ACADEMIC PUBLICATIONS
“Exit through the White House: Congressional Constraints on Presidential Power to Unilaterally Withdraw from Treaties,” 12 Texas A&M Law Review (forthcoming 2024) SSRN
When does the U.S. President have the constitutional authority to withdraw from a treaty unilaterally? Where the U.S. Constitution details the making but not the exiting of treaties, the U.S. Supreme Court has largely left the issue open for the political branches to resolve. Many scholars argue that modern practice supports a conclusion that the President has the practical—if not legal—power to withdraw unilaterally from an Article II treaty or congressional-executive agreement without the consent of Congress. This argument is largely premised on the claim that Congress has acquiesced to executive practice, providing a gloss on expansive executive power to end treaty relationships. Yet there is limited systematic empirical investigation as to whether and how Congress has acquiesced to (or opposed) unilateral presidential withdrawal.
Using data on congressional actions related to treaty withdrawal from the 1950s to 2020, this Article explores whether Congress has in fact acquiesced to unilateral presidential treaty termination. The data reveals that Congress is relatively active on the issue of treaty withdrawal, especially regarding security matters and arms control. The data shows that this behavior has varied over the last 70 years, with earlier actions focused on restraining the President’s power generally and later actions focused on issue areas like human rights abuses, terrorism, and arms control. Qualitative evidence also illustrates Congress’s use of formal legal and informal political means to influence presidential behavior in the context of treaty matters. This evidence challenges the premises of the argument that the President has unfettered authority to withdraw unilaterally. Moreover, it reveals the spectrum of strategies Congress employs to influence presidential behavior in areas of contested constitutional authority. The findings add to our understanding of the balance of powers related to treaty exit with implications for empirically assessing the extent of congressional acquiescence in other matters of presidential authority.
“On Second Thought: An Empirical Analysis of When the Supreme Court Decides Not to Decide,” (with Adam Feldman) 55 Loyola University Chicago Law Journal 241 (2023) SSRN
Supreme Court justices have a set of tools that allow them to avoid reaching the merits of a legal dispute even if the Court decided to hear the case by granting a petition for a writ of certiorari (“cert”). This article looks at other rationales for the Court’s decisions not to rule on the merits after granting a case to the merits docket, focusing on the justices’ ability to avoid disfavored outcomes on the merits and cede decision making to other governmental actors like Congress. This article uses an original data set and shows that the justices’ preferred outcomes, as well as Congress’ preferences, are factors in many of the justices’ determinations of when and how to raise case dimension concerns. In examining years from the Rehnquist and Roberts Courts, the justices are more likely to attempt to avoid ruling in granted cases in cases of statutory and constitutional interpretation matters, all else equal, and when the justices’ ideology is more similar to the ideology of the Senate (the inverse is true with the House). This analysis shows that the justices’ attempts to end their analysis before reaching the merits varies across justices and is at least correlated with the relationship of ideological preferences of Congress and the Court. The results open the door for further investigation as to how the justices use Article III and related doctrines to achieve their preferred outcomes.
“Rights for the Landless: Comparing Approaches to Historical Injustice in Brazil and South Africa,” Columbia Human Rights Law Review, 2012 SSRN
Land reform can be dangerous and difficult, but it is often necessary. This Article compares two approaches to property reform as a solution to historical injustice. Brazil and South Africa prove to be prime examples of how incorporating and entrenching socioeconomic rights into a constitution is an effective method of remedying historical injustice. Using a social obligation theory of property rights as a guide, this Article shows that property reform is essential to remedying historical injustice. The Article focuses on the constitutional provisions created to protect property and socioeconomic rights in both countries. As explained in the article, providing for the stability and security of these rights is a powerful method of social transformation that corrects historical injustice.
“Counterfeit Conspiracy: The Misapplication of Conspiracy as a Substantive Crime in International Law,” ILSA Journal of International and Comparative Law, 2010 SSRN
The seeming legal and conceptual discord raised by the different approaches to the crime of conspiracy at the International Criminal Tribunal for Rwanda (ICTR) and in the Rome Statute establishing the International Criminal Court (ICC) raises the question of whether conspiracy is actually a legitimate, substantive, international crime, and whether tribunals should continue to apply it. In examining ICTR decisions and various sources of international law, this Article demonstrates that there is no firm foundation in international criminal law to support conspiracy as a substantive crime that can stand alone.
OPINION, COMMENTARY, AND PROFESSIONAL PUBLICATIONS
“Federal Civil Cases Are Resolved in a Year, On Average, But Obtaining a Judgment Through Trial Adds an Extra Year,” The Juris Lab, May 26, 2021 (republished in Above the Law, May 28, 2021)
“Where Do International Judges Go to School? Mostly, in Europe, the U.K., and the U.S.,” The Juris Lab, April 12, 2021 (republished in Above the Law, April 23, 2021)
“Removal and Remand: Investigating the Data on Removal to Federal Court,” The Juris Lab, March 18, 2021
“Civil Case Filings in Federal Court Decreased in 2020, but Expect More Filings as the Economy Improves,” The Juris Lab, March 4, 2021
“Women Are Still Underrepresented on International Courts, But Trends Are Improving,” The Juris Lab, February 18, 2021
“Not By Telecommuting Alone: Innovating Parenthood in the Legal Profession Through Technology and Shifts in Management Norms,” Law Practice Today (ABA), January 2014
“Opening the Floodgate: Riverisland’s Reversal of Pendergrass Limitation to the Fraud Exception to the Parol Evidence Rule,” Association of Business Trial Lawyers (ABTL) Report, February 2013
“Q&A with the Hon. Jean P. Rosenbluth,” Association of Business Trial Lawyers (ABTL) Report, July 2012
“Will the Arbitration Fairness Act of 2007 Make Securities Arbitration Fair?” PIABA Bar Journal, 2008