Courts and scholars have vigorously debated the proper role of customary international law in American courts: To what extent should it be considered federal common law, state law, or general law? This Article describes the role that the law of nations actually has played throughout American history. Rather than viewing enforcement of the law of nations as an Article III power to fashion federal common law, federal courts have instead applied rules derived from the law of nations as a way to implement the political branches’ Article I and Article II powers to recognize foreign nations, conduct foreign relations, and decide momentous questions of war and peace. This allocation of powers approach best explains the most important federal cases involving the law of nations across American history.

Suppose two people commit the same crime and are sentenced to equal terms in the same prison facility. I argue that they have identical punishments in name only. One may experience incarceration as challenging but tolerable while the other is thoroughly tormented by it. Even though people vary substantially in their experiences of punishment, our sentencing laws pay little attention to such differences. I make two central claims: First, a successful justification of punishment must take account of offenders’ subjective experiences when assessing punishment severity. Second, we have certain obligations to consider actual or anticipated punishment experience at sentencing, at least when we can do so in a cost-effective, administrable manner.

Generally, federal Indian law cases focus on jurisdiction inside of Indian Country. Occasionally, however, challenges arise about the application of state law to American Indians outside of Indian Country. In 1973, and again in 2005, the Supreme Court announced that “[a]bsent express federal law to the contrary, Indians going beyond reservation boundaries have generally been held subject to nondiscriminatory state law otherwise applicable to all citizens of the State.” While this statement is fairly accurate historically, it provides practically no direction for states, tribes, or lower courts to apply the rule in specific instances. This Note looks to the roots and rationale of the Supreme Court pronouncement, situating it inside of a larger picture of how states may, must, and cannot treat American Indian state citizens.

This Note argues that certification periods, as administered by the Food Stamp Program (recently renamed the Supplemental Nutrition Assistance Program) violate claimants’ procedural due process rights. Currently, recipient households must recertify for renewed benefits at the end of their certification periods, which generally last a year or less. If benefits are reduced or denied during recertification—which often occurs erroneously due to mistakes either on the part of the agencies or the recipients—the recipients can request a fair hearing. But their benefits will not continue past the end of their certification periods pending a fair hearing. This Note asserts that these procedures are inconsistent with Supreme Court due process precedent, chiefly Cleveland v. Loudermill, and offers three potential solutions.