Few constitutional themes have galvanized popular political factions—and, consequently, have been perceived to be in natural tension with each other—as much as federalism, on one side, and the substantive due process and equal protection doctrines, on the other. The concepts have assumed these polarized and competing public associations through their practical interactions over the twentieth century, often serving as both the targets and the weapons of charges of judicial activism. However, the Supreme Court’s recent opinions in United States v. Windsor and Bond v. United States, read together, reveal an attempt to reconcile these two seemingly disparate constitutional themes. Specifically, Justice Kennedy’s writings in both cases suggest an ironic conservative salvaging of the fundamental interest strand of the equal protection doctrine. In this modern take on the doctrine that first gained popularity under the more liberal Warren and Burger Courts but attracted little attention since, an individual’s fundamental interest in the rights created by her state within its reserved powers is fused with equal protection concerns to motivate a heightened tier of judicial scrutiny. This Note argues that such “stereoscopic synergy” may serve as a value-free, representation-reinforcing judicial mechanism: It provides a framework by which courts may correct defaults in the political process’s protection of minorities’ interests when federal law discriminately recognizes validly enacted state regulations based on the suspect or quasi-suspect class of the burdened individuals. This same analysis can be applied to advance causes championed on opposite ends of the political spectrum, such as medical marijuana use and private gun ownership. As such, this conservative twist on a historically liberal concept disrupts the popular culture’s perception of federalism and substantive due process-equal protection as necessarily conflicting doctrines.
Note
An Empirical Analysis of Sue-and-Settle in Environmental Litigation
This Note aims to expand understanding of the sue-and-settle controversy by providing useful data, analytics and commentary from which courts, policymakers and academics may further their exploration of the process. This Note applies empirical analysis to sue-and-settle under the Clean Air Act, Clean Water Act and Endangered Species Act under the current Administration. It explores the principal charge against the process: that it has the effect of secret, backdoor rulemaking; and, it finds that a more nuanced analysis than that conducted by leading critics of the practice should properly distinguish between two very different uses of the practice—one deleterious, the other beneficial. Accordingly, the Note concludes that only with the former use should the process give cause for alarm, and that such deleterious uses make up only an extremely small fraction of sue-and-settle cases. Thus, wholesale destruction of the process is unnecessary; targeted remedies are more appropriate.
In the war over sue-and-settle, this Note does not completely dispel the fog by providing a definitive account of the causation behind the explosive growth in the process. But it does, however, provide further illumination of the battlefield, better informing the ongoing debate.
Contracting for Good: How Benefit Corporations Empower Investors and Redefine Shareholder Value
A new business form known as a benefit corporation is now available in twenty-six states and the District of Columbia. The statues creating the new corporate form require directors to balance shareholders’ pecuniary interests with the needs of the community, the environment, and non-shareholder constituents, such as employees and consumers. These statutes appear to reject the notion that corporations exist to maximize shareholder value. This Note, however, proposes an alternative interpretation: Rather than creating duties towards the community at large, benefit corporations give voice to a class of shareholders who would prefer (at least in part) to fund corporate social initiatives with the very resources that would have been used to increase shareholder value. By serving both as the shareholders’ investment vehicle and preferred philanthropic organization, benefit corporations empower shareholders with greater control over the ends, and to a limited extent the means, of corporate governance. The result is an entity that embraces shareholder primacy more than the traditional corporate form itself.