) New Institutional Economics (NIE). The paper begins with the paired assumptions that economic growth can and should reach reservations and that the U.S. and tribal governments can improve upon past performance and institutional arrangements. Policy solutions to reservation commercial and light industrial underdevelopment, corresponding to each economic perspective in turn, are then discussed. The paper broadens the range of policy options available to tribes considering their land use policies and development priorities. The paper is a mixture of law, economic theory, and land use planning.

 CORRECTING ANOMALIES IN THE UNITED STATES LAW OF CITIZENSHIP BY DESCENT
David A. Isaacson

Current U.S. citizenship-by-descent law produces many anomalies. A foreign-born child raised by his American father may not be a citizen, while any child conceived from an American egg donor likely will be. An American-born woman who moves overseas between her first and sixteenth birthdays can only transmit citizenship to her child by a foreign father if she is unmarried, while an American woman raised in an overseas military household often must marry to transmit citizenship—and even marriage may not suffice if her child’s father is from American Samoa. The law capriciously penalizes those who overlook its details, and is so complex that this occurred even in the landmark Supreme Court case of Nguyen v. INS : Tuan Nguyen probably could have successfully claimed citizenship with the right approach, but was deported. This Article explains how these problems, and others, arise, and proposes new statutory language that would eliminate them.

 Faith-Based Miranda?: Why the New Missouri v. Siebert “Bad Faith” Test Is a Terrible Idea
Joëlle Anne Moreno

On June 28, 2004, the Court decided Missouri v. Seibert, 124 S. Ct. 2601 (2004).  At first glance, Seibert may look like a Miranda victory, but this is an illusion.  Although Justice Souter's plurality decision condemns question-first police practices designed to circumvent Miranda, the case is governed by Justice Kennedy's concurrence, which requires that the defendant prove that the police officer acted in bad faith.  Seibert shifts an impossible and inappropriate burden onto the defendant.  The problem with Seibert is not that the new rule will ignore some epidemic of inadvertent Miranda violations; these are presumably rare.  The real danger is that opportunistic Miranda foes will persuade judges to ignore Miranda violations whenever the defendant cannot prove that the police acted in bad faith or whenever the police have taken (what Justice Kennedy has described) as "curative measures." 

This Article suggests an alternative future.  If the police bad faith test is abandoned, Seibert's ban on unwarned pre-interrogation questioning could help transform Miranda into a more effective deterrent.   Seibert implicitly supports the adoption of additional enforcement mechanisms, such as rules requiring the videotaping of custodial interrogations, because the Court has begun to acknowledge that Miranda alone does not work.  More specifically, Seibert's explicit condemnation of pre-warnings questioning would make videotaping requirements a more potent deterrent by barring police from engaging in preliminary (off-camera) questioning.  With more than fifteen states currently contemplating new videotaping requirements, the time is ripe for Seibert to play this important role.

 UNPUBLISHED OPINIONS AND NO CITATION RULES IN THE TRIAL COURTS
J. Thomas Sullivan
Appellate lawyers and judges typically have the time and temperament to deliberate at length on legal problems. In contrast, trial lawyers and trial judges often need immediate answers. When an unpublished appellate decision supplies or suggests an answer, a rule barring its citation or consideration frustrates counsel and, sometimes, the trial court. Like the parent’s admonition to the child not to grab a cookie from the jar, the no-citation rule may invite violation, subterfuge, and, occasionally, outright defiance.

This Article explores the problem of the cookies “locked” in the jar and proposes a rule that would give uniformity to citation within jurisdictions and would “unlock” the cookie jar when justice demands. Part I reviews the national trends in the increasing use of unpublished opinions and limitations imposed by no-citation rules. Part II addresses the ethical, professional and constitutional conflicts created by no-citation rules. Part III examines trial court reliance on unpublished opinions, including disposition of cases in which that reliance has been an issue on appeal. And, Part IV proposes a series of formal rules governing the use of unpublished opinions at the trial court level and for interlocutory appellate review in significant cases.

Notes

 SUPERMAX PRISONS: INCREASING SECURITY OR PERMITTING PERSECUTION?
Max Bishop

  Executive Compensation Regulation: Corporate America, Heal Thyself
Nathan Knutt

  The Role Genetic Information Plays in the Criminal Justice System
Lisa Schriner Lewis

  Uniform Voting Machines Protect the Principle of “One Person, One Vote”
Jessica L. Post

  Tort Reform and Safety: Is Tort Liability Forever Better than Tort Liability for Eighteen Years
James F. Rodriguez