“[This] I Know from My Grandfather”: The Battle for Admissibility of Indigenous Oral History as Proof of Tribal Land Claims

A major obstacle indigenous land claimants must face is the application of federal evidentiary rules, like the hearsay doctrine, which block the use of oral history to establish legal claims. It is often oral history and stories that tribes rely upon as evidence to support their claims, reducing substantially the likelihood of a tribe prevailing. Indigenous oral history presents unique challenges to judges when faced with its admissibility. Canadian courts have largely overcome these challenges by interpreting evidentiary rules liberally, in favor of the aborigines. As such, Canadian aborigines have enjoyed greater land claim success than indigenous claimants in the United States, raising the question why United States courts do not follow the Canadian example. After examining the evidentiary strengths and weaknesses of indigenous oral history and the barriers posed to its admissibility in court, this article finds the answer is the willingness of Canada to both recognize the harm done to aboriginal peoples during the country\u27s colonial history and to make amends by opening the courts to these claims

Narrative, Truth, and Trial

This Article critically evaluates the relationship between constructing narratives and achieving factual accuracy at trials. The story model of adjudication— according to which jurors process testimony by organizing it into competing narratives—has gained wide acceptance in the descriptive work of social scientists and currency in the courtroom, but it has received little close attention from legal theorists. The Article begins with a discussion of the meaning of narrative and its function at trial. It argues that the story model is incomplete, and that “legal truth” emerges from a hybrid of narrative and other means of inquiry. As a result, trials contain opportunities to promote more systematic consideration of evidence. Second, the Article asserts that, to the extent the story model is descriptively correct with respect to the structure of juror decision making, it also gives rise to normative concerns about the tension between characteristic features of narrative and the truth-seeking aspirations of trial. Viewing trials through the lens of narrative theory brings sources of bias and error into focus and suggests reasons to increase the influence of analytic processes. The Article then appraises improvements in trial mechanics—from prosecutorial discovery obligations through appellate review of evidentiary errors—that might account for the influence of stories. For example, a fuller understanding of narrative exposes the false assumption within limiting instructions that any piece of evidence exists in isolation. And to better inform how adjudicators respond to stories in the courtroom, the Article argues for modifying instructions in terms of their candor, explanatory content, and timing

Finding Common Feminist Ground: The Role of the Next Generation in Shaping Feminist Legal Theory

This article explores the ways in which current feminist frameworks are dividing the women’s movement along generational lines, thereby inhibiting progress in the struggle for gender equality. Third-wave feminists, or the generation of feminists that came of age in the 1990s and continues today, have been criticized for focusing on personal stories of oppression and failing to influence feminist legal theory. Yet this critique presupposes that third-wave feminism is fundamentally different from the feminism of past generations. In contrast, this article argues that third-wave feminism is rooted in the feminist legal theory developed in the prior generation. This article demonstrates that the third-wave appears to be failing to influence feminist legal theory not because it is theoretically different, but because third-wave feminists approach activism in such a different way. For example, third-wavers envision “women’s issues” broadly, and rely on new tactics such as online organizing. Using the case study of Spark, a nonprofit organization employing third-wave activism to support global grassroots women’s organizations, this article provides a model of this new brand of feminism in practice. This article proposes the adoption of social justice feminism, which advocates casting a broader feminist net to capture those who have been traditionally neglected by the women’s movement, such as low-income women and women of color. Social justice feminism is a way to broaden the focus from a rights-based approach to an examination of the dynamics of power and privilege that continue to shape women’s lives even when legal rights to equality have been won. Adopting social justice feminism can be a way to bridge second- and third-wave feminism and create a more robust and unified feminist movement, thereby mending the divisions that currently prevent unification in the women’s movement

On the Mental State of Consciousness of Wrongdoing

Mistake about or ignorance of the law does not exculpate in criminal law, except in limited circumstances. Doctrine and theory cognate to this principle are, by now, well developed and understood. But might an actor\u27s awareness of the illegality or wrongfulness of her conduct inculpate — that is, constitute a form of mens rea that establishes or aggravates liability? Trends in recent adjudication in white collar crime suggest that the answer is yes. This article, part of a symposium issue on Adjudicating the Guilty Mind, takes the first pass at describing the mental state of “consciousness of wrongdoing,” assessing its fit with the conceptual architecture of substantive criminal law, and uncovering the many challenges of proof and adjudication that this concept poses. Three conclusions broadly emerge from this initial, and somewhat truncated, inquiry: first, inculpating an actor for adverting to the legal or normative significance of her conduct is an attractive means of dealing with difficult line-drawing problems presented by many white collar offenses; second, the method can be justified on both retributive and deterrent grounds; and third, the practice requires much more thought and precision at the operational level, lest problems inherent in the structure of criminal adjudication be exacerbated in cases in which liability depends on the idea that an actor “knew what she was doing was wrong

On the Mental State of Consciousness of Wrongdoing

Mistake about or ignorance of the law does not exculpate in criminal law, except in limited circumstances. Doctrine and theory cognate to this principle are, by now, well developed and understood. But might an actor\u27s awareness of the illegality or wrongfulness of her conduct inculpate — that is, constitute a form of mens rea that establishes or aggravates liability? Trends in recent adjudication in white collar crime suggest that the answer is yes. This article, part of a symposium issue on Adjudicating the Guilty Mind, takes the first pass at describing the mental state of “consciousness of wrongdoing,” assessing its fit with the conceptual architecture of substantive criminal law, and uncovering the many challenges of proof and adjudication that this concept poses. Three conclusions broadly emerge from this initial, and somewhat truncated, inquiry: first, inculpating an actor for adverting to the legal or normative significance of her conduct is an attractive means of dealing with difficult line-drawing problems presented by many white collar offenses; second, the method can be justified on both retributive and deterrent grounds; and third, the practice requires much more thought and precision at the operational level, lest problems inherent in the structure of criminal adjudication be exacerbated in cases in which liability depends on the idea that an actor “knew what she was doing was wrong

Alt-Bargaining

Reflections on the modern labor movement tend to take a bad-news/good-news approach to the future: yes, unions are down, but a new trend suggests they are far from out. The framing is optimistic, but also right. What’s “new” has often involved innovations in unionizing, and over the past three decades organized labor has gotten creative, taken risks, and every once in a while—for the first time in a while—started winning. The new wave campaigns were variously “comprehensive,” legally canny, sometimes global, and usually movement-esque in their approach to traditionally underrepresented constituencies and sectors. Less discussed is that the trends developed counterparts: hot takes in unionization became new normals in negotiation. If exposing dirty directors weakened corporate resolve in union drives, C-suite exposés became a regular feature in contract drives. If union organizers learned that an employer’s fiercest anti-union weapons could be traded away during a campaign, contract organizers realized that a collective bargaining agreement could do the same for future campaigns. And if fighting for a union became less about money and more about morality, so did fighting for a contract. The current trend is “alt,” short for “alternative-labor,” and invoked where unions or non-profits mobilize workers for better working conditions but not necessarily collective bargaining. As its name implies, the efforts have varied origins, tactics, and aims, making the category hard to define with specificity. But if the alt-labor innovations of today signal how more mature entities—alt-, traditional, or otherwise—will push for workplace benefits tomorrow, clarifying what the present advance is, exactly, is useful foreshadowing. That definitional project is one goal of this article. Alt-labor is incredibly diverse, but through-lines exist. Its constituent groups are repeatedly marked by three non-standard relationships to law that generate exceptional conceptions of group membership, challenge organizing’s presumptive outer-bounds, and prove how even bad organizing doctrine can be harnessed for good. The major goal, though, is to argue that alt-labor isn’t foreshadowing anything because alt-bargaining is here. Over and over, the unconventional legal orientations that facilitate alt-labor’s inclusive approaches to membership, fluid conceptions of which workers or what entities are organizable, and optimistic spins on employment rights can be spotted in recent campaigns where the activists are already assembled and scrutiny instead surrounds how the group is negotiating. The innovative legal perspectives that make up alternative organizing practices, in other words, can now be found in situations where labor and management are actually passing proposals

The legal life of objects : speaking evidence and mute subjects in Mark Twain’s Pudd’nhead Wilson

textIn this paper, I argue that legal authorities assign speaking power to objects and evidence in the courtroom in order to deny speaking power to racialized subjects and police racial identities. Mark Twain’s Pudd’nhead Wilson (1894) demonstrates how the law transverses the human/object boundary in order to regulate legal definitions of identity. I examine the legal animation of the textual document, as exemplified by the last will and testament; the knife, a material object that as a murder weapon is responsible for condemning the accused; and the fingerprint, a unique form of bodily evidence that merges the textual and the material, in order to understand how these objects blur the line between the living and the deceased, between human and nonhuman agency, and between body and text. My methodology brings object studies into conversation with a literature and the law approach in order to show not only how the nineteenth-century American literary imagination was concerned with testing and regulating racial boundaries, but also how fictions employed by the law produce subjects and objects. My investigation reminds us that when evidence appears to “speak for itself,” this speech act has been carefully orchestrated by human legal authorities who determine what the evidence can be understood to mean and for whom it speaks.Englis

Justifying Prison Breaks as Civil Disobedience

I argue that given the persistent injustice present within the Prison Industrial Complex in the United States, many incarcerated individuals would be justified in attempting to escape and that these prison breaks may qualify as acts of civil disobedience. After an introduction in section one, section two offers a critique of the classical liberal conception of civil disobedience envisioned by John Rawls. Contrary to Rawls, I argue that acts of civil disobedience can involve both violence and evasion of punishment, both of which are necessary components of prison breaks. In section three I outline the broad circumstances in which escape attempts would be justified, which are when individuals have either been incarcerated on unjust grounds (such as coercive plea bargains, draconian laws, or institutionalized discrimination) or when individuals are subject to inhumane conditions within prison (such as physical or sexual abuse, inadequate medical care, and overcrowding). Although this framework is formulated with the U.S. criminal justice system in mind, it is potentially applicable to other instances of incarceration if they’re similarly unjust such as prisons in other countries, migrant detention centers, or psychiatric wards. I then outline four requirements which must be met for these prison breaks to qualify as civil disobedience. First, escape must be attempted as a last resort. Second, violence and other law-breaking must be reasonable, meaning it is done with precision, discretion, and proportion. Third, escapees hold the burden of proving they have been subject to injustice. Fourth and finally, the act of escape must contain other key components of civil disobedience such as persuasion, communication, and publicity, which will most likely be accomplished via coordination with non-incarcerated individuals. In section four I address the distinction between prison reform and abolitio