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For decades, American courts have taken for granted that the separation of powers severs the judiciary from prison administration. In its more stringent forms, this idea characterized the so-called "hands-off doctrine." Under the hands-off doctrine, courts would decline to intervene in prison government, even when presented with claims that conditions of life inside prisons were so bad that they violated inmates' constitutional rights. This stringent view fell away over the course of the 1960s and 1970s. But the gist of it survives. The separation-of-powers principle is a pillar of contemporary prison law. It supports vast judicial deference to prison administrators. It tends to rule out injunctive orders that might aim to regulate or remedy conditions of confinement. Courts find prison management to be all but exclusively the political branches' business. This Note discovers an earlier, more reasoned regime. In the thirty-odd years following American independence, the judicial power uniformly came to encompass supervisory authority over prisons. Judges could second-guess the warden. Sometimes they had to. Judges were called upon to appoint prison inspectors, to act on those inspectors' presentments, to frame rules of internal prison government, and to review a sheriff's selection of jailers. In some jurisdictions, on their own motion, they could remove a prison keeper for misbehavior. Nor is that all. The statutes vesting these powers in judges went on the books amid sustained debates over the meaning of the separation of powers, as Founding Era constitutions enshrined that principle. Its major exponents, Thomas Jefferson among them, were sometimes responsible for drafting these statutes and then lobbying for their passage. Across the germinal period of our constitutional and penological history, a ubiquitous, cohesive body of law gave force to the following view: supervision of prison government is consistent with, if not an incident of, a separated judicial power and its exercise. I call it the eyes-on doctrine. This Note argues for its studious revival., NOTE CONTENTS INTRODUCTION 202 I. BENJAMIN RUSH'S ENQUIRY 213 II. THE EYES-ON DOCTRINE IN THE FOUNDING ERA 222 A. Supervisory Authority Vested in Superior Courts 222 1. Virginia 222 2. [...]

I INTRODUCTION This article addresses whether, as a matter of constitutional doctrine, it is permissible for an Australian court to administer measures that are 'punishments' by the accepted legal definition, [...], Garlett v Western Australia [2022] 96 ALJR 888 ('Garlett') was a missed opportunity for the High Court of Australia to confirm a simple proposition: the scheme for the exercise of separated judicial power laid down in Ch III of the Constitution precludes any non-criminal punishment by courts. In Garlett, all but one Justice rejected or doubted that Ch III has this effect. This article identifies and resolves two points of contention that have impeded recognition that Ch III categorically precludes non-criminal punishment by courts. In doing so, it demonstrates that Ch III's exclusive vesting of separated judicial power in courts supports a more 'joined up' way of thinking about permissible court functions across the Australian federation than was seen in Garlett.

I Introduction Responsible government is one of the architectonic principles of the Australian Constitution'. (1) As the High Court observed in its unanimous judgment in Lange, 'That the Constitution intended [...], In this article we argue that responsible government is an underenforced constitutional norm and that it has the potential to play an important role in vindicating constitutional values, but through a principle of statutory interpretation--the principle of legality--rather than constitutional review. Constitutionalising responsible government would raise counter-majoritarian concerns and likely introduce rigidity where flexibility is required. We argue that where Parliament cannot or will not discharge its constitutional responsibilities with respect to executive-empowering legislation, the courts ought to apply the principle of legality to restrict the scope of the relevant powers conferred. Of especial concern in this regard are statutes which confer broadly framed powers and discretions on the executive arm of government including the power to make secondary legislation. We explain how the capacity for self-government is diminished in these legislative contexts and why the courts are justified in applying legality to vindicate the constitutional norm of responsible government to the extent interpretively possible.

INTRODUCTION I. THE RISE OF LEGISLATIVE FACTS A. Taking Notice B. Taking Evidence C. Taking Exception II. FINDING LEGISLATIVE FACTS A. Defining "Legislative Fact" B. Answering Questions of Fact and [...], As the factual nature of legal inquiry has become increasingly apparent over the past century, courts and commentators have fallen into the habit of labeling the facts behind the law "legislative facts." Loosely, legislative facts are general facts courts rely upon to formulate law or policy, but that definition is as contested as it is vague. Most agree that legislative facts exist in some form or another, but few agree on what that form is, on who should find them, and how. This Article seeks to account for and resolve that confusion. Theories of legislative fact focus on the role facts play in purported lawmaking by the courts--hence the name "legislative." This Article proposes a different approach that situates facts within the adjudicatory process. The facts captured by the label "legislative fact" play two different roles in resolving parties' disputes: sometimes, as facts of law, they provide a premise for the rule of decision the court uses to resolve the dispute, and sometimes they assist the court in relating that rule of decision to the circumstances of the parties. Courts should distinguish between these roles when determining who should find the facts, and how. This approach results in sounder dispute resolution and sounder developments in the law, and it is more administrable than the current, undisciplined approach.

Introduction There is an unresolved question whether the state enforcement of federal law is compatible with the structure of government that the Constitution creates for the United States. Commentators have [...]

Introduction I. Precedent as a Common-Law Rule and the Trade-Off Between Originalism and Reliance A. The Problem of Precedent B. The Trade-Off Between Originalism and Reliance Interests C. The Scope [...], Originalism has become a dominant jurisprudential theory on the Supreme Court. But a large number of precedents are inconsistent with the Constitution's original meaning and overturning them risks creating enormous disruption to the legal order. This article defends a prospective overruling approach that would harmonize precedent with originalism's rise and reduce the disruption from overrulings. Under prospective overruling, the Court declares that an existing statute violates the original meaning but will continue to be enforced because declaring it unconstitutional would produce enormous costs; however, future statutes of this type will be voided as unconstitutional. Under our approach, the Court would employ a rule-based doctrine for gradually returning our constitutional law to the original meaning without upsetting the reliance interests that stare decisis rightly protects. While originalists, like Justice Scalia, have been extremely critical of the prospective overruling that the Warren Court used to implement its constitutional revolution, we here defend an approach to prospective overruling that would avoid these originalist criticisms. We show that prospective overruling is a legitimate form of the common law of precedent and thus encompassed by the judicial power. We also show that prospective overruling is not dictum that runs afoul of the Constitution's case-or- controversy requirement. In many cases, the substantive constitutional question is so intertwined with the question of precedent that a decision on a provision's original meaning is necessary to decide the stare decisis issue. In other cases, the resolution of the substantive question should be treated as a holding, even if not strictly necessary to the result, because the question was answered using a method that appears designed to resolve the case. We then illustrate how and when prospective overruling should be applied by reference to cases involving the Commerce Clause and the nondelegation doctrine.

INTRODUCTION 1880 I. IMPROVING ON RULE 609 1881 A. Hawai 'i and Kansas 1882 B. Montana 1883 c. Drawing a New Model from an Evaluation of These Status 1883 1. [...]

TABLE OF CONTENTS INTRODUCTION I. JURISDICTIONAL SHIFTS A. Lock Out: Arbitration 1. "Contracting" Around Court Jurisdiction 2. Aggregate Litigation and Restricted Judicial Power 3. Winnowing Appellate Jurisdiction B. Lock In: [...], Jurisdiction is foundational to the exercise of judicial power. It is precisely for this reason that subject matter jurisdiction, the species of judicial power that gives a court authority to resolve a dispute, has today come to the center of a struggle between corporate litigants and the regulatory state. In a pronounced trend, corporations are using jurisdictional maneuvers to manipulate forum choice. Along the way, they are wearing out less-resourced parties, circumventing hearings on the merits, and insulating themselves from laws that seek to govern their behavior. Corporations have done so by making creative arguments to lock plaintiffs out of court and push them into arbitration, and failing that, to lock plaintiffs into federal court rather than state court, or to punt federal cases to administrative agencies that may lack the power or will to resolve the underlying issues in the case. These efforts have largely been successful. This Article offers a panoramic view of how over recent decades federal courts have acquiesced in a corporate-driven effort to leverage jurisdictional doctrines to their unique private advantage, and contends that together, these doctrinal changes constitute an inflection point in U.S. law and procedure. We argue that corporate adjudicatory practice has slanted judicial power in favor ofderegulatory efforts that undermine legal commitments to equality, dignity, and participation. The shifts in jurisdiction, which may seem to be merely technical and apolitical, are a core part of the architecture of what we call the oligarchic courthouse--one where courts as public institutions transform their procedures to meet private, corporate interests at the expense of public goals, thereby cementing economic power and translating it into concentrated political power that undermines the possibility of robust democratic life. The trends we describe in federal subject matter jurisdiction resonate with earlier corporate battles at the turn of the twentieth century. But the construction of today's oligarchic courthouse holds implications for democracy that are not simply a reprise of earlier corporate efforts. To show the scope of the implications, the Article steps back and clarifies why jurisdiction matters to democracy. Drawing on law and social mobilization literature, we argue that jurisdiction functions as a political resource that facilitates opportunities for democratic contestation and both reflects and shapes the openness and closedness of the state. Having centered jurisdiction in a larger account of democracy, we explore how the oligarchic courthouse, by entrenching economic power and narrowing participatory options for workers, consumers, and other less-resourced litigants, can be nested in a larger account of democratic decline in the United States.

CONTENTS I Introduction II Situating the Debate A The Constitutional Turn in Statutory Interpretation B The Constitutional Status of the Principle of Legality C Crawford's Account III An Unrecognisable Principle [...], As part of what can now be recognised as an increasing 'constitutional turn in the law and literature of statutory interpretation, Lisa Burton Crawford has recently provided an 'institutional justification for the principle of legality. There are, however, significant limits to Crawford's justification for the principle, which mean that the principle that survives on Crawford's account is so weak as to be barely recognisable. This responsive article identifies the limits to Crawford's account before posing an improved institutional justification for the robust principle of legality as it exists today.

CONTENTS I The Institutional Justification for the Principle of Legality II A Constitutional Turn? III Responding to Murphy's Critique IV Conclusion It is a great thing to see one's work [...], This article defends the 'institutional account' of the principle of legality published in a previous volume of the Melbourne University Law Review against the criticisms made by Julian R Murphy in this issue. The principle of legality is best understood as a judge-made tool for protecting judge-made law, justified by the constitutional role of the courts as both the makers of the common law and the interpreters of legislation. Intentionalist and democracy-enhancing' accounts of this interpretative presumption are both flawed, and it is far from clear that the alternative approach to the principle that Murphy briefly sketches would be legitimate or sound.

INTRODUCTION 1976 I. THE EMERGENCE AND EVOLUTION OF DEBT TEXTUALISM 1981 A. The Evolution of Corporate Debt Markets and the Waning Duty of Good Faith 1985 B. Private Equity and [...]

TABLE OF CONTENTS I. STRUCTURE AND CONSTITUTIONAL GOVERNANCE: PROMISE VERSUS PRACTICE 414 II. THE FORCE AWAKENS: STANDING UP FOR STRUCTURE AND THE REMEDY PROBLEM 416 III. JUDICIAL POWER, SEPARATION OF [...]

INTRODUCTION I. GOVERNMENTAL SOVEREIGN IMMUNITY AND BUSINESS ENTITIES A. Sovereign Immunity B. United States Economic Activities and Immunity C. State Economic Activities and Immunity II. INDIAN NATIONS' SOVEREIGNTY, SOVEREIGN IMMUNITY, [...], American Indian reservations are the poorest parts of the United States, and a higher percentage of Indian families across the country live below the poverty line than any other ethnic or racial sector. Indian nations and Indian peoples also suffer from the highest unemployment rates in the country and have the highest substandard housing rates. The vast majority of the over three hundred Indian reservations and the Alaska Native villages do not have functioning economies. This lack of economic activity starves tribal governments of the tax revenues that governments need to function. In response, Indian nations create and operate business entities to bring jobs and income to Indian Country, improve the standard of living for their citizens, and earn profits to help fund their governments. As constitutionally recognized governments, Indian nations possess inherent sovereign powers, including sovereign immunity wherein they cannot be sued by anyone (except the United States) or in any court unless the tribe consents. Their sovereign rights, and especially sovereign immunity, assist Indian nations to be successful and profitable in their economic endeavors. In the last few decades, however, state and lower federal courts have interfered with tribal sovereign decisions and sovereign immunity. These courts have imposed onerous and even outrageous requirements on tribal governments that violate well-recognized principles of efficiency, profitability, and common sense. These court decisions are defeating the very reasons Indian nations operate business concerns. In contrast, the United States and the states engage in a wide array of economic activities and they benefit from the protections of sovereign immunity. Those governments operate almost totally free of judicial restraints on how they establish, manage, and operate their businesses. Indian nations and their legislative and executive decisions should be treated with the same judicial respect and deference that state and federal legislative and executive branches receive. This Article describes and critiques the improper approach many state and lower federal courts have taken in forcing tribal governments to create, manage, and operate their economic entities. The Article argues that Indian nations, the U.S. Supreme Court, and Congress should not tolerate this judicial overreach and infringement on the sovereign rights of Native governments. The Article briefly lays out four possible strategies Indian nations, Congress, and the Supreme Court should consider to prevent this judicial activism. The very future of Indian Country as viable places where Indigenous governments, peoples, and cultures can survive and thrive is at issue.

ARTICLE CONTENTS INTRODUCTION 2546 I. AU RE LI US AND THE APPOINTMENTS CLAUSE: A "ROUGH "ARTICLE III ANALOGY 2561 II. UNEARTHING AURELIUS'S ARTICLE III PROBLEM 2566 A. Article Ill's "Exceptions": [...], The Supreme Court's unanimous decision upholding the appointments structure of Puerto Rico's controversial Financial Oversight and Management Board in FOMB v. Aurelius has, to date, yielded commentary fixated on what the Justices did not say. The bulk of that commentary criticizes the Court for declining to square up to and overturn the Insular Cases, the series of early twentieth-century decisions holding that the Constitution does not fully apply to Puerto Rico and other "unincorporated" possessions populated by "savages" and persons of "uncivilized race." However, Aurelius teaches that the core constitutional problems of territorial exceptionalism and status manipulation run far deeper than the doctrinal framework of the Insular Cases--such that those cases' ceremonious judicial overthrow is unlikely to spell an end to the harms of the legal order they represent. Observing the Aurelius Court's inclination to erase overseas expansion from its account of Article III doctrine, this Article questions the wisdom of urging judicial overthrow of the Insular Cases without a coherent rubric for the many doctrinal universes that might emerge from such an intervention. Together, the framing problems on display in Aurelius and the lessons from the recently overturned Japanese-internment case Korematsu v. United States suggest that although the Insular Cases are plainly indefensible, ill-considered judicial intervention will pose a grave threat to procedurally legitimate self-determination and to path-dependent interests with roots in that troubled framework. This Article reorients a conversation inclined to view judicial overthrow of the Insular Cases as an end in itself toward more informed and productive judicial engagement that secures legal recognition of territories' agency in charting their own future. Formally condemning or overruling the Insular Cases will mean little if judges fail to account for the threshold ambiguities enabling territorial status manipulation across constitutional domains, which Aurelius shows can be effected with or without express reliance on the Insular Cases or the Incorporation Doctrine. Ulti-matelv, this Article proposes a conversation with Federal Indian law as a starting point for theorizing judicial engagement with the Insular Cases and the so-called "law of the territories."

INTRODUCTION 2058 I. EQUITY'S ESSENCES 2060 II. FUSION AND FEDERALISM IN THE ANTEBELLUM REPUBLIC 2064 A. Early Statutes and Anti-Eusion in Congress 2065 B. State Codes and Anti-Eusion at the [...], The United States has had a dual court system since its founding. One might expect such a pronouncement to refer to the division between state and federal courts, but in the early republic the equally obvious referent would have been to the division between courts of common law and the court of chancery--the distinction, that is, between law and equity. This Essay sketches a history of how the distinction between law and equity was gradually transformed into a doctrine of federalism by the Supreme Court. Congress's earliest legislation jealously guarded federal equity against fusion with common law at either the state or federal levels. The antebellum Supreme Court obligingly adopted a strongly anti-fusion stance and took pains to protect federal equity from experimental state-level reforms. In the midst of Reconstruction, Congress reconfigured the ways federal equity would intermix with state law and legal process. But in the twentieth century, Supreme Court doctrine set aside the well-documented legislative history of Reconstruction statutes in favor of a mythic retelling of the 1790s that reduced equity to a principle of federalism. This judicially invented historical narrative has led to a peculiar asymmetry in practice today, where it has become surprisingly easy for federal courts to equitably restrain the other federal branches but significantly difficult for them to redress even extreme violations of federal rights at the slate and local level.

INTRODUCTION Equity traces its genesis to kingly power. (2) But "in our system of government... [w]e have no king." (3) Who or what, if anything, inherited the role of the [...], Equity traces its genesis to kingly power. But the new American constitutional order shattered the crown and left equity unanchored. Who or what, if anything, inherited the role of the sovereign in federal equity (1)? Is the sovereign the executive branch--or is it Congress? Is it "the United States" or "the people of the United Slates" (1)? However we conceive of the sovereign, is the sovereign entitled to special deference in a federal court of equity--or to the reverse? Federal courts have not arrived at consistent answers to these puzzles. They have vacillated on who the sovereign is. And they have vacillated on whether the sovereign is entitled to equal, better, or worse treatment from equity than other litigants receive. If equity is, like spacetime, our law's background field--a "gloss written round our code," in Maitland's description--then sovereign power is a star so massive that it warps that field, shrinking parts of it and expanding others. This Essay, a contribution to a Symposium on the federal equity power hosted by the Notre Dame Law Review, canvasses the varying approaches that federal courts in equity have taken towards the sovereign. It then explores some implications of equity's treatment of the sovereign for equitable doctrine and for our understanding of Article Ill's reference to "Cases, in... Equity. "How to conceive of the sovereign in equity in a government without a sovereign was a problem that challenged the members of the first Congress and the first sitting Justices; it is a problem that continues to lurk in the law today.

For two centuries, common lawyers have talked about a "cause of action." But "cause of action" is not an organizing principle for equity. This Article shows how a plaintiff gets [...]

INTRODUCTION 244 I. THE NONDELEGATION DEBATE 252 II. DELEGATING THE REMISSION POWER 260 A. Remission and Revenue 262 B. Locating Remission 266 C. Affirming Remission 270 D. Remission and Discretion [...], Nondelegation originalism is having its moment. Recent Supreme Court opinions suggest that a majority of Justices may be prepared to impose strict constitutional limits on Congress's power to delegate policymaking authority to the executive branch. In response, scholars have scoured the historical record for evidence affirming or refuting a more stringent version of nondelegation than current Supreme Court doctrine demands. Though the debate ranges widely, sharp disputes have arisen over whether a series of apparently broad Founding-era delegations defeat originalist arguments in favor of a more demanding modern doctrine. Proponents--whom I call "nondelegationists"--argue that these historical delegations can all be explained as exceptions to an otherwise-strict constitutional limit. As this Article shows, it is highly doubtful that the Founding generation thought of delegation in such categorical terms. The evidence nondelegationists cite in favor of their preferred classifications--systematically assessed here for the first time--is remarkably thin. More importantly, this Article highlights how, for the Founding generation, building the administrative capacity needed to fulfill the national government's responsibilities was not a quest to trace out hard constitutional boundaries between the branches. It was a dynamic and improvisational experiment in governance, in which Congress sought to mobilize its limited resources to meet the myriad challenges the new nation faced. To recapture early delegation's dynamism, this Article focuses on the Remission Act of 1790. It gave the Secretary of the Treasury broad and unreviewable authority to remit statutory penalties for violations of federal law governing maritime commerce--power a strict nondelegation principle would not have allowed. This arrangement was not the obvious choice, and Congress considered vesting this power in a range of institutional actors before settling on the Secretary. Yet despite deep concerns over the wisdom--and even the constitutionality--of concentrating too much power in the hands of a single executive branch officer, Congress repeatedly affirmed this discretion, and the early Secretaries (including Alexander Hamilton) did not hesitate to use it. This was a pattern Congress repeated elsewhere, making early delegations of varying breadth across the spectrum of federal administration. This experiment in governance was not easy, nor was it free from controversy. Disputes over how and where to allocate governmental authority were frequent and contentious. But if legislative debates occasionally sounded in a constitutional register, overwhelmingly they turned on the kinds of practical considerations that animated Congress's deliberations over the Remission Act. When it came to designing a workable administrative system for the new federal government, delegation's boundaries were apparently quite expansive.

I INTRODUCTION Class actions are protracted and resource intensive. Accordingly, legal costs and disbursements associated with class proceedings are high. (1) Class representatives who initiate class proceedings on behalf of [...], Common fund orders ('CFOs') have had a significant effect on Australian third-party-funded class actions by requiring all class members to make a contribution to the third-party litigation funder's fee in the event of a successful outcome. This altered past practice whereby only class members who had contracted with the litigation funder would be liable for such a contribution. However, in a 5:2 decision in BMW Australia Ltd v Brewster (2019) 94 ALJR 51 ('Brewster'), the High Court cast doubt on CFOs, determining that neither s 33ZF of the Federal Court of Australia Act 1976 (Cth) nor s 183 of Civil Procedure Act 2005 (NSW) provided a legal basis for making CFOs at the outset of proceedings so as to secure litigation funding support. In late 2020, the Commonwealth Parliamentary Joint Committee on Corporations and Financial Services recommended that legislation be enacted to 'address uncertainty' arising from Brewster in a manner that would enable CFOs to be made at settlement or judgment. In this article, the authors canvass normative arguments as to the merits of CFOs and compare the alternative practice of making funding equalisation orders. They also consider the related issue of courts setting overall funding commissions. Given the possibility of legislative intervention, they also review arguments as to the potential constitutional validity of CFOs, a matter that was raised, but received very limited treatment from, the High Court in Brewster.

I INTRODUCTION Constitutional law affects all members of society--it fundamentally shapes the way that society functions by ensuring that 'all power of government is limited by law'. (1) Judges, practitioners [...], The key actors in the legal profession--judges, legal practitioners and the academy--each have roles to play in influencing and shaping the development of Australian constitutional law. This article addresses the importance of those key actors taking their own roles, and the roles of each other, seriously. It does so by examining three core themes--or threads--running through the fabric of Australian constitutional law: facts, framework and the judicial function. That examination reveals the importance of judges taking the role of judging as seriously as they do in shaping Australian constitutional law, but also the importance of practitioners and the academy understanding the judicial role, as well as their own roles, in helping to shape Australian constitutional law. In the end, judges, legal practitioners and academics travel the same road. Each brings unique contributions to the unceasing development and shaping of the mosaic which is Australian constitutional law.

Abstract This case note examines the effect of the High Court of Australia decision in Bums v Corbett in which a majority of the Court identified an implied limitation in [...]