Print Archive

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.

Court reporters have long been a fixture of American jurisprudence, but tightening state budgets and a nationwide shortage of certified reporters have left many civil proceedings without any form of verbatim transcription at state expense. This hinders access to justice for impoverished parties: The absence of a transcript is often deadly to one’s chances of prevailing on appeal, no matter how meritorious the claim. This Comment draws on precedent regarding appellate transcript fees to argue that the Due Process and Equal Protection Clauses establish a right to verbatim transcript creation for some indigent civil litigants.

ERISA’s civil enforcement provisions protect workers whose plan administrators mishandle their benefits. In many cases, a beneficiary’s only path to relief is through § 502(a)(3)’s authorization of “appropriate equitable relief”; yet the Supreme Court has not been clear about when monetary compensation is available under this provision, and circuit courts have split as a result. This Comment proposes a workable judicial framework to resolve the split: Courts should award equitable monetary compensation when a fiduciary causes harm with clearly identifiable financial value and the beneficiary lacks the sophistication to protect themselves through alternative means.

When an agency declines to defend the constitutionality of its structure, the court must determine whether it can decide the issue despite the parties’ agreement. Building on case law and scholarship about the adversity requirement, this Comment proposes a multifactor framework for courts to use when making this decision. Pursuant to this framework, if a court finds that separation of powers concerns and pragmatic considerations related to judicial economy and the protection of affected nonparty interests counsel in favor of proceeding to the merits, it should appoint an amicus curiae to raise adverse arguments before deciding the issue.

For decades, it has been black letter law that the informal exercise of government power can violate the First Amendment when it creates an “informal system of censorship.” Lower courts have been deeply divided about what kinds of government actions create this kind of informal system. The Court’s recent NRA v. Vullo decision holds that officials engage in informal censorship whenever they intentionally use informal power to evade First Amendment constraints on their formal powers. Vullo clarified that the rule against informal censorship is categorical: officials may never evade constitutional constraints by threatening harm or promising benefits to private parties, no matter how they attempt to do so. This Article argues that the Court's reaffirmation of the categorical nature of the First Amendment rule against informal censorship is very good and comes at a critical time. The Article examines the doctrine prior to the decision, the significance of Vullo’s intervention, and its implications.

The risk of deal breakage is central to merger and acquisition (M&A) dealmaking. Yet neither the finance nor corporate law literatures have systematically explored how and why deals fall apart. This Article rectifies this deficiency, making three principal contributions. First, it develops a comprehensive typology of eight M&A outcomes: completed-as-announced deals and seven types of deal breakage. Second, it unveils a novel dataset of 5,058 mergers and acquisitions involving U.S. public company targets signed between 1996 and 2020. Finally, it demonstrates how the Article's typology and data yield important implications for M&A practice and doctrine by casting new light on key debates over deal protection devices, the power of controlling shareholders, and “merger arbitrage” investors.