Current Print Issue
The Constitution made the federal government's ability to displace state law contingent on compliance with specific structural and procedural safeguards. Federal courts, therefore, possess no freestanding authority to displace governing state law absent a contrary—and valid—source of supreme law. This structural limitation, however, does not forbid judicial application of general law in all circumstances. From the Founding, federal courts applied traditional branches of the law of nations when state law adopted them, Congress authorized their use, or the Constitution’s structure required their application. Recent calls to revive general common law conflate these traditional, limited uses of general law with broader categories of unwritten law that early federal courts did not apply without proper federal or state authorization. By treating general law as a freestanding source of judicial authority to displace state law, such proposals risk intruding on the residual authority of the states and circumventing the exclusive lawmaking procedures required to adopt all forms of supreme federal law.
The global minimum tax is often praised for its promise to restrain harmful tax competition. But the effects of the global minimum tax are more nuanced than is commonly understood. This Article shows that the global minimum tax raises a trade-off between two kinds of tax competition: competition for profit and competition for investment. It also provides suggestive evidence that the costs of intensifying competition for investment could be substantial. Specific reforms are proposed that could preserve the benefits of the global minimum tax while mitigating its harms.
This Essay considers the question of when a judge on a multimember tribunal should defer to the judgments of their colleagues when deciding a case. It has been common wisdom until recently that a judge’s duty is to “consider a case by his or her own lights.” Over the past decade, however, this familiar view has come under sustained critique. This Essay argues (1) that a strong epistemic case can be made that, in contexts like that of a judicial tribunal, where judges have access to the underlying reasoning behind the judgments of those with whom they disagree, it is rationally appropriate to ignore higher-order evidence consisting in the fact of disagreement and (2) that even if higher-order evidence did provide epistemic reasons to defer, judges would still have distinctively legal, role-based obligations to ignore such higher-order evidence when deciding a case, grounded in the difference between the nature of legal reasons and epistemic reasons.
Numerous states have adopted judge-made or statutory bans on tort claims for wrongful birth or wrongful life. Paradigmatically, these bans have prevented plaintiffs from recovering for allegations that a physician’s negligence in diagnosing a fetus’s abnormality denied the parents the opportunity to obtain an abortion, resulting in the birth of the plaintiff or the plaintiff’s child. Courts are now confronting a new question: whether these bans bar recovery for a plaintiff’s allegations of fertility fraud. While courts have split on whether bans on wrongful birth and wrongful life cover these claims, the Connecticut Supreme Court, in Suprynowicz v. Tohan, provided a new framework for distinguishing fertility fraud allegations from these bans. This Comment weighs in on this recent development in the law, arguing that other states could draw on Suprynowicz’s framework to permit recovery for fertility fraud. Furthermore, this Comment investigates whether statutory bans apply to fertility fraud allegations, an inquiry that depends on statutory interpretation.
Federal courts are split on whether collateral-attack waivers bar challenges when subsequent binding authority clarifies that a defendant’s charged conduct was never criminal. This Comment argues that waivers embedded in constitutionally defective pleas cannot insulate void convictions from review. Under Bousley and Rivers, authoritative clarifications of criminal statutes reveal what the law always meant, rendering the original plea unknowing and invalid. Contract law principles independently support the same result. This Comment proposes a three-part test to identify when waivers are unenforceable, preserving plea bargaining efficiency while ensuring that no one remains imprisoned for lawful conduct.
Latest Online Posts
View AllIn Suncor Energy v. Boulder County, the Supreme Court will consider whether the Clean Air Act and the foreign-affairs doctrine preempt state-law climate claims brought by state and local governments seeking to recover the mounting costs of climate adaptation. Because the Court has held that neither federal common law nor any federal statute affords these plaintiffs a damages remedy, state law is their only avenue; a finding of preemption would close the courthouse door on communities left to absorb costs caused by others.
This Essay argues that the Court should not find preemption. It shows that the Clean Air Act neither expressly nor impliedly preempts these claims but affirmatively preserves them; that the foreign-affairs theory has no limiting principle and has already been rejected by courts; and that damages and locally confined relief lack the extraterritorial reach that alone justifies centralizing authority over emissions. The Essay develops two additional arguments: the implications of the 2026 endangerment-finding rescission, and why, after Loper Bright, courts owe no deference to EPA’s theory of preemption-by-inaction.
Judge Paul Matey's recent concurrence in Range v. Attorney General, decided en banc by the Third Circuit, stands out for its adoption of a “classical legal” approach to the Second Amendment based in natural law. Judge Matey goes beyond his colleagues’ focus on history to examine what he calls classical legal principles, gleaned from the ancient Roman statesman and philosopher Cicero, Roman law, and the writings of Aquinas.
This Essay is among the first to critically analyze a form of common good constitutionalism in judicial practice. It takes a critical view of the opinion and its method and argues that—regardless of whether one is persuaded by the concurrence's common-good theory as a substantive account of our constitutional law—the opinion's reliance on natural-law principles is unjustified and undesirable as a method of adjudication. Specifically, the Essay argues that the concurrence's method departs from precedent without justification; suffers from significant practical problems in attempting to use ancient sources; and produces highly abstract natural-law principles that fail to resolve close constitutional cases, leading to decision by ipse dixit.
More Americans are turning to AI to solve problems in their everyday lives. Recent studies show that healthcare is no exception. For the underinsured, the rural, the disabled, and anyone too stigmatized to ask a pharmacist about the drugs they are actually taking, AI chatbots are becoming an increasingly attractive source of drug information.
The crystallizing liability landscape, anchored by Garcia v. Character Technologies’ treatment of AI outputs as products, creates perverse incentives toward either surveillance-heavy monitoring or blanket refusal to engage with drug queries. This Essay proposes an alternate path grounded in harm reduction principles already embedded in pharmacist duty doctrine developed over four decades in state courts. These existing duties, mapped onto AI systems through targeted refusals, accurate pharmacological information, nonjudgmental risk warnings, data minimization, and crisis pathways, provide an actionable liability framework before more deaths force reactive regulatory responses.
The U.S. government exerts powerful pressure on parties around the world through its use of unilateral economic sanctions. Oftentimes, this involves prohibiting U.S. corporate and natural persons from doing business with certain foreign jurisdictions, entities and individuals, or industries. A less noticed way the U.S. regulates conduct abroad is by prohibiting all transactions with sanctioned parties that simply pass through the U.S. financial system. This Essay examines the role of currency-based jurisdiction in U.S. sanctions practice by introducing a novel data set of enforcement actions and reveals that a controversial but largely overlooked jurisdictional basis in fact represents a cornerstone of current practice.