118 Yale L.J. 1660 (2009).

From the early days of the Republic, courts have encountered the question of whether and to what extent provisions of the Constitution establishing individual rights have force beyond the borders of the United States—that is, whether the Constitution has “extraterritorial” force. Despite nearly two centuries of decisions on this issue, the law remains unsettled, and no framework for analyzing these claims is clearly defined, much less well established. This Essay draws on that body of decisions to develop an approach for evaluating whether a particular constitutional provision should have overseas application in a particular case. In so doing, it considers competing theories of the Constitution—one envisioning the document as a “compact” between the government and the governed, and the other construing it as a charter from which “organically” flow both the power of the government and the limitations of that power—and how these competing theories shape views on whether constitutional provisions should have force abroad. The question of extraterritorial applicability has arisen in numerous contexts in our history, including continental expansion, colonial administration, and conventional war. In modern times, however, we see it raised most often in the context of criminal prosecutions and antiterror operations. Because the focus of this Essay is on contemporary criminal prosecutions, it examines the basis in international law for a nation to prosecute individuals residing beyond its borders. It then discusses the body of law addressing the question of extraterritorial application and, avoiding a rigid, dogmatic theory, gleans from these decisions a set of considerations that can guide future decisionmaking in this complex area of law.

118 Yale L.J. 1762 (2009). 

What is the force of international law as a matter of U.S. law? Who determines that force? This Essay maintains that, for the United States, the U.S. Constitution is always supreme over international law. To the extent that the regime of international law yields determinate commands in conflict with the Constitution’s commands or assignments of power, international law is, precisely to that extent, unconstitutional. Further, the force of treaties (and executive agreements) to which the United States is a party is always subject to the constitutional powers of Congress and the President to supersede or override them as a matter of U.S. domestic law. It follows from the Constitution’s allocation of power exclusively to U.S. constitutional actors that the power to interpret, apply, enforce—or disregard—international law, for the United States, is a U.S. constitutional power not properly subject to external direction and control. The power “to say what the law is,” including the power to determine the content and force of international law for the United States, is a power distributed and shared among the three branches of the U.S. government. It is not a power of international bodies or tribunals. This understanding of the relationship of international law to the U.S. Constitution’s allocation of powers in matters of war and foreign affairs has important implications for many contemporary issues and the United States’s actions with respect to compliance with international treaties and other international law norms in the areas of criminal law enforcement, the conduct of war, war prisoner detention and interrogation practices, and the imposition of military punishment on unprivileged enemy combatants.

117 Yale L.J. 1854 (2008).

This Note demonstrates that the American rules for impeaching witnesses developed against a cultural background that equated a woman’s “honor,” and thus her credibility, with her sexual virtue. The idea that a woman’s chastity informs her credibility did not originate in rape trials and the confusing interplay between questions of consent and sexual history. Rather, gendered notions of honor so permeated American legal culture that attorneys routinely attempted to impeach female witnesses by invoking their sexual histories in cases involving such diverse claims as title to land, assault, arson, and wrongful death. But while many courts initially accepted the notion that an unchaste woman might be a lying witness, most jurisdictions ultimately rejected unchastity impeachment as illogical or irrelevant. In the process, the gendered notion of honor may have influenced judicial preference for reputation evidence over evidence regarding specific acts as a form of impeachment. The unchaste/incredible equation remained viable in the law of rape as courts continued to insist that the victim’s sexual history was relevant to credibility, consent, or both. Although legal reforms have narrowed the use of sexual history evidence in rape trials, the concept that a woman’s sexual virtue signifies her credibility survives today in moral turpitude law and in the treatment of prostitution as a crime that bears on credibility.

118 Yale L.J. 1900 (2009).

Recent surveys and events indicate that judicial corruption could be a significant problem in the United States. This Note builds an economic model of bribery to better understand the incentives behind this pernicious phenomenon. It then compiles a data set of discovered incidents of judicial bribery in the United States to test the effectiveness of our anti-judicial-corruption institutions. This analysis suggests that our institutions are particularly ineffective at preventing and uncovering judicial bribery in civil disputes and traffic hearings.

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.