This is farther off in the weeds than I intended to get, but I'm happy to travel. This is as if I told you electricity comes out of the plug on the wall and you say "No, it comes from the power plant" and somebody else says "No, it comes from a national grid." In fact, the Civil Law system of Europe is the direct descendent of Roman Law, and that is the heritage of the one state I did not address, Louisiana. The English brought their Common Law here but, yes, when I chose 1066 I was choosing the Norman Invasion as an arbitrary starting point and that is a direct infusion of continental/Roman tradition. I'm sure the readers really were panting to hear that. If I had more room, I would not have used it on more precise history but rather I would have begun to describe the things a judgment creditor can do to a judgment debtor to make his life miserable. I would have pointed out that tribal governments can be very creative about post-judgment remedies, the most obvious innovations being to not recognize any exempt property and to make the execution process accessible without lawyers. The result I am looking for, and I think is reachable, is that any non-Indian who comes on Indian land and harms an Indian forfeits all property within the reach of tribal court jurisdiction. This can be done without offending the Indian Civil Rights Act or, as important, being unfair in any objective sense. That's my point. Not legal history but an end tun around the Oliphant case. The title is kind of misleading but I did not write it. My title was "A Tort is Not an English Muffin," which my editors apparently considered too cute.
Thursday, September 6, 2012 - 12:32