Ellen P. Aprill Volume 74, Issue 6, 1555-1620 The standard view of the relationship between government and the nonprofit charitable sector treats them as separate and distinct. But they are not. Numerous federal agencies have statutory authority to receive...
Interstate Immunity and the Uncompleted Constitution
Mark D. Rosen Volume 74, Issue 6, 1621-1682 In a recent decision, the Supreme Court held that “the founding generation took as a given” that states would be constitutionally immune to suit in the courts of sister states, overruling an earlier ruling that interstate...
“Engines of the Ruling Party”: The Establishment Clause and the Power Politics of “Managing Diversity”
Robert A. Destro Volume 74, Issue 6, 1683-1750 “Constitutional lawsuits are the stuff of power politics in America. The Court may be, and usually is, above party politics and personal politics, but the politics of power is a most important and delicate function, and...
Religious Liberty as a Judicial Autoimmune Disorder: The Supreme Court Repudiates Its Own Authority in Kennedy v. Bremerton School District
Andrew Koppelman Volume 74, Issue 6, 1751-1762 Today’s Supreme Court is so predisposed to find discrimination against religion that it declared it to be present in a case where the discriminator was obeying the Court’s own commands. In Kennedy v. Bremerton School...
The Remains of the Establishment Clause
Ira C. Lupu & Robert W. Tuttle Volume 74, Issue 6, 1763-1812 The very first words of the Bill of Rights mark religion as constitutionally distinctive. Congress may not enact laws respecting an establishment of religion—in particular, acts of worship, religious...
The New Fourth Era of American Religious Freedom
John Witte, Jr. & Eric Wang Volume 74, Issue 6, 1813-1848 The U.S. Supreme Court has entered decisively into a new fourth era of American religious freedom. In the first era, from 1776 to 1940, the Court largely left governance of religious freedom to the...
Debt as Corporate Governance
Tomer S. Stein Volume 74, Issue 5, 1281-1330 Corporate law is dominated by an equity-only view of corporate governance that centers on management-shareholder dynamics. This Article expands the management-shareholder paradigm by developing a novel integrated theory of...
The Ethics of Defense Counsel’s Communications with Absent Class Members Before Class Certification
Candice Enders & Joshua P. Davis Volume 74, Issue 5, 1331-1352 Attention to how courts address the ethics of defense counsel’s communications with absent class members before class certification is valuable for two primary reasons. First, it provides insight into...
The Ethics Gap: MDL Leadership Versus the Attorney-Client Relationship
Lauren E. Godshall Volume 74, Issue 5, 1353-1372 Mass torts cases take up a massive swath of the nation’s federal court docket yet are governed by little to no substantive procedural laws. Instead, a host of regular practices for multidistrict litigation (“MDL”)...
Ethics by Appointment: An Empirical Account Obscured Sanctioning in MDL Cases
Roger Michalski Volume 74, Issue 5, 1373-1402 Ethical norms in litigation are policed through overlapping regulatory regimes. One of these regimes is internal to litigation and split into different components, including Federal Rules of Civil Procedure 11, 26(g), and...