I'm excited to report that we have a new edition of our federal courts casebook about to come out, and that the wonderful Trevor Morrison will be joining us as a co-author going forward!
I’m excited to report that my new paper with Jack Goldsmith, “General Law Revivalism and the Problem of 1938,” will be published by the Yale Law Journal (link below). Still plenty of time for comments! @yalelawjournal.bsky.social
papers.ssrn.com/sol3/papers....
A white man in glasses and grey hair stands at a podium making a speech.
During the Midway Dinner — a cherished tradition at #UChicagoLaw that marks the halfway point of 2L’s journeys — Prof. @curtbradley.bsky.social had three suggestions for the JD class of 2027: “Stay curious, be tentative in your views, and value community.” www.law.uchicago.edu/news/be-curi...
Here's my latest paper with Jack Goldsmith, "General Law Revivalism and the Problem of 1938." Short version: Erie is incompatible with and precludes many versions of originalism but is now too foundational to eliminate. (Comments appreciated.)
papers.ssrn.com/sol3/papers....
How do lower courts respond when the Supreme Court starts casting doubt on its own precedents without overruling them? How *should* the lower courts respond? Tara Grove and I consider these questions in this article, which is now out in the Virginia Law Review.
virginialawreview.org/wp-content/u...
Several justices were concerned that if they sided with Trump, Congress would lose control over tariffs, even though the Constitution gives that power to lawmakers, said Prof. @curtbradley.bsky.social
My article on Sovereign Power Constitutionalism is finally out! As I explain, it is difficult to understand the U.S. Constitution’s allocations of authority without understanding the international law backdrop against which the Constitution was written.
lawreview.uchicago.edu/sites/defaul...
It's been almost 90 years since the Supreme Court in Erie v. Tompkins disallowed federal court application of general common law. There has, however, been a revival of interest in the general common law, something we'll be discussing this spring at UChicago!
www.law.uchicago.edu/events/eries...
Here’s my latest draft article, “Extradition in the Early Republic: International Law and Constitutional Authority.” It documents how interpreters constructed the constitutional law of extradition, resolving key issues concerning presidential power and federalism.
papers.ssrn.com/sol3/papers....
👇👇👇 Featuring @williambaude.bsky.social, @curtbradley.bsky.social, Sam Bray, John Harrison, @marinklevy.bsky.social, @gillianmetzger.bsky.social, @portiapedro.bsky.social, Jim Pfander, Alex Reinert, Tom Schmidt, @jcschwartzprof.bsky.social, Fred Smith, Mila Sohoni, Adam Steinman & Garrett West
@jacklgoldsmith.bsky.social, @oonahathaway.bsky.social, and @curtbradley.bsky.social explain why the Ukraine-U.S. agreement is likely a “sole executive agreement” and does not need to be submitted to Congress and analyze the relevance of recent reforms to the Case-Zablocki Act.
This post assesses the legality and transparency of the U.S.-Ukraine minerals agreement and future implementing agreements. We argue: U.S. citizens should not have to depend on disclosure by other countries to know what the U.S. government is doing in their name.
www.lawfaremedia.org/article/the-...
Q: Is the US - #Ukraine agreement on #CriticalMinerals one that requires congressional or Senate approval?
A: No, write @curtbradley.bsky.social, @jacklgoldsmith.bsky.social, and @oonahathaway.bsky.social
But follow-on agreements very well might.
A x-post w/our friends at @lawfaremedia.org
Read a federal appeals panel’s sharp rebuke of the Trump administration.
Update: Members of the House are now involved in an effort to find out about the agreement that the administration made with El Salvador concerning the detention of migrants, an agreement that under federal law must be reported to Congress.
democrats-foreignaffairs.house.gov/press-releas...
My former boss Judge Wilkinson, joined by judges King and Thacker, issues a strongly but respectfully worded decision denying USG request for emergency relief in the Abrego Garcia case. storage.courtlistener.com/recap/gov.us...
A 2022 statute could force disclosure of any U.S.-El Salvador agreements connected to the facility where Kilmar Abrego Garcia is detained, write @curtbradley.bsky.social, @jackgoldsmith.bsky.social, & @oonahathaway.bsky.social
X-post with @lawfaremedia.org
www.justsecurity.org/110515/trans...
@oonahathaway.bsky.social, @jacklgoldsmith.bsky.social, and I have a new post discussing how transparency rules enacted by Congress in 2022 may help reveal the terms of the agreement that the U.S. has made with El Salvador concerning the detention of migrants.
www.lawfaremedia.org/article/the-...
@curtbradley.bsky.social, @jacklgoldsmith.bsky.social, and @oonahathaway.bsky.social explore how a transparency statute for international agreements passed in 2022 could force the disclosure of any U.S.-El Salvador agreements related to Kilmar Abrego Garcia’s detention at CECOT.
Thanks, Larry, for recommending my latest paper. And I should note that there is still time for me to take account of comments!
lsolum.typepad.com/legaltheory/...
The Balkinization site recently hosted commentaries on my new book, “Historical Gloss and Foreign Affairs.” The commentators are all terrific scholars, and I found their reflections to be extremely fair-minded and insightful. I address a few points here.
balkin.blogspot.com/2025/01/glos...
An advantage of the historical gloss approach is that, by focusing on the accretion of governmental practices over multiple political alignments, it provides some resistance to radical norm-breaking by one particular President. True of birthright citizenship, impoundment of money, and other issues.
This new paper, "Sovereign Power Constitutionalism," is one of the most challenging papers I've ever written. It shows how conceptions of nationhood have long informed U.S. constitutional interpretation. Forthcoming in @UChiLRev but still plenty of time for comments!
papers.ssrn.com/sol3/papers....
Trump said that that the U.S. would consider its withdrawal from the Paris agreement to be "effective immediately,” but the treaty requires a one-year waiting period. He did not say this about withdrawal from the WHO agreement, probably because a federal statute specifies a one-year waiting period.
I’m honored that my new book is the subject of commentary this week on the Balkinization site. There’s an incredible lineup of commentators, and I’m excited to see what they have to say. I’ll respond when it’s all done, mainly to thank everyone for their engagement with my work.
balkin.blogspot.com
A fair-minded review of my new book, from an originalist perspective, by Julian Ku. I agree with him that “originalists should welcome the use of historical gloss,” in part because, as he notes, “it is hard to imagine a functional originalist Constitution without it.”
fedsoc.org/commentary/f...
"During the early history of extradition in the United States, political actors were simultaneously working out their positions on the relevant international law rules while also working out their positions on matters of domestic authority, and those two projects inevitably intersected."
It’s been said that the past is another country. That’s certainly true of the early U.S. practice of international extradition, as I discuss here. The practice raised difficult issues of presidential power, federalism, and the domestic application of international law.
tlblog.org/historical-g...
How do the lower courts respond when the Supreme Court starts disfavoring (rather than overruling) its precedents—Bivens, for example, or Chevron before Loper Bright? How should they respond? Tara Grove and I explore these and related questions in this new paper.
papers.ssrn.com/sol3/papers....
