This Note argues that the Supreme Court’s decision in Adoptive Couple v. Baby Girl creates an apparent tension in federal Indian law. The Court’s characterization of the broader aims of the Indian Child Welfare Act of 1978 and of biology’s role within it appears irreconcilable with previous interpretations of the Act—including...
How does making law through private lawsuits differ from making law by other means? That question is especially important where legislators deputize “private attorneys general” as statutory enforcers, from antitrust and securities to civil rights and consumer protection. Yet legal scholars have not offered sustained theoretical or empirical analysis of how private...
This Essay takes up the puzzle of the risky argument or, more precisely, the puzzle of why certain arguments do not get much traction in advocacy and adjudication even when some judges find them to be utterly convincing. Through a close examination of the sex- discrimination argument’s evanescence in contemporary marriage litigation, this Essay draws lessons about...
In a recent case, the Eighth Circuit, following the lead of other courts interpreting Minnesota law, hinted that a plaintiff may not be able to pursue an unjust-enrichment claim if a statutory cause of action is available. It did so by calling unjust enrichment an equitable remedy and invoking the “irreparable injury rule,” which states that a plaintiff may not...