As Federal Indian Law has evolved, many questions have been posed regarding tribal jurisdiction. This paper examines the jurisdiction tribes have over member Indians, non-member Indians, and non-member, non-Indians. It addresses the ethical challenge faced by tribal attorneys who represent non-member Indian clients in a manner that ultimately undermines tribal sovereignty.
Although it is clear that the Chief Executive may be impeached while in office, it is generally thought that a sitting President cannot suffer criminal indictment while in office. There are two general arguments in support of this position. The first argument notes that criminal indictment of the President would so interfere with the duties of the office as to constitute a violation of the Constitution. The second argument simply refers to the express language of the Constitution providing that the (...) remedy for intolerable occupation of the office is impeachment and conviction. While the Constitution does not expressly preclude indictment and prosecution, it is argued that the Constitution only so allows upon impeachment and conviction. This essay aspires to more fully explore the two alleged constitutional prohibitions against the criminal indictment of the occupant of the Office of the President and to argue that each suffers sufficiently to render each doubtful as a ground for guaranteeing Presidential immunity. (shrink)
According to Federalist President John Adams, the legislative assembly “should be an exact portrait, in miniature, of the people at large, as it should think, reason and act like them.” It is one thing to have the legislative assembly reflect the true composition of the people at large and quite another to prearrange the voting districts so as to better ensure the desired assembly, irrespective of the verisimilitude between the composition of the people and the assembly. In such district-engineered elections, (...) the legislative assembly may not reflect the true complexion of the people as a whole but rather the complexion the engineers ideally desire the people as a whole to have. Politically inspired district drawing, unlike its racially motivated counterpart is deemed constitutionally acceptable, save at extremes, by most members of the United States Supreme Court and non-justiciable by some members thereof. There are powerful and complex arguments investigated supporting both positions. (shrink)
The Eighth Amendment to the United States Constitution provides that “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.” Although treasured as a statement of fundamental rights, the Amendment’s terms and relations are not uniformly read. This is amply illustrated by the various positions on the Amendment’s correct meaning expressed in the various majority, plurality, and dissenting opinions issued by the United States Supreme Court. This is not to suggest that a more or (...) less uniform interpretation fails to obtain with all of the phrases of the Amendment. The clauses covering excessive bail and excessive fines do enjoy some level of agreed meaning among the Court’s members. This, however, does not pertain to the Cruel and Unusual Clause. An apparent majority of the Court holds that the extent of application of an otherwise acceptable punitive sanction may nevertheless constitute cruel and unusual punishment. A minority of the Court denies this. This essay will critically examine the two major positions concerning the questioned Clause. Additionally, it will offer an argument which especially favors one of the noted positions. (shrink)
If it is immoral to raise animals for the purpose of eating during a period of food scarcity because the process of changing grain protein to animal protein is wasteful, then it is surely immoral to waste animal protein which was not raised for the purpose of eating, but which could nevertheless be eaten during periods of food scarcity. Therefore, it is immoral not to eat human carrion during periods of food scarcity.
The Corpus Delicti Rule prohibits the introduction of the defendant’s confession to a crime to count as evidence against the defendant in the absence of independent evidence of the crime in question. The common law rule, designed to protect the defendant who confesses to the commission of a fictitious crime, has fallen out of favor with federal courts and a number of state courts. Moreover, the rule has its academic detractors. This essay is an attempt to investigate the value of (...) the rule, the academic criticisms of the rule and to analyze the federal substitute for the rule. If the analysis is not completely astray, the rule serves a most admirable social purpose. The academic arguments are not so telling as to justify jettisoning the rule. Finally, the federal rule is argued to be either completelyinadequate a protection or an adequate protection only to the extent that the federal substitute is coextensive with the rule it is designed to replace, namely, the original Corpus Delicti Rule. (shrink)
The terms ordinary and extraordinary, when employed in the medical setting, quite often appear vacuous to the point of justifying their elimination. This appraisal appears to be based upon the belief that certain procedures are ordinary and others are extraordinary independent of the particular factors of the clinical setting. This belief may be shown mistaken once it is realized that the conditions sufficient for determining whether a medical procedure is ordinary or extraordinary are themselves specifiable only within the clinical context. (...) Unfortunately, even if the terms may be meaningfully employed, the two classes are not comprehensive. Thus, it is suggested that some medical procedures will prove recalcitrant to the ordinary-extraordinary classification; and the values inherent in the classification will prove inappropriate. (shrink)
If it is immoral to raise animals for the purpose of eating during a period of food scarcity because the process of changing grain protein to animal protein is wasteful, then it is surely immoral to waste animal protein which was not raised for the purpose of eating, but which could nevertheless be eaten during periods of food scarcity. Therefore, it is immoral not to eat human carrion during periods of food scarcity.
Some recent commentators have acquiesced in the efforts of some religious groups to co-opt concepts of morality, thus leading many—inappropriately, I believe—to think we must keep all morality out of our civic life and especially out of the reasoning in our legal system. I review examples of the confusion in characterizing the 2003 Lawrence v. Texas decision as a conflict between constitutional rights and religious moral precepts. I argue that this approach capitulates to particular views of morality as religious morality. (...) I consider the appeals to morality in the dissent and the ensuing confusion among commentators about the significance ofthis opinion. I review alternate readings of the Lawrence majority opinion, including proposals that it be considered from the perspectives of the ethicalframeworks of Locke, Mill, or Kant. (shrink)
The Corpus Delicti Rule prohibits the introduction of the defendant’s confession to a crime to count as evidence against the defendant in the absence of independent evidence of the crime in question. The common law rule, designed to protect the defendant who confesses to the commission of a fictitious crime, has fallen out of favor with federal courts and a number of state courts. Moreover, the rule has its academic detractors. This essay is an attempt to investigate the value of (...) the rule, the academic criticisms of the rule and to analyze the federal substitute for the rule. If the analysis is not completely astray, the rule serves a most admirable social purpose. The academic arguments are not so telling as to justify jettisoning the rule. Finally, the federal rule is argued to be either completelyinadequate a protection or an adequate protection only to the extent that the federal substitute is coextensive with the rule it is designed to replace, namely, the original Corpus Delicti Rule. (shrink)
The United States Supreme Court has held that the criminal’s constitutional right of confrontation is not abridged when the defendant is not afforded the opportunity to cross-examine each and every witness offering evidence for the government. This rather surprising contention is investigated through an analysis of the Court’s arguments in light of certain philosophical principles.
The clemency power of the U.S. President is limited to pardoning federal offences and expressly excludes federal impeachment from the pardon power. There is no explicit prohibition upon who might be the recipient of a presidential pardon. The U.S. Constitution does not expressly prohibit the President from issuing a self-pardon. If the American Framers placed only the one exception for impeachment, then arguably they meant to exclude all other conceivable exceptions. Yet, the very notion of such presidential self-forgiveness raises arguments (...) criticizing the possibility. Would not a selfpardon place the President above the law? In the process of investigating the various arguments denying and supporting the possibility, the parameters and the goals of issuing and accepting or rejecting a presidential pardon are developed along with alternative methods of achieving the same result as a self-pardon without actually issuing a self-pardon. Hence, the puzzle. The essay’s narrow and guarded conclusions are arrived at defeasibly. That is, the essay is driven by the force of the arguments over this paradoxical constitutional dilemma. The essay is intended as the beginning rather than a completion of the inquiry. (shrink)
