Conflict of Laws
Sovereign Difference and Sovereign Deference on the Internet
This Response to Andrew Woods makes two points. First, it shows why the “fragmentation” charge frequently levied against sovereignty-based approaches to internet governance is misplaced. Second, it questions the efficacy of Woods’s normative theory of judicial comity.
An Avoidance Canon for Erie: Using Federalism to Resolve Shady Grove’s Conflicts Analysis Problem
Since the Supreme Court's tripartite split in Shady Grove, federal courts have struggled to determine whether a Federal Rule of Civil Procedure and a state law conflict under Erie. This Note proposes a novel federalism-based avoidance canon to identify such conflicts.
The Intercircuit Exclusionary Rule
Federal courts have long resolved intercircuit suppression disputes using a choice-of-law framework and applying the precedent of the circuit where the search occurred. This Comment shows that this approach is fundamentally mistaken. Choice-of-law problems only arise when different laws, not differe…
The Draft Restatement (Third) of Conflict of Laws: A Response to Brilmayer & Listwa
This Essay responds to Lea Brilmayer & Daniel B. Listwa, defending the Draft Restatement as an attempt to bring greater predictability and coherence to choice of law through more determinate rules.
Continuity and Change in the Draft Restatement (Third) of Conflict of Laws: One Step Forward and Two Steps Back?
A deep contradiction lies at the heart of the Draft Restatement (Third) of Conflict of Laws. This Essay addresses that tension, explaining that the new Restatement’s synthesized black-letter rules are incompatible with its modern two-step theory.
Competing Exclusionary Rules in Multistate Investigations: Resolving Conflicts of State Search-and-Seizure Law
The existing approaches to conflicts of state search-and-seizure laws are either theoretically or practically flawed. When a search implicates multiple states’ laws, courts should undertake a two-step analysis. First, they should determine whether a conflict exists; and second, they should apply the…
The Judicial Enforceability and Legal Effects of Treaty Reservations, Understandings, and Declarations
abstract.The United States often ratifies multilateral treaties by relying on what are commonly referred to as reservations, understandings, and declarations (RUDs). RUDs limit the domestic effect of treaties and confine provisions to particular meanings consistent with the United States’ prac…
“Early-Bird Special” Indeed!: Why the Tax Anti-Injunction Act Permits the Present Challenges to the Minimum Coverage Provision
In view of the billions of dollars and enormous effort that might otherwise be wasted, the public interest will be best served if the Supreme Court of the United States reaches the merits of the present challenges to the Patient Protection and Affordable Care Act (ACA) during its October 2011 Term. …
The Classic Rule of Faith and Credit
118 Yale L.J. 1584 (2009).
Since the late nineteenth century, orthodox doctrine under the Constitution’s Full Faith and Credit Clause has presumed that the interpretation of that Clause set forth in Justice Joseph Story’s 1833 Commentaries on the Constitution of the United States was essentially…
Chevronizing Foreign Relations Law
116 Yale L.J. 1170 (2007)
A number of judge-made doctrines attempt to promote international comity by reducing possible tensions between the United States and foreign sovereigns. For example, courts usually interpret ambiguous statutes to conform to international law and understand them not to appl…
Right and Responsibility in Fourth Amendment Jurisprudence: The Problem with Pretext
Since Whren v. United States, Fourth Amendment analysis has failed to appreciate the serious wrongfulness of pretextual police behavior—especially searches and seizures. This is not because a pretext test is impractical or philosophically unsound. Rather, the problem lies in the current focus of our…
Of Sovereigns and Servants
115 Yale L.J. 2633 (2006)
Break Up the Presidency? Governors, State Attorneys General, and Lessons from the Divided Executive
115 Yale L.J. 2446 (2006)
Proponents of the unitary executive have contended that its adoption by the framers "swept plural executive forms into the ash bin of history." Virtually every state government, however, has a divided executive in which executive power is apportioned among different executiv…
Can Strong Mayors Empower Weak Cities? On the Power of Local Executives in a Federal System
This Essay considers the historic weakness of the American mayoralty and recent reform efforts designed to strengthen it. I argue that the strong mayoralty is a potential instrument for democratic self-government to the extent that it is able to amass power on behalf of the city.
Suspending Employers' Immigration-Related Duties During Labor Disputes: A Statutory Proposal
115 Yale L.J. 2193 (2006)