Friday, June 27, 2008

Holiday season viewing recommendation #2

We're now halfway between Jean-Baptiste and Canada Day, so get thee to a video store and rent the greatest mismatched-buddy-cop movie about federalism ever made, the sublime Bon Cop, Bad Cop.

More to come!

Thursday, June 26, 2008

Plains Commerce comes down

This actually happened yesterday, but I was offline.

The most important Indian Law case of the year came down yesterday, and it was disappointingly but unsurprisingly ugly. In Plains Commerce Bank v Long, a 5-4 majority further restricted tribal court jurisdiction over non-Indians and non-Indian businesses on reservations. The supposed exception to the non-jurisdiction rule that jurisdiction can apply when the non-Indians enter into consensual commercial relations with the tribe or its members appears to be a dead letter.

As I discuss in this paper, the court has been narrowing tribal jurisdiction over non-members on reservation lands for some thirty years, and in counterproductive, destructive ways.

The decision was written by Roberts for the five conservatives. Ginsburg wrote for the dissent. (It's a "concurrence in part," but the part is not the important part.)

Bad news. More commentary to come.

In the meantime, see this post at Turtletalk.
In my view, there are several things to take from this ruling:

1.) We have been reassured that the Montana exceptions, while available in theory, will never be applied, and that tribes can forget about exercising any jurisdiction, no matter how great or small, over non-Indians on fee lands;

2.) We have also been reassured that non-Indian litigants are at a significant advantage against tribes and tribal citizens. Non-Indian parties can choose to litigate in tribal court, at a low-cost, and seek a positive outcome. If they get a desired outcome, it’s game over. If not, they get a second bite at a fresh apple, because they can take their claims to state or federal court and argue that the tribal court has no jurisdiction over them.

There's more. As I put it in the "Perversities" article linked to above:

After twenty years of Montana progeny, the exceptions appear vanishingly small. No unified Supreme Court majority has ever agreed that any regulation fell into either one. Circuit courts have followed the same general rule. The second exception has never been found to be satisfied in a court of appeals. Besides the Tenth Circuit’s finding in favor of the Navajos in Atkinson, later reversed, the consent exception has been triggered twice at the circuit court level, both times on the Ninth Circuit. A non-Indian filing a cross-claim against a fellow defendant in a reservation court does consent to that court’s jurisdiction in that case, and so falls under the first Montana exception —a seemingly minimal proposition that had nonetheless not been accepted by a panel of the court two years before —and a non-Indian contracting to carry out tribally-licensed bingo operations on a reservation is subject to the tribe’s bingo regulations. And the second exception is interpreted without any “aggregation analysis;” that is, the particular non-Indian’s particular activity must imperil the tribe, and it will not suffice to show that many non-Indians engaged in the activity many times over would do so. As one District Court judge asked rhetorically,

What does it mean to have the "ability to enact and be governed by its own laws" if the Navajo Nation cannot extend the scope of its own laws to protect the very lives of its own police officers on its own lands, and in its own courts? When does the exception for "conduct [that] threatens or has some direct effect on the political integrity, the economic security, or the health and welfare of the tribe" apply?

Yesterday "vanisingly small" got yet another step closer to "vanished."

Tuesday, June 24, 2008

Bonne fete nationale!

And a good Jean-Baptiste. This kicks off the holiday season: Jean-Baptiste, Canada Day, and the Fourth of July in the space of 10 days (along with the Jazz Festival, of course).
"My advisor hates me."

Karen Head, in THe Chronicle:

Graduate students have no idea how to actually work with — or even talk to — their advisers.

Generally the scene in my office goes something like this: A student arrives and collapses into a chair with a great exhalation, followed by silence. When I ask if there is a problem, the fidgeting begins. Then the student lurches forward (almost falling out of the chair) and, in some cases, begins to cry. Invariably, the conversation begins with some form of the following statement: "My adviser hates me."

When I ask why the student thinks so, I hear any number of explanations. Among the most common:

* My adviser offers me no direction or advice.

* He is a micromanager.

* She doesn't support me.

* He doesn't think my work is up to standard.

* She never talks to me.

* He forces me to do extra work.

* She is never around.

* He doesn't like women/men.

* She gives me all the lousy jobs.

* He likes the other lab members better.

Often those reasons cannot be substantiated in any way other than by vague feelings. If that is the case, I insist that the students take time to consider whether their complaints are rational or a reflection of the stress-filled environment that is graduate school.

Since all graduate students are accustomed to doing research, I require them to produce some evidence. Once we have actual evidence, we can determine cause and, perhaps, change the effect.

Generally my next question is whether the students have ever discussed the problem directly with their advisers.

I am no statistician, but I would say the odds are near 100 percent that they have not. I have a better chance of winning the lottery than finding the situation otherwise.

It seems that while most graduate students expect to be the center of their mentor's universe, those same students do absolutely nothing to develop a professional relationship with that adviser.

One of the most important aspects of going to graduate (or professional) school is, in fact, learning how to be a professional. I sympathize with graduate students because it is easy to get lost in the roles they must balance. Graduate students are just that: students.

But they also may be engaged in solitary research (in which they are the foremost expert on a technique or issue). They may be autonomous lecturers responsible for teaching a large number of undergraduates. In those cases, the graduate students are already acting as professionals in their fields — and usually expect to be accorded a level of respect appropriate to such professionalism.

Oddly, though, that confident, professional persona seems to crumble when the graduate student is in the presence of a dissertation adviser. The fear of the adviser's disapproval is so strong that the student will not ask questions — about anything.

At times I feel as if my job is to demonstrate a profound grasp of the obvious. For example, I might tell a student, "You really must schedule a meeting with your adviser to discuss why all of this extra work is an impediment to the progress you are expected to make on your dissertation."

My suggestion is generally received with disbelief: "I can do that?"

Not only can you do that, you must. Your adviser is probably not even aware there is a problem. You and your adviser must develop a relationship that encourages communication. As a graduate student, you need to understand that you are responsible for setting your own professional goals. Your mentor has many other responsibilities in addition to advising you (and not just you; most advisers have several graduate students for whom they are responsible).

Your adviser may not be ignoring you so much as being busy with his or her own research, committee work, teaching, or tenure case. Conscientious graduate students set goals and design a work plan complete with specific to-dos and a timeline. They schedule appointments to evaluate (or re-evaluate) their progress, even if the adviser doesn't suggest it.

Ultimately, you may have to accept changes in your plans based on your adviser's needs and expectations. However, part of earning professional status means learning to negotiate — especially about your own work goals.

Advisers, especially the ones most inclined to micromanage, need to allow (and even force) their graduate students to take more responsibility for creating a plan to get through the degree program in a timely manner.

Those of you who are advisers need to remind yourselves what it was like to be a graduate student and anticipate problems. You have a responsibility to meet with your graduate students frequently enough to develop a good sense of their strengths and weaknesses.

Monday, June 23, 2008

A New Hampshirite Remembers George Carlin

A sentimental favorite of mine among all the great bits by the late, great George Carlin, from "What Am I Doing In New Jersey?", ran:

The most dramatic license plate of all has to be New Hampshire's, which says [solemnly] "Live Free or [Sam Kinison voice] DIE!!!"

Well, I'm certainly not going to move there. I get just a little nervous in any state where they mention death right on the license plates.

On the other hand, Idaho says [goofy old man voice] "Famous potatoes."

I guess those are the two extremes in thought.

It would seem to me that somewhere in between "Live free or die" and "famous potatoes" the truth lies. Probably it's a little closer to "famous potatoes."

For more on Carlin, see Marty Beckerman at Reason; and Kevin Smith.