Curtis Bradley

How do lower courts respond when the Supreme Court starts casting doubt on its own precedents without overruling them? How *should* the lower courts respond? Tara Grove and I consider these questions in this article, which is now out in the Virginia Law Review.
virginialawreview.org/wp-content/u...

Justices question Trump tariffs as Supreme Court weighs keeping them: Top takeaways Justices question whether Trump has the power to impose tariffs on most imports. The questions reveal much about where they stand on Trump's policies.

Several justices were concerned that if they sided with Trump, Congress would lose control over tariffs, even though the Constitution gives that power to lawmakers, said Prof. @curtbradley.bsky.social

My article on Sovereign Power Constitutionalism is finally out! As I explain, it is difficult to understand the U.S. Constitution’s allocations of authority without understanding the international law backdrop against which the Constitution was written.
lawreview.uchicago.edu/sites/defaul...

Erie’s Future and General Common Law Revivalism | University of Chicago Law School

It's been almost 90 years since the Supreme Court in Erie v. Tompkins disallowed federal court application of general common law. There has, however, been a revival of interest in the general common law, something we'll be discussing this spring at UChicago!
www.law.uchicago.edu/events/eries...

Here’s my latest draft article, “Extradition in the Early Republic: International Law and Constitutional Authority.” It documents how interpreters constructed the constitutional law of extradition, resolving key issues concerning presidential power and federalism.
papers.ssrn.com/sol3/papers....

👇👇👇 Featuring @williambaude.bsky.social, @curtbradley.bsky.social, Sam Bray, John Harrison, @marinklevy.bsky.social, @gillianmetzger.bsky.social, @portiapedro.bsky.social, Jim Pfander, Alex Reinert, Tom Schmidt, @jcschwartzprof.bsky.social, Fred Smith, Mila Sohoni, Adam Steinman & Garrett West

The U.S.-Ukraine Agreement: Legality and Transparency The recently announced mineral deal is likely a lawful “sole executive agreement” that the president need not submit to Congress, but subsequent implementing agreements are likely to raise questions…

@jacklgoldsmith.bsky.social, @oonahathaway.bsky.social, and @curtbradley.bsky.social explain why the Ukraine-U.S. agreement is likely a “sole executive agreement” and does not need to be submitted to Congress and analyze the relevance of recent reforms to the Case-Zablocki Act.

This post assesses the legality and transparency of the U.S.-Ukraine minerals agreement and future implementing agreements. We argue: U.S. citizens should not have to depend on disclosure by other countries to know what the U.S. government is doing in their name.
www.lawfaremedia.org/article/the-...

The U.S.-Ukraine Agreement: Legality and Transparency The mineral deal is likely a “sole executive agreement” that the president need not submit to Congress, but transparency obligations remain.

Q: Is the US - #Ukraine agreement on #CriticalMinerals one that requires congressional or Senate approval?

A: No, write @curtbradley.bsky.social, @jacklgoldsmith.bsky.social, and @oonahathaway.bsky.social
But follow-on agreements very well might.

A x-post w/our friends at @lawfaremedia.org

Read a Federal Appeals Panel’s Sharp Rebuke of the Trump Administration A federal appeals court in Virginia issued a striking opinion on Thursday, reaffirming that the Trump administration had to take a more active approach in seeking the release of a Maryland man, Kilmar...

Read a federal appeals panel’s sharp rebuke of the Trump administration.

Meeks, Castro Send Letter to Rubio Demanding Answers on El Salvador Agreement

Update: Members of the House are now involved in an effort to find out about the agreement that the administration made with El Salvador concerning the detention of migrants, an agreement that under federal law must be reported to Congress.
democrats-foreignaffairs.house.gov/press-releas...

My former boss Judge Wilkinson, joined by judges King and Thacker, issues a strongly but respectfully worded decision denying USG request for emergency relief in the Abrego Garcia case. storage.courtlistener.com/recap/gov.us...

New Transparency Rules and the El Salvador Detention Agreement A 2022 statute could force disclosure of any U.S.-El Salvador agreements connected to the facility where Kilmar Abrego Garcia is detained

A 2022 statute could force disclosure of any U.S.-El Salvador agreements connected to the facility where Kilmar Abrego Garcia is detained, write @curtbradley.bsky.social, @jackgoldsmith.bsky.social, & @oonahathaway.bsky.social

X-post with @lawfaremedia.org

www.justsecurity.org/110515/trans...

@oonahathaway.bsky.social, @jacklgoldsmith.bsky.social, and I have a new post discussing how transparency rules enacted by Congress in 2022 may help reveal the terms of the agreement that the U.S. has made with El Salvador concerning the detention of migrants.
www.lawfaremedia.org/article/the-...

The New Transparency Rules and the El Salvador Detention Agreement A 2022 statute could force disclosure of any U.S.-El Salvador agreements connected to the facility where Kilmar Abrego Garcia is detained.

@curtbradley.bsky.social, @jacklgoldsmith.bsky.social, and @oonahathaway.bsky.social explore how a transparency statute for international agreements passed in 2022 could force the disclosure of any U.S.-El Salvador agreements related to Kilmar Abrego Garcia’s detention at CECOT.

Thanks, Larry, for recommending my latest paper. And I should note that there is still time for me to take account of comments!

lsolum.typepad.com/legaltheory/...

balkin.blogspot.com/2025/02/balk...

The Balkinization site recently hosted commentaries on my new book, “Historical Gloss and Foreign Affairs.” The commentators are all terrific scholars, and I found their reflections to be extremely fair-minded and insightful. I address a few points here.
balkin.blogspot.com/2025/01/glos...

An advantage of the historical gloss approach is that, by focusing on the accretion of governmental practices over multiple political alignments, it provides some resistance to radical norm-breaking by one particular President. True of birthright citizenship, impoundment of money, and other issues.

This new paper, "Sovereign Power Constitutionalism," is one of the most challenging papers I've ever written. It shows how conceptions of nationhood have long informed U.S. constitutional interpretation. Forthcoming in @UChiLRev but still plenty of time for comments!
papers.ssrn.com/sol3/papers....

Trump said that that the U.S. would consider its withdrawal from the Paris agreement to be "effective immediately,” but the treaty requires a one-year waiting period. He did not say this about withdrawal from the WHO agreement, probably because a federal statute specifies a one-year waiting period.

I’m honored that my new book is the subject of commentary this week on the Balkinization site. There’s an incredible lineup of commentators, and I’m excited to see what they have to say. I’ll respond when it’s all done, mainly to thank everyone for their engagement with my work.
balkin.blogspot.com

How Should Historical Gloss Inform Our Interpretation of the Constitution?: A Review of Historical Gloss and Foreign Affairs: Constitutional Authority in Practice “[It is] an inadmissibly narrow conception of American constitutional law to confine it to the word...

A fair-minded review of my new book, from an originalist perspective, by Julian Ku. I agree with him that “originalists should welcome the use of historical gloss,” in part because, as he notes, “it is hard to imagine a functional originalist Constitution without it.”
fedsoc.org/commentary/f...

"During the early history of extradition in the United States, political actors were simultaneously working out their positions on the relevant international law rules while also working out their positions on matters of domestic authority, and those two projects inevitably intersected."

Historical Gloss and the Extradition Power - Transnational Litigation Blog In a recently-published book, “Historical Gloss and Foreign Affairs: Constitutional Authority in Practice,” I document how the foreign affairs powers of Congress and the executive branch have been hea...

It’s been said that the past is another country. That’s certainly true of the early U.S. practice of international extradition, as I discuss here. The practice raised difficult issues of presidential power, federalism, and the domestic application of international law.
tlblog.org/historical-g...

How do the lower courts respond when the Supreme Court starts disfavoring (rather than overruling) its precedents—Bivens, for example, or Chevron before Loper Bright? How should they respond? Tara Grove and I explore these and related questions in this new paper.
papers.ssrn.com/sol3/papers....

Book Launch- Historical Gloss and Foreign Affairs: Constitutional Authority in Practice | University of Chicago Law School

After having presented my new book at a number of other law schools in recent weeks, it will be a special treat to “launch” the book at this upcoming event at my own law school. With commentary from my amazing colleagues Will Baude and David Strauss.
www.law.uchicago.edu/events/book-...

UChicago Constitutional Law Conference 2025 Call for Papers | University of Chicago Law School The Paper Submission Deadline is January 16, 2025. There is no charge for submissions.

Call For Papers! The University of Chicago 2025 Constitutional Law Conference seeks papers on any aspect of constitutional rights. Details here:

I'm happy to welcome the University of Chicago Law School, @uchicagolaw.bsky.social, to Bluesky! To celebrate the arrival of our official account, here is a starter pack with my faculty colleagues. go.bsky.app/L81ZCoX

Sovereign Power and the Constitutional Text | University of Chicago Law School

I’m looking forward to this upcoming conference at UChicago on “Sovereign Power and the Constitutional Text.” A great lineup, addressing an array of topics, including Indian law, immigration law, extradition, and the extraterritorial application of criminal law.

www.law.uchicago.edu/events/sover...