16885 research outputs found
Sort by
Unleashing the Guarantee Clause Against the Spirit of Innovation
Get PDF[...] Of special significance is Madison’s defense of the Guarantee Clause in Federalist 43, in which he argued that the Clause is intended to prevent “aristocratic or monarchical innovations” by the states. This phrase is a critical clue to uncovering the full meaning of the Guarantee Clause. Yet scholars have mentioned it only in passing and divorced from its historical context, as part of apocryphal claims that the Clause supports radical modern causes. This is unfortunate because Madison’s phrase, properly construed, speaks volumes.
Preliminarily, the phrase shows that the Guarantee Clause was originally understood to prevent changes of a monarchical or aristocratical nature—not just the extreme (and, today, unlikely) situation when a state formally establishes an aristocracy or monarchy. It should therefore be obvious that we need not wait until a state crowns a king to find that it has violated the Clause. But just what did Madison, not known to choose his words carelessly, mean by “innovations?” As used by the Founders, the word was a term of art usually understood to mean, quite pejoratively, novel changes to the structure of government. Such innovations, especially when implemented under the auspices of an emergency, were strongly disfavored under the common law tradition. The Founding generation fully embraced this long-standing principle (which, for ease of reference, I will call the anti-innovation principle), including in the Declaration of Independence. Indeed, by 1787, the anti-innovation principle was deeply engrained in the American understanding of “Republican” government.
Viewed against this historical backdrop, a vital but long-neglected purpose of the Guarantee Clause comes into focus. As I will demonstrate, the Clause was originally understood to encompass the anti-innovation principle. This Article examines the evidence supporting this interpretation beginning, in Part I, with a review of the origins of the anti-innovation principle. Part II explores the refinement of the anti-innovation principle in the Colonial era. Part III turns to the emergence of a prototype of the Guarantee Clause in the Confederation era. Part IV discusses the drafting of the Guarantee Clause at the Philadelphia Convention. Part V brings us to the ratification debates relevant to the Guarantee Clause. The Conclusion sets forth my parting thoughts.
This abstract has been taken from the author\u27s introduction
Analog Analogies: \u3cem\u3eIntel v. Hamidi\u3c/em\u3e and the Future of Trespass to Chattels
Get PDFA symposium on great torts cases of the twenty-first century must include Intel Corp. v. Hamidi, the canonical case about whether unwanted e-mail spam sent to a company’s server could give rise to a trespass to chattels claim. While much has been written about Intel, in this Essay, we argue that Intel is as much of a classic for what it reveals about the old-fashioned tort as it is for its more closely examined ruling on “cybertrespass.” The dueling personal property analogies chosen by the majority and dissenting opinions in Intel reveal basic and fundamental disagreements about what sorts of conduct the traditional tort prohibits: specifically, when a plaintiff may obtain nominal damages or an injunction against a defendant’s contact with personal property when that contact does not have lasting physical effects. As we point out, this question arose in cases long before Intel and generated some discussion during the drafting of the First and Second Restatements of Torts. Now, the same question arises in Fourth Amendment law and the law of Article III standing, areas in which recent Supreme Court decisions have elevated trespass-tochattels analyses to renewed significance. Our Essay indicates the need for further development on open questions in the law of trespass to chattels, suggesting some ways that central tort-law notions like intentionality and custom might provide firmer bases for recognizing the harm in unwanted contact with things
Anti Trusts: Reforming an Excessively Flexible Legal Tool
Get PDFTrusts are one of the most flexible legal tools in lawyers’ arsenals, deployed for socially desirable uses ranging from supporting orphans to structuring complex investments. Trusts, however, are also used for a host of socially undesirable purposes, including restraint of trade, cheating creditors, establishing family dynasties akin to feudalism, and avoiding taxes. This negative litany shows that flexibility has a dark side, and these undesirable trust uses have accelerated in the last few decades. Creative lawyers continuously find novel uses for moldable tools like the trust. This Article argues that long experience and recent developments teach us that dark eclipses light for private trusts: the costs of undesirable innovations exceed the benefits of desirable ones. Applying a novel normative theory of flexible legal tools, this Article calls for fundamental reform of private trust law. With a small exception for financial investments, the current fully flexible private trust should be replaced with a much less flexible device, the Restricted Donative Trust, designed to prevent abusive uses while permitting desirable innovations
Disclosing ESG Matters: Advancing Nonfinancial Policy Through the SEC
Get PDFThis Note argues that mandatory ESG [environmental, social, and governance] disclosure would be a valuable step in the larger fight against the deleterious effects of climate change. First, standardized disclosure would provide investors a better understanding of the climate risks associated with their investments by increasing the quality of that information supplied. This standardization would be a valuable driver in corporate behavior because mandated disclosure tends to result in shifts in corporate behavior. Previous examples of disclosure for nonfinancial risks, such as disclosure relating to state sponsors of terrorism and use of conflict minerals, illuminate how mandating ESG disclosure will deflect the pitfalls of voluntariness.
First, Part I begins with the background of the SEC’s [Securities and Exchange Commission] efforts relating to climate change disclosure, as well as a general discussion of the current framework of disclosure. Next, this Note will examine in Part II the issue of materiality, because it weighs heavily in the discussion in adopting disclosure requirements. Parts III and IV review case studies of nonfinancial disclosures. The case studies include the following: (1) state sponsors of terrorism disclosure and (2) conflict minerals disclosure. This Note argues in Part V that, in light of past nonfinancial disclosure requirements, a mandatory disclosure framework for ESG concerns will enhance environmental disclosure’s clarity and utility to investors.
This abstract has been taken from the author\u27s introduction
America\u27s (Second) Best Idea: A Proposal for a Major Expansion of the National Park System
Get PDFThis Note will argue for a major expansion of the National Park Service and provide a framework for the implementation of such an expansion. Part I provides an overview of the National Park Service’s holdings and fundamental purpose and discusses how overcrowding negatively affects visitors, the resource, and the NPS mission, and argues for a stricter enforcement of the “impairment standard.” Part II outlines the way in which Congress and the president can create national parks. Part III proposes a major expansion of the national parks—both the expansion of existing park units and the creation of new ones—as the solution and discusses the legal, environmental, and social benefits of the proposal. Finally, Part IV discusses additional considerations for preserving the national parks, such as the provision of alternative transportation, the need for increased staffing, and the importance of pre-emptive management—all of which can help create a more equitable and sustainable National Park System for the future.
This abstract has been taken from the author\u27s introduction