Post Type

Tort, Not Contract: An Argument for Reevaluating the Economic Loss Rule and Classifying Building Damage as “Other Property” When It Is Caused by Defective Construction Materials

J. Brandon Sieg

The economic loss rule (ELR) precludes bringing a tort action for economic loss, such as lost profits, when the parties’ expectations are governed by a contract.  The thesis of this Note is that building damage caused by defective construction materials should not be considered economic loss under the ELR… Read More »

Why Agencies Punish

Max Minzner

Administrative agencies, the fourth branch of government, famously blend the functions of the other three.  Agencies write rules, adjudicate their meaning, and penalize violations. Several recent high-profile agency penalties have attracted attention to this understudied area of administrative law.  In 2010 alone, the National Highway Traffic Safety Administration imposed a… Read More »

The Twenty-Sixth Amendment Enforcement Power

Eric S. Fish

The conventional story of the Twenty-Sixth Amendment is that it lowered the voting age to eighteen for all state and federal elections – nothing more and nothing less. The measure was enacted in 1971, and is viewed largely as a product of the Vietnam War. Men as young as eighteen… Read More »

The Constitution’s Obscure Offenses Clause: Where the Alien Tort Statute and Military Commissions Meet

Eugene Kontorovich

I. Introduction
Obscure constitutional provisions rarely give rise to serious questions: that is why they are obscure. Yet sometimes provisions spring quickly from obscurity to relevance. Never in the nation’s history has the scope and meaning of Congress’s power to “Define and Punish . . . Offenses Against the Law… Read More »

The Forgotten History of Foreign Official Immunity

Chimène I. Keitner

In Samantar v. Yousuf, the Supreme Court held that the common law, not the Foreign Sovereign Immunities Act (FSIA), governs the immunity of current and former foreign officials from legal proceedings in U.S. courts. Lower courts must now identify and apply these “common law” rules. In so doing, they must determine whether,… Read More »

The Alien Tort Statute, Federalism, and the Next Wave of Transnational Litigation

Donald Earl Childress III

The role of international and transnational law in U.S. courts is one of the most hotly contested debates in legal scholarship.  From the question of the use of comparative legal materials by the Supreme Court, to the question of what effect, if any, judgments of international tribunals such as the… Read More »

Citizens, United and Citizens United: The Future of Labor Speech Rights?

Charlotte Garden

What will Citizens United v. Federal Election Commission mean for labor unions?  There are at least two ways to answer that question:  first, in terms of its effect on election spending by labor unions; and second, in terms of its precedential value in future cases regarding the scope of labor… Read More »

Foreign Citizens in Transnational Class Actions

Linda Sandstrom Simard & Jay Tidmarsh

When, if ever, should foreign citizens be included as members of American class actions?  The question is not a new one.  Judge Friendly first raised it thirty-five years ago in Bersch v. Drexel Firestone, Inc.  Since Bersch, courts have tied the answer to res judicata and the recognition of judgments:… Read More »

When Money Grew on Trees: Lucy v. Zehmer and Contracting in a Boom Market

Barak Richman & Dennis Schmelzer

As generations of law students have learned, Lucy v. Zehmer is a tale of two “doggoned drunks” drinking liquor and bantering over the sale of a farm the weekend before Christmas in 1952. Adrian Hardy Zehmer, allegedly drunk and joking, scribbled a contract for the sale of his farm on… Read More »

Outcasting: Enforcement in Domestic and International Law

Oona A. Hathaway & Scott J. Shapiro

Is international law law? Though leading scholars have said that it is “futile” whether international law is law in fact matters a great deal. Most fundamentally, it matters from the moral point of view. Law’s moral import follows from a basic truth accepted by… Read More »