Judge Bybee dissent in Rincon Band is not a very good example of legal scholarship (not that it has to be, since he’s a judge, not a law professor), but one potential problem is that he resorts to the “parade of horribles” argument at the very end:
The majority’s legal errors carry grave–and widespread–practical repercussions. The majority’s decision will call into question Tribal-State gaming compacts not just in cash-strapped California, * * * but throughout the country. The Second Circuit has never addressed a legal challenge to the Connecticut compacts governing the behemoth Foxwoods and Mohegan Sun Casinos, but the majority decision here will inevitably spur such challenges in Connecticut and in New York. The Sixth, Tenth, and Eleventh Circuits have yet to consider the validity of general revenue sharing under IGRA, but it can be reasonably be expected that district court clerks in Michigan, New Mexico, Oklahoma, and Florida will be docketing challenges sometime soon. These lawsuits * * * will eat up State, tribal, and federal resources and will unsettle dozens of mutually beneficial revenue-sharing provisions that have fed both tribal coffers and revenue-hungry state treasuries.
So many points, but here are a few. (1) At least in regards to the 1993 compacts in Michigan, it won’t happen. Those compacts came about as a result of a negotiated settlement and consent decree. (2) This is a pretty crass effort to get an issue on the Supreme Court’s radar, where there are no other splits in authority because states simply have not waived their 11th Amendment immunity. (3) How many times in one paragraph can one assert that states are desperate for tribal gaming revenues (implying, I think, that the judge thinks states are entitled to them)?
If, and it’s a huge if, another circuit decides a revenue sharing case, and that decision rejects the Rincon Band majority’s reasoning, then it will be a matter for the Supreme Court. Not before.