Concurring Opinions » Max Minzner

Thanks and Goodbye

Max Minzner — Wed, 30 Jul 2008 21:36:55 +0000

Today is my last day guest blogging, so I want to thank Dan and the rest of the staff here at Concurring Opinions for allowing me to spend the last month here. Let me end with one last post on empirical work and the law. Andrew Gelman makes the nice point here about the difference in empirical work in political science and psychology — psychologists run experiments while political scientists analyze data that already exists. For the most part, legal empiricists are far more like political scientists than psychologists. True legal experiments are few and far between. Of course, this fact does not prevent good work from being done. As an example of one of the most interesting and important pieces of work on the life of real lawyers, all law students, prospective law students, and law professors should be following Bill Henderson’s discussion of the bimodal nature of lawyer salaries.

Criminal Law, Empirics, and Burglary (II)

Max Minzner — Wed, 23 Jul 2008 02:30:43 +0000

I have been away for awhile, but I’m back and want to continue discussing the book Burglars on the Job. There is still more there for those of you preparing your criminal law class for the first time. In particular, students often ask me “does the criminal law matter?” The utilitarian justifications behind the criminal law turn heavily on the idea that the law is knowable (and known) and that people avoid or reduce their criminal activity in response to the law. Especially in the death penalty context, there have been dueling regressions on the effect of differences in the law, but I’m never going to try to explain those results to my students and (to steal a line) regression results often fail to move people away from their pre-existing views. This area, though, is one where I think there’s a lot of value in qualitative empirical work. If you are interested in what criminals know and what shapes their behavior, asking criminals can be a good first step. The answers aren’t a replacement for harder data, but they are a valuable addition to the story.

So what do Wright and Decker find? First, there is some evidence that criminal penalties matter. As I noted earlier, the burglars they interviewed often avoided occupied houses, both because they feared victim resistance and because they might be called on to use violence, which they knew might lead to higher penalties. More surprising (at least to me), there was at least one burglar who, when discussing reasons to commit crime alone, demonstrated a vague awareness of the felony murder rule (although he believed that it was even broader and included a felony assault rule):

That’s the whole point of going [on burglaries] by yourself. If you have somebody else with your and they panic . . . they might hurt somebody. Then you got an assault charge. Accidentally kill somebody and then you both got a murder charge.

They also report some results suggesting a substitution effect. They quote burglars who had previously supported themselves through robberies and narcotics sales, but shifted to burglaries as penalties for those crimes increased. My students always find substitution effects interesting and it is nice to have at least anecdotal support for the idea. (For more on substiution effects, see here).

And finally, Wright and Decker make the point that prices in the stolen goods market appears to have fallen. A similar argument is made here. As consumer goods become cheaper, stealing them becomes less lucrative.

Criminal Law, Empirics, and Burglary

Max Minzner — Fri, 11 Jul 2008 05:30:00 +0000

The next piece of empirical data that I think is worth considering the context of criminal law comes from an excellent book, Burglars on the Job (h/t Marginal Revolution), by Richard T. Wright and Scott Decker. The book is almost 15 years old, but anyone who teaches burglary as part of the basic criminal law course should read it. Wright and Decker interviewed 105 self-reported burglars and what drew my eye to the book is the methodology. Rather than interviewing incarcerated burglars, they set out to find active burglars in the community. They drew on a network of people who they believed were likely to know criminals. Interviewees would introduce them to burglars who in turn would introduce them to other burglars. This approach introduces a selection effect, of course, but avoids the obvious selection bias arising from only interviewing burglars in prison.

The book has a number of nice facts to add to the basic criminal law course. First, one of the points I try to emphasize when teaching criminal law is that you need the right paradigm for each crime. You want to make sure you are thinking about average cases rather than exceptional cases. For instance, you can’t think effectively about the crime of murder if you believe that women are more likely to be murdered by a serial killer than their husband or boyfriend. So who is the average burglar? Some of the facts they report are (or should be) widely known, but are important to reemphasize. For instance, drug addiction plays a heavy role in motivating residential burglaries and many of the burglars claimed that supporting a drug habit is the sole motivation for the burglary. Additionally, burglaries were highly concentrated – the interviewees were not committing episodic crimes. Many reported multiple break-ins per month. Burglars generally avoided breaking into occupied residences, in part out of a fear of apprehension, but interviewees were often more concerned about victim resistance. Burglars generally knew their victims, at least as acquaintances. Strangers were infrequent targets.

There is also an interesting fact for the law of attempt here. Wright and Decker report that offenders frequently would stake out a target home on several occasions prior to the burglary in order to learn the behavior pattern of the occupants. However, they often lacked a specific plan to break into the house on a particular date and time. Instead, this preparatory work was designed to allow a break-in on short notice whenever the burglar was short on money, which might be a week or a month later. Is this type of preparation an attempted burglary under the Model Penal Code? For those of you who are not just out of the first year criminal law course, the MPC attempt statute requires that the defendant engage in conduct constituting a “substantial step in a course of conduct planned to culminate in the commission of a crime” and the conduct must strongly corroborate the defendant’s criminal purpose. This serves as a nice hypothetical to work with students on the attempt statute. Performing surveillance on the place where the crime will be committed can be enough to meet the substantial step standard, but if the defendant only has a vague and indefinite plan to commit the crime at some point in the future, the defendant may not have crossed the line to committing attempted burglary. (I think this conduct should be enough for an attempt prosecution, but that’s not the point, of course.) I like this example because unlike many hypotheticals for incomplete act attempts, it does not seem forced or unrealistic.

Criminal Law, Empirics, and the Duty to Rescue

Max Minzner — Wed, 09 Jul 2008 10:34:22 +0000

Around this time of year new professors start to think about their courses and I thought I would add in my contribution. One of the struggles of teaching criminal law is that the doctrine is often divorced from reality. This is hardly a new observation, but I am always struck by the divide between the practice of criminal law and the course we teach to first year students. As a simple example, the standard criminal law class spends little or no time on narcotics prosecutions, even though drug cases are an important, if not the dominant, feature of the practice of criminal law. One way to overcome that divide is to bring some empirical work into the classroom so I thought I would share some of the items I have used or plan to use in the future.

The first installment is on the duty to rescue, a standard part of a criminal law course. Most states do not impose a general duty to rescue. If a stranger about to drown in a lake, most states will not charge someone who fails to rescue him with murder. Of course, in some situations courts will impose a duty. For instance, you cannot let your spouse or your child drown. Similarly, a nurse hired to care for someone who is ill is obliged to intervene if the patient seems to be having a heart attack. After introducing the general rule and exceptions, my class spends time analyzing and breaking down these distinctions as well as arguing about the reasons to either impose or not impose a general duty to rescue.

Without some understanding of rescue rates in the real world, though, the discussion is very abstract. I have found this paper by David Hyman to be a very nice addition to the class. He finds that even in a world without a duty to rescue, rates of non rescue are very low. Far more people die risking their lives to rescue strangers than die from failing to be rescued by someone who could have helped but did not. The relatively aberrant nature of non-rescue helps shape and ground the discussion of this issue.

It also provides a hook to compare punishment and reward. While we do not punish a failure to rescue, we do reward rescue. We take the same approach with reporting crime and serving as a cooperating witness. There are financial rewards available for reporting crime and if you are charged with a crime, there are rewards available in the form of reduced jail time for testifying against co-defendants. We do not, though, punish those who fail to report crime (aside from the rare misprision statute) or decide to remain silent. My experience is that students find these comparisons interesting and helpful.

Tribal Court Jurisdiction (III)

Max Minzner — Thu, 03 Jul 2008 21:45:22 +0000

Over the last two days, I’ve been arguing that the Supreme Court’s decision in Plains Commerce Bank was fundamentally misguided and arises out of the assumption that all tribal courts are identical and are biased against non-members.

If you see the doctrine as primarily about the question of fairness to non-members, you are naturally led to the factual question: is there anything in tribal court practice that is fundamentally unfair for non-tribal litigants? A very nice general background of modern tribal court practice with a specific focus on the Navajo Nation is outlined in one of the amicus briefs, so I won’t repeat it here. Focusing in on what happened in this case, though, you see a procedure very similar to what you might see in state or federal court. The Cheyenne River Sioux Tribe has incorporated both the Federal Rules of Civil and Appellate Procedure by statute. The bank had the option (although it declined to exercise it) to request non-tribal members to serve on the jury. After the trial court issued a decision, the case was reviewed by an independent appellate body. Moreover, the bank had a history of successful prior litigation in the tribal court against tribal members.

The Chief Justice’s opinion relies on the fact that the lower courts viewed the claim as “novel” and arising from “Lakota tradition as embedded in Cheyenne River Sioux tradition.” This statement is clearly designed to make the tribal law appear foreign and incomprehensible. In fact, the tribal court of appeals was making a conscious effort to apply classic common law techniques to develop tribal law and have it mirror and draw on principles of federal and state law. Here’s the language about tradition in its original context.

While there is no express tribal ordinance creating a civil cause of action based on discrimination, there are nevertheless at least two other sources of tribal law that do recognize such a cause of action. They are tribal common law and the Cheyenne River Sioux Law and Ordcr Code § 1-4-3 which confers jurisdiction on

the trial court over claims arising out of “tortious conduct.” Since it is well understood that a claim based on

discrimination essentially sounds in tort, jurisdiction over “tortious conduct” necessarily includes jurisdiction over

Plaintiffs’ discrimination claim. In addition, there is basis for a discrimination claim that arises directly from Lakota

tradition as embedded in Cheyenne River Sioux tradition and custom. Such a potential claim arises from the existence of Lakota customs and norms such as the traditional Lakota sense of justice, fair play and decency to others,” Miner v. Banley, Chy. R. Sx. Tr. Ct. App., No. 94-003 A, Mem. Op. and Order at 6 (Feb. 3, 1995); and “the Lakota custom of fairness and respect for individual dignity.” Thompson v. Cheyenne River Sioux Thbal Board (~lPolice Commissioners, 23 ILR 6045, 6048 Chey. R. Sx. Tr. Ct. App. (1996). Such notions of fair play are core ingredients in federal and state definitions of discrimination. Therefore a tribal based cause of action grounded in an assertion of discrimination may proceed as a “tort” claim as defìned in the Cheyenne River Sioux Tribal Code, as derived fì’om Tribal tradition and custom, or even from the federal ingredients defined at 42 U.S.C. § 2000-2001.

The court follows this text with a footnote reading “Note this last theory is not the pursuit of a federal cause of action in tribal court like the 42 U.S.C. § 1983 claim in Nevada v. Hicks, but that of a “borrowing” of federal law to

stand in or amplify tribal law where it is necessary. See, e.g.. Cheyenne River Sioux Tribal Law and Order Code, Title VII Rule 1 (d).” (The tribal court opinions in the case can be found here. If you haven’t read tribal court opinions and are interested in these issues, they are worth a look.). Because the tribal court was trying to align tribal law with federal and state law, the Supreme Court’s analysis is here is quite flawed.

None of these factors shoudl decide the case standing alone, but in combination, the bank seems to have no reason to complain about the fairness of the process here. Of course, a case by case fairness analysis is far more complicated than drawing lines based on land ownership, but it is worth the effort. If fairness is the central concern, it hardly makes sense to treat all tribes as identical to each other but different from all other courts.

Tribal Court Jurisdiction (II)

Max Minzner — Wed, 02 Jul 2008 16:00:00 +0000

Yesterday I argued that Plains Commerce Bank has a number of flaws. Today I want to discuss the fundamental uniqueness of tribal court jurisdiction in the American system. (As a caveat, the following analysis is intentionally brief and leaves out much of the complexity of the field to keep it relatively generally accessible.)

Several aspects of tribal jurisdiction are unusual and make it difficult to compare the limits on tribal courts to those on non-tribal courts. For instance, does Plains Commerce Bank impose a subject matter jurisdiction or a personal jurisdiction limit on the tribal court? The answer, of course, is that it is both. The case depends on the identity of the land owner and the nature of the regulated activity.

More fundamentally, the Supreme Court has assumed that tribal courts are different from all other courts. The general American rule is that all courts have concurrent jurisdiction if they have personal jurisdiction. On facts equivalent to those in Plains Commerce Bank, you could imagine a New York bank created a series of long-term contractual relationships with a California company relating to land located in California. If the California company wanted to bring tort and contract claims arising from that relationship, there’s no real doubt that the bank could be sued in either New York or California after Burger King. If courts are worried about the conflict between the interests of the two states, they resolve the conflicts through a choice of law regime. As Plains Commerce Bank shows, though, with some exceptions, there is generally an exclusive jurisdiction model when it comes to tribes and the interest question is resolved at the jurisdictional stage. If the Supreme Court thinks the tribe does not have a sufficient interest, it is not forced to apply a different law – it lacks jurisdiction completely.

Why does the Court do this? The answer lies in a second oddity of tribal jurisdiction. Even as the Supreme Court assumes tribes are different from all other courts, it assumes that all tribal courts are identical. The Court has consistently expressed a deep (and in my view, unfair) suspicion of tribal courts. The Chief Justice repeats this suspicion in Plains Commerce Bank when he notes that “Indian courts differ from traditional American courts in a number of significant respects,” and that “non-members have no say in the law and regulations that govern tribal territory.” (The Court also states “the Bill of Rights does not apply to Indian tribes.” Even though the Constitutional Bill of Rights does not apply in tribal court, a largely equivalent statutory set of right applies through the Indian Civil Rights Act.). For this proposition, Plains Commerce Bank relies on Justice Souter’s concurrence in Nevada v. Hicks, where he said:

Tribal courts also differ from other American courts (and often from one another) in their structure, in the substantive law they apply, and in the independence of their judges. Although some modern tribal courts mirror American courts and are guided by written codes, rules, procedures, and guidelines, tribal law is still frequently unwritten, being based instead on the values, mores, and norms of a tribe and expressed in its customs, traditions, and practices, and is often handed down orally or by example from one generation to another. The resulting law applicable in tribal courts is a complex mix of tribal codes and federal, state, and traditional law which would be unusually difficult for an outsider to sort out.

(citations and quotations omitted). At its core, this is a due process fear. The Court believes that non-members should not be subjected to tribal jurisdiction because all tribal courts will be unfair. Of course, if that is the issue, we should see this as a factual question. If the concern is tribal court fairness, we should start treating tribes differently and ask whether the applicable tribal court system in a given case is in fact “difficult for an outsider to sort out.” If it is, there is an argument that a limited jurisdiction model makes some sense. Tomorrow I’ll argue, though, that in the vast majority of cases, this fear is unfounded and tribal court systems are fair and comprehensible. I will also discuss what Plains Commerce Bank would have looked like if we treated tribes differently.

Tribal Court Jurisdiction

Max Minzner — Tue, 01 Jul 2008 22:42:01 +0000

Thanks to Dan and the rest of the Concurring Opinions staff for having me here this month. I’ve been reading the blog since its inception and I’m thrilled to get the chance to be a part of it.

I am a little late to the party, but I thought I would join in the chorus of commentary on last week’s developments in the Supreme Court. I’m talking, of course, about Plains Commerce Bank v. Long Family Land & Cattle Co., the Court’s most recent foray into the jurisdiction of tribal courts, one of my research areas. (I think the court might have decided another case as well).

In Plains Commerce Bank, the plaintiffs were members of the Cheyenne River Sioux tribe who were leasing land within the reservation boundaries from the defendant bank. The plaintiffs had an option to buy the land but were financially unable to exercise the option. They attempted to renegotiate the terms without success. When the bank sold the property to non-tribal members, the plaintiffs sued in tribal court, claiming that the bank discriminated against them by offering them less favorable terms on the sale than were offered to the actual buyers. (They also raised tort and contract claims not before the Supreme Court). As is often true, the Court decided the question of tribal court jurisdiction on purely formalist grounds; the case turned on the status of the land and the parties. Because the bank was not a tribal entity and owned the land underlying the claim in fee simple, the Court held that the tribe did not have any interest in the identity of the owner of the land and as a result, the tribal court lacked jurisdiction. By contrast, if the land had been tribal land or if the dispute involved only tribal members, tribal court jurisdiction would have been clear.

There is a lot wrong with this decision. First, everyone agrees that under Montana v. United States, tribes “may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements.” (This is sometimes called the “first Montana exception”). The exception should allow tribes to enforce a non-discrimination norm against those who contract with tribal members. Moreover, the Court’s opinion has a simple factual flaw. The Court held that the tribe lacks any interest in who owns land within reservation boundaries. That conclusion is at odds with the long history of the interaction between tribal members and non-members– tribes are deeply concerned with the ownership and use of lands within reservation boundaries. This interest is especially strong in cases involving not just land ownership, but discrimination against tribal members in favor of non-members. You can see this simply by looking at how this land ended up being owned in fee simple. Ownership of land by non-tribal members within reservation boundaries is very common. In a deliberate attempt to eliminate tribes, Congress passed the 1887 General Allotment Act which removed tribal land from its traditional trust status and allotted small parcels in fee simple to tribal members while declaring the rest of the land surplus and turning it over to settlement by non-tribal members. By the time the Act was repealed in 1934, many of the allotments had been lost to non-members, leading to a checkerboard pattern of land ownership. Small parcels of land owned in fee simple can surround and be surrounded by tribal land. (A map showing this checkerboarding on the South Dakota Rosebud Reservation is available here.). As a result, having jurisdiction turn on the status of the land causes serious headaches for tribes.

What I want to consider, though, is the larger question of how we ended up on this path. If you teach Civil Procedure, this entire approach of determining jurisdiction based on land ownership and party identity should sound strange and outdated. This method is far more like Pennoyer than International Shoe. So what happened? The answer is that jurisdiction in Indian Country is complicated and often unrelated to jurisdiction in other contexts. I’ll argue in my next post that the Court took this road as a result of deep and unfair assumptions about the nature of tribal courts.