Comment

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.

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.

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.

In Woodford v. Ngo, the Supreme Court cemented the judicial assumption that most prisons have effective and navigable internal grievance procedures within the doctrinal rules surrounding the Prison Litigation Reform Act's (PLRA) exhaustion requirement. Reliance on the assumption has contributed to a body of PLRA exhaustion doctrine that maps poorly onto the factual realities of the prison context and requires constant clarification by the Supreme Court. Indeed, the Supreme Court has been called upon twice in the past decade to sort out the mess of doctrinal rules governing PLRA exhaustion, first in Ross v. Blake and just this year in Perttu v. Richards. Examining the Court's path to Ross and Perttu, this Comment argues that the Court's reliance on the assumption mandated in Woodford blinded it to the potential constitutional problems generated by Ross, which led to the circuit split at issue in Perttu. Thus, the Court must clarify the boundaries of PLRA exhaustion for the second time in fewer than ten years. Efficiency is one of the core purposes of PLRA exhaustion, and the Supreme Court’s perpetual cycle of clarifying (and reclarifying, and reclarifying again) its construction of a single statutory provision fails to serve that end.