Political process theory, closely associated with the work of John Hart Ely and footnote four in United States v. Carolene Products, has long been a staple of constitutional law and theory. It is best known for the idea that courts may legitimately reject the decisions of a majority when the democratic process that produced the decision was unfair to a disadvantaged social group. This Article analyzes political process theory through the lens of the contemporary debate over same-sex marriage. Its analysis is grounded in state supreme court decisions on the constitutionality of barring same-sex marriage, as well as the high-profile, recent trial in federal court on the constitutionality of California's Proposition 8, which featured extended testimony by opposing political scientists on gay and lesbian political power. The Article argues that the marriage debate reveals deep conceptual problems with process theory as it has been conventionally understood, and that looking at the theory through this lens can point the way to refashioning it in both doctrinal and conceptual terms. It calls for a more substantive and nuanced conception of democratic equality, as well as a more realistic institutional understanding of courts and the political process.

The Gulf oil spill was the worst environmental disaster in U.S. history, and will be the most significant criminal case ever prosecuted under the environmental laws. The Justice Department is likely to prosecute BP, Transocean, and Halliburton for criminal violations of the Clean Water Act and the Migratory Bird Treaty Act, which will result in the largest fines ever imposed in the United States for any form of corporate crime, and possibly for manslaughter and other crimes as well. The prosecution will shape public perceptions about environmental crime, for reasons that are understandable given the notoriety of the spill and the likely penalties. In some respects, the Gulf oil spill is similar to other environmental crimes, most notably because it involves large corporations that committed serious violations because they put profits before environmental compliance and worker safety. Yet its most distinctive qualities make the Gulf oil spill an anomalous environmental crime, with conduct that was not as egregious, harm that was far worse, and penalties that bear no relation to norms for environmental crime.

The Justice Department should bring criminal charges based on the Gulf oil spill, because a criminal prosecution will deter future spills more than civil penalties alone and will express societal condemnation of the negligence that caused the spill in ways that civil enforcement cannot. But criminal prosecution of the Gulf oil spill may raise questions about the role of criminal enforcement under the environmental laws, including whether ordinary negligence should result in criminal liability as well as the proper normative relationship between culpable conduct and environmental harm.

Williams v. Lee (1959) created a bridge between century-old affirmations of the immunity of Indian territories from state jurisdiction and the tribal self-determination policy of the twentieth century. It has been called the first case in the modern era of federal Indian law. Although no one has written a history of the case, it is generally assumed to be the product of a timeless and unquestioning struggle of Indian peoples for sovereignty. This Article, based on interviews with the still-living participants in the case and on examination of the congressional records, Navajo council minutes, and Supreme Court transcripts, records, and Justices' notes, reveals an unexpected complexity in both Indian and non-Indian contributions to the case and to the era in federal Indian policy in which it emerged.

This history shows that both Williams and the policy developments that surrounded it emerged from consensus about the need for Indian equality and equal opportunity in the twentieth century, but Indian and non-Indian debate whether equality meant full assimilation and termination of the special legal status of tribes or continued respect for the ability of Indian peoples to govern themselves. This Article makes this debate concrete through the story of the Williams family, for whom the state collection action and the resulting seizure of the family sheep herd struck at the heart of Navajo lifestyle and culture. The Article further connects Williams to the momentous debates over African-American integration generated with Brown v. Board of Education (1954) and Cooper v. Aaron (1958). Ultimately, I argue, Williams v. Lee and the self-determination movement that followed it represent a choice by American Indians to insist that respect for tribal status was necessary to ensure Indian equality in the modern era. This history and its results provide an important lesson today as federal Indian policies are increasingly attacked as fundamentally inconsistent with fairness and equality.

Section 363(f) of the Bankruptcy Code provides five circumstances in which a debtor may be permitted to sell property free of all claims and interests, outside of the ordinary course of business, and prior to plan confirmation. One of those five circumstances is contained in § 363(f)(3), which permits such a sale where the "interest is a lien and the price at which such property is to be sold is greater than the aggregate value of all liens on such property." While it is far from certain whether § 363(f)(3) requires a price "greater than the aggregate [face value] of all liens on the property"-the face value approach-or a price that is "greater than aggregate [economic value] of all liens on the property"-the economic value approach, this Note argues that, properly understood, both approaches should lead to the same result. More specifically, under this Note's strict textual approach, the choice between these two meanings of "value" in § 363(f)(3) is irrelevant; neither interpretation of § 363(f)(3) permits courts to authorize the sale of property securing underwater liens-that is, liens whose face value exceeds the fair market value of the property securing it.

Contempt proceedings before the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda suffer from two procedural defects: the hearings run afoul of the principle of legality and fail to afford calibrated procedural protection for accused contemnors. First, this Note contends that these two tribunals properly rely on their inherent powers to codify procedural rules for contempt proceedings. However, the tribunals' inherent power to prosecute contempt does not allow the courts to punish contemptuous conduct that has not been explicitly proscribed. Such a prosecution contravenes the principle of legality, which provides that criminal responsibility may attach to conduct only when there is a known preexisting prohibition of that behavior. Second, this Note claims that while the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda may promulgate procedural rules governing contempt hearings, they are not empowered to create criminal contempt laws. Even though contempt proceedings before the tribunals are ostensibly noncriminal, they may be functionally criminal because they can impose substantial penalties. Whether criminal or noncriminal, because the proceedings may lead to severe sanctions, they lack the appropriate procedural protections that should accompany potential property and liberty deprivations.