This Article considers how and under what circumstances the "general law,"a species of unwritten law grounded in legal customs and practices shared across different legal jurisdictions, might be used in modern constitutional interpretation. Constitutional originalists have increasingly argued that central provisions of the Constitution, such as the First and Second Amendments and the Fourteenth Amendment's Privileges or Immunities Clause, incorporate various bodies of general law. This Article argues that, even if the Constitution did incorporate various bodies of general law, most of those bodies of law have now been emptied of content, and must remain empty without profound changes in the practice of federal judicial review. Because the general law requires that nonfederal judicial actors such as state courts, governors, legislatures, the President, and perhaps foreign legal systems participate in the development of public law norms and customs, a general law revival would involve eliminating, or at least curtailing, federal judicial supremacy and would therefore impliedly reject nearly a hundred years of public law precedent. For these reasons, ageneral law revival would entail a radical reconfiguration of our constitutional system, and it would do so on the basis of complex and often indeterminate historical evidence. No such reconfiguration is likely to happen, of course. But without it, a modern general law constitutionalism would-rather than curtailing judicial discretion, empowering democratic bodies, or promoting experimentation-mire the federal judiciary in a moralized and largely discretionary form of common law-like decision-making that is vulnerable to the characteristic pitfalls of more familiar forms of common law constitutionalism without sharing in their characteristic attractions. This is true regardless of whether unwritten bodies of law like the general law are made (as modern legal commentators often suppose) or found (as the general law constitutionalists maintain). General law constitutionalists might seek to avoid these difficulties by treating the relevant constitutional provisions as static incorporations of the general law, which froze it in time at the moment it was incorporated. But the historical case for static rather than dynamic incorporation has not been made-and making it will be difficult, given that other bodies of general law (such as the law of equity and the common law) have by and large been incorporated by statutes in a dynamic matter. For this reason, among others, we doubt the historical record supplies any ready escape valve for the conceptual and normative difficulties that would attend any thorough attempt to revive putatively constitutionalized and now moribund bodies of general law.
This Book Review examines the significance of Professor David E. Wilkins's (Lumbee Nation) newest book Indigenous Governance: Clans, Constitutions, and Consent. It suggests that Wilkins has produced a critically important collection of primary sources related to the origins of tribal government and that his contribution could not come at a better time within the discipline of Indian Law. This Book Review takes the position that Indian Law is seeing the emergence of a fourth wave of scholarship that recenters the conversation from tribal selfdetermination as a means of decolonization to one embracing the autochthonous powers of tribes themselves. It is distinct from earlier waves of Indian Law scholarship because it does not position tribal powers within the tribal-federal framework but recognizes them as distinct and subject to change at the direction of tribal leadership. To enable this genesis, scholars need primary research material that collects and summarizes the nature of the tribal sovereign using tradition and custom, tribal law and tribal judicial authority, and the founding documents and stories that ultimately create an Indigenous polity. Indigenous Governance is that text. It will enable a new generation of Indian Law scholarship and will exacerbate the severance of tribal law from federally imposed grants and limitations.
Multiple circuit courts have extended quasi-judicial immunity-a form of judicially derived, absolute immunity-to sheriffs, marshals, and bailiffs when they execute judicial orders. In some circuits, that immunity extension covers the use of excessive force by the officer, even if that force is outside the scope of the order they are executing. This Comment argues that the trend of lower courts extending quasi-judicial immunity to enforcement officers is inconsistent with the Supreme Court's absolute immunity doctrine. A survey of the opinions in which the Court has granted absolute immunity to a government official reveals four considerations guiding the Court's decision. The Court is more likely to grant absolute immunity when the officer performs a deliberative function, alternative safeguards exist to constrain the officer, liability would negatively affect job performance, and the official would have been absolutely immune at common law. Enforcement officers do not share any of these characteristics. Judicial enforcement is not a deliberative function. Civil liability is the primary accountability mechanism for enforcement officers. Liability strengthens rather than impairs the judicial enforcement function. And, historically, sheriffs lacked immunity for executing court orders. In light of these findings, this Comment proposes a rule: absolute immunity for deliberative functions and ordinary qualified immunity for enforcement functions. This rule tracks the common law's ministerial-judicial divide and satisfies each of the four considerations that guide the Court's absolute immunity determinations. It also restores & sect; 1983 liability for officers who violate an individual's rights while executing a judicial order.
First Amendment law tends to focus on the exercise of formal government power. Nevertheless, for over six decades now, it has been black letter law that the informal exercise of government power can violate the First Amendment when it creates what the Court described in Bantam Books v. Sullivan as an "informal system of censorship," outside the reach of the formal system. Lower courts have been deeply divided, however, about what kinds of government actions create this kind of informal system. The Court's recent decision in NRA v. Vullo should end this division. In Vullo, the Court held that officials engage in informal censorship whenever they intentionally use their informal power to evade the constraints that the First Amendment imposes on their formal powers. Vullo made clear, moreover, that the rule against this kind of informal censorship is a categorical one: Officials may never attempt to evade constitutional constraints on their power by threatening harm or promising benefits to private parties, no matter how severe, or insignificant, the harm or benefit they promise may be, or how effective. In this Article, I argue that the Court's reaffirmation of the categorical nature of the First Amendment rule against informal censorship is a very good thing, and it comes at a critical time. But it is imperative that the significance of the decision is properly understood. To that end, the Article examines the muddled state of the doctrine prior to the decision, explains the significance of Vullo's intervention, and explores its doctrinal and nondoctrinal implications going forward. The decision, I suggest, has profound implications for the continued vitality and independence of the democratic public sphere. But this will be true only if courts as well as other government institutions take steps to make the principles it announces meaningful.
The Microsoft-Inflection AI deal shocked Silicon Valley: Nearly all seventy of Inflection's employees resigned simultaneously to join Microsoft, which then paid the startup's shell $650 million. After the mass exodus, Inflection appointed new leadership that switched the company's direction, while Microsoft assumed the mantle of Inflection's old mission. The competitive effect was thus nearly identical to that of a traditional acquisition. But relying on their novel deal structure to shield them from regulatory requirements, Microsoft and Inflection barreled ahead without filing a notice of the transaction with regulators. The rest of the industry soon followed suit, with Amazon, Google, and Meta all using this "reverse acquihire" playbook to absorb AI startups' competitive cores while evading regulatory review. Regulators must close this loophole before competitive harm takes root. And this Comment argues that they can-by clarifying that reverse acquihires constitute asset acquisitions under the Hart-Scott-Rodino Act (HSR Act). While HSR Act enforcement has traditionally focused on tangible asset acquisitions, this Comment evaluates legal tools regulators can use to mandate review of certain intangible asset acquisitions as well. Drawing on the treatment of intangible assets in divestiture orders, HSR Act review of intellectual property licensing agreements, and guidance from foreign competition authorities, this Comment demonstrates that reverse acquihires are acquisitions of AI startups' most valuable assets: their business information and know-how. It concludes by suggesting factors that regulators should consider to craft workable rules, including the size of a deal in dollars, the size of a deal in personnel transferred, and post-transaction changes to startup operations.
