Article

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.

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.

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.

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.

How many amendments are in the Constitution? Americans should be able to know. But whether the Equal Rights Amendment is—right now—part of the Constitution remains controversial. Thirty-eight states have sought to ratify it, several of them after the seven-year deadline in the proposing resolution. Given President Joe Biden’s last-minute claim that the ERA is now the Twenty-Eighth Amendment, in a future administration this lingering debate could provoke a minor constitutional crisis. Yet there may be a legal answer. Congress has long placed operative language in amendment resolutions that modifies the legal force of the proposed text—not only in the Bill of Rights, as is well-known, but also in the Twelfth and Seventeenth Amendments. This language was deliberately chosen, was repeated by state ratifications, and seems to have been accepted as legally effective. This historical practice suggests that, under Article V, the resolution is the amendment: What matters is the entire constitutional change that Congress proposes, not just the additional language it would append. This understanding means that certain parts of the 1788 Constitution have been repealed, not just superseded. It also means that the ERA’s deadline rendered it incapable, even with thirty-eight states’ assent, of making any change to the Constitution’s text once seven years had passed. Both President Biden’s statement and the ongoing lobbying efforts are therefore seriously misguided. In a divided society, losing consensus on the Constitution’s text carries an especially high cost: The National Archives is the wrong place to play with fire.

The flexibility to renegotiate can facilitate long-term contracting and thereby beneficial reliance investments and risk allocation. The prospect of modification can induce contracting parties who expect their bargaining power to improve to enter into contracts earlier and realize the advantages of longer-term relationships. Otherwise, those parties might decline to contract or delay until those opportunities realize, thereby foregoing the benefits of long-term risk allocation or reliance investments. The parties decide not only whether, but also when, to make legally binding commitments to each other. Courts should be more lenient in enforcing contract modifications that, prompted by a shift in bargaining power, may have only a redistributive effect. Parties can design under-compensatory damages that would provide a credible threat of breach ex post to facilitate ex post modification. Requiring good faith in modification (along with damages) can constrain possible holdup and protect reliance investments and risk allocation.