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The Constitution vests all legislative powers in Congress, yet Congress grants expansive lawmaking authority to federal agencies. As positive political theorists have long explored, Congress intends for federal agencies to faithfully exercise their delegated authority, but ensuring fidelity to congressional wishes is difficult due to asymmetries in information, expertise, and preferences that complicate congressional control…

Over the past two decades, U.S. courts have pursued a studied avoidance of transnational litigation. The resulting litigation isolationism appears to be driven by courts’ desire to promote separation of powers, international comity, and the interests of defendants. This Article demonstrates, however, that this new kind of “avoidance” in fact frequently undermines not only these…

For the past three decades, the U.S. Supreme Court has misconstrued the Federal Arbitration Act (FAA). In the process, the FAA has been transformed from a statute intended to mitigate judicial hostility to arbitration into one that expresses the Court’s unyielding preference for legal disputes to be resolved through arbitration. The FAA has thus become…

The state secrets doctrine provides both an evidentiary privilege and a categorical bar against litigation that implicates national security concerns. The U.S. government has invoked the state secrets doctrine to insulate certain programs, including rendition and surveillance operations, from oversight by the courts. Despite a surge of interest in the state secrets doctrine after September…