Article

Through the Looking Glass: The Confederate Constitution in Congress: 1861-1865

When the Confederacy died—along with some six-hundred-thousand Americans, Northern and Southern, in one of the greatest man-made catastrophes of all time—the Constitution of the Confederate States died as well. But for a little more than three years, it had served (de facto, if not de jure) as fundamental law for the Southern states. Based on the U.S. Constitution, with alterations designed to reflect the Southern point of view, it provides a tailor-made subject of comparative study: a source of alternative interpretation of often identical terms and a trove of changes in phrasing that cast light on the provisions they were meant to replace or define. From the standpoint of the United States, the entire enterprise was pretty clearly unconstitutional; for Article I, Section 10 flatly forbade any of the United States to enter into “any Treaty, Alliance, or Confederation.” By the time of secession, however, most Southerners—including those like Alexander Stephens who argued against it—believed the Confederacy to be constitutional. They claimed for the Confederacy both the revolutionary legitimacy that the original states had claimed when they asserted their right of self-government against Great Britain and the legal legitimacy that the Constitutional Convention had claimed in abandoning the Articles of Confederation.

The aim of this Article is to examine the Confederate Constitution from the Confederate point of view as one more little-known chapter in the continuing saga of constitutional interpretation in North America. It begins with a description of the Constitution itself. There follows a detailed examination of issues directly pertaining to the Civil War, including the raising and support of armies, with particular emphasis on a remarkable proposal near the end of the war to arm and free slaves. The Article then proceeds to a survey of questions of individual rights, focusing on, among other things, military justice, the suspension of habeas corpus, and the imposition of martial law. Next comes an investigation of separation of powers questions, seen largely through the lens of President Jefferson Davis’s vigorous use of the veto power. The Article then turns to financial and judicial matters, considering, inter alia, the strange case of the missing Supreme Court. A collection of odds and ends completes the constitutional portrait, and the Article closes with a trenchant opinion of the Attorney General on the dissolution of the Confederacy itself.

Corporations, Society, and the State: A Defense of the Corporate Tax

This Article attempts to provide the first comprehensive rationale for defending the current corporate income tax. It argues that the usual reasons given for the tax (primarily as an indirect way of taxing shareholders, or alternatively as a form of benefit tax) are inadequate. It then explains what the original rationale to adopt this tax was in 1909, namely to regulate managerial power, and that this rationale stems from the “real” view of the corporation, which was the dominant view throughout the many transformations underwent by the corporate form from Roman times to the present. Turning to normative argument, the Article then argues that the regulatory rationale given for taxing corporations in 1909 is still valid, since similar social conditions continue to exist, and in fact is strengthened by the rise of multinational enterprises. Finally, the Article argues that this rationale is necessary from a normative perspective to support the fight against the two crucial current threats to the corporate tax posed by the corporate tax shelter and tax competition phenomena.

Exclusion and Property Rules in the Law of Nuisance

This Article offers a theory of nuisance law based on information costs. Like trespass, much of the law of nuisance relies on a strategy of exclusion in which rights are defined using low-cost signals like boundary crossings that are only indirectly tied to particular uses. Nuisance law also supplements and fine-tunes this Blackstonian package of entitlements by means of a governance strategy, which relies on signals more directly tailored to particular uses. The information-cost advantage of strategies close to the exclusion end of the spectrum helps explain why, despite repeated calls for more balancing, nuisance law focuses on who caused invasions of whose land. Also consistent with an exclusion strategy are the staying power of traditional nonreciprocal notions of causation and the virtual nonexistence in nuisance of Rule 4 liability rules, under which plaintiffs would be permitted to invoke the law to force the polluter either to abate or shut down upon payment of the polluter’s damages. Applying Hohfeldian analysis, the Article shows that the common law gives polluters at most a privilege to pollute and that Rule 4 does not refine the basic exclusion regime but rather undermines it. The general question becomes when to soften exclusion with governance and the Article concludes by arguing that, in situations such as oil and gas fields and Boomer-style pollution cases with numerous victims, only small judicial governance-style safety valves are necessary, especially if legislative and administrative solutions are forthcoming. More generally, the information-cost theory of nuisance brings the utilitarian and corrective justice approaches to nuisance closer together. Nuisance law is not a mess or mystery but does contain within it the inflection point between exclusion and governance.

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