Sharing-economy companies vigorously fight any suggestion that their workers are employees rather than independent contractors. The arguments on which they rely vary, including the heightened flexibility for workers that their platforms provide, as well as contending that they represent a form of supplemental income instead of full-time work. Academics and worker advocates alike believe that these companies currently misclassify employees as independent contractors in order to exploit them. Others argue these companies cannot even afford to treat their workers as employees and pay them at least minimum wage. The debate around the employment status of sharing-economy workers largely concentrates on the financial aspects of the issue. Yet, another critical question looms in the background: is it even logistically feasible to give platform workers the rights that come with employee status?

This Comment will focus primarily on one aspect of this question: Are workers, platforms, and the government in a position to exchange the information needed to enforce employment rights? In particular, are Uber and its drivers capable of providing the information to the government and each other that would allow for the enforcement of wage- and-hour laws in court?

Modern debates over the scope of federal treaty-making power are framed by histories written at the turn of the last century. Some of these histories gave a legal imprimatur to the acquisition of the insular possessions and the exercise of colonial government over them. In so doing, the authors claimed that the American treaty-making power obviously contained the law-of-nations power to acquire territory and take an imperial sovereign’s title to it. Drawing on these histories, current disputes about the treaty-making power take a “dual-sovereignty” lens, where the central question is how to allocate treaty-making power between states and the federal government.

This Article contends that the canonical accounts of the treaty-making power erased a vibrant, contrary view of foreign-affairs federalism. This alternative theory argued that Tenth Amendment reserved sovereign powers to the people—the popular sovereign—that prohibited both the state and federal governments from exercising an “eminent dominion” over territory. This view rejected the dual-sovereignty perspective, instead arguing that neither the state nor federal government could acquire territory, cede territory, or hold original title to territory so acquired.

The Article traces this erased idea through bureaucratic archives, state and federal court decisions, and writing by elite legal scholars. In light of the contingency of this history, courts can be misguided when they rely on historically inflected arguments to describe the treaty-making power and the status of American territory that is not yet a state. Our canonical histories are often motivated glosses that shored up the imperialism of their era, and do not offer easy solutions to hard modern cases.

The University of Pennsylvania Law Review Online presents the fourth installment of “Independent and Accountable Courts in Perilous Times: Perspectives from the Academy, the Bench, and the Bar.” Now the series gains perspective from a practitioner in the courts with Michael Traynor’s response, “Some Friendly Suggestions for the Federal Judiciary About Accountability.” In this essay, Traynor focuses on the fundamental necessity of independent and capable judging and the current weakening of political safeguards meant to bolster independent and capable judging. Because of this weakening and recent events that have highlighted it, Traynor argues that new safeguards must be put in place by the judiciary itself in order to retain its independence at a time when it is most needed.