Faculty Bibliography

There is anger among many at the growing recognition that this conservative Supreme Court is marching, not resting. That little of the past--like precedent--will constrain it. And that the decisions of the preceding terms--overturning Roe v. Wade, expanding the "right to bear arms," ending affirmative action, among other extraordinary decisions--are just the beginning of a long and cold jurisprudential winter. Many on the Left have responded by proposing ambitious strategies for resisting the Court. There are calls for court packing, and for the impeachment of faithless justices. Two of the most prominent among younger American law professors have declared the "need is not to reclaim the Constitution, as many would have it, but instead to reclaim America from constitutionalism." This response is a mistake. The right strategy to answer people who believe that they are doing right is not to try to convince them their principles are wrong. It is to show them that they are not following their principles. The answer to the growing originalist majority on the United States Supreme Court is not to attack originalism, but to show how incomplete and inconsistent this Court's originalism has become. That is my aim in this essay. Not because arguments change minds. Necessarily. But because they set the predicate for what would be a principled and appropriate response by Congress. It is time for Congress to reclaim the role that the framers of our second Constitution--the Civil War Amendments--intended for it. Because a principled originalism could not resist that claim, and that claim, more than anything else, would liberate rights in America from their current, narrow judicial hold.

This chapter begins with an explanation of why, in the United States, philosophical analysis has become a prominent feature of private law scholarship. Historical, sociological, and constitutional peculiarities of the American experience all figure in our account. It then distinguishes two ways in which philosophy has been brought to bear on private law. The first involves the use of analytical and moral philosophy to critique and develop alternatives to policy-driven, welfarist approaches that tend to dominate elite U.S. legal-academic writing. The second harnesses philosophical analysis to defend the intelligibility of ordinary lawyerly discourse about private law as against reductionists (whether deontological and welfarist) who treat legal concepts as empty vessels to be filled with extra-legal content. Our aim is to help scholars understand the current state of private law scholarship in the U.S. and appreciate the role that philosophy can play in the explanatory, justificatory, and critical aspects of the legal academic enterprise.

A poor-quality dietary pattern is a leading risk factor for chronic disease and death in the United States, and the costs of medical care continue to unsustainably rise. Despite this reality, nutrition training for physicians fails to adequately prepare for them to address the complex factors that influence diet-related disease. Expanding nutrition education for physicians-in-training is imperative to equip them for the growing demand of food is medicine services and is also supported by recent policy efforts in the United States as well as the governing bodies of graduate and undergraduate medical education. A multisector approach that links graduate medical education, clinical care delivery innovation, and health and food policy experts provides momentum to advance nutrition education as a core strategy for food is medicine expansion globally.

There are two justifications for the major questions doctrine. The first justification, vigorously offered by Justice Neil Gorsuch, might be described as Lockean; it sees the doctrine as an effort to preserve legislative primacy and to reduce the policymaking authority of the executive branch. On the Lockean view, the major questions doctrine is a clear-statement principle, and it is in evident tension with textualism. The second justification, vigorously offered by Justice Amy Coney Barrett, might be described as Wittgensteinian; it sees the doctrine as an effort to capture Congress's likely instructions. The Wittgensteinian justification fits comfortably with textualism, and it does not operate as a clear-statement principle at all. The Court can be seen as having adopted an incompletely theorized agreement in favor of the major questions doctrine, but at some point, the two justifications might lead in different directions. While neither justification is implausible, both of them run into serious objections.

As the environment for litigation and legislative advocacy becomes increasingly hostile at the federal level, many have turned to state legislative advocacy and state court litigation to protect and promote voting rights. This chapter does not discuss every important reform, nor every troubling restriction, being considered at the state level, but rather outlines some key categories of laws that help, or hinder, historically disenfranchised communities with respect to voting. The first part focuses on some of the main ways that people of color, people with disabilities, young voters, and people involved in the criminal justice system are affected by state voting laws. Part two looks at the relatively recent development of state voting rights acts that seek to provide protections for people of color as federal protections are eroded, and even go well beyond the types of protections that have historically been provided by federal legislation.

The idea of disregarding the U.S. Supreme Court—simply ignoring its decisions—has become a flash point. “Americans will not tolerate defiance of the institution and the rule of law,” remarked one conservative law professor, irate about the possibility that President Joe Biden or other political officials might engage in such behavior. Who has defied the Supreme Court in the past? If leading examples include Andrew Jackson the ethnic cleansing populist or George Wallace the Southern segregationist, the answer has to be: no one good.

Explainability in artificial intelligence and machine learning (AI/ML) is emerging as a leading area of academic research and a topic of significant regulatory concern. Increasingly, academics, governments, and civil society groups are moving toward a consensus that AI/ML must be explainable. In this Article, we challenge this prevailing trend. We argue that for explainability to be a moral requirement—and even more so for it to be a legal requirement—it should satisfy certain desiderata which it often currently does not, and possibly cannot. In particular, this Article argues that the currently prevailing approaches to explainable AI/ML are often (1) incapable of guiding our action and planning, (2) incapable of making transparent the actual reasons underlying an automated decision, and (3) incapable of underwriting normative (moral and legal) judgments, such as blame and resentment. This stems from the post hoc nature of the explanations offered by prevailing explainability algorithms. As the Article explains, these algorithms are “insincere-by-design,” so to speak. This often renders them of very little value to legislators or policymakers who are interested in (the laudable goal of) transparency in automated decision-making. There is, however, an alternative—interpretable AI/ML—which the Article will distinguish from explainable AI/ML. Interpretable AI/ML can be useful where it is appropriate, but presents real trade-offs as to algorithmic performance, and in some instances (in medicine and elsewhere) adopting an interpretable AI/ML may mean adopting a less accurate AI/ML. This Article argues that it is better to face those trade-offs head on, rather than embrace the fool’s gold of explainable AI/ML.

When the Supreme Court of the United States decided San Antonio Independent School District v. Rodriguez, the Court's five-to-four decision not only closed the door to federal courts to predominantly Mexican American low-income students seeking constitutional protection against unequal public education; it also rejected claims of federal constitutional right to equal educational opportunity, rebuffed calls for heightened judicial scrutiny of classifications drawn on the basis of wealth or poverty, and let stand unaltered school finance arrangements producing different per pupil expenditures depending solely on where students live. Setbacks though can inspire. Faced with the decision in Rodriguez, advocates pursued efforts in federal legislation reforms, expanded federal aid to schools with predominantly low-income students, and state-based litigation and reform efforts. And because the Rodriguez decision rejected stringent judicial scrutiny of wealth-based classifications, it opened the door to the use of socioeconomic status as a priority for admission to educational programs. Such creative responses are also legacies of Rodriguez. Current serious challenges can and should similarly elicit resilient and inventive approaches, including the uses of digital and technology resources as well as greater self-direction for students and their teachers in a world soon to be reshaped by readily available artificial intelligence resources. Although disappointment with public schooling has led families of different racial, ethnic, and income groups to pursue charter schools, vouchers or tax credits for use in private schools or family-funded private schooling, and homeschooling, new technologies and resources can strengthen equal educational opportunities for all children in the nation.

There's far more to his hush money case than meets the eye.

The ancient Athenian democracy provides our first richly documented example of a self-conscious transitional justice policy. This chapter explores the classical Athenians’ complex response to the atrocities committed during the reign of the Thirty Tyrants at the end of the fifth century BCE. Following the return of the democracy, the Athenians carefully balanced retribution and forgiveness: an amnesty protected collaborators from direct prosecution, but in practice private citizens could indirectly sanction even low-level oligarchic sympathizers by raising their collaboration as character evidence in unrelated lawsuits. They also balanced remembering and forgetting: discussion of the civil war in the courts memorialized the atrocities committed during the tyranny but also whitewashed the widespread collaboration by ordinary citizens, falsely depicting the populace as members of the democratic resistance.

In the face of war and atrocities, the principles of the 75-year-old document remain sound.

For decades, college-admissions offices have quietly imposed higher standards on female applicants.

Can AI safety shed any light on old corporate governance problems? And can the law and economics of corporate governance help us frame the new problems of AI safety? The author identifies five lessons — and one dire warning — on the corporate governance of AI and other socially sensitive technologies that have been made vivid by the corporate turmoil at OpenAI.

Cloud services have become an important part of the information technology toolkit in the global financial sector. As cloud adoption by financial institutions has increased, financial regulators have raised concerns about potential concentration risk resulting from cloud migration.2 This report aims to provide clarity around the discussion of cloud adoption and concentration risk in the financial sector. Section I of the report provides background on cloud adoption in the financial sector. Section II clarifies the potential risks associated with the use of third-party technology service providers by financial institutions, and examines those risks in the context of cloud adoption and traditional information technology (IT) infrastructure. Section III outlines the regulatory frameworks in different jurisdictions for addressing potential concentration risks associated with cloud adoption. Section IV concludes by setting out policy recommendations for mitigating potential concentration risks associated with cloud adoption in the financial sector. The report has several key takeaways: • Concentration risk is not new to the financial sector, nor is it unique to the cloud. Indeed, it is not obvious that such risks could be avoided if financial institutions were to rely on traditional IT infrastructure instead of the cloud. The critical question is how to manage or mitigate concentration risk. • In order to assess the landscape of concentration risk in the financial sector, regulators should develop a clear and consistent definition of concentration risk and the underlying scenarios to which that definition applies. • Regulators should also focus on gathering information about technology outsourcing by financial institutions, including the use of cloud-based services. Concentration risk can be addressed through information sharing and coordination among FIs, cloud providers, and supervisory authorities. • Cloud adoption in the financial sector is still in its early stages. As cloud adoption increases, regulators should weigh the risks of concentration against the benefits of scale and quality of services provided by major cloud providers. • In developing regulatory and supervisory approaches, regulators should engage directly with cloud providers in order to understand the tools available to financial institutions and the security and resiliency practice of cloud providers. • Regulatory requirements and supervisory practices for cloud adoption should be tailored to specific risks and a one-size-fits-all approach should not be adopted for all financial institutions.

Both antitrust and trademark law are, broadly speaking, “unfair competition” regimes. But the power that the law confers on trademark owners has expanded even as the constraints imposed by antitrust have contracted. In recent years, disputes over the use of trademarks as “keywords” used by search engines and their advertisers to target advertising when a consumer searches online have raised both trademark and antitrust issues. While U.S. trademark law generally considers keyword advertising to be pro-competitive and nonconfusing, a significant court of appeals case held that attempts to suppress such advertising did not violate the antitrust laws. Despite this unfortunate result, disputes over keyword advertising can still teach us important lessons about trademark theory, particularly the economic theory that trademark rights are justified to lower consumers’ search costs.

Blocked at the federal level, Massachusetts must act by passing a new state law.

In 1921, John Maynard Keynes and Frank Knight independently insisted on the importance of making a distinction between uncertainty and risk. Keynes referred to matters about which “there is no scientific basis on which to form any calculable probability whatever.” Knight claimed that “Uncertainty must be taken in a sense radically distinct from the familiar notion of Risk, from which it has never been properly separated.” Knightian uncertainty exists when people cannot assign probabilities to imaginable outcomes. People might know that a course of action might produce bad outcomes A, B, C, D, and E, without knowing much or anything about the probability of each. Contrary to a standard view in economics, Knightian uncertainty is real. Dogs face Knightian uncertainty; horses and elephants face it; human beings face it; in particular, human beings who make policy, or develop regulations, sometimes face it. Knightian uncertainty poses challenging and unresolved issues for decision theory and regulatory practice. It bears on many problems, potentially including those raised by artificial intelligence. It is tempting to seek to eliminate the worst-case scenario (and thus to adopt the maximin rule), but serious problems arise if eliminating the worst-case scenario would (1) impose high risks and costs, (2) eliminate large benefits or potential “miracles,” or (3) create uncertain risks.

The Justices of the Supreme Court increasingly claim to be originalists. Yet close examination reveals that the Court’s actual reliance on originalist analysis is highly selective. In large swathes of cases, the avowedly originalist Justices make little or no effort to justify their rulings by reference to original constitutional meanings. Nor do most of them show much disposition to grant certiorari in many cases that might enable them to overrule past, nonoriginalist decisions. This Article defines and documents the phenomenon of selective originalism. Having done so, the Article then explores the cultural and jurisprudential conditions in which selective originalism, which typically abets substantively conservative decisionmaking, has developed and now flourishes. The doctrine of stare decisis, the Article argues, plays an important role in enabling selective originalism. Because it seldom either requires or forbids precedent-based decisionmaking by the Supreme Court, it allows the Court to be originalist when it chooses but not to be originalist when it chooses. In light of this appraisal of the significance of stare decisis in the Supreme Court, the Article criticizes the practice of selective originalism for its inconsistency and disingenuousness. But the Article also explores the obvious question that criticisms frame: Why do the selectively originalist Justices not respond by articulating a more complex doctrine that would seek to justify their only-selective reliance on originalist premises? We would misunderstand selective originalism, the Article argues, if we derided its misleading pretensions and probed no further. The self-avowed originalist Justices almost certainly experience themselves as duty-bound to overturn nonoriginalist holdings in some cases, though not in all, even when the doctrine of stare decisis is too weak to dictate their conclusions as a strict matter of law. And the reasons why, I argue, contain lessons for originalists and nonoriginalists alike: A clear-eyed appraisal of the Justices' functions should inspire the conclusion that the Supreme Court, unlike other courts, is a predominantly lawmaking tribunal that must bear responsibility for the practical and moral desirability of changes that it effects in the fabric of constitutional law. In light of the Court's distinctive functions, conclusions about what the Justices ought to do, and indeed have obligations to do, are often best understood as embodying judgments about judicial role morality in addition to law.

The Council of Europe, Europe's most important human rights organization, is developing a legally binding instrument for the development, design, and application of AI systems. This “Convention on Artificial Intelligence, Human Rights, Democracy and the Rule of Law” (AI Convention) aims to protect human rights against the harms of AI. The AI Convention may become the first legally-binding international treaty on AI. In this article, we highlight the implications of the proposed AI Convention for the health and human rights protection of patients. We praise the following characteristics. Global regulation for technology that easily crosses jurisdictions. The human rights-based approach with human rights assessment. The actor-neutral, full-lifecycle approach. The creation of enforceable rights through the European Human Rights Court. We signal the following challenges. The sector-neutral approach. The lack of reflection on new human rights. Definitional issues, and The process of global negotiations. We conclude that it is important for the Council of Europe not to compromise on the wide scope of application and the rights-based character of the proposed AI Convention.

A majority of the Justices today are self-described textualists. Yet even as these jurists insist that “the text of the law is the law,” they appeal to “substantive” canons of construction that stretch statutory text in the direction of favored values, from federalism to restraining the administrative state. The conflict between these commitments would seem obvious — and indeed, candid textualists have long acknowledged that there is a “tension” here. But textualist theorists have also advanced several arguments to assuage or finesse that tension, and the sheer availability of those arguments has given the textualist Justices’ resort to these devices a respectability that, we argue here, it does not deserve.With the Justices now openly debating the compatibility of textualism and substantive canons, this Article surveys and critically assesses the assorted efforts to square this particular circle. Those strategies include (1) recharacterizing substantive canons as elements of the “background” against which Congress legislates, (2) linking them to “constitutional values,” and (3) restricting their use to resolving “ambiguities.” Each of those defenses, we argue, either commits textualists to jurisprudential positions they ordinarily denounce or, at best, implies such a narrow scope for substantive canons that nothing resembling their current use would survive. The Article thus concludes that textualists should either abandon their reliance on substantive canons or else concede that their textualism is not what they have often made it out to be.

By revealing a community in radical transition, constitutional crises expose money’s relationship to the market. That essential dynamic is more easily disregarded in routine times. Modern commentators deflect analysis further by imputing a basic divide between real and monetary activity. This essay retheorizes that relationship using the Civil War experience as a setting. The exercise illuminates money as a practice that constructs the market architecture across crises and calms. First, contriving a public unit of account creates commensurability in value and makes possible prices. That accomplishment is, at the same time, an arresting act of constitutional reorganization. To create a money, communities literally transmute political obligation into a unit and enable that entity to circulate: modern money is a sovereign liability that can offset individual indebtedness. Consonant with that faculty, the initiative expands public capacity and realigns private relations. Second, enabling money as a medium structures its operation. Money issues from public and private market actors who are advantaged by their ability to create it and it attracts users into its measurement system through their demand for that medium. Those features – discrete issue and particularized demand – are inherent to the phenomenon of circulation and, in turn, affect production. Third, a government curates exchange by enforcing those transactions in money that it approves. As it defines “commodities,” shapes contract, and develops property, the polity dredges the monetary channels of exchange. In the face of money’s sweeping effects as a unit of account, medium of exchange, and mode of payment, its disregard in modern economic theory is a major default. Analyzing money creation exposes it as the structure that configures economic activity.

Erie Railroad Co. v. Tompkins is the most important case that no one who isn’t a lawyer has ever heard of. Viewed narrowly, it holds that a federal court, when deciding issues subject to state law, has to defer to the opinions of state courts. That proposition is often false. But the problem with Erie isn’t this narrow result; the problem is its reasoning. As the Supreme Court would later put it, Erie overruled, not just a past line of cases, but “a particular way of looking at law.” Erie rejected a category of law—sometimes called general common law, or just “general law”—which was fundamental to our federal system, and the absence of which has left us unable to understand basic aspects of American jurisprudence. This lecture, delivered on the occasion of the author’s appointment as Antonin Scalia Professor of Law, explores what life will look like after Erie—how the law will operate on the happy and glorious day when Erie has been overturned. This is not a prediction that Erie will be overturned. Though some legal seismologists have discerned rumblings in that direction, we have no guarantee that courts will get things right: the arc of jurisprudence does not always bend toward intellectual coherence. Rather than make predictions, it sets out a research agenda, attempting to think through some of the problems overruling Erie may pose—so that when the time comes to reconsider Erie, those who do so will have a clear path to follow. The most important feature of life after Erie may not be any particular doctrines the courts enforce, but the attitude with which they enforce them. To reject Erie is to recognize, as Francis Bacon put it, and as Justice Scalia noted in Rogers v. Tennessee, that the judge’s “office is jus dicere, and not jus dare; to interpret law, and not to make law, or give law.” When this power to make law is conferred by a statute or a constitution, maybe a judge can lawfully wield it. But one hopes that, after Erie, we will recognize this authority as one that no officials, least of all judges, have any right to arrogate to themselves.

Recently in Israel, a woman was mistakenly implanted with an embryo that is genetically related to another couple. Unfortunately, this case is not an isolated occurrence, as other cases of embryo mix-ups have been reported in several countries, including the USA, China, the UK and various other countries within the European Union. Cases of mixed-up embryos are ethically and legally complex: the woman who carried the pregnancy and the woman who is genetically related to the resulting child—both of whom endured emotionally and physically demanding infertility treatments—along with their partners, may be unwilling to relinquish parental rights over the child.This article explores four possible approaches, found in numerous common law jurisdictions, which can be used to address cases involving embryo mix-ups. Our analysis reveals several avenues through which legal parentage can be established. It can be done through gestation and the marital presumption, genetic connections, by adhering to the principle of the best interests of the child, or by recognising multiple individuals as legal parents. We review the advantages and disadvantages of each approach, but we have one clear recommendation: resolving embryo mix-up cases should be done proactively through the establishment of legislation and guidelines, rather than relying on post hoc individual court decisions. Such legislation and guidelines should guarantee the consistency of values throughout diverse reproductive contexts and mandate that fertility clinics and medical professionals provide individuals with comprehensive information regarding the potential risks associated with assisted reproductive treatments.

Some of the Supreme Court Justices and scholars who support a reinvigoration of the nondelegation doctrine would allow for an exception for grants of authority relating to foreign affairs. Others have criticized such an exception as unprincipled or as reflecting improper “foreign affairs exceptionalism.” This Article argues against a foreign affairs exception to the nondelegation doctrine but contends that the doctrine should be applied less strictly when a statutory authorization relates to an area of independent presidential power. The President has more independent power relating to foreign affairs than domestic affairs, so this limitation on the nondelegation doctrine will do more work in the foreign affairs area. But the President does not have unlimited power over foreign affairs and has some independent constitutional power relating to domestic affairs, so it is inaccurate and potentially misleading to refer to a “foreign affairs” exception. After establishing this point, the Article identifies several ways in which independent presidential power is relevant to the nondelegation doctrine, which we call situations of “redundant authorizations,” “unlocking authorizations,” and “independent discretion authorizations.” The Article then analyzes a number of broad statutory authorizations relating to foreign affairs and domestic security and finds that some but not all of them can be justified by reference to the President’s independent powers. The Article concludes by considering the relevance of this analysis to the application of the “major questions doctrine,” and it explains why that doctrine likely poses less of a threat to authorizations related to foreign affairs than scholars have maintained.

This Research Handbook deals with the politics of constitutional law around the world, using both comparative and political analysis, delivering global treatment of the politics of constitutional law across issues, regions and legal systems. Offering an innovative, critical approach to an array of key concepts and topics, this book will be a key resource for legal scholars and political science scholars. Students with interests in law and politics, constitutions, legal theory and public policy will also find this a beneficial companion.

People buy some goods that they do not enjoy and wish did not exist. They might even be willing to pay a great deal for such goods, whether the currency involves time or money. One reason involves signaling to others; so long as the good exists, nonconsumption might give an unwanted signal to friends or colleagues. Another reason involves self-signaling; so long as the good exists, nonconsumption might give an unwanted signal to an agent about himself or herself. Yet another reason involves a combination of network effects and status competition; nonconsumption might deprive people of the benefits of participating in a network, and thus cause them to lose relative position. With respect to real-world goods (including activities) of this kind, there is typically heterogeneity in relevant populations, with some people deriving positive utility from goods to which other people are indifferent, or which other people deplore. Efforts to measure people’s willingness to pay for goods of this kind will suggest a welfare gain, and possibly a substantial one, even though the existence of such goods produces a welfare loss, and possibly a substantial one. We might call this the Barbie Problem: Notwithstanding the success of the (terrific) 2023 movie, it is reasonable to speculate that many children, and even more parents, wish that there was no such thing as Barbie, even if children play with Barbie, and even if parents purchase Barbie. Ties and high heels might count as Barbies. Collective action, private or public, is necessary to eliminate goods that people consume but wish did not exist. Legal responses here are limited, but they might be contemplated when someone successfully maneuvers people into a situation in which they are incentivized to act against their interests, by consuming a product or engaging in an activity they do not enjoy, in order to avoid offering an unwanted signal.

The Facing History team always emphasised the importance of integrating head and heart in learning, especially in learning about hard issues. Madam Ogata, a political scientist from Japan and daughter of a diplomat, was trained at the University of California and became a professor and a dean in Japan before her appointment as the first woman to lead the UN High Commissioner for Refugees. Movements to recognise individual human rights challenge the historical conceptions of borders. Once each individual is understood to be a rights bearer of equal dignity, the rationales of family privacy and state sovereignty no longer shield violations of individual rights from view and action. In the wake of intergroup violence, the usual calls urge reconciliation or sufficient quelling of the disturbance to permit peaceful coexistence.

Under the Court’s new rules, the Justices appear not to have made any mistakes.

The relationship between Christianity and biotechnology is mediated by the moral clarity with which Christianity views the sacredness of life, especially the distinctiveness of humans in God’s creation. The significant role of humans in the orthodox doctrine of creation might suggest that Christianity views technologies that enhance the physical quality of human life favorably while disfavoring those that impinge on the sanctity of life. There is no such dichotomy, however; the emerging biotechnology landscape is increasingly morally and doctrinally complex. The benefits of biotechnology for enhancing the body and overcoming disease have obscured questions about God’s created order, whether it should be altered, the conditions under which such alterations could be an expression of biblical stewardship or, conversely, a form of idolatry, and whether laws such as intellectual property that incentivize manipulation of biological matter should be of greater concern to Christianity. The frontiers of biotechnology raise challenges for foundational Christian doctrines of creation, stewardship, and redemption directed at the well-being of spirit, soul, and body. Christianity has selectively engaged with biotechnology, with implications for the development of moral intuitions necessary to discern between stewardship and the abuse of creation, and between worship of the Creator and worship of His creation. This chapter offers a framing of Christianity’s role in the significant policy choices that face societies as advances in biology increasingly blur, on one hand, the boundaries between humans and the rest of God’s creation and, on the other hand, the boundaries between humans and what humans create.

The use of generative AI promises to continue to grow rapidly. Consequently, leaders must understand the risks and challenges of this new technology and develop policies and practices to guide its usage. This article explains the areas of concern and offers guidance in addressing them.

The idea of judicial dialogue entered into scholarly discussion in the late twentieth century and is used in connection with different phenomena at the transnational and domestic levels. In the transnational context, it refers to exchanges among courts and judges that belong to different national and international legal regimes. In the domestic context, judicial dialogue refers to interaction between courts and other branches of government, particularly legislatures. Each phenomenon is associated with a form of politics. Transnational judicial dialogue occurs in a literal sense when judges communicate and network with each other, but it also occurs in a figurative sense when judges engage in comparative legal research and consider each other’s work. Either way, it can resemble a specialized form of international relations, in which courts seek to bolster their own standing by affiliating themselves with more prestigious peers, and to exercise soft power and influence over less prestigious peers. Transnational dialogue is often opaque or invisible to outsiders and usually lacks domestic political ramifications. In a handful of settings, however, judges who make conspicuous use of foreign law by explicitly citing it in high-profile or controversial opinions can expect to face normative criticism for doing so.Dialogue at the domestic level is associated with alternative forms of judicial review that give legislatures the power to override or avoid judicial rulings of unconstitutionality. Such institutional configurations are said to strike a balance between legislative and judicial supremacy, and to take the sting out of the charge that constitutional courts are inevitably ‘countermajoritarian.’ Scholarly use of the dialogue concept envisions a discursive form of constitutional politics that is differentiated from, and superior to, the usual politics surrounding judicial review. However, it is unclear whether such a distinctive and elevated species of politics can be achieved in practice. On the one hand, if ‘dialogue’ is defined in a thin fashion as including any back-and-forth on constitutional questions between legislatures and courts, the concept becomes so broad as to be indistinguishable from ordinary politics. On the other hand, if ‘dialogue’ is defined in a thick fashion as substantive exchange on the merits of constitutional questions, there may be no country capable of satisfying the definition. The case of Canada, often held up as the leading example of judicial dialogue, illustrates the severe definitional challenges surrounding the concept.