Originalist proponents of a tougher nondelegation doctrine confront the many broad delegations that Congress enacted in the 1790s by claiming that each fell into some exceptional category to which the original nondelegation doctrine was inapplicable or weakly applicable, one being foreign affairs. There is lively debate on whether the founding generation actually recognized an exception to nondelegation principles for foreign affairs. This Article, commissioned for a symposium on “The Statutory Foreign Affairs Presidency,” intervenes in the debate by examining the Embargo Authorization Act of 1794, which empowered the President to lay an embargo on all ships in U.S. ports (and/or other classes of ships) if “the public safety shall so require,” for the upcoming five-month congressional recess. This was a delegation of remarkable power over the U.S. economy, which at the time depended heavily on maritime transport. An examination of the Act undermines the idea that there existed a foreign-affairs exception to cover it. Originalist proponents of a tougher nondelegation doctrine claim the doctrine was meant to protect private individual rights of liberty and property, yet Americans in the late 1700s lived in an economy that was more dependent on foreign commerce than it has ever been since, in which a five-month international embargo could be disastrous for private business nationwide. In this context, an “exception” for foreign affairs would be strange, turning economic reality on its head. Furthermore, the Act itself flouted any objective or even workable distinction between the foreign and the domestic. The Act’s unqualified use of the term “embargo” authorized the President to prohibit the departure of all ships, not only those sailing to foreign ports but also to other U.S. ports in the coastwise trade, which was then the main channel of U.S. domestic commerce. And even if the President were to impose an embargo aimed mainly at international maritime trade, preventing evasion of such a restriction required regulation of the coastwise trade—regulation that contemporaries apparently understood the Act to authorize.

The Supreme Court’s recent expansion of the major questions doctrine has rocked administrative law, throwing into doubt executive agencies’ statutory authority for numerous regulations. Some Justices have suggested that they want to go further and reinvigorate the nondelegation doctrine as a constitutional limit on Congress’s authority to delegate power to the executive branch. This Article is the first to consider how these developments might put at risk the United States’ international commitments. The Article first identifies the role of congressional delegations to the executive branch with respect to the formation and implementation of ex ante congressional–executive agreements, executive agreements pursuant to treaties, sole executive agreements, and nonbinding agreements. It then explains how the Supreme Court’s recent decisions might spark challenges to the agreements themselves or to the executive’s authority to implement them. Turning from the diagnostic to the prescriptive, the Article takes the Supreme Court’s recent cases as a given (problematic though they are) and argues that delegations involving international agreements differ from purely domestically focused delegations in material ways that counsel against applying the major questions doctrine or nondelegation doctrines to them. In particular, the existence of foreign state counterparties with whom the executive must negotiate means that Congress cannot simply direct the executive branch on international agreements with the same specificity that it can in domestically focused legislation. Moreover, declaring an existing international agreement or its implementing legislation invalid based on a domestic statutory interpretation doctrine risks causing the United States to violate international law, as well as harming its reputation as a reliable agreement partner. Treating international agreement-related delegations identically to domestically focused ones would also run counter to long-standing historical gloss from the Supreme Court itself that treats foreign-relations-related issues in exceptional ways. After arguing against using the major questions and nondelegation doctrines to police delegations related to international agreements, the Article proposes steps that the courts, Congress, and the executive branch can each take to ensure that existing and future international agreements are well-grounded in constitutional and statutory law.

The Columbia Law Review launched its Karl Llewellyn Lecture series on March 19, 2024, celebrating pioneers in the law who have innovated and challenged legal theory. The inaugural Lecture was delivered by Judge Guido Calabresi who spoke on the promise and peril of "Law and . . ." disciplines, such as Law and Economics, Law and Philosophy, and Law and History. A transcript of Judge Calabresi's Lecture is published in this Issue.

The article focuses on celebrating the life and work of Michael Olivas, a prominent figure in legal academia. It discusses Olivas's contributions to legal scholarship, particularly in the areas of education and engaged scholarship. It highlights Olivas's critique of higher education and miseducation, emphasizing issues such as inequality, access, and diversity in the legal profession and academia.

From some perspectives, litigation looks vibrant, with frontpage coverage of the U.S. Supreme Court's reconsideration of its precedents and high-profile civil and criminal lawsuits against government officials. Moreover, since the 1980s, the federal judiciary has had an ambitious building program producing dozens of courthouses designed to exemplify the "solemnity, stability, integrity, rigor, and fairness " of adjudication. Such edifices underscore courts ' place in narrations of the United States. Yet the challenges of legitimating government authority, of which judicial actions are a part, have become all the more acute since Managerial Judges was published forty years ago. The world of ordinary litigation is troubled and shrinking, and the disjuncture between judges ' stated goals and their practices has become vivid. Aside from a few aggregations of tens of thousands of cases in "mega" multidistrict litigations (MDLs), filings in the federal courts have flattened and declined to about 240,000 civil cases per year. At both trial and appellate levels, significant percentages of litigants proceed without lawyers; about one-quarter of civil filings and about half of the appeals come from individuals representing themselves. Most circuits have embraced norms of limiting oral arguments and of issuing eighty-five percent of their decisions as non-precedential rulings. Those practices, rendering their work less visible, parallel the lack of transparency of the many managerial decisions at the trial level, where hours on the bench are down to about 320 per year and fewer than one of 100 civil lawsuits ends with a trial All the while, federal courts remain relatively rich in resources and staff as compared to both state and tribal courts and to agencies. Even as filings likewise have fallen, state courts continue to have tens of millions more cases and larger segments of their dockets in which lawyerless litigants are the norm. Many judges are ill-equipped to respond to disputants with limited resources, often in family conflicts or as debtors and tenants who face resourced adversaries. Further, as the focus shifts to web-based resolution mechanisms, little attention is paid to its privatizing features. Providers of online dispute resolution (ODR) have not seen enabling public access as part of the packet of services to promote. Thus, courtroom-based adjudication is becoming increasingly rare. One possibility is that this form of statecraft is failing and the time has come to abandon its aspirations. Yet, as an heir to a political tradition grounded in the due process ideology of governments obligated to make decisions that are not arbitrary, I am not willing to give up the public service of adjudication and on courts as one of many venues to put into practice commitments of equal treatment. To legitimate decisions, judges need to preside over cases in which litigants are able to provide adequate information. This article analyzes the federal judiciary's function as an adjudicatory institution and as an "agency" with its own programmatic agendas. During the last few decades, the federal judiciary has successfully lobbied Congress to create and finance a host of projects, including authorizing judges to centralize cases through multidistrict litigation, to select and appoint adjunct magistrate and bankruptcy judges, and to oversee the design of dozens of new courthouses. Since the 1990s, the federal judiciary has also gathered statistics on and repeatedly raised concerns about the number of self-represented litigants. Yet the judiciary has not generated structural responses, such as a national database on the many district court "pro se " projects and new mechanisms to enlist lawyering and other resources, to enable judges to make principled decisions in those cases. Likewise, while the docket is heavily dependent on the cross-litigant subsidies generated through class actions and MDLs, judges have not crafted methods to mobilize the lawyering resources in those configurations to support litigants within or to shape a robust method of overseeing implementation of the resolutions reached. To date, the federal judiciary has not instituted a mechanism to buffer against allocating adjudicatory resources largely based on litigants' economic wherewithal. Moreover, the federal judiciary, entwined with state and tribal court adjudication, has not joined its counterparts in pressing Congress to provide new streams of funding for all kinds of courts and the people using them. Navigating the political economy of courts producing a crisis of legitimacy requires reorienting the "process due" by revising statutes, doctrine, practices, and rules to respond to an eclectic set of claimants seeking to be heard. "Management" of the people in court does not suffice.

Recent insider trading cases reveal a stark conceptual divide between the federal courts and the U.S. Securities and Exchange Commission (SEC) regarding liability for securities fraud in cases in which an insider (a "tipper") gives material non-public information to a market professional or close friend or other potential trader (a "tippee"). Following the landmark Supreme Court case called Dirks v. SEC, the federal courts do not impose liability on tippers or tippees unless the tipper receives a consequential personal benefit or is a close friend or relative of the tippee. The SEC abjures this "personal benefit" requirement, and would define the concept of personal benefit so broadly as to remove it as an impediment to insider trading prosecutions. This Article explains the economic function of the personal benefit test as establishing the criterion upon which legitimate trading on the basis of material non-public information can be distinguished from venal or corrupt trading. The Article shows that the personal benefit test, while a valuable innovation to insider trading jurisprudence, is severely limited because it does not capture all of the various motivations that cause insiders to convey material non-public information to traders. This Article fills that gap by providing a complete taxonomy of tipping and trading, and explaining the legal consequences of all of the various forms of insider trading.

Excuse doctrine presents one of the great enigmas of contract law. Excuse allows courts to release parties from their contractual obligations. It thus stands in sharp contrast to the basic principles of contract law and adds signifcant uncertainty to contract adjudication. This Article offers a crucial missing perspective on the doctrine of excuse: the view from a macroeconomic lens. Macroeconomics offers a new justifcation for the law of excuse and new ways of understanding the doctrine’s mysteries, creating Excuse 2.0. We offer a simple macroeconomic model of excuse doctrine, highlighting the role the doctrine plays under conditions of economic crisis and potential recession. Our analysis illustrates a counterintuitive advantage of excuse doctrine, suggesting that the legal uncertainty surrounding the doctrine can induce loss-sharing between contractual parties, thus minimizing the costs of long-term economic instability. In the COVID crisis, for example, excuse doctrine facilitated an extraordinary wave of contractual renegotiation and loss sharing—without triggering excessive litigation. We discuss the interpretive and normative implications of our analysis and highlight its signifcance for contemporary policy debates in the wake of the COVID-19 pandemic.

Who pays for the terrible destruction wrought by war? This problem is far from new, but it is currently receiving renewed attention as a result of the war in Ukraine. The options currently available to states that are the victims of unlawful wars in the postwar era are limited. For Ukraine, some have proposed addressing this shortfall by seizing frozen Russian sovereign assets, and both the United States and Canada have passed legislation permitting just that. European officials have considered a similar proposal, but they have thus far rejected them as too legally risky. Indeed, such plans run afoul of the longstanding international law doctrine of sovereign immunity. Put simply, they attempt to cure one international legal violation by engaging in another. In this Article, we offer another way forward for Ukraine and any other state that might find itself in this situation in the future: Ukraine may deploy what is known as the international law doctrine of countermeasures to freeze Russian sovereign assets in response to Russia's injurious and illegal conduct against it. We argue that frozen assets need not be returned to Russia at the close of the war as long as Russia has failed to pay reparations. That is because the failure to pay reparations is itself an unlawful act for which countermeasures (continued freezing of assets) may be kept in place even if the unlawful war has ceased. Moreover, other states may join Ukraine, putting in place collective countermeasures, sometimes called "third-party" countermeasures. However, we argue against using countermeasures doctrine to simply seize Russian assets; such seizures would not properly qualify as countermeasures and thus would violate international law. This approach to countermeasures, if adopted, could have implications beyond Ukraine, extending not only to future war reparations but also to international responses to cyber operations, human rights violations, or violations of environmental law obligations. Indeed, the challenge of securing reparations for Ukraine must be addressed not as a oneoff problem but as a systemic one. We should therefore seek a solution that will benefit not just Ukrainians but other similarly situated actors in the future. This is yet another reason that existing ad hoc legislative proposals to seize Russian assets are inadequate: They might provide money to Ukrainians now, but they will undermine the international legal system while doing little to help future victims. Keeping the larger picture in view is not only important as a matter of equity and justice. It is also in the best interests of Ukraine, which must maintain unprecedented levels of global support for its ongoing defensive actions and efforts to hold the architects of this illegal war accountable for the extraordinary harm they have done. This Article's proposal for institutionalizing collective countermeasures meets this challenge, offering a way to reinforce the reparations obligation in circumstances beyond the present conflict.

A personal narrative is presented which explores the author's experiences and reflections on Justice O'Connor's approach to jurisprudence.

Challenging the common assumption that legal misunderstanding was pervasive, this article analyzes jurisdictional politics as an element of "interpolity law"—a broad framework for legal interactions across polities and regions in the early modern world. It draws on recent research on jurisdictional politics to show how such an approach allows historians to avoid some of the familiar pitfalls associated with studies of legal pluralism. This approach provides clear methodological advantages over the study of global legal history as a function of multi-normativity. Political communities across the globe centered on internal and external conflicts on the nature and reach of legal authority. By focusing on jurisdiction as a touchstone of legal action and tracing how legal authority was produced through conflict, our approach treats legal pluralism as a valuable descriptive term rather than an analytical framework. The study of jurisdictional politics portrays state authority as potentially one among many forms of legal authority, and it brings into sharp focus continuities within and across pluri-political regions. By tracking broad institutional shifts that occurred when empires and states moved to assert power over multi-jurisdictional orders, the perspective informs new narratives about trajectories of regional and global legal order.