Party Autonomy and the Challenge of Choice of Law
This essay argues that party autonomy does not have one comprehensive justification, but that it might be justified by a set of distinct if overlapping arguments that point to vital ideas often overlooked in the contemporary conversation. If choice of law doctrine embraces party autonomy, it might be in part because its shapers instinctively and inchoately recognize those considerations.
Teaching Indian Law in the 21st Century
In the 21st century, many law schools offer Indian law but generally are still far behind the curve. Worse, when it is offered, the Indian law canon tends to be taught in ways that ignore contemporary tribal agency by emphasizing historical events over modern issues. This article gives examples of tribal court cases and tribal statutes law teachers can use to incorporate Indian law into virtually any common law course.
Sidewalk Government
This Article is the first to systematically examine the incoherence of the property law of sidewalks and of the fragmented regulatory architecture that municipalities have built to manage them. The Article demonstrates how both legal regimes have in fact deepened sidewalk conflict and have confused and undermined accountability for the quality and accessibility of the sidewalks.
Preemption, Commandeering, and the Indian Child Welfare Act
The Supreme Court has agreed to review constitutional challenges to the Indian Child Welfare Act brought by the State of Texas and three non-Indian foster families in the October 2022 Term. We argue that the anticommandeering challenges against ICWA are unfounded because all provisions of ICWA provides a set of legal standards to be applied in state which validly and expressly preempt state law without unlawfully commandeering the States’ executive or legislative branches.
Deputy Attorney General Lisa O. Monaco Delivers Remarks on Corporate Criminal Enforcement
On September 15, Deputy Attorney General Lisa O. Monaco delivered remarks on corporate criminal enforcement policy at an event hosted by the Program on Corporate Compliance and Enforcement at NYU Law.
Using Peacemaking Circles to Indigenize Tribal Child Welfare
This Article outlines the ways in which the modern tribal child welfare system has been structured to compartmentalize families and perpetuate historical federal policies of Indian family separation. This Article then suggests that circle processes are a framework for re-Indigenizing the tribal child welfare system to not just improve outcomes, but to also honor the interconnected, responsibility oriented worldview of Indigenous communities.
The ALI Adviser is intended to inform readers about the legal topics and issues examined in many of ALI’s current projects; posts do not necessarily represent the position of the Institute taken in those projects. Posts on The ALI Adviser are written by ALI project participants, ALI members, and outside sources.