Judicial elections in the United States have undergone a dramatic transformation. For more than a century, these state and local elections were relatively dignified, low-key affairs. Campaigning was minimal; incumbents almost always won; few people voted or cared. Over the past quarter century and especially the past decade, however, a rise in campaign spending, interest group involvement, and political speech has disturbed the traditional paradigm. In the “new era,” as commentators have dubbed it, judicial races routinely feature intense competition, broad public participation, and high salience. This Article takes the new era as an opportunity to advance our understanding of elective versus nonelective judiciaries.

The United States’s legal capacity to cure breaches of its international obligations appears deeply unsatisfactory. Adverse decisions by international tribunals are unlikely to have direct domestic effect, and treaties and domestic legislation rarely address domestic remedies for international breaches; the President’s foreign affairs powers are sometimes invoked to fill this gap, but their extent is uncertain. Drawing on one or another of these theories to resolve international breaches risks distorting the positive law or vesting the President with boundless authority— or, if such theories are found wanting, reinforces a discrepancy between our international obligations and our domestic law. The Take Care Clause affords a surprisingly well-tailored solution. This Article explains how the presidential take care authority addresses potential controversies involving compliance with judgments of international tribunals (like those of the International Court of Justice), international legislative decisions (such as Security Council resolutions), and finally, treaties affording no recourse to international mechanisms. By filling the gaps between treaty ratification and implementation, the take care authority reinforces congressional supremacy without forcing treaty obligations to founder upon it.

In Massachusetts v. EPA, the Supreme Court upheld Massachusetts’s standing to challenge EPA’s refusal to regulate greenhouse gas emissions from mobile sources. The majority and dissent disputed whether the science of global warming was sufficient to establish standing. Absent from both opinions was discussion of whether there would be standing if the science were uncertain but the potential harms large and irreversible. This Essay argues that “precautionary-based standing”— grounded upon a fundamental principle of environmental law, the precautionary principle—should apply in such cases.

This Note considers whether the U.S. Supreme Court should expand its commandeering doctrine to invalidate conditional preemption programs. It does so through the lens of section 216 of the Energy Policy Act of 2005, focusing on both formalist and functionalist accounts of the line between conditional preemption and commandeering. The Court’s formal bar on commandeering permits conditional preemption even though some conditional preemption schemes, such as section 216, threaten the very values that the Court uses to justify the bar on commandeering.

This Note analyzes the tension between anticipatory repudiation and reasonable certainty when both doctrines are applied to a long-term contract in a thin market. It shows that each doctrine is an efficient doctrine, but that as contractual term lengthens the doctrines begin to conflict and efficiency may be lost. This Note concludes by suggesting that a “best shot” rule for contract damage awards is a more efficient remedy than current doctrine and would enable courts to more accurately award damages in long-term contracts in thin markets.