Judicial Takings and the Course Pursued

This Note will argue that the constitutional holding of Erie Railroad Co. v. Tompkins requires that the takings protections of the Federal Constitution apply to state judge-made law as well as state statutes and administrative regulations. It will contend that Erie requires that the federal government not interfere with state separation-of-powers decisions, and that state courts be presumed to have the authority to make real law, binding as statute, on behalf of the states. Imbued with such power, in making law, state courts are at least capable of offending the takings protections of the Constitution. For the federal government to ignore such a capability would not only allow easy circumvention of the Takings Clause but also introduce an impermissible “exogenous factor into a state’s choice of the proper branch to make changes in property law” in violation of Erie’s constitutional holding. Though a daunting charge, answering the background-principles question is inherent in the complex enterprise of one sovereign policing changes in another sovereign’s laws. So long as state courts wield lawmaking power, exercising the will of the state by articulating new legal rules, and so long as states are prohibited from changing legal rules in ways that take private property for public use without just compensation, federal courts must take up the task.

Awards for Pain and Suffering: The Irrational Centerpiece of Our Tort System

When a petit jury in a civil tort action awards damages for pain and suffering, it does not award damages that compensate, or that indemnify, or that provide restitution to the injured party—the traditional functions of damage awards. Damages that are awarded for pain and suffering are probably intended as a pecuniary bonus or gift in an amount thought roughly to reference the pain suffered or expected to be suffered. But there seem to be no rational, predictable criteria for measuring these damages. For that reason, there are also no criteria for reviewing pain and suffering awards by the presiding judge or by an appellate court. Without rational criteria for measuring damages for pain and suffering, awarding such damages undermines the tort law’s rationality and predictability—two essential values of the rule of law. Yet it is this irrationality in awarding money for pain and suffering that provides the grist for the mill of our tort industry, which is now estimated to have grown to $200 billion. 

This Essay addresses the tension between the community’s desire, through the rule of law, to compensate injured victims for pain and suffering and the problems that have arisen in authorizing awards of damages that are irrationally quantified.

To address a problem that is so widely tolerated might be daunting, but I submit that the appropriate response need not be invented from scratch. There is a model from an analogous problem that can be explored and adopted in material respects. This model is shaped by the actions of the several States that have responded to the rise of punitive damages during the past fifty years. 

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.