The "essential functions thesis" is one of the most famous structural arguments in the field offederal courts. The thesis, which has been endorsed by a number ofprominent scholars and the executive branch, posits that there are implicit, structural limits on Congress's authority to "strip" the Supreme Court of its appellate jurisdiction. Court-stripping, the thesis contends, is not allowed if it would undermine the essential functions of the Court-in particular, maintaining the supremacy and uniformity of federal law. In this Article, we revisit that thesis with three goals in mind. First, we aim to show that the structural arguments underlying the essential functions thesis are relevant to the debate over whether Congress can permissibly "pack" the Court-that is, add Justices to seize ideological control of the institution. Supporters of the essential functions thesis have tended to assume that packing the Court must be constitutionally permissible. In making that assumption, they have mostly resorted to a formalist, textualist frame, a posture that seems puzzling because they do not adopt such a frame in addressing Court-stripping. Second, we contend that the literature has defined the Court's essential functions too narrowly. As we show, the structural rationales that explain why the supremacy and uniformity offederal law are essential functions also suggest other essential functions. Those additional functions, in turn, provide yet another ground for questioning the permissibility of Court-packing. Third, and most importantly, we use the example of the essential functions thesis to invite deeper consideration of the nature of structural constitutional reasoning and how it should be done, subjects that have received insufficient attention both on the Supreme Court and in the literature. For several reasons, including newfound anxiety over executive branch compliance with adverse judicial decisions, the issues analyzed here are vitally important today.
Creating today's most popular Artificial Intelligence (AI) models-that is, those programs that probabilistically generate text , images in response to human prompts-is a process that demands the acquisition of extreme volumes of data. Fortunately for AI firms, nobody produces data quite like humans, particularly on social media platforms, which invite us to do just that. Doubly fortunately, you have already given away permission to use the information you post to your social media platform(s) of choice through expansive licenses in adhesive terms of service. Major AI firms, thanks to this "permission," have attracted intense Wall Street hype by using vast amounts of user-generated content (your posts, photos, videos, etc.) in creating their models. This Note explores the severe legal, ethical , political problems with this contested practice. It then surveys current policy proposals which try but fail to address those problems, including the AI industry's licensing practices. Then, it describes a more effective solution in state-level consumer protection law, which can leverage Unfair and Deceptive Acts and Practices (UDAP) statutes to regulate abusive consumer contracts. The Note then closes by evaluating challenges to the UDAP-driven approach.
What happens when the United States' most important foreign intelligence program meets modern artificial intelligence? This Note explores this question and posits that human observability is a critical predicate for any privacy harms that result from automated searches of Section 702 intelligence data. Using a large-language-model-enhanced search engine as a stand-in for redacted NSA and CIA systems, this Note reconstructs how automated querying could operate inside the procedural framework created by Section 702 of the Foreign Intelligence Surveillance Act. It then reviews the legal authorities that undergird Section 702 surveillance. This Note then combines these technical and legal analyses and applies them to recent, court-approved procedural changes to Section 702 surveillance that are likely real-world examples of artificial intelligence being used by the American Intelligence Community. This Note concludes by proposing human observability as a threshold question for whether automated surveillance systems warrant higher legal scrutiny. Systems that render otherwise protected information observable warrant higher legal scrutiny, whereas systems that do not do so do not warrant higher scrutiny.
It has been called the "oldest question" of American constitutional law: How does the national government deal with and treat its sovereign subnational states? Judges and scholars have tried to capture this dynamic via theories of "dual federalism," "process federalism," "cooperative federalism," or "federalism by integration." But all these models suddenly seem to have been superseded, and perhaps even rendered obsolete, by an unexpected, recent step-change in the intensity of federal-state conflicts. In the place of longstanding federalism models, this Article demonstrates that an underappreciated form of intergovernmental relations has emerged, or at least re-emerged. We call this model "agonistic federalism." The Article's central aim is to introduce and theorize this form of intergovernmental relation by offering a parsimonious definition, a tally of its historical precursors (as well as a recognition of its rupture from more recent forms), a careful accounting of its current and future vectors, and a cartography of its underlying political economy and potential futures. We define "agonistic federalism" as a zero-sum, no-holds-barred style of contestation between the national government and states that is characterized by mutual, partisan-driven antagonism and intolerance. It is "zero-sum" in the sense that political coalitions use national and state power not just to advance policy preferences, but to lock up decisional authority, or power as such. It is "no-holds-barred" insofar as it is characterized by escalating assertions of formal sovereign power in disregard ofjudicial precedent, political convention, and doctrinal constraints. So defined, contemporary agonistic federalism can be traced in the efforts of the national government to eliminate state and local governments' power to adopt policies disdained by the dominant national coalition, even in areas of traditional state competence. As this hardball style of intergovernmental politics radiates from the center today, it is likely to catalyze increasingly assertive countervailing efforts at self-defense by states. These too press against extant legal boundaries. Understood as a two-sided dynamic, agonistic federalism transforms the incentives, tactics, and ambitions animating federal-state relations. While resonating with certain antebellum-era struggles over tariff policy, fugitive slaves, and control of the territories, contemporary agonistic federalism has many novel features. It also generates unprecedented strains upon the American body politic. Mapping the resulting uncertainties, we conclude with a catalog of the unsettled and difficult doctrinal questions thrown up by new tactics of agonistic federalism. The Article also maps the practical, political stakes of this new form of intergovernmental conflict. In so doing, we aim to clarify the stakes of that old question-what actually now makes up "our federalism."
Forcing arbitration of a relator's False Claims Act (FCA) qui tam action undermines the statute's core purpose by weakening whistleblower protections and discouraging individuals from coming forward. While courts have generally declined to compel such actions to arbitration absent the government's consent, their reasoning for doing so has been upended by a line of Supreme Court precedent recognizing relators as partial owners of the claim. As a result, courts can no longer rely solely on the common rationale that the government's exclusive ownership bars arbitration of the claim without the government's consent. Indeed, in 2013, a district court became the first to compel a group of relators' claims to arbitration on the basis of the relator's ownership of the claim. This decision garnered support from scholars and courts alike. Yet, these supporters have not fully accounted for the fact that Supreme Court precedent supports both lines of reasoning: The Court has clarified that both the government and the relator are partial owners of the claim. This Note seeks to reconcile this doctrinal tension. Drawing on agency theory, it argues that a relator's partial ownership does not, on its own, provide sufficient grounds to compel arbitration without government consent, and it underscores the significant costs that forced arbitration imposes on both whistleblowers and the public interest that the FCA was designed to protect.
States often take an "all-or-nothing" approach to the rules of evidence: in some states, fact finders may consider all evidence (sometimes called "Free Proof"), while in others there is nearly complete adherence to the traditional evidentiary rules, typified by the Federal Rules of Evidence. Yet, as this Essay explores, both regimes are mismatched to the administrative context, where the procedural and pragmatic demands differ significantly from jury trials. Free Proof, while flexible, risks inconsistency and bias, while the traditional rules are overly rigid and inaccessible, particularly for pro se litigants. This Essay proposes three principles for rethinking evidentiary rules in the administrative setting: (1) the rules should be relatively simple to ensure accessibility; (2) the rules should focus on legitimacy rather than accuracy because of the presence of an expert decision maker; and (3) the rules should target inference and reasoning rather than admissibility. These principles offer a framework for transforming evidentiary law in administrative contexts. Using this framework, the Essay then offers actionable reform proposals in three key areas: hearsay, expert evidence, and proof rules. For example, it advocates for consolidating hearsay exceptions into a single discretionary standard, streamlining expert testimony evaluation through deference to expert communities, and codifying commonly used rules of inference. By challenging the limits of traditional evidence law and reimagining its application in administrative hearings, this Essay aims to spark a broader dialogue on the adaptability of evidentiary frameworks. It invites scholars and practitioners to eschew a monolithic view of evidence law and instead to take a more context-sensitive approach.
Until the 1970s, American property law differed sharply from its English antecedents. English law was dominated by a land-owning gentry class who favored stability of ownership and dynastic control of landed estates using perpetuities and trusts, generous compensation for condemnees, and irregular lot lines based on local custom that impeded land's alienability. After World War II, the same gentry-driven culture imposed greenbelts and local restrictions that shut down new housing construction for the preservation of rural land. By contrast, the central focus of American law from the early republic to the 1970s was to make land easy to buy and develop, even at the expense of incumbent owners' interests in stability, local landowner control, and prevention of externalities. That focus on development, however, has changed since the 1970s. We demonstrate how different aspects of real property law and regulation have increasingly prioritized "stasis"-protecting existing owners, limiting change, and preserving local control-over "development"-promoting growth, liquid markets, and cosmopolitanism. This shift extends beyond well-documented changes in zoning to areas such as covenants, conservation easements, forms of ownership, and property taxation. The Article provides evidence of this trend through several examples: the rise of effectively permanent homeowners' association covenants that limit future land use changes; the explosion of conservation easements that permanently restrict development; the failure to reform archaic forms of ownership that inhibit efficient land use; and property tax reforms that discourage property turnover and new development. We further argue that this shift toward stasis has imposed substantial economic costs, contributing to housing crises and reduced growth, without providing sufficient offsetting benefits. While some degree of stability in property rights is necessary, the Article concludes that property law has tilted far too far toward protecting incumbent interests at the expense of development and change. It suggests various reforms across property law domains to restore a better balance between stability and growth.
For over a century, courts have calculated damages in personal injury and wrongful death cases by taking the plaintiff's race into account. The size of damages awards in those cases depends in part on how long the plaintiff (or their decedent) would have lived and how much they would have made absent their injury. To calculate those figures, courts frequently rely on racial averages of life expectancy and income. Because of racial disparities in both longevity and earnings, the result is that minority plaintiffs consistently receive less in damages than they would have if they were white. This Note argues that the Supreme Court's 2023 affirmative action decision in Students for Fair Admissions v. President and Fellows of Harvard College establishes that the use of race to calculate damages is unconstitutional. SFFA teaches that the government may not allocate benefits to citizens on the basis of race, notwithstanding several arguments that were previously thought to justify that practice. Applying these principles to the context of damages calculations leads unavoidably to the conclusion that a plaintiff's race may not be used to determine how much he or she receives.
Charity care, or the provision offree or reduced-cost medical services to low-income and uninsured patients, has long served as a critical safety net in the United States health care system. However, the provision of charity care by nonprofit hospitals has failed to keep pace with their soaring revenues. As a result, nonprofit hospitals across the country have come under scrutiny for failing to provide adequate levels of charity care to justify their large tax exemptions. This Note examines the connection between charity care and tax-exempt status, with a close focus on federal tax developments that have arguably weakened the connection between nonprofit hospitals' traditional charitable functions and their current operations. Unlike the prior financial ability standard, the current community benefit standard does not adequately incentivize nonprofit hospitals to provide charity care. Even the additional requirements placed on nonprofit hospitals by the Affordable Care Act have had very little measurable impact on nonprofit hospitals' charity care spending. The passage of the One Big Beautiful Bill Act will only intensify the need for charity care across the nation, putting pressure on the legal framework for nonprofit hospitals' tax exemptions. This Note concludes by examining the recently proposedHolding Nonprofit Hospitals Accountable Act, which is a step in the right direction but is unlikely to substantially increase charity care provision even if enacted. To hold nonprofit hospitals accountable to their communities, Congress should look to the example of states that have enacted minimum requirements for charity care, like Texas. Tax-exempt hospitals don't have many measures of accountability for their special status. The law hasn't given them much direction, and so they've defined standards for themselves .... The Government Accountability Office and others, including the former IRS commissioner, have said for a long time that there is often no discernible difference between the operations of taxable and taxexempt hospitals.
What if the Pok & eacute;mon you caught were not just a nostalgic escape but part of a billion-dollar enterprise hiding in plain sight? Beneath the surface of Niantic's groundbreaking augmented reality game, Pok & eacute;mon Go, lies a tale of untaxed wealth creation that challenges the very foundations of our tax system. While players spent countless hours capturing virtual creatures, they were unwittingly contributing to a cutting-edge AI mapping system, a corporate intangible asset worth billions. Unlike the game's in-app purchases, taxed under traditional frameworks, this mapping system sidestepped tax obligations entirely, revealing cracks in a tax regime ill-equipped to handle the modern economy. This Essay analyzes Niantic's dual business model: taxable game revenue versus untaxed intangibles, and studies its broader implications for tax policy in the digital age. How do we value user-generated data? Which jurisdiction gets taxing rights for a borderless digital asset? And how does the principle of realization, designed for tangible assets, apply to intangible wealth that may never be monetized in conventional ways? Using Pok & eacute;mon Go as a case study, we highlight the urgent need for tax frameworks that address the complexities of intangibles, data, and artificial intelligence. In the era of data-driven wealth, this Essay calls for a reevaluation of the tax system's ability to adapt to innovation. Pokemon Go is not just a game; it is a wake-up call to rethink how we tax the intangible economy and ensure a fairer distribution of its benefits.
With more than $6 trillion in assets, public pension funds are significant players in financial markets. Like private asset managers, public pension fund managers are typically expected to exercise their discretion over investing and engagement to serve the interests of the funds' beneficiaries exclusively, a model that we term "beneficiary primacy." To this end, beneficiary primacy imposes fiduciary duties on fund managers to maximize the economic value of the fund. We argue that the application of beneficiary primacy to public pensions is wrong. It misapprehends the nature of public pension plans and leads to misguided public policy. Public pension funds differ from private funds along a variety of critical dimensions. Most importantly, their beneficiaries receive a defined benefit that does not vary based on the fund's economic performance, and their investment policies are subject to political and market accountability. Because of these differences, we maintain that public pension funds should be understood as principals serving a broader public interest that is informed by the goals and values of plan beneficiaries, public employees, taxpayers, government officials, and local communities. In serving as agents for the fund, and not its beneficiaries, fund managers can and should balance the sometimes-competing interests of the fund's multiple stakeholders. The most significant consequence of our retheorization ofpublic pension funds is that their managers would no longer have a narrow mandate to focus exclusively on maximizing portfolio value. Beneficiary primacy is problematic because it delegitimizes values-based fund management decisions. Under the beneficiary primacy model, fiduciary principles create litigation risk for fund managers who include environmental and social values or local interests in their investing and engagement activities. Beneficiary primacy has also led prominent commentators to criticize the political dimension of public pensions and to suggest ways to better align fund manager incentives with economic value creation. But the political nature of public pensions is a feature, not a bug. As principals with a uniquely public dimension, public pension funds are valuable players in financial markets and corporate governance and provide a distinctive source of accountability for corporate leadership. Unlike private asset managers, public pension funds have embraced their role as engaged owners. They also give voice to typically disenfranchised groups and provide a mechanism for incorporating public objectives into the capital markets. Once we recognize the distinctive structure and singular role of public pension funds, it becomes clear that fund managers should not be constrained by inapposite fiduciary principles but instead should invest and engage in accordance with the broader interests they represent, interests that include dimensions of both economic value and societal values.
Can a constitution born in exclusion claim the authority to bind a people? This Note challenges the democratic legitimacy of the United States Constitution, engaging with the argument of Professor Richard Markovits that the Constitution obligates the polity to instantiate a "liberal conception of justice." His claim presupposes that Ratification was more than political maneuvering-that it was a morally binding act capable of committing future generations. I argue instead that without democratic consent at its founding or viable channels for ongoing constituent participation, the Constitution lacks normative authority. Drawing on the theory of constituent power, I borrow criteria for democratic legitimacy and show that both the founding process and the Article V amendment mechanism fall short of democratic legitimacy. Philosophical and sociological defenses fail to cure this deficit. Ultimately, I contend that legitimacy requires more than lofty ideals or habitual obedience- it demands pathways for "We the People" to speak with sovereign force.
First Amendment politics have inverted in key areas of speech law. Positions previously associated with legal conservatism have been adopted by liberal ideology, and vice versa. Familiar views have been scrambled not only on the Supreme Court but also in public debate. Two examples support this descriptive claim. First, Florida and Texas enacted statutes regulating digital platforms, and they defended those laws by arguing that they had constitutional leeway to impose antidiscrimination rules on private firms that exerted significant control over the speech environment. Yet under the previous alignment, conservative thought had supported strong speech protections for corporations, including those that hosted the expression of others, and it had opposed state regulations designed to ensure the fairness of the marketplace. Liberal thinking, conversely, championed strong protection ofplatforms against state regulation, whereas previously it had supported the ability of states to impose antidiscrimination rules on private speech hosts. The opinions in Moody v. NetChoice illustrate the transposed political positioning. The second example is campus speech, where a similar switch in politics can be seen. While legal conservatism formerly championed free speech on campus, it now calls for antidiscrimination protection against antisemitism, even where that impacts expression. Legal progressivism, meanwhile, is now emphasizing the importance of free speech in university settings. In both contexts, platforms and campuses, the inversions are striking. This Article goes on to argue, however, that the reversals have not been symmetric. Distinguishing between centrist and activist positions reveals that the most prominent legal arguments on the right have been transformed more radically than the leading liberal arguments have. (Nor have the switches been permanent, as there have been some prominent reversions.) The Article concludes that partisan instability around the law of speech hosts can be explained by a mismatch between substantive politics and constitutional doctrine. For conservatives, speech rules will often disrupt traditionalist values. For egalitarians, the effort to craft a First Amendment that ensures equality of speech opportunities will be complicated by precedents that ignore the diversity and dynamism of power over individual expression. Chances to craft rules that promote democratic speech arrangements may arise, but they will be fleeting and opportunistic rather than durable or principled.
The current Administration has diversity, equity, and inclusion (DEI) in its crosshairs, finger on the trigger. But expressive association could shield DEI from a fatal blow. Expressive association is a constitutional protection expressive groups have that guards against government involvement. While much of the expressive association doctrine has been built on a group's attempts to exclude a marginalized demographic-take Boy Scouts of America v. Dale for example-this Note proposes using expressive association to protect organizations' purposeful inclusion of marginalized groups. Employing expressive association could save organizations' DEI initiatives, like the American Bar Association's (ABA). This Note uses a potential Equal Employment Opportunity Commission (EEOC) investigation into the ABA's diversity clerkship and fellowship programs as a case study for this assertion. Despite its risks, this Note contends that expressive association is perhaps the best shot to protect DEI from the legal challenges hurled its way.
Academic freedom was not even formally recognized as a First Amendment right by the Supreme Court until 1957. Yet Anglo-American law has long safeguarded it under other doctrinal banners. This Note is the first to trace that hidden pedigree across four disparate arenas-the Copyright Clause's promotion of the "Progress of Science," the Founders' conception of a national university, the Contract Clause's protection for educational charters, and historical English and American blasphemy prosecutions-before converging on modern First Amendment doctrine. The historical record reveals consistent constitutional solicitude for the advancement and dissemination of knowledge, with democratic citizenship as an important corollary. Blasphemy cases supply the clearest analogue for speech cases: Even the "fundamentals of religion" could be attacked without liability "if the decencies of controversy are observed" by "learned" persons, confirming that protection turned on scholarly mode and purpose. Recovering these antecedents yields several pay-offs. First, it supplies historical analogues for the regulation of academic speech. Second, it clarifies how courts might balance interests under the Pickering test. Third, it brings contemporary proposals to limit academic freedom back into alignment with the historical breadth of the right. By mapping academic freedom's forgotten lineage, this Note offers both a richer historical account and more principled guidance for determining the contours of that "distinctive" First Amendment right.
Does textualism promote or protect equality? Several prominent textualist scholars andjurists have raised the possibility that textualism may serve equality values. And yet the role of textualism in protecting equality remains largely unexplored. This Article takes seriously the claim that textualism may promote equality: either as an absolute matter, or in comparison to other statutory interpretation methods. It asks: Can textualism be conceptualized as an equality practice, i.e., an interpretive practice that protects or promotes equality? This Article answers this question with a qualified "yes." Textualism can promote equality before the law, a thin form of equality often associated with the rule of law. Moreover, this thin form of equality can help to promote thicker forms of equality, by preventing the gerrymandering of disfavored groups out of rights protections, and of favored groups out of burdensome laws. This thin form of legal equality can also further substantive equality by preventing the judicial hobbling of legislative gains secured especially by or for historically marginalized groups (such as civil rights laws, public benefits laws, or immigration laws protecting migrants). But this Article also cautions that the equality-promoting potential of textualism is qualified. Only certain forms of textualism-what other scholars have referred to as "formalistic" textualism-are likely to be sufficiently constraining to create meaningful protections for equality. Moreover, even applying formalistic textualism, there will surely be circumstances where textualism confronts true indeterminacy or even cuts against substantively equality-promoting results. Finally, legal realism poses a genuine challenge to claims that any interpretive theory can meaningfully constrain judicial preferences, and thus to any theory's claims of equality-promoting potential. Nonetheless, this Article suggests that it is worth identifying equality as a nascent value of textualism, and theorizing the implications of textualism's equality-promoting potential. For those who self-identify as textualists-a group that includes a majority of the current Justices on the Supreme Court- understanding equality as one of the values that textualism protects has important methodological implications. Even for those who oppose textualism, consideration of the equality risks of non-textualist methodologies may help avoid the equality harms to which non-formalist methodologies may be susceptible. Finally, this Article argues that the rise of authoritarianism and disregard of legal constraints under the Second Trump administration makes it more, not less urgent to ensure that thin (and thus thick) equality are protected by rigorous and consistent adherence to statutory text.
This book review critically engages Madiba Dennie’s The Originalism Trap and advances her argument along three compact lines. First, it documents how conservative movement institutions (strategic litigation networks, think tanks, public-interest firms, and personnel practices) transformed originalism from hermeneutic theory into durable political and constituitonal machinery. Second, it offers a historiographic corrective, showing that purposive and pragmatic modes of interpretation have long been central to American constitutional practice, undermining originalist claims of exclusive fidelity to the Framers. Third, it mounts a jurisprudential defense of substantive due process and argues that the deeper threat to constitutional democracy is movement capture of judicial institutions that instrumentalizes doctrine to entrench partisan advantage.
The U.S. Supreme Court has long relied on historical evidence in constitutional cases, but recent years have seen a major change in how it does so: not only to interpret the meaning of constitutional text, but to establish doctrinal tests that call for historical evidence to be used in the application of those tests going forward. Broadly speaking, originalism has moved from the realm of legal interpretation to that of law declaration and then to law application. This transformation in the legal significance of history raises important questions for originalism as a practice of constitutional adjudication, not simply a theory of law. Most fundamentally: How are judges and litigants to implement the historical tests the Court has increasingly prescribed for them? In Part I of this Article, we show how lower courts have been tasked with assessing history and tradition in applying constitutional standards, often with little guidance regarding how to proceed or what quality and quantity of historical evidence suffices to satisfy those standards. We taxonomize the Court's standards, describing the different burdens and challenges that judges face in carrying out their obligation to apply these standards while developing a record of historical facts. In Part II, we show how lower courts and litigants have attempted to navigate this new doctrinal landscape. Their efforts reveal serious complications and debates about fundamental matters like the fact/law distinction, record development, expert witnesses, and independent judicial fact-finding. We draw particular attention to the largely underappreciated impact on litigants, who potentially face higher costs of research and briefing historical facts, as well as legal standards that are more obscure and unpredictable. The result has been incomplete and sometimes deeply flawed decision-making and-perversely-a growing disjunction between law and historical facts. In Part III we provide some prescriptions. We argue that if constitutional cases are to turn on matters of historical fact, those factual determinations should be initially made with an opportunity for the parties to develop them. If no such trial-court record exists, appellate courts can, and often should, remand for one to be developed. Moreover, fixed standards of review must regulate review on appeal, accounting for the differences between questions of fact and law. None of this will be easy; it will strain the system to provide a minimally fair, rule-bound process of assembling a record of historical facts. But if adequate rules and practices for finding and applying historical facts cannot be identified or soundly implemented, then constitutional standards that call for the application of such facts should be reconsidered-not necessarily because those standards fail in theory but because they fail in practice. The underlying problem may simply be that the Court's originalist doctrinalism demands more of historical fact-finding than the legal process can legitimately (or legally) deliver. But one cannot solve that problem by calling facts law and giving judges power to find them. Insufficient rules for fact-development and appellate review generate ill-defined precedent and unworkable constitutional doctrine and call into question the judicial enterprise of applying history as constitutional law.
For the last two decades, the United States has been the dominant enforcer of anti-bribery norms worldwide. Using the broad extraterritorial jurisdiction granted by the Foreign Corrupt Practices Act (FCPA), the Department ofJustice (DOJ) and the Securities and Exchange Commission (SEC) have prosecuted domestic and foreign corporations for bribing foreign government officials. This transnational enforcement system has been described as a negative comity regime: foreign governments defer to American prosecutions even if the case involves their nationals. This system has created a robust enforcement environment but often faces foreign resistance to the perceived "American dominance" of the regime. This Article analyzes the recent rise of a new enforcement model: the global FCPA settlement, where multiple governments enter into parallel deferred prosecution agreements or other non-trial resolutions with corporate entities. This enforcement model is now the principal form for concluding "blockbuster" FCPA cases and has significant implications for the evolution of the transnational anti-bribery law regime. This Article argues that the rise ofglobal settlements results from (1) a greater demand by foreign governments to be involved in foreign bribery resolutions when their national firms are on trial and (2) American prosecutors' willingness to accommodate this demand when it results in more effective prosecutions (i.e., new cases, more claims, or stronger evidence). This Article contends that the rise of global FCPA settlements marks a significant shift in the international anti-bribery enforcement regime, transitioning from a negative comity to a coordinated comity regime. The global resolution model addresses some of the concerns of the negative comity regime by permitting multiple governments to have a voice in negotiating the level of the penalties, the distribution of the penalties, and any structural reforms that the firm will be required to adopt. It also can potentially increase the effectiveness of the enforcement regime by expanding the geographic scope of the investigations and quality of evidence. This Article additionally discusses the importance of these developments to the Trump Administration's executive order on FCPA enforcement and the June 2025 DOJ enforcement guidelines.
