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    Yale Law Journal: Volume 122, Number 5 - March 2013
    Yale Law Journal: Volume 122, Number 5 - March 2013
    Yale Law Journal: Volume 122, Number 5 - March 2013
    Ebook559 pages7 hours

    Yale Law Journal: Volume 122, Number 5 - March 2013

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    About this ebook

    One of the world's leading law journals is available as an ebook. This issue of The Yale Law Journal (the 5th of Volume 122, academic year 2012-2013) features new articles and essays on law and legal theory by internationally recognized scholars. Contents include:
    Article: "Commandeering and Constitutional Change," by Wesley Campbell
    Article: "Parallel Exclusion," by C. Scott Hemphill & Tim Wu
    Essay: "Reconceptualizing the Burden of Proof," by Edward Cheng

    In addition, this March 2013 issue contains substantial student research in the form of Notes: one on administrative law, using a federal common law framework to fill a void for state agencies in implementing federal law, and another on evaluating attorney misconduct claims after the Maples case.

    LanguageEnglish
    PublisherQuid Pro, LLC
    Release dateDec 24, 2013
    ISBN9781610278959
    Yale Law Journal: Volume 122, Number 5 - March 2013
    Author

    Yale Law Journal

    The editors of The Yale Law Journal are a group of Yale Law School students, who also contribute Notes and Comments to the Journal’s content. The principal articles are written by leading legal scholars.

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      Book preview

      Yale Law Journal - Yale Law Journal

      THE YALE LAW JOURNAL

      MARCH 2013

      VOLUME 122, NUMBER 5

      Yale Law School

      New Haven, Connecticut

      Smashwords edition: published by Quid Pro Books, at Smashwords.

      Copyright © 2013 by The Yale Law Journal Company, Inc. All rights reserved. This work or parts of it may not be reproduced, copied or transmitted (except as permitted by sections 107 and 108 of the U.S. Copyright Law and except by reviewers for the public press), by any means including voice recordings and the copying of its digital form, without the written permission of the print publisher. Further information on copyright, permissions, and reprints is found at the Responses page.

      The publisher of various formats and editions is The Yale Law Journal, who authorized exclusively Quid Pro Books to reproduce it in ebook formats: digitally published in such editions, for The Yale Law Journal, by Quid Pro Books. Available in all major digital formats and at leading retailers and booksellers.

      Quid Pro Books

      Quid Pro, LLC

      5860 Citrus Blvd., suite D-101

      New Orleans, Louisiana 70123

      www.quidprobooks.com

      eBook Cataloging for Volume 122, Number 5 – March 2013:

      ISBN: 978-1-61027-895-9 (eBook)

      ISBN-10: 161027895X (eBook)

      CONTENTS

      ARTICLES

      Commandeering and Constitutional Change

      Wesley J. Campbell

      [122 Yale L.J. 1104]

      Parallel Exclusion

      C. Scott Hemphill & Tim Wu

      [122 Yale L.J. 1182]

      ESSAY

      Reconceptualizing the Burden of Proof

      Edward K. Cheng

      [122 Yale L.J. 1254]

      NOTES

      Curing the Blind Spot in Administrative Law:

      A Federal Common Law Framework for State Agencies

      Implementing Cooperative Federalism Statutes

      Josh Bendor & Miles Farmer

      [122 Yale L.J. 1280]

      Mere Negligence or Abandonment?

      Evaluating Claims of Attorney Misconduct After

      Maples v. Thomas

      Wendy Zorana Zupac

      [122 Yale L.J. 1328]

      About The Yale Law Journal

      RESPONSES. The Yale Law Journal invites short papers responding to scholarship appearing in the Journal within the last year. Responses should be submitted to The Yale Law Journal Online at http://yalelawjournal.org/submissions.html. We cannot guarantee that submitted responses will be published. Those responses that are selected for publication will be edited with the cooperation of the author.

      The Yale Law Journal is published eight times a year (monthly from October through June, excluding February) by The Yale Law Journal Company, Inc. Editorial and general offices are located in the Sterling Law Building at Yale University. POSTMASTER: Send address changes to The Yale Law Journal, P.O. Box 208215, New Haven, Connecticut 06520-8215.

      SUBSCRIPTIONS. A year subscription for Volume 122 is $55.00 payable in advance (please see our website for overseas shipping charges). Remittance must be made by U.S. Dollar drafts payable at a U.S. bank. Unfortunately, we are not able to accept payments in cash or by credit card. Subscription requests received after the first issue of a volume has been printed will run for eight consecutive issues unless otherwise indicated by the subscriber. Subscription backstarting is not permitted to include prior volume years. Overseas delivery is not guaranteed.

      CLAIMS. Domestic claims for non-receipt of issues should be made within 90 days of the month of publication, overseas claims within 180 days; thereafter, the regular back issue rate will be charged for replacement. All subscriptions will be renewed automatically unless the subscriber provides timely notice of cancellation prior to the start of a new volume year. Address changes must be made at least two months before publication date. Please provide an old mailing label or the entire old address; the new address must include the ZIP code. Address changes or other requests for subscription information should be directed to the Business Manager.

      SINGLE AND BACK ISSUES. Each issue of Volume 122 of the Journal can be purchased prepaid from The Yale Law Journal Company, Inc. for $25 (check must accompany order). For Connecticut deliveries, add 6% state sales tax. Remittance must be made by U.S. Dollar drafts payable to a U.S. bank. Unfortunately, we are not able to accept payments in cash or credit card. To purchase back issues from Volumes 1-121, please contact William S. Hein and Company, Inc., 1285 Main Street, Buffalo, New York 14209, (800) 828-7571. Back issues can also be found in electronic format on HeinOnline (http://heinonline.org/).

      MANUSCRIPTS. The Journal invites the submission of unsolicited articles, essays, and book reviews. Manuscripts must be submitted online at http://yalelawjournal.org/submissions.html.

      COPYRIGHT. Copyright © 2013 by The Yale Law Journal Company, Inc. Requests for copyright permissions should be directed to Copyright Clearance Center, 222 Rosewood Drive, Danvers, MA 01923, (978) 750-8400, http://www.copyright.com/.

      PRODUCTION. Citations in the Journal conform to The Bluebook: A Uniform System of Citation (19th ed. 2010), copyright by The Columbia Law Review Association, The Harvard Law Review Association, the University of Pennsylvania Law Review, and The Yale Law Journal. The Journal is printed by Joe Christensen, Inc., in Lincoln, Nebraska. Periodicals postage paid at New Haven, Connecticut, and additional mailing offices. Publication number ISSN 0044-0094.

      INTERNET ADDRESS. The Yale Law Journal’s homepage is located at http://www.yalelawjournal.org.

      YALE LAW SCHOOL

      OFFICERS OF ADMINISTRATION

      Richard Charles Levin, B.A., B.Litt., Ph.D., President of the University

      Peter Salovey, A.B., M.A., Ph.D., Provost of the University

      Robert C. Post, A.B., J.D., Ph.D., Dean

      Douglas Kysar, B.A., J.D., Deputy Dean

      Megan A. Barnett, B.A., J.D., Associate Dean

      Toni Hahn Davis, B.A., M.S.W., J.D., LL.M., Associate Dean

      Brent Dickman, B.B.A., M.B.A., Associate Dean

      S. Blair Kauffman, B.S., B.A., J.D., LL.M., M.L.L., Law Librarian and Professor of Law

      Mark LaFontaine, B.A., J.D., Associate Dean

      Kathleen B. Overly, B.A., J.D., Ed.D., Associate Dean

      Asha Rangappa, A.B., J.D., Associate Dean

      Mike K. Thompson, B.A., M.B.A., J.D., Associate Dean

      FACULTY EMERITI

      Guido Calabresi, B.S., B.A., LL.B., M.A., Sterling Professor Emeritus of Law and Professorial Lecturer in Law

      Dennis E. Curtis, B.S., LL.B., Clinical Professor Emeritus of Law and Professorial Lecturer in Law

      Harlon L. Dalton, A.B., J.D., Professor Emeritus of Law

      Mirjan R. Damaška, LL.B., Dr.Jur., Sterling Professor Emeritus of Law and Professorial Lecturer in Law

      Drew S. Days, III, B.A., LL.B., Alfred M. Rankin Professor Emeritus of Law and Professorial Lecturer in Law

      Jan Ginter Deutsch, B.A., LL.B., Ph.D., M.A., Walter Hale Hamilton Professor Emeritus of Law and Professorial Lecturer in Law

      Owen M. Fiss, B.A., B.Phil., LL.B., Sterling Professor Emeritus of Law and Professorial Lecturer in Law

      Robert W. Gordon, A.B., J.D., Chancellor Kent Professor Emeritus of Law and Legal History and Professor (Adjunct) of Law

      Michael J. Graetz, B.B.A., LL.B., Justus S. Hotchkiss Professor Emeritus of Law and Professorial Lecturer in Law

      Quintin Johnstone, A.B., J.D., LL.M., J.S.D., Justus S. Hotchkiss Professor Emeritus of Law and Professorial Lecturer in Law

      Carroll L. Lucht, B.A., M.S.W., J.D., Clinical Professor Emeritus of Law, Supervising Attorney, and Professorial Lecturer in Law

      Carol M. Rose, B.A., M.A., Ph.D., J.D., Gordon Bradford Tweedy Professor Emeritus of Law and Organization, and Professorial Lecturer in Law

      Peter H. Schuck, B.A., J.D., LL.M., M.A., Simeon E. Baldwin Professor Emeritus of Law and Professor (Adjunct) of Law (fall term)

      John G. Simon, B.A., LL.B., Augustus E. Lines Professor Emeritus of Law and Professorial Lecturer in Law

      Robert A. Solomon, B.A., J.D., Clinical Professor Emeritus of Law

      Stephen Wizner, A.B., J.D., William O. Douglas Clinical Professor Emeritus of Law, Supervising Attorney, and Professorial Lecturer in Law

      FACULTY

      Bruce Ackerman, B.A., LL.B., Sterling Professor of Law and Political Science

      †    Muneer I. Ahmed, A.B., J.D., Clinical Visiting Professor of Law

      Anne L. Alstott, A.B., J.D., Jacquin D. Bierman Professor in Taxation

      Akhil Reed Amar, B.A., J.D., Sterling Professor of Law

      Ian Ayres, B.A., J.D., Ph.D., William K. Townsend Professor of Law

      ‡    Jack M. Balkin, A.B., J.D., Ph.D., Knight Professor of Constitutional Law and the First Amendment

      Aharon Barak, LL.M., Dr.Jur., Visiting Professor of Law and Gruber Global Constitutionalism Fellow (fall term)

      Lea Brilmayer, B.A., J.D., LL.M., Howard M. Holtzmann Professor of International Law

      Richard Brooks, B.A., M.A., Ph.D., J.D., Leighton Homer Surbeck Professor of Law

      Robert A. Burt, B.A., M.A., J.D., Alexander M. Bickel Professor of Law (fall term)

      Guido Calabresi, B.S., B.A., LL.B., M.A., Sterling Professor Emeritus of Law and Professorial Lecturer in Law

      ‡    Stephen L. Carter, B.A., J.D., William Nelson Cromwell Professor of Law

      Amy Chua, A.B., J.D., John M. Duff, Jr. Professor of Law

      Dennis E. Curtis, B.S., LL.B., Clinical Professor Emeritus of Law and Professorial Lecturer in Law

      Harlon L. Dalton, A.B., J.D., Professor Emeritus of Law

      Mirjan R. Damaška, LL.B., Dr.Jur., Sterling Professor Emeritus of Law and Professorial Lecturer in Law

      Drew S. Days, III, B.A., LL.B., Alfred M. Rankin Professor Emeritus of Law and Professorial Lecturer in Law

      Bruno Deffains, Ph.D., Visiting Professor of Law (spring term)

      Jan Ginter Deutsch, B.A., LL.B., Ph.D., M.A., Walton Hale Hamilton Professor Emeritus of Law and Professorial Lecturer in Law

      Fiona Doherty, B.A., J.D., Clinical Associate Professor of Law

      Steven B. Duke, B.S., J.D., LL.M., Professor of Law

      Robert C. Ellickson, A.B., LL.B., Walter E. Meyer Professor of Property and Urban Law (spring term)

      E. Donald Elliott, B.A., J.D., Professor (Adjunct) of Law

      †    William Eskridge, Jr., B.A., M.A., J.D., John A. Garver Professor of Jurisprudence

      *   Daniel C. Esty, A.B., M.A., J.D., Hillhouse Professor of Environmental Law and Policy, School of Forestry & Environmental Studies; and Clinical Professor of Environmental Law and Policy, Law School

      Jeffrey Fagan, M.E., M.S., Ph.D., Florence Rogatz Visiting Professor of Law (spring term)

      Owen M. Fiss, B.A., B.Phil., LL.B., Sterling Professor Emeritus of Law and Professorial Lecturer in Law

      James Forman, Jr., A.B., J.D., Clinical Professor of Law

      ‡    Heather Gerken, A.B., J.D., J. Skelly Wright Professor of Law

      Paul Gewirtz, A.B., J.D., Potter Stewart Professor of Constitutional Law and Director, The China Center

      Abbe R. Gluck, B.A., J.D., Associate Professor of Law

      Robert W. Gordon, A.B., J.D., Chancellor Kent Professor Emeritus of Law and Legal History and Professor (Adjunct) of Law (fall term)

      Michael J. Graetz, B.B.A., LL.B., Justus S. Hotchkiss Professor Emeritus of Law and Professorial Lecturer in Law (fall term)

      David Singh Grewal, B.A., J.D., Ph.D., Associate Professor of Law

      Dieter Grimm, LL.M., Visiting Professor of Law and Gruber Global Constitutionalism Fellow (spring term)

      Henry B. Hansmann, A.B., J.D., Ph.D., Oscar M. Ruebhausen Professor of Law

      Robert D. Harrison, J.D., Ph.D., Lecturer in Legal Method

      Oona A. Hathaway, B.A., J.D., Ph.D., Gerard C. and Bernice Latrobe Smith Professor of International Law

      Roderick M. Hills, Jr., B.A., J.D., Anne Urowsky Visiting Professor of Law

      Edward J. Janger, B.A., J.D., Visiting Professor of Law (fall term)

      Quintin Johnstone, A.B., J.D., LL.M., J.S.D., Justus S. Hotchkiss Professor Emeritus of Law

      †    Christine Jolls, B.A., J.D., Ph.D., Gordon Bradford Tweedy Professor of Law and Organization

      Dan M. Kahan, B.A., J.D., Elizabeth K. Dollard Professor of Law and Professor of Psychology

      ‡    Paul W. Kahn, B.A., Ph.D., J.D., Robert W. Winner Professor of Law and the Humanities and Director, Orville H. Schell, Jr. Center for International Human Rights

      Amy Ka. B., M.Phil., M.A., J.D., Associate Professor of Law

      S. Blair Kauffman, B.S., B.A., J.D., LL.M., M.L.L., Law Librarian and Professor of Law

      Amalia D. Kessler, A.B., M.A., J.D., Ph.D., Sidley Austin-Robert D. McLean ’70 Visiting Professor of Law (fall term)

      Daniel J. Kevles, B.A., Ph.D., Professor (Adjunct) of Law (fall term)

      ‡    Alvin K. Klevorick, B.A., M.A., Ph.D., John Thomas Smith Professor of Law and Professor of Economics

      †    Harold Hongju Koh, A.B., B.A., J.D., M.A., Martin R. Flug ’55 Professor of International Law

      Anthony T. Kronman, B.A., Ph.D., J.D., Sterling Professor of Law

      Douglas Kysar, B.A., J.D., Deputy Dean and Joseph M. Field ’55 Professor of Law

      John H. Langbein, A.B., LL.B., Ph.D., Sterling Professor of Law and Legal History

      Justin Levitt, B.A., M.P.A., J.D., Visiting Associate Professor of Law (spring term)

      James S. Liebman, B.A., J.D., Visiting Professor of Law

      ‡    Yair Listokin, A.B., M.A., Ph.D., J.D., Professor of Law

      Carroll L. Lucht, B.A., M.S.W., J.D., Clinical Professor Emeritus of Law, Supervising Attorney, and Professorial Lecturer in Law

      †    Jonathan R. Macey, A.B., J.D., Sam Harris Professor of Corporate Law, Corporate Finance, and Securities Law

      Miguel Maduro, Dr.Jur., Visiting Professor of Law and Gruber Global Constitutionalism Fellow (fall term)

      Chibli Mallat, L.L.B., L.L.M., Ph.D., Visiting Professor of Law and Oscar M. Ruebhausen Distinguished Senior Fellow (fall term)

      Joseph G. Manning, B.A., A.M., Ph.D., Professor (Adjunct) of Law (fall term)

      David Marcus, B.A., J.D., Maurice R. Greenberg Visiting Professor of Law

      Daniel Markovits, B.A., M.Sc., B.Phil./D.Phil., J.D., Guido Calabresi Professor of Law

      Jerry L. Mashaw, B.A., LL.B., Ph.D., Sterling Professor of Law (fall term)

      Braxton McKee, M.D., Associate Professor (Adjunct) of Law (fall term)

      †    Tracey L. Meares, B.S., J.D., Walton Hale Hamilton Professor of Law

      Noah Messing, B.A., J.D., Lecturer in the Practice of Law and Legal Writing

      Jeffrey A. Meyer, B.A., J.D., Visiting Professor of Law

      Alice Miller, B.A., J.D., Associate Professor (Adjunct) of Law (spring term)

      Nicholas Parrillo, A.B., M.A., J.D., Ph.D., Associate Professor of Law

      Jean Koh Peters, B.A., J.D., Sol Goldman Clinical Professor of Law and Supervising Attorney

      Thomas Pogge, Ph.D., Professor (Adjunct) of Law (spring term)

      Robert C. Post, A.B., J.D., Ph.D., Dean and Sol & Lillian Goldman Professor of Law

      J.L. Pottenger, Jr., A.B., J.D., Nathan Baker Clinical Professor of Law and Supervising Attorney

      Claire Priest, B.A., J.D., Ph.D., Professor of Law

      George L. Priest, B.A., J.D., Edward J. Phelps Professor of Law and Economics and Kauffman Distinguished Research Scholar in Law, Economics, and Entrepreneurship

      ‡    W. Michael Reisman, LL.B., LL.M., J.S.D., Myres S. McDougal Professor of International Law

      ‡    Judith Resnik, B.A., J.D., Arthur Liman Professor of Law

      ‡    Cristina Rodríguez, B.A., M.Litt., J.D., Professor of Law

      ‡    Roberta Romano, B.A., M.A., J.D., Sterling Professor of Law and Director, Yale Law School Center for the Study of Corporate Law

      Carol M. Rose, B.A., M.A., Ph.D., J.D., Gordon Bradford Tweedy Professor Emeritus of Law and Organization, and Professorial Lecturer in Law

      Susan Rose-Ackerman, B.A., M.Phil., Ph.D., Henry R. Luce Professor of Jurisprudence, Law School and Department of Political Science

      Jed Rubenfeld, A.B., J.D., Robert R. Slaughter Professor of Law

      Jennifer Prah Ruger, B.A., M.A., M.Sc., Ph.D., M.S.L., Associate Professor (Adjunct) of Law (spring term)

      William M. Sage, A.B., M.D., J.D., Visiting Professor of Law (spring term)

      Peter H. Schuck, B.A., J.D., LL.M., M.A., Simeon E. Baldwin Professor Emeritus of Law and Professor (Adjunct) of Law (fall term)

      Vicki Schultz, B.A., J.D., Ford Foundation Professor of Law and Social Sciences

      ‡    Alan Schwartz, B.S., LL.B., Sterling Professor of Law

      Ian Shapiro, B.Sc., M.Phil., Ph.D., J.D., Professor (Adjunct) of Law (spring term)

      †    Scott J. Shapiro, B.A., J.D., Ph.D., Charles F. Southmayd Professor of Law and Professor of Philosophy

      Robert J. Shiller, B.A., Ph.D., Professor (Adjunct) of Law (spring term)

      Reva Siegel, B.A., M.Phil., J.D., Nicholas deB. Katzenbach Professor of Law

      Norman I. Silber, B.A., J.D., Ph.D., Visiting Professor of Law

      James J. Silk, A.B., M.A., J.D., Clinical Professor of Law, Allard K. Lowenstein International Human Rights Clinic, and Executive Director, Orville H. Schell, Jr. Center for International Human Rights

      John G. Simon, B.A., LL.B., LL.D., Augustus E. Lines Professor Emeritus of Law and Professorial Lecturer in Law

      Robert A. Solomon, B.A., J.D., Clinical Professor Emeritus of Law

      Richard Squire, B.A., M.B.A., J.D., Florence Rogatz Visiting Professor of Law

      Stephanie M. Stern, B.A., J.D., Irving S. Ribicoff Visiting Associate Professor of Law (fall term)

      Richard B. Stewart, B.A., M.A., LL.B., Visiting Professor of Law (fall term)

      †    Kate Stith, A.B., M.P.P., J.D., Lafayette S. Foster Professor of Law

      Alec Stone Sweet, B.A., M.A., Ph.D., Leitner Professor of International Law, Politics, and International Studies

      Tom R. Tyler, B.A., M.A., Ph.D., Macklin Fleming Professor of Law and Professor of Psychology

      Patrick Weil, B.A., M.B.A., Ph.D., Visiting Professor of Law (fall term)

      James Q. Whitman, B.A., M.A., Ph.D., J.D., Ford Foundation Professor of Comparative and Foreign Law

      Abraham L. Wickelgren, A.B., J.D., Ph.D., Florence Rogatz Visiting Professor of Law

      Luzius Wildhaber, LL.M., J.S.D., Visiting Professor of Law and Gruber Global Constitutionalism Fellow (fall term)

      Ralph K. Winter, Jr., B.A., LL.B., Professor (Adjunct) of Law

      ‡    Michael Wishnie, B.A., J.D., William O. Douglas Clinical Professor of Law and Director, Jerome N. Frank Legal Services Organization

      John Fabian Witt, B.A., J.D., Ph.D., Allen H. Duffy Class of 1960 Professor of Law

      Stephen Wizner, A.B., J.D., William O. Douglas Clinical Professor Emeritus of Law, Supervising Attorney, and Professorial Lecturer in Law

      †    Gideon Yaffe, A.B., Ph.D., Professor of Law and Professor of Philosophy

      Howard V. Zonana, B.A., M.D., Professor of Psychiatry and Clinical Professor (Adjunct) of Law

      *   On leave of absence, 2012–2013.

      †    On leave of absence, fall term, 2012.

      ‡    On leave of absence, spring term, 2013.

      LECTURERS IN LAW

      Emily Bazelon, B.A., J.D.

      Cynthia Carr, B.A., J.D., LL.M.

      Adam S. Cohen, A.B., J.D.

      Linda Greenhouse, B.A., M.S.L.

      Adam Grogg, B.A., M.Phil., J.D.

      Lucas Guttentag, A.B., J.D.

      Bruce J. Ho, B.A., M.E.M., J.D.

      Jamie P. Horsley, B.A., M.A., J.D.

      Margot E. Kaminski, B.A., J.D.

      Katherine Kennedy, A.B., J.D.

      Alex A. Knopp, B.A., J.D.

      Annie Lai, B.A., J.D.

      John T. Marshall, B.A., M.A., J.D.

      Hope R. Metcalf, B.A., J.D.

      Christina M. Mulligan, B.A., J.D.

      James E. Ponet, B.A., M.A., D.D.

      Nina Rabin, B.A., J.D.

      Sia Sanneh, B.A., M.A., J.D.

      Daniel Wade, B.A., M.A., M.Div., M.A., M.S., J.D.

      VISITING LECTURERS IN LAW

      Josh Abramowitz, B.A., J.D.

      Melinda Agsten, A.B., J.D.

      Guillermo Aguilar-Alvarez, Lic. en Derecho (J.D.)

      Richard Baxter, B.A., M.A., J.D.

      H.E. Stuart Beck, B.A., J.D.

      Frank P. Blando, B.S., M.B.A., J.D.

      Stephen B. Bright, B.A., J.D.

      Jennifer Gerarda Brown, A.B., J.D.

      Helen V. Cantwell, B.A., J.D.

      Brett Cohen, B.A., J.D.

      Timothy C. Collins, B.A., M.B.A.

      Victoria Cundiff, B.A., J.D.

      Brian T. Daly, B.A., M.A., J.D.

      Karl Tom Dannenbaum, B.A., M.A., J.D.

      Lisa Nachmias Davis, B.A., J.D.

      Francis X. Dineen, A.B., LL.B.

      Stewart I. Edelstein, B.A., J.D.

      Eugene R. Fidell, B.A., LL.B.

      Gregory Fleming, B.A., J.D.

      Lawrence Fox, B.A., J.D.

      Shelley Diehl Geballe, B.A., J.D., M.P.H.

      Lee Gelernt, B.A., M.Sc., J.D.

      Jeffrey Gentes, B.A., J.D.

      Frederick S. Gold, B.A., J.D.

      Gregg Gonsalves, B.S.

      Benjamin Heineman, B.A., B.Litt., J.D.

      Rebecca M. Heller, B.A., J.D.

      Stephen Hudspeth, B.A., M.A., J.D.

      Frank Iacobucci, B.Com., LL.B., LL.M.

      Aaron Korman, B.A. M.Sc., J.D.

      Anika Singh Lemar, B.A., J.D.

      Barbara B. Lindsay, A.B., J.D., LL.M.

      Barbara Marcus, B.A., M.S., Ph.D.

      Michael S. McGarry, A.B., J.D.

      Jennifer Mellon, B.A., J.D.

      Margaret M. Middleton, B.S., J.D.

      Cantwell F. Muckenfuss, III, B.A., J.D.

      Laurence P. Nadel, A.B., J.D.

      Charles Nathan, B.A., J.D.

      Ann M. Parrent, B.A., J.D.

      Andrew J. Pincus, B.A., J.D.

      Eric S. Robinson, A.B., M.B.A., J.D.

      David N. Rosen, B.A., LL.B.

      Charles A. Rothfeld, A.B., J.D.

      Barry R. Schaller, B.A., J.D.

      David A. Schulz, B.A., M.A., J.D.

      Michael Solender, B.A., J.D.

      Laurence T. Sorkin, B.A., LL.B., LL.M.

      Sidney H. Stein, A.B., J.D.

      David J. Stoll, B.A., J.D.

      Christof R.A. Swaak, Ph.D.

      Willard B. Taylor, B.A., LL.B.

      Thomas Ullmann, B.S., J.D.

      Stefan Underhill, B.A., J.D.

      John M. Walker, Jr., B.A., J.D.

      Michael Weisman, B.A., J.D.

      David M. Zornow, B.A., J.D.

      Commandeering and Constitutional Change

      WESLEY J. CAMPBELL

      [cite as 122 YALE L.J. 1104 (2013)]

      abstract. Coming in the midst of the Rehnquist Court’s federalism revolution, Printz v. United States held that federal commandeering of state executive officers is fundamentally incompatible with our constitutional system of dual sovereignty. The Printz majority’s discussion of historical evidence, however, inverted Founding-era perspectives. When Federalists such as Alexander Hamilton endorsed commandeering during the ratification debates, they were not seeking to expand federal power. Quite the opposite. The Federalists capitulated to states’ rights advocates who had recently rejected a continental impost tax because Hamilton, among others, insisted on hiring federal collectors rather than commandeering state collectors. The commandeering power, it turns out, was an integral aspect of the Anti-Federalist agenda because it facilitated federal use of state and local officers, thus ensuring greater local control over federal law enforcement and averting the need for a bloated federal bureaucracy. These priorities carried over into the First Congress, where Anti-Federalists were among the most vehement defenders of the federal power to commandeer state executive and judicial officers. Ironically, though understandably when viewed in context, it was Federalists who first planted the seeds of the anticommandeering doctrine. Incorporating recently uncovered sources and new interpretations, this Article aims to significantly revise our understanding of Founding-era attitudes toward federal commandeering of state officers. Moreover, the Article explains why early Congresses generally shunned the use of state officers and how this custom combined with shifting political priorities to quickly erode what once had been a strong consensus favoring commandeering’s constitutionality.

      author. Law clerk to the Honorable José A. Cabranes; former law clerk to the Honorable Diane S. Sykes; Stanford Law School, J.D. 2011; University of North Carolina at Chapel Hill, B.A. 2006. The author thanks Will Baude, Michael Collins, Peter Conti-Brown, Barbara Fried, Alex Gesch, Masha Hansford, Dan Ho, Dan Hulsebosch, Mark Kelman, Larry Kramer, Mike McConnell, Josh Patashnik, Jay Schweikert, Matt Seligman, Daniel Suhr, the members of the Stanford Legal Studies workshop, and the editors of The Yale Law Journal for helpful suggestions at various stages of this project. The author also thanks the Filson Historical Society for assistance and financial support. The views expressed in this Article are, of course, the author’s own.

      article contents

      introduction

      The United States Constitution says little about who should enforce federal law. During the ratification debates, however, Federalists frequently remarked that the federal government would make use of the State officers for that purpose.¹ Indeed, one of the principal advantages of the proposed Federal Constitution over the Articles of Confederation, Alexander Hamilton argued in Federalist No. 27, was that the Constitution would not only operate upon the States in their political or collective capacities but would also enable the [federal] government to employ the ordinary magistracy of each [state] in the execution of its laws.² With all officers legislative, executive and judicial in each State . . . bound by the sanctity of an oath to observe federal law, Hamilton continued, the Legislatures, Courts and Magistrates of the respective members will be incorporated into the operations of the national government . . . and will be rendered auxiliary to the enforcement of its laws.³ In other words, state officers would be duty bound to enforce federal law.

      Over two centuries later, the Supreme Court rejected a federal power to require state executive officers to enforce federal law—a practice now known as commandeering—calling it fundamentally incompatible with our constitutional system of dual sovereignty.⁴ The Court dismissed Hamilton’s remarks as unrepresentative of broader Founding-era constitutional understanding, explaining that Hamilton’s statements reflected the most expansive view of federal authority ever expressed, and from the pen of the most expansive expositor of federal power.⁵

      Hamilton’s opinions on federal power, of course, were not always consistent with the views of his colleagues.⁶ But it would be deeply mistaken to discount his endorsement of commandeering. Hamilton was not trying to aggrandize federal power. Quite the opposite. He was offering a concession to those who feared greater centralized authority. After a bruising debate over federal power to collect tariffs—a controversy that had consumed continental politics for much of the 1780s—Hamilton was finally giving in. He was not about to repeat his prior political miscalculations, so he relented and gave the Anti-Federalists exactly what they wanted: an assurance that the federal government would commandeer state officers to enforce federal law.

      The idea of using state officers to enforce federal law emerged well before 1787. While negotiations for an Anglo-American peace treaty were still ongoing in Europe, across the Atlantic a high-stakes controversy emerged over a proposal to amend the Articles of Confederation to give the Continental Congress the power to levy import duties on foreign goods. Proponents urged that the impost, as the tariff system was most commonly known, would provide the United States with revenue it desperately needed in order to repay its wartime debts. Leaders in Congress also recognized that collective-action failure plagued the existing system of state control over international trade regulations, thus limiting tariff revenues and preventing effective retaliation against onerous foreign duties and trade controls.⁷

      For these reasons, most politicians in the 1780s agreed that Congress should have authority to establish an impost. Yet when it came to deciding how to collect the tax, deep divisions emerged. The nation’s leading financial luminaries—Alexander Hamilton and Robert Morris—insisted on using continental officers accountable only to Congress. Others, though, worried that federal collectors would repeat the repressive colonial-era practices of their British counterparts, who often failed to appreciate local circumstances and whose appointments were seen as feeding the contemptible appetite of a corrupt patronage system. Instead, these skeptics proposed giving Congress the power to collect import duties using only state officers.

      The dispute over how to collect the continental impost ultimately ended in gridlock, but its legacy endured, overshadowing much of the ratification process. The typical narrative of the Constitution’s genesis is that political affairs reached a crisis point, fatally undermining the Articles of Confederation and leading to vastly expanded, though still limited, federal powers. The impost story confirms this account in part, but it also calls for an important revision. With respect to the administration of federal law, rather than escalating their demands for greater federal power, Federalists framed the Constitution as conceding ground to the opponents of centralization. Particularly in the pivotal ratification contests in New York and Virginia, Federalists assured Convention delegates and the public that the federal government would generally rely on state officers rather than create new federal positions. And not lost in this debate was the premise that carried over from the impost controversy: federal duties would be legally binding.

      Anti-Federalist support for commandeering—a label not yet employed in the eighteenth century—continued into the First Congress, where the usual characters struggled over the pivotal issue of who would enforce federal law. Notwithstanding Federalist promises during ratification, however, the federal government placed very few federal responsibilities on state officers. Examining the causes of this apparent bait and switch reveals a largely untold story about the origins of the federal bureaucracy. Ironically, Anti-Federalists’ political miscalculations played a pivotal role in undermining their efforts to have state agents administer and enforce federal law.

      The current conception of the anticommandeering doctrine as a centerpiece of the Rehnquist Court’s federalism revolution may make this account difficult to believe. Indeed, our conventional assumption that Anti-Federalists must have opposed commandeering is a central premise of one of the best scholarly articles on this topic. According to Michael Collins, Anti-Federalist support for commandeering would have contradicted their usual rhetoric championing state and local prerogative against centralized power.⁸ Commandeering is a type of centralized power, and thus the absence of any outcry from Anti-Federalists in opposition to commandeering, Collins asserts, is itself strong evidence that such a prospect was not part of the perceived message of The Federalist.⁹

      Collins’s argument has intuitive appeal, but overwhelming historical evidence demonstrates that his conventional assumptions about Anti-Federalist attitudes are mistaken. Indeed, the prevailing historical account gets this important feature of the ratification story backward. Anti-Federalists were actually among the strongest supporters of commandeering both before and after ratification. Rather than considering duties imposed on state officials as contrary to federalism principles, many Anti-Federalists viewed the federal-administration issue through the prism of their recent colonial experience—an experience that had also heavily influenced debates over the continental impost. State officers were drawn from local communities and were sympathetic to local needs, whereas federal employees, like their British predecessors, would be unforgiving, unaccountable, and perhaps even tyrannical. Proponents of state power genuinely (though at times hyperbolically) feared that a burgeoning federal bureaucracy would quickly become a swarm of harpies, who, under the denomination of revenue officers, [would] range through the country, prying into every man’s house and affairs, and like a Macedonian phalanx bear down all before them.¹⁰ Limits on federal power existed largely to protect individual rights,¹¹ and commandeering advanced that goal by making law enforcement more accountable to local interests. Furthermore, Anti-Federalists feared that the absence of a federal commandeering power would lead to a bloated federal patronage system, thereby shifting popular loyalties toward the federal government and slowly undermining the importance of state governments.

      Relying heavily on foundational assumptions about federal power supposedly underlying many Founding-era statements, prior scholars have offered conflicting accounts of the Founders’ attitudes about commandeering’s constitutionality. For instance, Sai Prakash argues that the Founders anticipated and accepted federal commandeering of state executive and judicial officers (though not state legislatures).¹² He points in particular to Hamilton’s and Madison’s assurances that the new federal government would rely on state officers, arguing that these promises implicitly embraced commandeering. Disagreeing, Michael Collins argues that Hamilton and Madison referred only to the federal use of state officers with state permission, and that commandeering was not part of the original constitutional design.¹³ His scholarship focuses primarily on federal commandeering of state judges,¹⁴ but most of his evidence and analysis applies equally to commandeering of state executive officers.

      This Article departs significantly from these prior studies. A substantial body of evidence not mentioned by Prakash and Collins focuses more directly on the issue of commandeering. The topic came up in a few early congressional debates, and it was also addressed in an 1802 federal circuit court opinion (long hidden in a Louisville archive) that is the only known Founding-era judicial opinion to squarely address the commandeering question presented in Printz v. United States.¹⁵ These sources provide a clearer picture of what many of the Founders thought about commandeering’s constitutionality. While Founding-era views were not unanimous, historical evidence strongly supports commandeering’s constitutionality.

      In addition to explaining what the Founders thought about commandeering, this Article also aims to reorient our understanding of how they approached the topic, including what they thought was at stake and which arguments they used to defend their views. For instance, the Oath Clause played a central yet unappreciated role in early debates about commandeering. Debates over financial compensation for state officials also offer revealing insights into Anti-Federalist support for commandeering. For example, perhaps the most persuasive modern critique of commandeering is that it would allow the federal government to impose administrative obligations without having to pay for them, thereby weakening political accountability. Yet Anti-Federalists seem not to have shared this concern. They instead worried that federal payments to state officers would render those officers reliant on federal income and would thus shift their loyalties away from state and local governments. Therefore, while many Anti-Federalists adamantly supported commandeering, they simultaneously took steps to ensure that the federal government would not pay for those additional burdens.

      Finally, the existing literature fails to appreciate the relatively quick shift in views about commandeering between the late 1780s and the early nineteenth century. Although explicit and implicit endorsements of commandeering were common during ratification, no one asserted that such a power would violate federalism principles. By the early nineteenth century, however, commandeering’s constitutionality was liable to question, and [had], in fact, been seriously questioned on exactly this ground.¹⁶ Thus, the early intellectual history of anticommandeering exemplifies the dynamic nature of constitutional law in the early republic and illustrates how the rapidly changing political climate of the 1790s enabled novel constitutional principles to supplant ideas that had been broadly accepted just a few years prior. Views about commandeering have remained unstable ever since.

      This Article is divided into four chronological parts. Part I describes the impost debates under the Articles of Confederation. When supporters of a stronger national government pushed for a new federal power to levy nationwide tariffs, a heated debate began over whether state or continental officers should collect the taxes. This controversy set the stage for the ratification showdown discussed in Part II, which reexamines the Federalists’ ratification promises. Part III turns to the earliest congressional debates about commandeering and describes the impact of state legislation on congressional decisionmaking. It also explores the earliest-known judicial opinion to examine commandeering.

      While federal power to commandeer state officers was generally accepted at the Founding, several factors combined in the late eighteenth and early nineteenth centuries to make its constitutionality far more contested. And shifts in commandeering doctrine did not stop there. The Supreme Court explicitly rejected the constitutionality of commandeering in the middle of the nineteenth century, shifted gears in the twentieth century, and then returned to an anticommandeering approach during the Rehnquist Court’s federalism revolution. Part IV explores these developments and considers how the historical evidence presented throughout this Article might impact our understanding of the Constitution’s original meaning. For those who privilege the Founders’ understandings of federalism principles or their intentions and expectations about how the Constitution would operate in practice, this account undermines the Court’s modern anticommandeering doctrine. At the very least, historical evidence suggests that commandeering of state executive and judicial officers should not be categorically unconstitutional.

      i. confederation impost debates

      The Articles of Confederation had many vices, but when James Madison prepared his famous list in the spring of 1787, the inability of the continental government to raise revenue topped them all. The refusal of states to turn over the taxes demanded by the continental government, he wrote, may be considered as not less radically and permanently inherent in, than it is fatal to the object of, the present System.¹⁷ Indeed, the requisitions system had largely fallen apart, with most states lapsing on their obligatory payments¹⁸ and Congress failing to service many of its foreign debts.¹⁹

      As these defects emerged earlier in the decade, nationalists took swift action, pushing for a new congressional power to levy tariffs directly rather than relying on state legislatures for revenue. The idea of a federal impost power received broad support, but deep-seated divisions emerged over the proper method of collection. Nationalists insisted on hiring federal officers to collect the impost, but they met staunch (and ultimately unmovable) opposition.

      Given the horrendous condition of government finances, the impost controversy became a defining issue in American politics. As Henry Knox later observed, The insurrections of Massachusetts, and the opposition to the impost by New York, have been the corrosive means of rousing america to an attention to her liberties.²⁰ Although unmentioned in prior scholarship about commandeering, the impost controversy also formed the backdrop for subsequent ratification-era debates about federal use of state officers.

      A. The 1781 Impost Proposal

      Still in the midst of war, the Continental Congress formally requested in 1781 that each state vest a power in Congress, to levy a tariff of five percent on many foreign imports.²¹ As Jack Rakove has noted, the proposal’s language—phrased as a constitutional guarantee of independent federal authority—was apparently designed to obviate the possibility that the states could repeal their acts of authorization as they might any piece of legislation.²² Most histories of this episode recount that a majority of states quickly assented, with (in James Madison’s words) only the obstinacy of Rhode Island blocking the unanimous endorsement necessary to create a new congressional power under the Articles of Confederation.²³ But this nationalist-driven narrative is only partly true.²⁴ Some state legislatures quickly granted Congress the power to appoint and supervise impost collectors, yet not all states were so generous.²⁵ The method of collecting the impost proved controversial in many parts of the country, and impost supporters worried that bills moving through the various state legislatures might be vitiated by the limitations with which they are clogged.²⁶ Massachusetts, for example, gave its own legislature the power to appoint impost collectors.²⁷ Meanwhile, Connecticut’s legislature gave Congress authority to appoint collectors, but it also made them liable to be suspended or removed from said office in case of misconduct therein by this Assembly.²⁸ Georgia’s legislature chose not even to address the impost until 1783, at which point it voted by a wide margin to postpone further consideration of the idea until the next session.²⁹

      Objections to the impost varied, but as the conditions imposed by Massachusetts and Connecticut suggest, a common theme was that congressional power to appoint and supervise federal collectors might give way to tyranny and corruption. In a letter to Congress justifying its rejection of the impost, Rhode Island’s legislature explained that the recommendation proposed to introduce into [Rhode Island] and the other states, officers unknown and unaccountable to them, and so is against the constitution of this State.³⁰ A

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