Featured Articles in Volume 58, Issue 3 (2009)

An Originalist Defense of Substantive Due Process: Magna Carta, Higher-Law Constitutionalism, and the Fifth Amendment

Frederick Mark Gedicks*

One widely shared understanding of the Due Process Clause in the late eighteenth century encompassed judicial recognition of unenumerated substantive rights as limits on congressional power. This concept of “substantive” due process originated in Sir Edward Coke’s notion of a “higher law” constitutionalism, which understood natural and customary rights as limits on crown prerogatives and parliamentary lawmaking. The American colonies adopted higherlaw constitutionalism in their revolutionary struggle and carried it with them through independence and constitutional ratification. Natural and customary rights limited the exercise of legislative power in the late eighteenth century through the normative definition of “law” inherited from the classical natural law tradition, which maintained that an unjust law was not really a “law.” American judges and attorneys did not consider legislative acts that violated natural or customary rights to be real “laws,” regardless of their compliance with a positivist rule of recognition. Accordingly, deprivations of life, liberty, or property effected on the authority of such acts did not comply with the “law” of the land or the due process of “law” because regardless of the process such acts afforded, the deprivations they imposed were not accomplished by a true “law.” The classical understanding of “law” and the substantive understanding of due process that it underwrote are evident in legal dictionaries and in judicial decisions and arguments of counsel during the years immediately before and after ratification of the Bill of Rights in 1791.

Can There Be a Democratic Jurisprudence?

*Jeremy Waldron

There are lots of books written about football, by which I mean the game played in American high schools and colleges and organized at a professional level by the NFL. (Sometimes it is called “gridiron,” and foreigners call it “American football.”) There are also lots of books written about football, by which I mean the game Americans call “soccer,” played all over the world by teams like Manchester United and Dynamo Kiev. There are lots of books, too, written about football, which was what we used to call Rugby Union in New Zealand when I was growing up. And no doubt there are many books written about football and also books written about football (in the senses in which “football” is used colloquially to refer to Rugby League and Australian Rules, respectively). These books are tremendously interesting, especially to the devotees of the respective codes. Rugby fans, soccer fans, and American football fans want to read about their favorite teams, about their premier competitions, and about the rules, tactics, coaching techniques, and philosophies of these various games.

There are very few books written about football as such—that is, football as something which American football, soccer, rugby union, rugby league, and Australian Rules have in common. There are some history books that trace the development of the various codes; and those are interesting. But I do not think many people would be interested in anything general on the rules and philosophy of football as such. It is not impossible that there could be such books and the task of writing them is not incoherent: “football” is not a homonym as between the various codes mentioned in the previous paragraph.

How To Prevent Hard Cases from Making Bad Law: Bear Stearns, Delaware, and the Strategic Use of Comity

Marcel Kahan*

Edward Rock**

The Bear Stearns–J.P. Morgan Chase merger placed Delaware between a rock and a hard place. On the one hand, the deal’s unprecedented deal protection measures—especially the 39.5% share exchange agreement—were probably invalid under current Delaware doctrine because the measures rendered the Bear Stearns shareholders’ approval rights entirely illusory. On the other hand, were a Delaware court to enjoin a deal brokered by the Federal Reserve and the Treasury Department, and arguably necessary to prevent a collapse of the international financial system, it would invite just the sort of federal intervention that would undermine Delaware’s role as the de facto provider of U.S. corporate law.

Faced with a choice between undermining the delicate and subtle balance struck between managers and shareholders and standing in the way of the imperatives of national and international economic policy, Delaware found a third way that avoided both horns of the dilemma: it took advantage of a pending New York action to stay the Delaware action and avoid making a decision. In this Essay, we tell this story, analyzing the doctrinal issues under Delaware corporate and procedural law, and discussing the implications of this episode for our understanding of the landscape of U.S. corporate lawmaking.