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 AllThe legibility of handwriting is on the decline. Thankfully, calligraphy carries low stakes in a digital age. Why write something down when it can be typed instead? Yet, there is still one near-universal fragment of writing that must often be done by hand: the signature. While usually a formality, so long as signatures are done by hand, they can be second-guessed, threatening a generation untrained in cursive. This Essay highlights a recent incident in which a union representation election hinged on the legibility of one employee’s signature.
Is it OK for courts to think about race when they decide whether to bar certain arguments from being made, because they think those arguments could rely on stereotypes or otherwise play on the jury’s racial biases? For the Washington Supreme Court, the answer is yes—in fact, courts have a duty to consider race in making these evidentiary decisions. Rather than statements or arguments that are made with a clearly racist intent, the Washington Supreme Court’s idea of “racially biased arguments” is far more capacious: it includes “dog whistles,” or superficially harmless comments that have the effect of operating on a jury’s implicit biases.
Should progressive movement lawyers avoid making textualist arguments? This Essay suggests that the answer is no. While there may be good reasons for movement lawyers to eschew arguments associated with their ideological opponents, none of those reasons apply to the embrace of textualist arguments by progressive movements today. Indeed, the time may be especially ripe for progressive social movements to make increased use of textualist legal arguments.
Liberal political and legal theory posit a world of autonomous individuals, each pursuing their own chosen ends, linked to each other by one or more agreements. But this is not how most of us experience most of our lives. This Essay seeks to open a conversation about resources in our legal history and culture that work from different assumptions—and might perhaps be a source of inspiration—by pointing to one such resource: admiralty.