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 different interpretations of the same law, are involved.
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.
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.
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 law of the officer who performed the search.
The Judicial Enforceability and Legal Effects of Treaty Reservations, Understandings, and Declarations
“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. Potentially standing in the way, however, is the federal Tax Anti-Injunction Act (TAIA), which bars any “suit for the purpose of restraining the assessment or collection of any tax.” The dispute to date has mostly turned on the fraught and complex question of whether the ACA’s exaction for being uninsured qualifies as a “tax” for purposes of the TAIA. We argue that the Supreme Court need not resolve this issue because the TAIA does not apply for a distinct reason: the present challenges to the ACA do not have “the purpose” of restraining tax assessment or collection. In order for the TAIA not to bar refund suits, the TAIA must be read to bar suits with the immediate purpose of restraining tax assessment or collection. The present challenges do not have such an immediate purpose because the very authority to assess or collect will not exist until long after the litigation is concluded. Among other virtues, this resolution of the TAIA question does not predetermine whether the tax power justifies the minimum coverage provision.
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 sound. This Article argues, however, that Justice Story’s view had been endorsed by almost no one before him and actually contradicted the “classic rule” of faith and credit, which Justice Story had articulated in 1813. The Supreme Court, moreover, consistently reiterated the “classic rule” despite Justice Story’s change of mind, continuing to do so even after his death. By the 1880s, perhaps due to a lack of critical attention, the “classic rule” of faith and credit had quietly fallen into desuetude, obscured by respect for Justice Story’s name and the impression of authority associated with his works. This contradiction at the root of modern orthodox Full Faith and Credit doctrine has never been confronted until now. This Article assesses the historicity and soundness of both the “classic rule” and Justice Story’s interpretation, which is now the orthodox view, concluding that the “classic rule” is far more defensible textually, grammatically, historically, and politically. This Article also examines the process by which, and the purpose for which, discretion over the “Effect” of sister-state “public Acts, Records, and judicial Proceedings” was conferred upon Congress by the second sentence of the Full Faith and Credit Clause. Finally, this Article argues that the complete and unqualified nature of the discretion thus vested regarding sister-state effects is an important element of the Constitution’s system of separation of powers and facilitates pragmatic and responsible resolution, from time to time, of any issues in the conflict of laws that might give rise to significant concern or controversy on a national scale.
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 apply outside of the nation’s territorial boundaries. The international comity doctrines are best understood as a product of a judicial judgment that in particular contexts the costs of deference to foreign interests are lower than the benefits to American interests. Sometimes Congress balances these considerations and incorporates its judgment in a statute, but usually it does not. In such cases, executive interpretations should be permitted to trump the comity doctrines, as long as those interpretations are reasonable. This conclusion is supported both by considerations of institutional competence and by the distinctive position of the President in the domain of foreign affairs. It follows that if the executive wants to interpret ambiguous statutes to conflict with international law or to apply extraterritorially, it should be permitted to do so. The analysis of the interpretive power of the executive can be justified by reference to the Chevron doctrine in administrative law, which similarly calls for deference to executive interpretation of statutory ambiguities. Sometimes the Chevron doctrine literally applies to executive interpretations; sometimes it operates as a valuable analogy. At the same time, the Chevron principle is qualified by doctrines requiring a clear congressional statement, especially when constitutionally sensitive rights are involved. These claims have many implications for legal issues raised by the war on terror, including those explored in the Hamdi and Hamdan cases.
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 Fourth Amendment analysis, which puts undue emphasis on the individual’s “right to privacy” and insufficient emphasis on responsible police behavior. The state’s investigatory power is held in trust by the police for the people. If we refocus our attention on the idea that the police power must be deployed in a responsible manner in keeping with that trust, we can see clearly what is problematic about pretext. Read Eric Citron's Pocket Part Commentary adapted from this Note. Read Professor Margaret Raymond's Response, On Rights and Responsibilities: A Response to The Problem with Pretext. Read Judge James Robertson's Response, How Whren Protects Pretext.
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 executive officers independent of gubernatorial control. Focusing on the Office of the State Attorney General, this Essay examines the state experience with the divided executive and demonstrates that the model of an independent attorney general has proved both workable and effective in providing an intrabranch check on state executive power. The Essay then discusses the potential application of the model of the divided executive at the federal level. For a number of reasons, there has been a dramatic expansion of presidential power in the last half century with the result that Congress and the courts are often no longer able to constrain executive power in a timely and effective manner. In such circumstances, the only possible check on presidential power must come from within the executive branch. Yet the ability of the Federal Attorney General to provide such a check is, at best, illusory because, under the structure of the unitary executive, the Attorney General is subject to presidential control. Accordingly, the Essay questions whether the federal government should borrow from the state experience and make the Attorney General an independent officer.
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)