Traditional Cultural Districts: An Opportunity for Alaska Tribes to Protect Subsistence Rights and Traditional Lands

Alaska tribes have limited control over their traditional lands and waters. Tribes may increase their influence through a Traditional Cultural District designation under Section 106 of the National Historic Preservation Act. This designation does not stop development, but requires federal agencies to consult with tribes regarding potential development that may impact the district. The consultation right applies regardless of whether a tribe owns or has formally designated the district. In Alaska, where no Traditional Cultural Districts exist as of 2014, there is potential for designating large areas of land or water that correspond to the range of traditionally important species

An Intellectual History of Mass Incarceration

There is much criticism of America’s sprawling criminal system, but still insufficient understanding of how it has come to inflict its burdens on so many while seemingly accomplishing so little. This Article asks, as Americans built the carceral state, what were we thinking? The Article examines the ideas about criminal law that informed legal scholarship, legal pedagogy, and professional discourse during the expansion of criminal legal institutions in the second half of the twentieth century. In each of these contexts, criminal law was and still is thought to be fundamentally and categorically different from other forms of law in several respects. For example, criminal law is supposedly unique in its subject matter, uniquely determinate, and uniquely necessary to a society’s wellbeing. This Article shows how this set of ideas, which I call criminal law exceptionalism, has helped make mass incarceration possible and may now impede efforts to reduce the scope of criminal law. The aim here is not to denounce all claims that criminal law is distinct from other forms of law, but rather to scrutinize specific claims of exceptionalism in the hopes of better understanding criminal law and its discontents

Is Law - Constitutional Crisis and Existential Anxiety

In the recurring discussions of constitutional crises, one may find three forms of existential anxiety. The first, and most fleeting, is an anxiety about the continued existence of the nation. A second form of anxiety—to my mind, the most interesting form—is an anxiety about the possibility of the rule of law itself. Third, and most solipsistically, references to crisis in constitutional law scholarship could be the product of a kind of professional anxiety in the legal academy. We may be asking ourselves, “Constitutional theory: what is it good for?” and worrying that the answer is, “Absolutely nothing.” And yet, I argue, existential anxiety is not always to be regretted, cured, or mocked. Indeed, it may serve as a valuable reminder of the difficulty—and necessity—of giving law to oneself

The Thin Blue Line from Crime to Punishment

Criminal law scholarship is marked by a sharp fault line separating substantive criminal law from criminal procedure. Philosophical work focuses almost exclusively on the substantive side of that line, addressing adjudicative procedure (the trial process) rarely and investigative procedure (especially police conduct) almost never. Instead, criminal law theorists devote substantial attention to just two questions: what conduct should be criminal, and why is punishment justified? This essay argues that criminal law theory cannot adequately address these favored subjects—the definition of crime and the justification of punishment—without also addressing the enforcement mechanisms that link crimes to punishments. Specifically, philosophers of criminal law cannot continue to ignore the police

Respect and Resistance in Punishment Theory

Is it coherent to speak of a right to resist justified punishment? Thomas Hobbes thought so. This essay seeks first to (re)introduce Hobbes as a punishment theorist, and second to use Hobbes to examine what it means to respect the criminal even as we punish him. Hobbes is almost entirely neglected by scholars of criminal law, whose theoretical inquiries focus on liberal, rights-based accounts of retribution (often exemplified by Immanuel Kant) and claims of deterrence or other consequentialist benefits (elucidated, for example, by Jeremy Bentham). Writing before Kant or Bentham, Hobbes offered a fascinating account of punishment that will strike contemporary lawyers as both familiar and perplexing. Hobbes justified punishment within a legal system that adheres to due process, notice, and other principles of the rule of law, but he also insisted that no one consents to be punished, that punishment is an act of violence, and most surprisingly, that the condemned person has a right to resist punishment. In exploring the apparent contradictions in these claims, we find an account of punishment arguably more honest, more egalitarian, and more uniformly respectful than the accounts offered by mainstream retributivist and consequentialist theorists