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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.

Courts rely on legal precedents to resolve legal questions. Should courts rely on factual precedents to resolve factual questions? The idea is not baseless. Courts often rely on prior courts’ decisions to determine general facts, such as recidivism rates, the dangers of a toxin, or the history and tradition of a legal norm. This Article draws attention to this overlooked practice and then poses a key question: How should a court decide about a general fact that another court has previously determined? This Article argues that courts should engage with, but not necessarily follow, prior courts’ factual conclusions. To defend this view, this Article develops a comprehensive framework for understanding and normatively supporting factual precedents. It explains how they structure judicial discretion, guide litigants’ strategies, and enhance the legitimacy of judicial decisions about facts.

A sophisticated legal thinker who wishes to work out a fully developed approach to constitutional adjudication must choose two theories, not one. For unless one takes the implausible view that every single case is an evidentiary wipeout under their preferred first-order theory, something more will sometimes be necessary to decide a case. That something is a second-order theory of constitutional adjudication: a theory that does not purport to make any interpretation more (or less) correct, constitutionally speaking, yet still guides a decision-maker after their preferred first-order interpretive theory has run out. This Article’s thesis is that the debate over second-order constitutional theories is both important and generative. Indeed, the dominant, yet unspoken, second-order theory embraced by today’s Supreme Court—the 51–49 rule, under which each Justice votes for the outcome they think is supported by more first-order evidence than any other outcome, no matter how slight the difference—is far from inevitable. Armed with a better second-order theory, judges who disagree vehemently over how to interpret the Constitution might still find their way to consensus in some of the most weighty and difficult cases of the day.

The Eighth Amendment has long been understood to bar state-inflicted torture. Yet a fundamental paradox persists: The same circumstances that constitute torture sufficient to authorize an individual's capital sentence are routinely present on death row. Drawing on a systematic analysis of state definitions of torture utilized in capital proceedings, this Comment proposes a resolution to this paradox, arguing for the creation of a new, state-informed torture standard consistent with the Supreme Court’s evolving standards of decency framework and better suited to address the diffuse, structural nature of death row conditions than the Court’s existing Eighth Amendment criteria.

Courts are split on whether consumers who purchase defective products suffer an Article III injury at the point of sale when the defect never manifests in their particular product. Courts accepting the benefit-of-the-bargain theory treat overpayment as concrete economic harm; courts requiring defect manifestation reject it as speculative. This Comment argues that courts dismissing the benefit-of-the-bargain theory are wrong. Drawing on the English bill of peace tradition and common law breach of contract and warranty, it demonstrates that overpayment injury is firmly rooted in legal history and tradition. Manifest defect requirements impose a second injury threshold that Article III does not demand.

The Trump administration removes noncitizens to third countries—places they may never have visited—based solely on diplomatic assurances, with no notice, no individualized assessment, and no judicial review. This Comment argues that 8 U.S.C. § 1231(b)(3)’s mandatory prohibition on removal to danger and the Fifth Amendment’s due process guarantee both require process-based judicial review of these determinations. Drawing on the CAT extradition framework and Mathews v. Eldridge, it proposes a four-factor test courts can apply without second-guessing executive foreign policy judgments. D.V.D. v. Department of Homeland Security, before the First Circuit at the time of writing, provides the vehicle.

This Article is the first comprehensive account of the constitutional foundations of U.S. extradition practice and its relationship to international law. Through detailed analysis of early American extradition controversies—including the Longchamps Affair and the Robbins case—the Article shows how political actors and courts constructed the modern constitutional law of extradition, resolving key issues concerning presidential power, the role of the states, and the scope of congressional authority. This regime, the Article argues, emerged not from appeals to the constitutional text or original understandings, but rather from structural intuitions, consequentialist considerations, and, as time went on, historical traditions. The Article also complicates the dominant narrative of a unilateral “imperial presidency” in foreign affairs by showing that, because of the liberty interests involved, extradition authority evolved and remained as a shared power, requiring a treaty-based or statutory foundation as well as judicial involvement.

This Article is the first comprehensive account of judicial review in tribal courts. It makes four contributions. First, it provides insights about the institution of judicial review and its relationship to governance, highlighting that it is a choice that must be made with careful attention to the source and scope of judicial power, and to public opinion. Second, it helps us understand what tribal courts are, and how they fit into their tribal government systems. Third, it demonstrates how this better understanding of tribal courts is essential to the rights questions that preoccupy mainstream discussion of and lawmaking about tribal courts. Finally, it evidences the complexity of legal discourse in tribal courts. It demonstrates that tribal courts are thinking deeply about the law and the way that the law structures their governments and can limit or protect the rights of their citizens.