Print Archive

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.

This Comment creates the first comprehensive taxonomy of state eminent domain regimes’ treatment of private-to-private takings for the purpose of preventing future blight. Following the Supreme Court’s expansion of the Public Use Clause, many states moved to limit takings justified solely by economic development, yet maintained broad blight statutes that continued to authorize the condemnation of property to eliminate or prevent blight. The Comment exposes the indeterminate contours of the future-blight takings landscape, urging legislatures and courts seeking to cabin sweeping public use determinations to find the prevention of future blight an invalid public use.

This Comment argues “reverse acquihires”—deals in which a Big Tech firm poaches an AI startup’s team and then paysits shell hundreds of millions—constitute asset acquisitions subject to Hart-Scott-Rodino (HSR) Act review. While regulators typically review only tangible asset acquisitions under the Act, this Comment argues that regulators can mandate review of certain intangible asset transfers as well. Drawing on regulatory treatment of intellectual property licensing agreements, language from divestiture orders, and guidance from foreign competition authorities, this Comment demonstrates that reverse acquihires are acquisitions of AI startups’ most valuable assets: their business information and know-how.

Multiple circuits have extended quasi-judicial immunity to sheriffs, marshals, and bailiffs when they execute judicial orders, including—in some circuits—when they use excessive force. This Comment argues that the extension of quasi-judicial immunity to enforcement officers is inconsistent with the Supreme Court’s absolute immunity doctrine. A survey of the Court’s absolute immunity cases reveals four considerations guiding those determinations. Enforcement officers do not meet any of those considerations. This Comment proposes a simple rule to correct for this doctrinal inconsistency: absolute immunity for deliberative functions and qualified immunity for enforcement functions.

Standard theories of precedent limit the legal effect of a precedent to cases within the scope of its holding. Yet the widespread use of analogies to precedent in legal reasoning presupposes that precedents have legal implications for cases outside the scope of their holdings. This Article suggests that arguments from analogy to precedent have the currency they do in our legal system because respect for a precedent requires more than treating the precedent’s holding as true: It also requires the judge to update her other beliefs around the assumption that the precedent’s holding is true.

This Article considers how and under what circumstances the “general law,” a species of unwritten law grounded in legal customs and practices shared across different legal jurisdictions, might be used in modern constitutional interpretation. Constitutional originalists have increasingly argued that central provisions of the Constitution incorporate various bodies of general law. This Article argues that, even if the Constitution did incorporate various bodies of general law, most of those bodies of law have now been emptied of content, and must remain empty without profound changes in the practice of federal judicial review. Because the general law requires that nonfederal judicial actors such as state courts, governors, legislatures, the President, and perhaps foreign legal systems participate in the development of public law norms and customs, a general law revival would involve eliminating, or at least curtailing, federal judicial supremacy and would therefore impliedly reject nearly a hundred years of public law precedent.