MARCIA ANNE YABLON-ZUG, University of South Carolina School of Law
Email: zug@law.sc.edu

Casino dividends have created significant wealth for many Indian tribes and have greatly improved the lives of their members. However, these benefits do not come without a price. Other scholars have noted the negative effects of gaming on tribal membership, culture, and identity but, there has been virtually no discussion regarding how casino gaming may hurt the Indian family. A recent case from the Florida Court of Appeals vividly illustrates how casino dividends can be used in ways that harm Indian families. In Cypress v. Jumper, the Florida court completely relieved an Indian father of any and all financial obligation to his children due to his children’s receipt of tribal casino dividends. In this article, I explore both the basis for, and ramifications of, this decision. I conclude that the court’s decision is not supported by previous case law permitting the consideration of children’s income but rather, is the result of the parties’ Indian ethnicity and the historic and continuing negative perceptions regarding Indian parents. I then explore the importance of child support and demonstrate that the benefits of paying child support are not simply monetary, but are also emotional and psychological. These additional benefits are especially important for Indian children who, given the centuries long assault on the Indian family, are more likely to experience family break down and the emotional and psychological effects of such breakdown than non-Indian children. Consequently, I argue that the Cypress decision creates a dangerous precedent that if followed, will allow Indian gaming to significantly harm Indian families.

ALBERT FEUER, Law Offices of Albert Feuer
Email: afeuer@aya.yale.edu

In Kennedy v. Plan Administrator of the DuPont Savings and Investment Plan (the “Kennedy Decision�), a unanimous Supreme Court appeared to proclaim a “bright-line rule� that plan documents determine benefit distribution rights. However, by misreading ERISA and its own precedents, the Supreme Court needlessly undermined basic ERISA principles with respect to the determination and the protection of ERISA benefit entitlements, the coverage of the prohibition on the alienation of pension benefits (the “Alienation Prohibition�) and the rules pertaining to QDROs.

The Court thereby laid the groundwork for considerable benefit litigation, much of which could have been avoided, focusing on issues such as
• the effectiveness of benefit waivers (including, but not limited to, disclaimers) that are not QDROs for the many ERISA plans that have no disclaimer provisions;
• the effect on benefit entitlements of various disclaimer provisions in the governing documents of ERISA plans;
• the requirements for a domestic relations order (“DRO�) to be a QDRO;
• the effect on benefit entitlements of ERISA plans not subject to the Alienation Prohibition, such as a life insurance plan or a top-hat plan, of a DRO that “satisfies� the QDRO requirements;
• the effects of revocation upon divorce provisions for pension plans subject to the Alienation Prohibition; and
• the effect of ERISA on the determination and protection of entitlements to distributed ERISA benefits.

Much of this litigation would be tamped down if the Treasury Department amended the Treasury Regulations to clarify (1) the significance of the Alienation Prohibition, such as its applicability to disclaimers, waivers and levies, and (2) the significance of the QDRO requirements. The article proposes draft regulatory language to achieve those goals.

CARTER DILLARD, Loyola University New Orleans
Email: cdillard@loyno.edu

Between Skinner v. Oklahoma and the advent of modern substantive due process, procreation, at least in the eyes of many courts and commentators, became entrenched as a fundamental, if not absolute, right. And yet ironically, the establishment of this right, often taken as symbolic of personal liberty, has diminished autonomy for those persons inevitably caught on the other end of it - our future children. Much like a seesaw, expanding prospective parental autonomy has diminished public norms that might otherwise ensure that future children are born into circumstances that also expand their autonomy. Instead, it leaves the matter exclusively, and privately, to the whims of their prospective parents. This result tends to institutionalize the classification of a group of persons, albeit future persons, as property. This Essay thus maintains that the most common conception of the right to procreate, the one derived from constitutional precedent and taken as beyond question, tends to treat future children largely as a class of property, assigned as such to prospective parents. This Essay also traces the historical development of the right as part of the larger tradition of treating existing children as the property of those who create them. Throughout, this Essay suggests that the right to procreate so conceived is in tension with an imbedded constitutional principle that prohibits one class of persons from treating another as property.

MARK C. WEBER, DePaul University College of Law
Email: mweber@depaul.edu

Hurricane Katrina created the need and the opportunity to reconstitute the New Orleans public school system. Educational reformers took advantage of the destruction of existing institutions to build a new system based on educational choice and dependent on charter schools to provide the choices. The disaster also created the need and opportunity to rebuild the system of special education in the city, but education for children with disabilities appears to have been an afterthought. Reports have surfaced of children being steered away from charter schools or inadequately served there. This paper asks what principles should guide reformers in establishing education for children with disabilities in a reconstructed school system committed to choice and charters. The principles include the following: (1) Guaranteeing that the general education system takes responsibility for all children; (2) Adequately supporting children with disabilities in general education; (3) Improving outcomes; (4) Providing equal opportunity for choice; (5) Assigning costs fairly; and (6) Protecting parents' and children's rights. This paper will discuss each principle in turn, considering its implications for policy and its legal ramifications.