Tulsa Law Review
Volume 55 Issue 2 Book Review
Winter 2020
Triangulating Law and Political-Economic Development
Johathan Chausovsky
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Recommended Citation Johathan Chausovsky, Triangulating Law and Political-Economic Development, 55 Tulsa L. Rev. 185 (2020).
Available at: https://digitalcommons.law.utulsa.edu/tlr/vol55/iss2/9
This Book Review is brought to you for free and open access by TU Law Digital Commons. It has been accepted for inclusion in Tulsa Law Review by an authorized editor of TU Law Digital Commons. For more information, please contact [email protected]. 42010-tul_55-2 Sheet No. 19 Side A 03/03/2020 13:59:43 : HILD ,C ISTORY ROTECT ROTECT $30.00. H P LITER ARDCOVER ARDCOVER (2018). (2018). ECONSTRUCTING A. F $45.00. $45.00. NIVERSITY OF OF NIVERSITY ,R ONTROVERSY C OHN (U EPUBLIC and in case of child case of and in R .328.H APERBACK APERBACK ² P OMAZOFF ANK L (2016); J TRUGGLE TO TO TRUGGLE B S WKH3URJUHVVLYH(UDDQGWKH RIC RIC ARDCOVER ARDCOVER EPUBLIC MERICAN MERICAN ONSTITUTIONAL ONSTITUTIONAL United States in 1832; James James States in 1832; United * R A PIC PIC ISTORY ISTORY 2018). P E $90.00. P H Each covers different ranges of ranges different covers of Each 1 ARLY (2018); E HE E . 384. H ATIONAL ATIONAL :AC P N :T ANSAS ANSAS MERICAN MERICAN K HILDREN is entrenchedwell in American political A 2 C F LAUSE AW IN THE IN AW ARDCOVER ARDCOVER ONSTITUTIONAL 185 185 L C O 2016). P MERICA A :AC ARLY ROTECT E P RESS . 256. H P ANSAS ANSAS P LAUSE C K OLITICS AND OLITICS :P ONTRACT ) 2/18/2020 ) 7:11 AM Jonathan Chausovsky Jonathan ABOR IN $24.95. C ract Clause spans the of entire the Constitution;history and L TRUGGLE TO ELETE S 2018). P D ONTRACT ONTRACT AW IN IN THEAW HE ECONSTRUCTING THE THE ECONSTRUCTING C RESS OF RESS L OT PIC NIVERSITY P HILD N E ECONOMIC DEVELOPMENT DEVELOPMENT ECONOMIC HE McCulloch v. Maryland O ,R ONTROVERSY ., T (U RESS HE ,C C ., T R P R APERBACK APERBACK :T ,J ANK ANK ,J LY B E LITER LY TRIANGULATINGAND POLITICAL- LAW MERICA ,J-FINAL(D E NIVERSITY OMAZOFF U.S. 316 (1819). A HILDREN HILDREN HICAGO OLITICS AND AND OLITICS L AMES A. F The place of The place of Contractual rights, money and banking, and labor are surely central to the myriad of myriad to the of central surely are and and labor banking, rights, money Contractual (U C $50.00. P C P ATIONAL M K N C Y RIC ABOR IN ABOR IN HAUSOVSKY OHN AMES AMES Associate Professor of Politics and International Affairs, State University of New York at Fredonia. at Fredonia. York New of University State Affairs, International and Politics of Professor Associate history: Eric Lomazoff looks primarily at the early national era up through Andrew -DFNVRQ¶VYHWRRIWKHUHFKDUWHULQJELOORIWKH%DQNRIWKH issues at given of these Deal. TheNew resolution sets the stage in moments time for conflict at a later time. The conflict resulting sometimes the sameis over issue and sometimes issuessets the stage are the for a tangentialThough issueconflict in area. economic,fundamentally eventually, social issues are implicated of the allows The to triangulate complexity elements sum us in directly. labor, indicated theory unified There grand change. is no policy drive that can and political economy law richness. own provides its different, that variety are very and books these here: -RKQ)OLWHU¶VIRFXVRQFKLOGODERUSULPDULO\WDNHVSODFHGXULQJ (O\¶VQDUUDWLYHRQWKH&RQW historiography and doctrinal development, and one and and doctrinal expect development, one might be little there historiography would new 2. 17 2. 1. J 1. E * L J C J THE ways in which law can intersect with political development. can political law in intersect each ways which here with books The three thesetake of elements one up in verydifferent ways. 42010-tul_55-2 Sheet No. 19 Side A 03/03/2020 13:59:43 Side A 03/03/2020 Sheet No. 19 42010-tul_55-2 42010-tul_55-2 Sheet No. 19 Side B 03/03/2020 13:59:43 ² M K AOMI AOMI N (1983). (1983). C Y HILLIPS P OLITICAL P See RIAN RIAN Even if the the if Even 5 Circumstance , B 7 EVELOPMENT DVANCED (2015). (2015). D A See, e.g. ´LQWKDWLWZRXOGKDYH , The second is a federal The is a federal second EPUBLIC EPUBLIC 3 WGLGQRWDFWDVDSUHGDWRU CONOMIC CONOMIC R HANGE IN IN HANGE E Reconstructing the National National the Reconstructing C Introduction: InstitutionalChange in The third standard concerns concerns standard third The , ARLY 4 AND , E [Vol. 55:185 55:185 [Vol. HELEN T NSTITUTIONAL 6HFRQGWKH%DQN¶VPRQHWDU\IXQFWLRQZDV :I ONNECTIONS 8 , some of my students this suggested my of have some , C ATHLEEN CONOMY IN THE CONOMY IN E &K 9 ONTINUITY ERSONAL ERSONAL C ,P OLITICAL McCulloch TULSA LAW REVIEW LAW TULSA TREECK :P S ANKS ) 2/18/2020 ) 7:11 AM EYOND B :B TATE S in ELETE , D was decided. After all, at the time, the concept of a central bank bank central a the of concept time, all, at the decided. After was OLFGANG OLFGANG OT ENDING W MPIRE MPIRE N note 1, at 60. 1, at 60. note L note 1, at 25, 27. 27. 1, at 25, note E In 1791, no arguments addressed the Coinage Clause nor a monetary a monetary nor Coinage addressedClause the arguments no 1791, In O 6 explodes this notion. explodes upra supra , , s NSIDER see also also see ,I McCulloch 1, 26 (Wolfgang Streeck & Kathleen Thelen eds., 2005). ,J-FINAL(D UILDING THE UILDING at 30; at 25. at 25. at64. Thisalso was an ageinsider of lending,done inpart as a means of creditmonitoring. at 20. at 20. ,B OMAZOFF OMAZOFF Lomazoff presents a series of a presents Lomazoff stylized vignettes to several chapters the that capture In the succeeding years, multiple branches of the National Bank were created, as as created, were Bank National the of branches multiple years, succeeding the In Id. Id. Id. Id. H[FHVVLYHO\OLPLWLQJORFDOEDQNVZRXOGEH³SROLWLFDOVXLFLGH . Id. . Id. AMOREAUX 9 URPHY CONOMIES CONOMIES HAUSOVSKY ³QHFHVVDU\´PHDQV³DEVROXWHO\QHFHVVDU\´RUPHUHO\³XVHIXO´ engendered political opposition to a recharter. opposition political engendered understanding: was a state-based available?understanding: was alternative whether this is a power typically exercised by other sovereign governments. sovereign other typically exercised by this is a power whether Advanced PoliticalEconomies R. L M as a regulator of the money supply was poorly understood. understood. poorly was supply the money of as a regulator E clause justify could requisitethe Congressional power; I have typically by responded Firstestablished, in Bank actor used the nor 1791, was it in that key the no year observing when 1819, Bank Controversy some readers, off turn this might Though conventional understandings. of elements central distinctions. conceptual disaggregating for For mind He has a good it effective. I find distinguishes example, he three of the distinct necessity used the debates standards in on First Bank. The first is functional necessity, iswhich the classic debate over whether L 3. to learn. But Eric Lomazoff does just that by identifying the dog that did not bark: the the bark: not did that the dog identifying just does that by Lomazoff Eric But learn. to Coinage Clause. When teaching 186 186 C function. note-creating two 1791 was whether in question open An banks. state-chartered many were could; coexist could banks clear they the same decade, in city. it was the end of By the notes others and settledeach accepted regularly. accounts the The being Federal Bank, held usually creditlarger, state bank notes for after settlement.this It used leverage to regulate credit creation: if a state bank exceeded a reasonable the multiple, Federal Bank excessive This redemption. for its notes tended state bank present could to constrict Thelen and on to characterizeStreeck draws as this Lomazoff institutionallending. drift an institution taking a distinct on crucial function the original purpose. from It is also in an age where the person and the office were not necessarily separated. separated. necessarily not were office the person and the where age in an is also It
Bank survivedBank the first standard, the on second, fail it could exist. banks should other objection; single one around coalesce did not that claims opponents Lomazoff Notably, Representative Michael Jenifer the Maryland, bank satisfy argued of must one, Stone for standards. all three made apparent from economic apparentmade from events. 4. 6. 5. 7. DQGOXFNDSSHDUWRKDYHSOD\HGDUROHLQWKH%DQN¶VEHKDYLRU L credits related factors. charter combined its twenty-year, two Lomazoff time-limited with First, 8. L 8. 42010-tul_55-2 Sheet No. 19 Side B 03/03/2020 13:59:43 Side B 03/03/2020 Sheet No. 19 42010-tul_55-2 42010-tul_55-2 Sheet No. 20 Side A 03/03/2020 13:59:43 Yet, Yet, But, 17 18 187 187 Marbury v. State banks State banks 13 there there was no 16 , OVR WKDW 0DU\ODQG¶V s view of the Coinage Clause ¶ (Except to Eastern Europeans), Europeans), Eastern to (Except With a split Jeffersonian- a With 2WKHUVXSSRUWHUVQRWHGLWV 11 Recharter supporters noted the the noted supporters Recharter Marbury approaches that that approaches in 10 McCulloch v. Maryland . 553 (2003). McCulloch EV 12 ²WKXVUHQGHULQJWKHILUVWSDUWRI-RKQ0DUVKDOO¶V L. R Why I Do NotWhy I Do Teach identifying the problem as identifying problem delegation,the existence not of OREST .art.I,§8,cl.5. .art.I,§8,cl.5. F ² 79. ± ) 2/18/2020 ) 7:11 AM ONST AKE AKE C W ELETE U.S. D , 38 Sanford Levinson, OT see N note 1, at 1, at 78 note note 1, at 112. He leaves open the question of Madison of question the open leaves He 112. at 1, note O t Either ’ see also also see supra supra supra , , 13; 13; 25,128,133. This is a good example of where Lomazoff follows his evidenceit as far as goes, ± ± ,J-FINAL(D The constitutional question concerned whether this referred only to physical to physical only referred this concernedThe question constitutional whether 19 . at 130. at 112 at 126. at 89. at 89. at 100. at 124 at . at 94. . at 94. U.S. 137 (1803); 14 15 OMAZOFF OMAZOFF TRIANGULATING AND LAW POLITICAL-ECONOMIC DEVELOPMENT Lomazoff productively directs substantial attention to the recharter battles of 1811, 1811, substantial directs recharter of battles the to attention productively Lomazoff The War of 1812 placed immense stress on Government finances. Government stress on immense placed 1812 of The War L L Members of Congress did refer to the coinage did refer to the in late 1820s. of Congress argument the Members Albert When this charter challengedwas in M K . . . Id. . Id. . Id. . Id. . Id. . Id. . Id . Id. . Id. C Y 15 10 16 11 17 18 13 12 14 HAUSOVSKY suspended specie payments during wartime and delayed resumption. This resulted in in This resulted and delayed resumption. specie payments suspended wartime during excessive circulation,note and inflation. To a bank, overextended reenact lending, justification a new for or find views of revise their Congress members either to needed Treasury Alexander the of Secretary 1815, in charter a new a rejection of Following one. the on Coinage but to borrow, power the on not bank 1816 predicated the J. Dallas in Clause. coins, or to a broader definition of money. Lomazoff argues the 1816 legislation a was legislation 1816 argues the Lomazoff of money. definition or to a broader coins, allowed Sweeping compromise that the a Republican coalition to finesse on its divide Clause. monetary regulatory function. Interestingly, Henry Clay claimed this regulatory power claimedInterestingly, regulatory power function. Clay regulatory Henry this monetary unconstitutional.was therefore was itself enumerated and not bank had gained had legitimacy branches by bank added new twenty its existenceyears; over during -HIIHUVRQ¶VSUHVLGHQF\IXUWKHUVXSSRUWHGLWVFRQVWLWXWLRQDOLW\ andWhy You Shouldn Republican coalition, the recharterRepublican the coalition, failed. 2020] 2020] C 1815, and 1816. By 1811, Jeffersonians were divided: some adopted the functionalist functionalist the adopted some divided: were Jeffersonians 1811, By 1816. and 1815, justified that there power that articulatedargument enumerated andno others was bank, a banks. state pointing to existing argument, federal the LQ WKH GHEDWHV ZHUH UHFHQW a enacting in to tax purpose andwas raise revenue, did not Maryland wonders why simply KLVWRU\ /RPD]RII QRWHV D constitutionality the concede of the bank unnecessary. Lomazoff that suggests it perhaps raisedopinion was Marshall himself who but he does not question, this have direct evidence, pursue and does not it further. by the arguably, misdirection Marshall in Madison discussion of the ClauseCoinage an accountnor the as a bank of monetary actor. argument. argument. Gallatin was recruited to write basedGallatin the bank to an article justifying the to regulate was recruited on write power addressed Jackson Andrew President And, 1832. episode of recharter in the currency the Coinage Clausethe argument in his veto claimingmessage, power could the regulatory be delegatednot to a corporation
but no further. no further. but 5 19. 42010-tul_55-2 Sheet No. 20 Side A 03/03/2020 13:59:43 Side A 03/03/2020 Sheet No. 20 42010-tul_55-2 42010-tul_55-2 Sheet No. 20 Side B 03/03/2020 13:59:43 26 M K C Y at 154 EARS OF EARS But this But this 25 28 See id. See 100 Y (July 13, 2011), even if people EVOLUTION TO THE TO EVOLUTION OST OST ² R L s delegations argument ¶ TLANTIC TLANTIC HE ,A ³,GRXEWLIRQHEDQNHU :T declined to specifically to specifically declined SDUDJUDSKZKHUH-XVWLFH 21 IURP7KRPDV+DUW%HQWRQ , t Money LEXQDODORQHFDQWKHGHFLVLRQ ’ that the Coinage that the Clause only . 61 (2009). 22 EV but this is only thinly supported supported thinly only is but this The question constitutional of MERICA FROM MERICA THE ONSTITUTION [Vol. 55:185 55:185 [Vol. A .R 24 is thought provoking (though at (though provoking thought is ² C Alexander Hamilton, CentralBanker: Crisis IST .H Knox v. Lee Knox US B OLITICS IN P LQJ DQG ZKDW PDGH LW VRXQG DQG SURSHU´ , 83 s veto message; perhaps, or perhaps not. not. perhaps or perhaps, message; s veto ¶ as an example of departmentalism. of as an example DMINISTRATIVE A Hepburnv. Griswald ANKS AND AND ANKS Bernanketo Ron Paul: Gold Isn ,B TULSA LAW REVIEW LAW TULSA 31. 64.Given that elsewhere Lomazoff is careful not to exceed his evidence, ± ± McCulloch ) 2/18/2020 ) 7:11 AM (2012)). REATING THE REATING Jackson, thus, did accept the monetary power in principle. power in the accept did thus, Jackson, monetary AMMOND ELETE AW ,C H 20 D L OT note 25, at 275. 275. at 25, note N note 1, at 1, at 130 note note 1, at 142, 151, 153. note 1,note 161 at RAY RAY 23 In the financial wake of the War of 1812, and in debates in 1816, it is 1816, it is debates in in and 1812, War of the of the financial wake In O ASHAW 27 M supra supra supra supra supra surpa , , , , ERRY DMINISTRATIVE ,J-FINAL(D 341 Indiviglio, Daniel (1957); Richard Sylla, Robert E. Wright & David J. Cowen, Cowen, J. David & Wright E. Robert Sylla, Richard A U.S. 457 (1871). U.S. 603 (1869). RQH ILYHGROODUVOHQWRXWIRUHDFKGROODULQVSHFLH VWDWHG AMMOND OMAZOFF OMAZOFF OMAZOFF AR See See Lomazoff characterizes Lomazoff Lomazoff concludes by trying to connect the 1816 justification for the Bank to the Bank the for justification 1816 the trying connect to by concludes Lomazoff H L Bray Hammond, commenting on the development of a fractional reserve ratio of a ratio of of development reserve fractional Hammond, commenting the on Bray Reconstructing the National Bank Controversy Bank the National Reconstructing W . . 26 20 MERICAN MERICAN IVIL IVIL HAUSOVSKY 27. RYHUUXOH-XVWLFH&KDVH¶VGHFLVLRQLQ be made. On the Supreme On the Supreme Court the United Statesbe made. of has country the our of constitution VHHPVWRLJQRUHWKHODVWWZRVHQWHQFHVRIWKDWGHFLVLRQ¶VILUVW 0DUVKDOOGHFODUHV ³>$@QGLILWLVWREHVRGHFLGHGE\WKLVWU referred to actual metal coins. He suggests that Strong could Strong so, and speculates that done He suggests coins. have metal actual to referred that could Strong have Clay and inhad Calhoun mind evidence offered. by clear that many legislators recognizedclear that many the regulatory monetary function. https://www.theatlantic.com/business/archive/2011/07/bernanke-to-ron-paul-gold-isnt-money/241903/. https://www.theatlantic.com/business/archive/2011/07/bernanke-to-ron-paul-gold-isnt-money/241903/. A C Congressional authority. 188 188 C logic used for the creation of the Federal Reserve in as 1913, Reserve Federal as recent the creation of the more used for well logic justifications. that notes He Justice Strong, in the speculation here is striking. is striking. here speculation the 24. Jackson mentioning not in Mashaw, Jerry that speculates Lomazoff example, For According to Hammond, when the continued debated, the bank to Hammond,existence the of neither was when According John Thomas nor Adams Jefferson it thought legitimate. was suggestsHammond that even did not it Hamilton think in 1791,was legitimate Bank debated. the But was when 1790s the in flourished banking that reserve shows fractional Lomazoff did not understand did not understand the level ofwhat reserve ratio required a was to establish stable system.monetary Richard Sylla et al. demonstrate Hamilton actions directed in monetary of 1792. panic the whether to read the Coinage to read the whether to includeClause as physical or broadly coinsnarrowly, only, all forms of impliesmoney economic learning. How should advances in economic theory the interpretation of Coinage the impact Clause? it change actors political Should when developments?implement theoretical all, decades prominentAfter for after, many $PHULFDQVWKRXJKWRIVSHFLHDVEHLQJ³UHDO´UDQJLQJDWOHDVW during antebellum years, to Ron Paul in a colloquy with Ben Bernanke in 2011. in Ben Bernanke with Paul a colloquy to Ron in antebellum years, during Management During the U.S.Financial Panic of 1792 22. 75 22. L 23. 28. L 28. 21. 79 21. 25. On Benton, see B see Benton, On 25. five-to- do was he what understood clearly four in times a bit more contentious seems than times a bit more necessary). must likely have read an edited version of Jackson of version an edited read have likely must (referring to J 42010-tul_55-2 Sheet No. 20 Side B 03/03/2020 13:59:43 Side B 03/03/2020 Sheet No. 20 42010-tul_55-2 42010-tul_55-2 Sheet No. 21 Side A 03/03/2020 13:59:43 36 THE , 189 189 Fletcher that only not RESIDENCY P ² HE seems ambiguous -XVWLFH 0DUVKDOO¶V (1938). (1938). :T Trustees of Dartmouth Trustees of Dartmouth The The UPREMACY McCulloch 34 S ONSTITUTION ONSTITUTION xi (2007). C UDICIAL UDICIAL ISTORY ISTORY J While evidence from the Philadelphia While evidence the Philadelphia from 32 and sought to minimize monopoly rights, sought to monopoly and minimize Mere judicial review is consistent review Mere judicial with that state-granted that extend did not contracts U.S. H LAUSE OF THE LAUSE 30 37 spans the entire history of the of the theentire Constitution spans history C 17 U.S. 518 (1819). QVRIWKHFODXVH¶VDSSOLFDWLRQV7KHFKDSWHUVDUH U.S. 420 (1837). This decision ruled thatthe state couldbuild The legal history provided is both detailed and detailed and is both provided The legal history 31 OUNDATIONS OF F ONTRACT ONTRACT decision, C EADERSHIP IN EADERSHIP IN L More interesting is More action in the interesting states. A debt relief law It is ambiguous as to whether this statement exemplifies statement whether to as this exemplifies ambiguous is It HE 35 29 ) 2/18/2020 ) 7:11 AM ., T Dartmouth College R OLITICAL OLITICAL ,J 22. 35. 44. ,P ELETE ± ± ± D case, striking down a state down altering law case, striking the college charter, is The Contract Clause OT RIGHT N ONSTITUTIONAL ONSTITUTIONAL O C F. W HITTINGTON harles River Bridge note 1,at43 note 1, at18 1, note 32 at AND AND , 39; Dartmouth College v. Woodward, ± E. W ENJAMIN ENJAMIN supra supra supra for example, centers not on judicial review of state of legislation,judicial review centers on not example, for but whether supra ,J-FINAL(D OURT , , , B at 36 33 C , EITH LY LY LY TRIANGULATING AND LAW POLITICAL-ECONOMIC DEVELOPMENT The Era evidences Marshall strengthened of clause. use the The analysis of -DPHV(O\-U¶V See See E The period is portrayed Taney as substantially continuing the Marshall Court Id. M K . C Y 36 HAUSOVSKY UPREME v. Peck to implicit features, modified features, to implicit modified Convention as purposesConvention to the the clause of is provides thin, evidence some he that state included.be to meant were contracts RQ WKLV SRLQW WKRXJK the of Clause omission Coinage is significant.(purposeful?) WHQGLQJ WRZDUGV WKH ODWWHU 5HJDUGOHVV a with singular doctrinal focus. similar effortA has apparently been not taken sinceup %HQMDPLQ):ULJKW¶V DQDO\VLV departmentalism, judicial supremacy certainly certainly Tois not. judicial supremacy me, departmentalism, must the Supreme Court decide on constitutionality, but the other governmental branches governmental the other but constitutionality, Court on Supreme decide the must DUH WKHQ ERXQG WR IROORZ LW¶V LQWHUSUHWDWLRQ mere judicial review, where the judiciary has authority when a dispute comes before it, or it, or before comes dispute a when authority has the judiciary where judicial review, mere it exemplifieswhether what WhittingtonKeith terms judicial supremacy but it maintained the preferred it the Yet the contracts. but maintained Clause of Contract position take did not just compensation, a state could, domain; eminent with of power the precedence over contracts the state where is a party are covered the by clause. 31. a competing bridge irrespective of an existing state grant for a bridge over the river. same over bridge a for grant state existing an of irrespective bridge a competing organized by chronological time period, and sections chronologicalorganized by period, and sections areas time each chapterwithin concern of often that recur chapters.dispute in Examples multiple include Public Contracts, and Impairments.Judicial thatBankruptcy the Ely Laws, argues, to Wright, contra generation intended founding Contractthe Clause to to apply the state contracts is where as parties. as those betweenwell private a party, extensive, the vast exploring permutatio 32. E 32. S 29. K McCulloch 30. v. Maryland,17 U.S. 316, 401 (1819). 2020] 2020] C GHYROYHGWKLVLPSRUWDQWGXW\´ in North enforcing North asserted of atin Carolina contractual obligations, while the importance the remedy. from the distinguishing right in inherent the Yet, same delays time the the relief their to reorganize affairs. debtors for temporary judicial to provide process served This would recur, in other times and circumstances. times and other in recur, This would The C doctrine. characterized as upholding contemporary perspectives, although perspectives, although charitable treating characterized as upholding contemporary charters ascorporate contracts. College v. Woodward v. College Woodward 33. E 10 34. U.S. 87, 137 (1810). 35. 37. 36 Bridge, Warren v. Bridge River Charles 42010-tul_55-2 Sheet No. 21 Side A 03/03/2020 13:59:43 Side A 03/03/2020 Sheet No. 21 42010-tul_55-2 42010-tul_55-2 Sheet No. 21 Side B 03/03/2020 13:59:43 M K EGAL APERS APERS L C Y P EGAL L RISIS OF RISIS C HE OLLECTED OLLECTED :T Debt relief measures Debt relief measures C G DGYRFDWHG REMHFWLYH FUHGLWRUUHFRXSLQJWKHLU AW in 46 , JORVVRQWKH³PHHWLQJRI L the Taney Court ruled that Taney ruled that the Court But a state could issue tax tax could state a issue But 42 43 , 39 MERICAN [Vol. 55:185 55:185 [Vol. A So there were serious conceptual conceptual serious there So were 40 with Justiceswith threeSouthern objecting The PathofLaw the ² Bronson v. Kinzie Bronson Does the immorality Does the slavery, of now abolished, 44 RANSFORMATION OF T TULSA LAW REVIEW LAW TULSA Whether corporate charters be characterizedshould as here the meeting of the minds did not control the outcome, outcome, the the control minds did not of the meeting here So too for police powers. police for too So HE 47 ) 2/18/2020 ) 7:11 AM 38 Oliver Wendell Holmes, Holmes, Wendell Oliver .T 77. 93. ELETE and railroad publiclyif rates, even contracted, subject to were Justice a unanimous for that Shiraz contracts Court wrote made ± ± D 48 49 see also see ORWITZ OT N O J. H note 1, at76 note 1, at89 note 1,149. at 14. 14. 52. 55. 55. 57. 57. 38 (1992); ± ± 78. ± ± 85. ± But the question is whether parties in advance might reasonably anticipate anticipate advance in parties reasonably might is whether question the But ± ± ORTON 35 41 supra supra supra 45 ,J-FINAL(D , , , M at 113 at 151 at 82 at 152 at 155 at 88. at 88. U.S. 311 (1843). at 77 LY LY LY A gradual decline and then precipitous decline A gradual fall followed. the During Gilded Age, the Civil War and Reconstruction inevitably raised questions related to times of war. of war. related to times raised questions Civil War and Reconstruction inevitably See . Id. . Id. . Id. . Id. . Id. . Id. . Id. . Id. . Id. . Id. 39 44 47 40 48 49 41 RTHODOXY HAUSOVSKY contracts was disputed, contracts was a legislature its successors could bind some in areas; this strengthened of rights those the state contracts.financialwith But during state-level panics, some courts granted the rulings. contra of laws, Court debt to Supreme relief validity were enacted during economic downturns, designed particularly to alleviate those in particularly designed downturns, economic enacted during were distressed rural communities. succeeding regulations. O 167, 181Inc. Howe & Brace (Harcourt, 1920). E 46. 38. E 38. abrogate a contractual grant. abrogatecontractual a 190 190 C exemptions that would bind future legislatures that exemptions bind future would strenuously, fearing apparently for states for apparently rights. strenuously, fearing for public purposes, pursuant purposes, pursuant public to a legislativefor act, subject to revision. were A subsequent tensions in which state sovereign powers could not be bargained away contracts via made away benot powerstensions bargained could in sovereign state which betweendifference significantOne could. power which state sovereign and state the by and its remedy: Marshall and a contractual right concerned Taney Marshall of relation the as intrinsically and remedy as right Taney distinct, of conceived while them of conceived connected. impact prior slave purchase contracts, sale? a creditorimpact the a claim makes where for These TXHVWLRQVYH[HGWKHFRXUWV7KHDQVZHUVSURYLGHDQLQWHUHVWLQJ WKHPLQGV´WKHRU\RIFRQWUDFW² standards. yet this was well before Holmes made his contribution to contract theory he Holmes where before contribution this theory to contract his made well yet was FULWLFL]HG WKH ³PHHWLQJ RI WKH PLQGV´ FRQFHSWLRQ +ROPHV LQVWHD 43. E 43. whether remedy might be altered later. In might remedy whether artificiality of the distinctionartificiality right and remedy between recognized. was increasingly (OLPLQDWLQJGHEWRU¶VMDLOPLJKWKDYHZHDNHQHGWKHFKDQFHVRID loss, but society and the courts considered practice archaic. the Were wartime debts contracted ConfederateWere currency with satisfiedwartime paid notes that if with sincehad become severely devalued? equity Could as a principle prevail the over strict ofterms the contracts? Were debts that contracted were slavesfor but paidnot valid in the Thirteenth the Amendment? of wake 45. 42. 42 42. 42010-tul_55-2 Sheet No. 21 Side B 03/03/2020 13:59:43 Side B 03/03/2020 Sheet No. 21 42010-tul_55-2 42010-tul_55-2 Sheet No. 22 Side A 03/03/2020 13:59:43 . 55 56 50 HE EV KHU HEHU But But ,T 52 .L.R ARGINAL ARGINAL 191 191 ISTORY OF ISTORY M EYNES ARV ,H K HE , 326 U.S. 230 ,T ,8H LACK 386 (1937). AYNARD AYNARD CHUMPETER M History of Economic History of Economic D.W. B A. S OHN By the end of the Gilded the Gilded theend of By ¶VYLHZWKDWWKHSRVVLELOLW\ 51 CONOMICA CONOMICA LYLOHJH0DOLFHDQG,QWHQW´ OSEPH OSEPH .4E RAWFORD (1973); J &C 54 E. N.Y. SavingsBank v. Hahn Privilege, Malice, and and Intent Malice, Privilege, (1964); J OATS OATS DQG 6FKXPSHWHU¶V ONEY VALUATION E M was the watershed moment, with Chief Justice Chief the with watershed moment, was ,A.W.C AND AND , The Nature of the Firm the of Nature The LACK B NTEREST ,I ) 2/18/2020 ) 7:11 AM General Theory n v. Blaisdell OLLISON OLLISON 33. The relevant opinion was ± C NTERPRETATION AND ELETE KHFULWLTXHVWKH1HZ'HDO&RXUW¶VXVHRIEDODQFLQJWHVWVUDW D :I OT N MPLOYMENT note 45, at 131; Oliver Wendell Holmes, Holmes, Wendell Oliver 131; at 45, note O E 2UWRSXWLWDQRWKHUZD\WKH³QHHGIRUVSHHG´WKDW+RZDUG6FKZ (1996); H. Coase, Ronald Blaisdell CONOMICS note 1,at 162. 1,note 43. at 57 note 1, at 232 supra supra E , ODXVH .H\QHV¶ Certainly the the Certainly New Deal financial crisis an emergency,was and that declaration NALYSIS supra supra supra supra HEORY OF 53 ,J-FINAL(D U.S. 398 (1934). , , , A suggest substantially more room for governmental intervention, particularly in a intervention, governmental particularly for room substantially suggest more at 164. at 198. T ORWITZ LY LY LY TRIANGULATING AND LAW POLITICAL-ECONOMIC DEVELOPMENT Even prior to the New Deal, new economic developments led to increasing stress economic developments led on Deal, new New to increasing prior to the Even Ely provides an extensive history of private private Clause an of extensiveContract provides debtEly history relief disputes over E E M K . . Id. . Id. . . Id. . Id. C Y 51 50 55 52 ENERAL EVOLUTION IN IN EVOLUTION CONOMIC HAUSOVSKY 1, 5 (1894). 56. H 56. 54. E 54. (1945). R G E 2020] 2020] C legislature couldchange the the terms law of the without violating Contract Clause.
57. R.D. see marginalism, On Analysis FULVLV$QGDVWULFW&RDVHDQYLHZPHUHO\QHHGDGRSW)UDQNIXUWHU of government intervention can be implied for all contracts. The lack of perfectly clear and all contracts. clear and for The lack can perfectly be implied intervention of government of rights overall reduce butsocial output, may it politicsstable property is the of that world it. on impinges When analyzing this does not Great economyEly with wrestle the legacy. by Depression, the Further, was advanced had theory than and economic substantially. interconnected vastly before, more the of 1870s the interpretation a strict support of Marginal could Revolution the While Contract C Elements of public policy exposed stresses on distinctions between policies that could could that policies between distinctions exposed on stresses policy public of Elements the on Contract that debtscould and Clauseinfringe Thus be right, those could not. that claims against could be upheld bankruptcy police powers and law, under discharged values. property contracted power reduced the exertion of the than absolute prohibition of contracts. does absolute However,than balancing prohibition he not place the of use tests in context; Morton Horwitz the identifies theoreticalfirst Holmes as providing MXVWLILFDWLRQIRUXVHRIDEDODQFLQJWHVWLQKLV HVVD\³3U by Hughes might have indicated some limitations. indicated some have early 1940s,Hughes might But the by by Justice all for be implied could state police power of exertion the declared that Frankfurter emphasizing they to as opposed legislatures permitting wanted, thus contracts, to do what contracts society. sanctity a free as the of the of basis Age, the DueProcess Age, the increasingly Clause the supplanting Contract Clausewas as rights. economic for protection a strict construction of the Clause. rent example, For controls Washington, D.C. in and an of what constitutes questions to World War York I led during City New emergency, legislative decisions courtsand review could to declare an emergency. whether laws, dating to at least the 1807 economic stress, with more following the War of 1812. War of the following more stress, with to atthe least dating 1807 economic laws, 53. 209 53. Home Building & Loan Ass’ Home Building & Hughes providing rationales legislative allowing on for mortgage providing Hughes moratoriums contracts. 42010-tul_55-2 Sheet No. 22 Side A 03/03/2020 13:59:43 Side A 03/03/2020 Sheet No. 22 42010-tul_55-2 42010-tul_55-2 Sheet No. 22 Side B 03/03/2020 13:59:43 , M K C Y ECHNOLOGY bracket one of of one bracket 60 1880: T ± WHU¶V DVVHUWLRQ WKDW ,1850 And Coase did not care care not did Coase And AW 58 L 61 provides a corrective. provides [Vol. 55:185 55:185 [Vol. OMMON It would be a model for the bill that bill that the for be a model It would C 62 . United StatesDarby v. t bill proposed a ban on interstate on t bill proposed a ban shipment MERICAN MERICAN and A (2004). (2004). 59 struck and a child down labor law, expresslywas hild Labor in America TULSA LAW REVIEW LAW TULSA ITIZENSHIP ITIZENSHIP Champion v. Ames C REATION OF ) 2/18/2020 ) 7:11 AM C 36. ± Hammer HE ELETE D ,T OT An effort seeking to glean the essence of the political disputes over political disputes the of essence the to glean seeking An effort N O Hammerv. Dagenhart note 1, at 35 at 1, note ONSTRUCTION OFONSTRUCTION CHWEBER C S Darby. 65;Champion v. Ames, 188 U.S. 321 (1903). supra ± , ,J-FINAL(D U.S. 251 (1918). U.S. 100 (1941). at 58 AND THE AND OWARD , LITER Few states enacted child labor laws. The patchwork of state labor bureaus produced produced bureaus state labor of The patchwork laws. child labor states enacted Few He begins depictingHe begins as the childit developed labor problem the in industrialfirst The National Child Labor Committee (NCLC) was formed in 1904. It initially It initially (NCLC) The Labor Committee formed 1904. was Child National in While Ely laments the demise of the Contract Clause during the New Deal, John the New Clause during Contract the the of demise laments Ely While . Id. . Id. 62 HAUSOVSKY OLITICS uneven record gathering, inspection, and enforcement. In many Southern states laws In Southern and enforcement. many inspection, were record gathering, uneven nonexistent. The government federal haltingly began to investigate conditions, including report Commission The the Industrial 1898 system. of sweating 1892 investigation an review littlejustification it. A found for child labor and identified evidence of widespread states in the enacted did that state labor laws and also state laws work them found of child connected education needs labor child problem. to the revolution, starting with the decline of the guild system. Child labor for some families was some Child labor for system. guild the of decline the revolution, starting with such dexterity, manual jobs in requiring worked as textiles, Children economic good. an conditions,and in dangerous assuch coal became poisoned arsenic, Many mines. from or coal dust and extremelyworked nicotine, long hours. the late 1800s,In piecework to and children dimension areas parents added a new urban tenements of by in performed child labor problem. the overturned in in overturned the labor issuesthe from within United the four corners of Statesthe Reports leads to a WUXQFDWHGXQGHUVWDQGLQJ)OLWHU¶V& the seminalthe conflicts in American constitutional of development powers the concerning Federal Government: the focused on information gathering, public education, and state-level public including action, gathering, information focused on mandatory education. Indiana Beverage Senator Albert was the principle legislative a federal child labor for Hissponsor law. firs of goods made with child labor; this ostensibly would fall under the Interstate Commerce ostensibly Commerce under Interstate fall labor; this the child would with made goods of Clause and consistentwas with P 58. H 58. identifies during the period of railroad expansion provided the sort of economic impetus impetus providedexpansion railroad economic of of sort the period the during identifies Clause rights, or not. Contract property of alteration legal for 192 192 C 60. 312 60. F 61. what the law what thatwas, only it and stable. clear Givenwas Schumpeterian the creative of process destruction industries supplantingnew existing businesses, role a regulatory for WKH VWDWH FRXOG KHOS action can all contractsa implied be for provides government the role of solution: VPRRWK WKH WUDQVLWLRQ ,I sufficiently regime clear and rights resultingthe property and is expected, government VR WKHQ )UDQNXU to imperative.that satisfy stable enough Coasean child that labor same time demise in Fliter celebrates of forms of the the worst The period. landmark cases of was enacted a decade later. President Roosevelt committed only to an investigative bureau, to an investigative bureau, Roosevelt President committed only was enacted later. a decade loss of state autonomy. feared opponents while 59. 247 59. 42010-tul_55-2 Sheet No. 22 Side B 03/03/2020 13:59:43 Side B 03/03/2020 Sheet No. 22 42010-tul_55-2 42010-tul_55-2 Sheet No. 23 Side A 03/03/2020 13:59:43 63 193 193 The Child 69 KHSD\UROODGYRFDWHV which upheld a tax on tax on a upheld which 65 , the the the same struck down judge who ² drama, where the Supreme Court ruled the Act Act Supreme the ruled the Court where drama, Opponents brought test brought Opponents before cases sympathetic McCray v. United States State and states laws continued to vary, lax laws with 66 64 . ) 2/18/2020 ) 7:11 AM ruled that since the articles made by children were children harmless, since thewere articles by that ruled made 06. 40. ± 87; Keating-Owens Act, ch. 432, 39 Stat. 675 (1916). Act, (1916). 675 Keating-Owens 87; Stat. 39 432, ch. ± But this caused But this concern because it seemed to include work ± 68 ELETE Hammer D 67 OT Hammer N O 2ZHQ$FWRI DGRSWHGPXFKRI%HYHULGJH¶VSURSRVHGFRQWHQW note 1, at 1, at 101 note note 1, at 139 at 1, note Bailey v. Drexel Furniture Co., Furniture Drexel v. Bailey 259 U.S. 20 (1922). note 1, note 86 at Hammer v. Dagenhart v. Hammer 17; 54. 54. A renewed effort to ratify the Amendment came during the Great Great the the during Amendmentratify came effort renewed to A ± ± 96. supra supra supra supra ± 70 , , , ,J-FINAL(D U.S. 27 (1904). at 95 at 114 at 140. at 150 LITER LITER LITER TRIANGULATING AND LAW POLITICAL-ECONOMIC DEVELOPMENT After thisAfter defeat, advocates shifted their tacticsto the Taxation Clause, by the taxing Interest groups mobilized on both sides on both state ratification groups debates. for Opponents Interest mobilized Stymied again, child advocates sought to amend the Constitution to allow Congress to allow Constitution the to amend again,Stymied child advocates sought TheKeating- F F M K . Id. . Id. . . Id. . Id. . . Id. . Id. . Id. C Y 64 68 63 67 69 70 HAUSOVSKY claimed that these socialist that claimed and the were ideas that would lead encroachment to federal The authority. parental Catholic Church against came it as a of it, seeing out destruction combinedvehicle education that, with laws, would Catholic weaken schools and parental Southern defeat in it also states. But It received failed unanimous authority. nearly spectacularly in an advisory referendum in Massachusetts, and in the then New York State Legislature. did attract employers seeking low-wage seeking did attract employers labor. to This firms children likely fourteen seemed of using or younger. profits more years judicial review survive light of in
oleomargarine. Opponents in theOpponents Senate filled of anticipation the Congressional Record in oleomargarine. a legal challenge; they asserted tax revenue that pretextual andwas that the act would left to areasregulate states. Nonetheless, properly it enacted was and also effective in was reducing employment of children. Labor Amendment then Amendment Labor passed overwhelmingly; Houses include anit did not both date.expiration to regulate child labor.to regulate issue One constitutional concerned language. early version used An ³HPSOR\PHQW´EXWEHFDXVHVRPHFKLOGUHQZRUNZLWKSDUHQWVRIIW IDYRUHGWKHZRUG³ODERU´ matches andmatches narcotics). 2020] 2020] C Federal Judge James Boyd in North Boyd James in North Federal Judge Carolina struck Chief Justice it Court Keating-Owen Supreme Act. On appeal,with down, the Taft taxes phosphorous (such as on federal permitted other this issue distinguishing from exceeded congressional power. Fliter effectively narrates the legal arguments surrounding surrounding arguments the legal narrates effectively power. Fliter congressional exceeded apparent inconsistenciesthe in Process Due Commerce and Clause jurisprudence at the confidentActivists time. children concerns andthat thewere could of health justifymoral exemption child the privileged Due contractual the labor Process of that from doctrine course of But liberty. the the exceptions apply. did not morality-based This is But Fliter known. well provides only to child labor, of incidences reduce the did Keating-Owen actually evidence that Act againincrease following This ledthe to 66. F 66. done on a farm. A second issue concerned whether concurrent state power should be concerned issue whether should second concurrent state power A a farm. on done statefailed. conventions by ratification proposal for A text. the in included 65. 195 65. 42010-tul_55-2 Sheet No. 23 Side A 03/03/2020 13:59:43 Side A 03/03/2020 Sheet No. 23 42010-tul_55-2 42010-tul_55-2 Sheet No. 23 Side B 03/03/2020 13:59:43 M K This This C Y see also see 76 Hammer v. ILHG 7KHUH ZHUH Success of the codes codes of the Success 271907); ed. (2d ± 72 invalidated NIRA, the the NIRA, invalidated 26 73 UHVXOW ISTORY ISTORY H [Vol. 55:185 55:185 [Vol. It is one of six constitutional of It is one 74 vided the the vided federal authority to government and which explicitly overruled overruled explicitly and which d that the Amendment ratifiedwas a not in (1978). (1978). NTERPRETATION OF I In that approach, the economic base determines much base determines much economic approach, the that In ISTORY ISTORY an interesting episode in light ofan interesting light episode the in Twenty-Seventh 77 H 71 TULSA LAW REVIEW LAW TULSA CONOMIC CONOMIC ² E ) 2/18/2020 ) 7:11 AM 75 HE -year path to ratification. Kentucky and Kentucky Kansasratification. each it to path ratified -year ELETE ,T HEORY OF D T United States. v. Darby OT S ¶ N O ARX ELIGMAN note 1, at 185. 1, at 185. note ,M 59. 59. 04. 04. 62. 62. ± ± ± A.L.A. Schechter Poultry Corp. v. United States Corp. A.L.A. Schechter Poultry supra R.A. S , HAW ,J-FINAL(D U.S. 495 (1935). at 158 at 200 at 180. at 161 H. S DWIN DWIN LITER 7KH ³6ZLWFKLQ7LPH´FOHDUO\SUR After After The National Industrial Recovery Act (NIRA) included Recovery The (NIRA) Industrial National codesAct labor that for Each of these monographs depicts economic learning and the these impact learning of depicts economic Each monographs Early law. on . Id. . Id. . Id. . Id. . Id. . Id. 71 75 72 76 ILLIAM ILLIAM HAUSOVSKY DPHQGPHQWV DSSURYHG E\ &RQJUHVV WKDWFRQFHUQV³WKDWWKH6XSUHPH&RXUWPLJKWKRO UHPDLQV ³RXW WKHUH´ XQUDWL UHDVRQDEOH DPRXQW RI WLPH´ Depression. Fourteen states ratified the Fourteenratified states Depression. the Amendmentpassed states several and 1933, in restrictive child labormore laws. 194 194 C W 74. F 74. $PHQGPHQW¶VXQXVXDO the earlier 1930s,in rejections. reversing that the This led to litigation earlier and a ruling rejections legal significance. no had regulate. regulate. Despite this, the Fair Labor Standards (FLSA)Act that implement would some contested regulations times.hotly was and revised multiple The moved FLSA the of out RulesHouse Committee petition. a discharge only It was initially ondefeated with the It form. shorter in resurrected being for FDR), before (a first was House the of floor House.petition after the another only it to the floor of enacted, but got discharge incidence of child labor again increased. This in turn led to renewed efforts to ratify the to ratify efforts renewed led to This turn in child labor increased. again of incidence Child By the Labor late 1930s,states Amendment. ratified had Labor twenty-eight Child stillAmendment, the thirty-six short of needed. Dagenhart. slowed momentum Amendment. Labor Child slowed for momentum of the societal superstructure. While over-determined, there is something in the core of societal superstructure. core the of the over-determined, While of in there is something a changes. comprehensive changes other impact Other attempts toprovide that economic fallen unsurprisingly theory, have developmental realignment as critical such logic, was the law law upheld in was the restricted child labor. Franklin Delano Roosevelt issued a blanket code effective to end of to end of code effective issued Roosevelt a blanket Delano Franklin labor. child restricted to those at least work sixteen old, 1933, limiting years Thesome with exceptions. minor HIIHFWZDVVLJQLILFDQW RYHUFKLOGUHQ³ORVW´ZRUNDVD Americans learned about the monetary learned theabout monetary mid-centuryfunction, Americans discovered Americans the displacement advanced technological by developments, of challenge more and child labor thatadvocates state-based in an learned increasingly did not regulations work serve substitute can narratives as a sort of these of The triangulation interconnected world. the of The development. century turn economic political of theories overarching for R.A. Edwin economist Marx Seligman all its flaws, for noted first that, the presented historical development. of theory 77. E 77. 73. 295 73. 42010-tul_55-2 Sheet No. 23 Side B 03/03/2020 13:59:43 Side B 03/03/2020 Sheet No. 23 42010-tul_55-2 42010-tul_55-2 Sheet No. 24 Side A 03/03/2020 13:59:43 : OHN ENRE J EOPLE G P 195 195 (Byron E. RAS RAS E THE E MERICAN , for example, , for ,W A EADERSHIP FROM L E\ WKH UHVHDUFKHU¶V LECTORAL LECTORAL CKERMAN E A RITIQUE OF AN OF AN RITIQUE RUCE MERICAN RESIDENTIAL RESIDENTIAL A :AC :P Legal Tender Cases Tender Legal AKE M NTERPRETING EALIGNMENTS ?I R s theory of constitutional moments arguably is consonant is consonant arguably moments constitutional of theory s ¶ RESIDENTS P LECTORAL LECTORAL EALIGNMENT OLITICS OLITICS ,E P R ) 2/18/2020 ) 7:11 AM HE HE ,T ND OF AYHEW ELETE E D HE s theory onpresidential regimes wraps developmental logic withinpolitical a regime OT ¶ R. M (1993). Bruce Ackerman Bruce (1993). N , T O USH USH KOWRONEK AVID B S (1991). (1991). EORGE ,J-FINAL(D TEPHEN G Whether intending to do so or not, each of these works sheds light on ways in in light sheds on ways these works of each not, or so do to intending Whether TRIANGULATING AND LAW POLITICAL-ECONOMIC DEVELOPMENT The intersection in The in some intersection instances is The direct. Emergencies, unsurprisingly, impact each narrative, each narrative, Emergencies, whether stressimpact financial unsurprisingly, of the of intersection the exploring for a vibrancy tandem suggests in books these Reading See generally, e.g. 78 M K C Y DAMS TO TO DAMS HAUSOVSKY OUNDATIONS which the thickening ofwhich the political economic and universe legal through filtered was in tension the the inevitable allowsstructures. recognize us to reading a fair And change.
are significant for Ely becauseare significant for explore how they stresses on complications contracts, with the Justices, most of Justice predilections notably and political-economic Chase, impact significance Coinage the is the the Clause extent to which For Lomazoff, doctrine. contract of the to consciousness the 1832 into their 1816 and managed way find debates from distinct have divergent purposes the and TheJustices. purposes, episodes serve different seems and humility Some policy each caution in economic work. for implications as authors warranted a result. Different even different stress identify points, the within foci conclusion. to different the its logical logic But the follows Each legalsame opinion. RI WKH DXWKRUV VXJJHVW the conclusion. drives perspective PXOWLIDFHWHG VHWV RI LPSOLFDWLRQV ZKHUH labor child War, or Civil the during dollars confederate in made contracts of 1812, War of the Greatin Depression. The latter provides a both death theknell Contractfor Clause, childThe labor legislation. on progress for opportunity while providing simultaneously New Dealsame eviscerated that Contract to implementClause the empowered government culmination a decades-long identifiesthe to eradicate Each of movement child labor. work points, veto complicated the significantmany processes, and obstacles to enacting social legislation in the United States. One author gnashes his teeth, the others celebrate,while possiblebeen reasons. of different it have Would very authority for federal but to have limiting the Clause?child labor the Contract reach of without developmentseconomic and law, and they suggest a on myriad multidirectional a triangulation course, requires and effects. The process, of scholarly interactions of multitude such The ismonographs a single that observer. hope read by eventually the is even the parts. than sum greater structure. S A 78. Skowronek Stephen (2002). 2020] 2020] C short. F Shafer ed., 1991); D 1991); ed., Shafer with realignment theory but does place constitutional conflict at the center. B center. the at conflict constitutional place does but theory realignment with 42010-tul_55-2 Sheet No. 24 Side A 03/03/2020 13:59:43 Side A 03/03/2020 Sheet No. 24 42010-tul_55-2