114 Yale L.J. 203 (2004)

Federalism concerns, underappreciated in the takings literature, play an important role in shaping the Supreme Court's takings jurisprudence. The Takings Clause does not guarantee any particular property rights; instead, the Clause protects primarily against change in background state law. As a result, the nature and scope of constitutional protection depends heavily on background principles of state law in effect at the time of a challenged enactment. Federalism concerns, therefore, prevent the Supreme Court from articulating and enforcing a comprehensive national takings standard. Instead, the Court's role in the constitutional scheme is to articulate categorical rules that address difficulties that cut across state lines, while leaving primary responsibility for monitoring local land use regulation to state law and state courts. State courts, in turn, should view the Court's Penn Central balancing test not as a finely calibrated analysis of constitutional limits, but as a broad delegation of authority.

114 Yale L.J. 359 (2004)

By applying game-theoretic analysis to the bicameralism and presentment requirements of Article I, Section 7, scholars have recommended reforms in constitutional law, statutory interpretation, and the Chevron doctrine. This Note builds on this work and explores whether Article I, Section 7 can inform remedial choice in administrative law--the choice between vacating defective agency action and remanding it without vacatur. It argues that, from the perspective of the sequential structure of Article I, Section 7, vacatur should be the presumptive administrative law remedy. Accordingly, the Note offers a reason to question the recent judicial trend away from the vacatur remedy.

114 Yale L.J. 443 (2004)

Many international civil disputes are resolved via state-driven litigation before multinational tribunals. Indeed, under traditional principles of international law, individuals may not appear before such tribunals at all. Instead, states must advance claims on behalf of their nationals, a procedure known as diplomatic espousal.

As the D.C. Circuit's decision in Nemariam v. Federal Democratic Republic of Ethiopia demonstrates, U.S. courts rarely consider such international tribunals adequate to vindicate individual claimants' interests, because the tribunals' procedures are often in tension with American notions of due process. Accordingly, many courts find that international tribunals are inadequate alternative forums under forum non conveniens analysis. In so holding, courts are allowing forum non conveniens, a doctrine developed to balance proceedings between courts, to undermine the authority of international tribunals--a very different type of adjudicative body.

This Comment argues that, in evaluating whether an international tribunal is an adequate alternative forum under forum non conveniens analysis, U.S. courts should focus less on formalistic factors like the identities of the parties who espouse claims before the tribunal and more on the ability of those parties to represent the interests of the individuals whose claims they advance. Emphasizing interest representation, rather than party structure, would help U.S. courts avoid undercutting established international institutions; lessen the perception of U.S. courts as disconnected players in a multilateral world; and allow war-torn states to devote their resources to broad-based compensation and redevelopment, rather than to the litigation of private claims in multiple forums.