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Abstract:
This article addresses the theoretical justifications for limited liability and the exceptions to limited liability under the various veil piercing doctrines. In particular, the article considers whether veil piercing is appropriate in regulated industries such as insurance and banking, which have comprehensive regulatory structures that are designed to prevent much of the conduct that veil piercing is designed to remedy. The article concludes that veil piercing is not justified under such circumstances because the economic costs outweigh any benefits.

piercing the corporate veil, limited liability, corporate veil, corporations

Abstract:
In order to gain new insights into the fundamental changes in the federal system made under the Constitution and the current debate over federalism, this article compares the federal structures established under the Constitution and the Articles of Confederation. It first discusses certain early models of political union that may have influenced the thoughght of the framers of the Articles and the Constitution. Many of the concepts underlying the federal structures of the Articles and the Constitution may be found in the works of various political writers with whom the framers were familiar. In particular, the concept of a division of sovereignty between a general government and subordinate governments was not novel. The article also examines the text of the Articles and Constitution, analyzing structural similarities and differences that are relevant in establishing their respective federal systems. Many of the provisions establishing the federal structure under the Constitution had analogues in the Articles. The article also applies social compact theories that were prevalent in the late eighteenth century in an attempt to gain greater understanding of the nature of the federal system established under the Articles and the Constitution. The analysis demonstrates a fundamental difference between the Articles and the Constitution: the latter represented a compact among both the people and the states, whereas the former represented a compact among the states alone. In other words, the Constitution represented merely a partial consoldiation of the states--it was not a compact among the people alone. Finally, the article applies this theory to several constitutional questions such as the constitutionality of secession and the proper interpretation of the enumerated powers of the general government.

Constitution, Articles of Confederation, federalism, natural law

Abstract:
This article addresses the constitutional concerns and costs and benefits associated with civil commitment for sexually violent predators. In particular, it focuses on Washington's civil commitment program, the oldest such program in existence in the United States and, indeed, the only program in the nation in which the constitutional parameters of the treatment program have been fully litigated. From the outset, Washington's civil commitment program has been the subject of significant litigation and in large measure that litigation has defined the scope of the constitutional rights of civilly committed individuals to constitutionally adequate treatment. At the same time it has demonstrated many of the problems associated with such programs and provides an important case study in assessing their costs and benefits. The article concludes that, in addition to the potential constitutional concerns regarding civil commitment, the costs of civil commitment appear to outweigh its benefits and that increasing criminal penalties for crimes of sexual violence may be a superior alternative.

civil commitment, constitutional rights, cost-benefit analysis, sex offenders, sexually violent predators,

Abstract:
This Article addresses the resolution of mass tort claims in bankruptcy, with a particular emphasis on one important mechanism available under the Bankruptcy Code, Section 157(b). Section 157(b) allows the district court presiding over a bankruptcy case to centralize all related claims for resolution within the bankruptcy proceedings. This is a particularly important procedural tool given the necessity of a centralized resolution of mass tort claims - one that has been increasingly utilized to resolve such claims on a global basis.

The Article discusses the essential aspects of mass tort litigation in the United States, the potential mechanisms for addressing mass tort liability as well as their shortcomings, the tools available within the bankruptcy system for resolution of mass tort claims, and the ability of bankruptcy courts to centralize all related claims for resolution in a single forum through litigation of common threshold issues of liability. The Article concludes that the bankruptcy system may succeed in efficiently and fairly resolving mass tort claims where other mechanisms have failed.

asbestos, bankruptcy, civil procedure, liability, litigation, mass torts, Section 157(b), single forum

Abstract:
This article argues that the effect of the proxy rules on corporate structure is not as straightforward as might be expected. Liberal proxy regulations do not necessarily result in greater shareholder activisim. Other nonlegal factors are important in determining the relative balance of power between management and shareholders. The article examines the proxy systems in Japan and Germany and makes comparisons with the United States. Among other things, the article observes that in the United States, although restrictions on shareholder communications have been eased, restrictions on management communications have not. This is at odds with the hypothesis that American populism has shaped the legal landscape in the United States in a manner that favors management and fragments ownership, as some commentators have maintained.

proxy, proxy regulation, proxies, proxy system, japan, germany, corporate law, Roe, corporate governance

Abstract:
This article attempts to demonstrate how principles that have been developed in the context of patent infrignment claims can be adapted and applied in the context of trade secret claims. The article maintains that courts should look more readily to the well-developed body of patent law in fashioning the rules governing damages in trade secret misappropriation cases. Adoption of such principles, modified where necessary to better fit the trade secret context, is likely to have the salutary effect of increasing the scrutiny given trade secret damages claims - weeding out those claims that are not sufficiently reliable to justify their submission to the jury.

Trade secret, trade secret misappropriation, damages, patent, apportionment, alternatives

Abstract:
This article analyzes the theory that political and historical forces have created a legal environment that has weakened shareholders and resulted in a relatively large degree of fragmentation of ownership. The article observes that shareholders desiring to exercise control over management may be able to contract around whatever legal rules are established, thereby evading the constraining influence these rules might have on corporate structure. One important example may be found in the venture capital industry. By contracting with managers, who are often desperate to acquire venture capital funding, venture capitalists seek concessions that allow them to exercise actual or, more frequently, potential control over management as well as constrain the activities of managers. In addition to significant board representation, venture capitalists often impose restrictive covenants governing managerial self-dealing and compensation, abuse of corporate opportunities and competition with the firm, new issues of stock, and disclosure of company information. The capital structure of the portfolio company also gives venture capital investors leverage over management, which may be used to conform managerial actions more closely to investor interests. Venture capital investors achieve these ends through contractual means despite a regulatory environment that may frustrate active investor control over corporate activities. The venture capital company therefore provides a potentially powerful rebuttal to the notion that political and historical forces have created legal rules that inevitably prohibit shareholders from exercising significant influence in corporate governance.

Abstract:
This article discusses the litigation regarding the Second Amendment currently pending before the Supreme Court. I argue that the narrow issue that is before the Court (whether the Second Amendment guarantees an individual right) is fairly straightforward and present arguments regarding the text and history of the amendment that suggest it guarantees a fundamental individual right. In the process, I critique the arguments that have been presented by the District of Columbia to the contrary.

constitution, constitutional law, second amendment, right to bear arms, Supreme Court, individual rights, District of Columbia, Heller

Abstract:
This article discusses application of the intracorporate conspiracy doctrine against corporations alleged to have conspired with their own employees to violate plaintiffs' civil rights. The article maintains that the doctrine should be applied in the civil rights arena to preclude actions under 42 U.S.C. 1985(3) against a corporation alleged to have conspired with its own agents acting within the scope of their employment. This conclusion is dictated by the text and legislative history of Section 1985(3); the common-law conception of a corporation as an artificial person, incapable of conspiring with itself; and the Supreme Court's decision in the Copperweld case, holding that there can be no intracorporate conspiracy between a parent corporation and its own subsidiary in the analogous area of antitrust law under Section 1 of the Sherman Act.

Intracorporate conspiracy, civil rights, original intent, conspiracy, 1985

Abstract:
This article reviews Randy Barnett's book, Restoring the Lost Constitution: The Presumption of Liberty (2004). The article maintains that the presumption of liberty that Professor Barnett outlines in his book may represent an oversimplification of the original meaning of the Constitution and its subsequent amendments. The article further concludes that, from a theoretical perspective, such a presumption may not be necessary to support the Constitution's legitimacy. To the extent traditional theories of constitutional legitimacy, such as popular consent, withstand Professor Barnett's critique, there is no need for a constitutional presumption of liberty.

Constitution, interpretation, liberty, libertarianism, Barnett

Abstract:
In Bell Atlantic Corp. v. Twombly, the Supreme Court issued a decision that has been described as nothing less than "startling". In a 7-2 decision, the Court provided an interpretation of the Federal Rules of Civil Procedure that has significantly increased the level of scrutiny that federal courts must apply in determining the sufficiency of the pleadings. While some have characterized the Court's decision as "vague" or poorly-reasoned, this article defends the Twombly decision as both a correct and welcome development in the law regarding the appropriate pleading standard under Rule 8(a). The article argues that the Court's decision is best interpreted as imposing a requirement of logical coherence on the pleadings: the allegations in the complaint if taken as true must be both necessary and sufficient to establish a cause of action. The article maintains that this interpretation of Twombly avoids many of the criticisms of the decisions made by courts and commentators to date.

Twombly, pleading, civil procedure, motion to dismiss

Abstract:
This article contends that there are strong historical and economic arguments in favor of limited liability for corporate shareholders that arise from the federal structure in the United States. Limited liability is an important tool for minimizing extraterritorial regulation. It allows each state to bar other states from imposing liability on corporations created in their respective states in a manner that deviates from the policy of the state of incorporation. Moreover, it allows states to compete as centers of corporate creation. Certain states have developed particularly stringent doctrines of limited liability and it is arguably no accident that such states are favorites for those seeking to incorporate. Likewise, States with stringent doctrines of limited liability may protect their corporations from the application of relaxed standards of tort liability found in other jurisdictions or procedural standards that threaten to impose significant and arguably unwarranted liability upon the corporate entity. Plaintiffs under such circumstances will find themselves limited to the assets of the corporation even though they may be able to establish entitlement to far greater sums under the laws of their own jurisdictions. This aspect of limited liability has become even more important given the recent increase in forum shopping and the recognition of certain jurisdictions as magnets for claims that would not succeed elsewhere. Moreover, it explains the continuing vitality of limited liability in the context of involuntary tort creditors, which has been the focus of significant academic criticism.

Federalism, limited liability, piercing the corporate veil, shareholders, corporations, extraterritorial regulation, incorporation, tort liability, forum shopping, involuntary tort creditors

Abstract:
This article provides a textualist analysis of the separation of powers embodied in the first three articles of the Constitution. The article concludes that, while the framers did indeed view it as critical that there be a unitary executive established under the new government, and that particular executive powers not depend on the will of multiple individuals for their exercise, in particular enumerated situations they did not hesitate to delegate particular powers traditionally thought to be executive in character to the legislative branch of government. Thus, the constitutional framework does not leave the executive power as traditionally understood wholly undivided. Nonetheless, the situations in which the legislative branch may exercise such powers are enumerated and well defined.

Constitution, separation of powers, executive power

Abstract:
This Article addresses the Supreme Court’s recent preemption decision in Wyeth v. Levine. In Wyeth, the Court held that the Food and Drug Act did not preempt a state law tort suit alleging that the labeling for an anti-nausea medication, Phenergan, failed to adequately warn about the risks associated with IV-push administration of the drug. Already, Wyeth has been interpreted by some as sounding the death knell for the preemption doctrine in the context of pharmaceutical products. However, a careful analysis of the Court’s decision indicates that this is far from the case. The majority underscored that its decision was a 'narrow' one based largely on the facts and circumstances before it. In particular, the Court made a point of noting that the record was devoid of evidence that the particular risks at issue had actually been considered by the FDA and that the defendant had thus failed to show that there was an actual conflict between FDA regulation and the state law tort suit. The majority’s analysis therefore suggests that state law tort suits based on an alleged failure to warn are preempted in cases in which the FDA has specifically considered the particular risks at issue and has determined that the pharmaceutical product’s labeling adequately warns of those risks. I argue that the ruling thus construed has significant benefits. As the Court has repeatedly recognized, there is an inherent tension between the congressional establishment of a federal regulatory regime for the labeling of pharmaceuticals and medical devices by experts at the FDA and allowing a jury of ordinary citizens with no specialized expertise to render their own judgment regarding, and in effect overrule, such expert determinations. As several members of the Court have noted, there is a potential danger in allowing these expert decisions to be undermined by state court juries. Moreover, such an outcome may have undesirable indirect effects, such as raising the prices of pharmaceutical products to satisfy state court judgments that are not warranted based on the best available scientific evidence and the potential confusion and inconsistency that may result with juries in fifty-two separate jurisdictions imposing different standards concerning what constitutes appropriate labeling. The Court’s decision properly balances these competing considerations.

preemption, Wyeth v. Levine, civil litigation, constitutional law

Abstract:
This article compares and contrasts the modern American jury with the civil law mixed court of professional and lay judges. The article concludes that several modifications could be made in the structure and function of the American jury in both civil and criminal trials in order to enhance the jury's ability to discover the truth and deliver justice. The more inquisitorial systems of the civil law jurisdictions may serve not only as a model for a more active judiciary, but also as a model for a more active role for the lay participants in the adjudicatory process. In the civil law law jurisdictions, this role is fulfilled by lay judges empaneled with professional judges on a mixed court. Here, in the United States, it may be fulfilled by members of the jury.

Jury, jury reform, mixed court, lay judges, civil law

Abstract:
This article offers an analysis of the original meaning of the Establishment Clause. The thesis of this article is that the framers understood the term establishment in a very technical sense. Establishing a religion was essentially equivalent to granting a special corporate charter to a particular religious denomination. In the eighteenth and nineteenth centuries, states often granted corporate charters that were accompanied by exclusive privileges or monopolies that prohibited others from engaging in certain businesses. This was no different in the case of organizations that had a religious purpose. Accordingly, in prohibiting Congress from issuing laws respecting an establishment of religion, the framers sought to prohibit the federal government from passing laws relating to such corporate charters. Because corporate law was at the time viewed as being solely the province of the states (it was the states, and not the federal government, that had the power to confer such corporate charters), this interpretation is consistent with the evidence indicating that the Establishment Clause was designed to function primarily as a jurisdictional provision -- i.e., the primary effect of the provision was to keep the federal government from interfering with the state governments' activities in the area of religion.

Establishment clause, first amendment, religion, originalism, corporate law, corporate charter, establishment

Abstract:
This article examines the evolution of the jury from its origins in England through its transportation to America. The article compares and contrasts the various historical models of the jury with the modern American jury. Although much has been written concerning the historical development of the English jury, surprisingly little has been written about the historical development of the American jury. In particular, the article concludes that consideration of historical practices in America may serve as a useful guide to future reform of the jury system as well as to the constitutional constraints that may be imposed on reform of jury procedures. The article further concludes that several modifications could be made in the strucuture and function of the American jury in criminal and civil trials in order to enhance the jury's ability to discover the truth and deliver justice without running afoul of constitutional constraints.

Jury, jury reform, history, legal history, constitution

Abstract:
This article reviews Philip Hamburger's book, "Separation of Church and State. Professor Hamburger argues in his book that the Establishment Clause has been re-interpreted due to changing political forces. The article concludes that Professor Hamburger's analysis of the Establishment Clause can be generalized to other areas of constitutional interpretation. From "due process" to "privileges and immunities" to "commerce," critical provisions of the Constitution are based on language that was understood by those who included it in the constitutional text to have a highly technical legal meaning. Over time, however, much like the concept of "establishment," such terms have been particularly subject to re-interpretation in the face of prevailing political forces. Accordingly, Professor Hamburger's analysis represents an example of a more general phenomenon: the susceeptibility of technical legal terminology to shifiting interpretation when confronted with powerful social and political forces that are at odds with the original meaning.

constitution, religion, establishment clause, separation of church and state, philip hamburger, constitutional interpretation

Abstract:
This article contains a review of Professor Richard Nagareda's recent book, Mass Torts in a World of Settlement. Nagareda's premise is that parties have moved away from litigation and toward procedures that are more administrative in nature to resolve mass tort claims and that this move should be facilitated by putting in place a more formal structure to provide an administrative or regulatory solution. However, it is not clear that Nagareda's approach will be feasible in practice. Nor is it clear that it will provide a comprehensive solution to the problems plaguing mass tort litigation. More fundamentally, there are particular aspects of traditional litigation-based resolution of mass tort claims that are important and should not be abandoned. Much of the dysfunction with respect to mass tort claims resolution may be traced to a failure to implement litigation-based procedures, as opposed to being a result of such procedures. Accordingly, a strong case can be made that the traditional litigation-based paradigm should not be abandoned, but rather fortified.

mass torts, civil procedure, Richard Nagareda, litigation, settlement, administrative resolution

Abstract:
This article reviews David Skeel's book, Debt's Dominion: A History of Bankruptcy Law in America. Professor Skeel argues that the bankruptcy laws have been shaped by three primary forces: creditors, pro-debtor and other populist interests, and bankruptcy professionals. This article notes additional forces at work. For example, Professor Skeel himself catalogues a number of instances in which alterations in the bankruptcy system have been the direct result of judicial innovation, rather than legislative change. Moreover, it appears that in addition to the factors Professor Skeel emphasizes, in fashioning creative solutions to bankruptcy problems the courts have had a significant influence on the legislature's enactment of various bankruptcy reforms.

bankruptcy, David Skeel, bankruptcy reform, bankruptcy code, history

Abstract:
This paper argues that the Supreme Court's recent decision in Ashcroft v. Iqbal goes well beyond the Court's other recent pleading decision, Bell Atlantic Corp. v. Twombly, in increasing the scrutiny that must be applied by trial courts at the pleading stage. The Court's recent pleadings decisions recognize that, as the costs of litigation increase and the scope of discovery expands, the need for more stringent pleading standards increases. It is neither efficient nor fair to allow claims of dubious merit to proceed when doing so may lead to settlements that are not based on the underlying merits, but rather the potential costs associated with defending a lawsuit in our modern civil justice system. By elaborating on the standard for assessing whether allegations are conclusory, Iqbal presents a further evolution in the pleading standard under Rule 8 that is likely to increase the efficiency and fairness of modern civil practice. In addition, the decision provides further guidance regarding Twombly's plausibility analysis, rejecting attempts to limit that standard in ways that are inconsistent with the text and underlying purpose of the Federal Rules.

pleading, civil procedure, Rule 8, Rule 12(b)(6), Twombly, Iqbal, complaint

Abstract:
This article examines the natural law background of Section One of the Fourteenth Amendment. The article starts by examining the natural law foundations of the Privileges and Immunities Clause of Article IV, Section 2 of the Constitution, which served as a precursor for Section One. The article presents an analysis of the principles of natural law and the law of nations that informed the clause. The article next discusses the role of the Guarantee Clause of Article IV, Section 2 in providing substantive protection for the privileges and immunities of citizens. The clauses together guaranteed that certain common-law rights would be uniformly available throughout the country. Finally, the article discusses Section One of the Fourteenth Amendment in light of the conclusions reached regarding Article IV. The analysis shows that the provisions in Section One of the Fourteenth Amendment flow from a rich legal tradition and that the provision was intended to guarantee a core set of rights thought to be inherent in citizenship. The best interpreation of the Amendment is that it was designed to afford not only anti-discrimination, but also substantive protection for these rights. However, state legislatures remained free to regulate the mode or manner in which these rights were exercised.

Fourteenth amendment, privileges and immunities, article IV, guarantee clause, natural law, privileges or immunities, citizenship, constitution

Abstract:
This article critiques the Supreme Court's recent affirmative action decisions in Gratz and Grutter. It analyzes potential originalist analyses of the constitutionality of race-conscious affirmative action programs in university admissions as well as potential reasons why neither the parties nor the Court relied upon such analyses in evaluating the University of Michigan's admissions policies. I conclude that one may construct an originalist argument under which affirmative action programs might be validated, but such arguments face significant practical hurdles.

Fourteenth Amendment, Affirmative Action, Gratz, Grutter, Brown

Abstract:
This article reviews Walter Olson's Book, The Rule of Lawyers: How the New Litigation Elite Threatens America's Rule of Law. The articles discusses in which reform of the current civil justice system may be accomplished. It discusses Olson's suggestions, such as proposals in the way legal costs are assessed as well as restrictions on the pursuit of novel litigation strategies that are inconsistent with traditional principles of law. It also examines additional ways in which the forces at work within the current civil justice system can be implemented to introduce reform.

civil justice system, torts, litigation, legal reform, plaintiff lawyers, tort reform

Abstract:
This article analyzes the legal understanding regarding fundamental rights that was prevalent during the Nineteenth Century. The article notes that legal commentators drew from diverse sources, including not only English common law, but also from the Roman and continental legal systems. It also observes that the approach to interpretation was fundamentally positivist. While commentators spoke of unwritten law, they emphasized that it was at the bottom of the hierarchy of legal rules governing cases. Unwritten or natural law did not trump the plain language of the text that was being interpreted. Finally, the article applies the theoretical framework prevalent within the legal community at the time regarding fundamental rights to interpretation of the Fourteenth Amendment.

constitution, fourteenth amendment, natural law, John Norton Pomeroy, fundamental rights, citizenship, constitutional interpretation

Abstract:
This article explores the liberal theory presented by John Rawls in "Political Liberalism." The article discusses several of the assumptions underlying liberal theories and their implications. The article concludes that even if one accepts the assumptions of liberal models such as that of Rawls, they do not necessitate exclusion of religious and other comprehensive beliefs as grounds for public justification and choice. The article also argues that religious and nonreligious beliefs are epistemologically equivalent; therefore, any epistemological distinction between religious and nonreligious beliefs may not justify exclusion of religious beliefs as grounds for public justification and choice. Finally, the article develops a proposal for an alternative model governing the role of comprehensive doctrines in public discourse, focusing on the rights and duties of the listener in a liberal society. This approach emphasizes the right of the listener to information regarding justifications for public choices based on religious or other comprehensive doctrines.

constitution, religion, liberalism, john rawls, political liberalism, establishment clause

Abstract:
This article reviews Akhil Amar's book, The Bill of Rights: Creation and Reconstruction. It analyzes Amar's interpretation of the Fourteenth Amendment, its relationship to the guarantees found in the first ten amendments and his conception of the nature of those constitutional guarantees. The review concludes that Amar fails to explore the structural aspects of the reconstruction amendments and the intended relationship between the federal and state governments after their enactment. The historical record demonstrates that the framers of the Fourteenth Amendment intended to allow the states to remain free to regulate the mode or manner in which fundamental rights were exercised, thereby preserving important structural aspects of the original constitution.

Akhil Amar, federalism, fourteenth amendment, bill of rights

Abstract:
This article reviews Robert Nagel's book, The Implosion of American Federalism. It discusses Nagel's critique of the prevailing view that there has been a revolution in the Supreme Court's jurisprudence regarding the federal system. While Nagel is likely correct that the Court's jurisprudence does not represent a revolution, his contention that increasing centralization will inevitably lead to repression is likely wrong. It is as likely to lead to inefficiency in thenational government given the growth of the vast federal bureaucracy. Moreover, the article argues that it is not too late for the Court to implement bright-line legal rules that may prevent further erosion of the federal system. In particular, the article discusses the Court's Commerce Clause decisions and offers an originalist interpretation of the Clause that would preserve the federal system.

federalism, commerce clause, Nagel

Abstract:
This article offers an analysis of the original meaning of Section One of the Fourteenth Amendment. It attempts to explain the three clauses in Section One as an outgrowth of natural law theories, and in particular those of John Locke. The article concludes that the Privileges or Immunities Clause of the amendment was intended to provide a guarantee for certain fundamental capacities of citizenship thought to exist anterior to the formation of government -- capacities flowing from either the absolute rights of individuals or the relative rights that arose as a result of their entering into a compact among themselves. It concludes that the Due Process Clause was most likely intended to provide solely what today we might term a procedural guarantee, leaving the substantive work to the other two clauses. Finally, it concludes that the Equal Protection Clause was likely intended to provide a guarantee that the States would protect all citiens equally through the exercise of their police powers. These three clauses closely track three imperfections or defects Locke identified in the state of nature: 1) the absence of a known and established standard of right and wrong; 2) the lack of a known and indifferent judge; and 3) the absence of power to back and support judgments and give them due execution. Section One may be viewed as an attempt to remedy these three defects and ensure that the bargain entered into under the social compact is honored by the States.

Fourteenth amendment, equal protection, due process, privileges and immunities, privileges or immunities, John Locke, social compact, social contract, natural law, constitution

Abstract:
This article discusses the Supreme Court's treatment of the Privileges or Immunities Clause of the Fourteenth Amendment in Saenz v. Roe. The article explores the possible effects should the Court decide to abandon the due process clause as a source of rights under the amendment and look to the privileges or immunities clause. In particular, it addresses the effects on the Court's enumeration of fundamental rights and the level of scrutiny applied to alleged violations of those rights.

Privileges and immunities, privileges or immunities, fourteenth amendment, Saenz, due process, strict scrutiny

Abstract:
This Article discusses the Supreme Court's decisions in McCreary and Van Orden, outlining the themes that emerge from the various opinions issued in those cases and their relevance in future disputes under the Establishment Clause. In particular, this section addresses the objective test that emerges from the Court's twin decisions, as well as the strong deference accorded displays that have historical as well as religious significance.

The Article also discusses the circuit court decisions that have been issued in the wake of the Supreme Court's decisions. It assesses the extent to which lower courts have remained faithful to the teachings of McCreary and Van Orden. What emerges from these initial decisions is a heavy reliance on the historical analysis articulated by the Court in Van Orden and a strong deference to state and local officials regarding the propriety of displays that contain religious symbols that also have historical meaning. Indeed, some courts have gone so far as to hold that the Supreme Court has effectively abolished the three-part test of Lemon v. Kurtzman in cases involving religious displays that have historical significance.

religion, establishment, establishment clause, constitutional law, ten commandments

Abstract:
This article provides an analysis of the commerce power in light of contemporaneous authorities on the law of nations, and in particular the writings of Emmerich Vattel. Vatel's treatise, The Law of Nations, was a widely-read contemporaneous reference source on international law when the Constitution was drafted and ratified. The article provides an overview of the structural similarities and differences between the international system and the federal system established under the Constitution. It then discusses Vattel's treatise, focusing on his treatment of principles governing commerce among sovereign nations in the international system. It then draws parallels between the principles identified by Vattel and those embodied in the Constitution. Most significantly, Vattel's work underscores the notion that interstate commerce was viewed as being primarily a relationship among sovereign states, not individuals. Thus, as is reflected in the text of the Commerce Clause, the congressional power was directed to sovereign states, not regulating individuals directly. The article analyzes the Court's Commerce Clause jurisprudence in light of this theory. While the Court's dormant Commerce Clause doctrine is consistent with many of the principles found in the works of writers on the law of nations, its affirmative Commerce Clause decisions stray from the original meaning of the Clause and warrant a rethinking of the Court's affirmative Commerce Clause cases.

Constitution, commerce clause, interstate commerce, Vattel, law of nations, international law

Abstract:
This article reviews Daniel Dreisbach's book, Thomas Jefferson and the Wall of Separation Between Church and State. The review discusses the relevance of Jefferson's views in the constitutional debate over the Establishment Clause. There are a variety of reasons one may conclude that Jefferson's views fare of only limited relevance in determining the original meaning of the establishment provision.

constitution, constitutional, Thomas Jefferson, Daniel Dreisbach, establishment clause, religion

Abstract:
This review discusses Professor Redish’s recent book on class actions, Wholesale Justice: Constitutional Democracy and the Problem of the Class Action Lawsuit. Professor Redish argues that many aspects of modern class action practice raise serious constitutional concerns and offers proposed reforms to address these problems. This review generally agrees with Professor Redish’s thesis, and offers additional ways in which his theories may be applied in class action practice.

civil procedure, constitutional law, class actions, due process