Note

Examining the Conflict Between Municipal Receivership and Local Autonomy

This Note seeks to examine the relationship between municipal receivership and local autonomy. Because few have explored this relationship in great detail, it is unclear whether municipal receivership is an appropriate tool for economically struggling cities. This Note argues that it is not. I begin by examining both the history of municipal receivership and local government law. This is necessary because local government law provides the framework for how to think about municipal receivership. I then analyze some of the legal arguments against municipal receivership. Based on specific home rule provisions in state constitutions, as well as a reading of the history of the home rule movement, I argue that home rule should provide cities with some protection against municipal receivership. Additionally, federal law may also be able to protect some cities from the loss of local voting rights that municipal receivership entails.

This Note then transitions into an evaluation of the extralegal arguments against municipal receivership. This reveals that municipal receivership is problematic because of the effect it has on democratic governance and the political incentives of local residents. Moreover, by defining success narrowly and misunderstanding how local financial crises arise, I argue that municipal receivership represents bad policy in that it fails to provide a long-term solution for the causes that generated the fiscal instability in the first place. This Note concludes with a review of some alternatives to municipal receivership, and discusses why they are superior.

The Original Public Meaning Of The Fifth Amendment Applied To Substantive, Prosecutorial Use Of Pre-Miranda Warning Silence

This Note applies the original public meaning of the Fifth Amendment’s self-incrimination clause to silence maintained before Miranda warnings are given. After beginning with a brief defense of originalism applied to pre-Miranda silence, the Note shows how the history of the right, the understanding at the founding, and the underlying justification of individual autonomy support proscribing the use of pre-Miranda silence as evidence of guilt. It then shows that the original understanding fits comfortably within current Supreme Court precedent. Finally, the Note responds to some counterarguments.

De Facto Supremacy: Supreme Court Control of State Commercial Law

In 1842, Swift v. Tyson gave federal courts permission to ignore state decisional law in cases that presented commercial questions. Modern writers criticize Swift for attempting to create an exclusive federal forum for commercial cases in order to unify the commercial law. These same writers also criticize Swift for creating less uniformity in the commercial law; Erie R. Co. v. Tompkins, which ended Swift’s ninety-six year reign, relied at least in part on the idea that Swift had promised a uniform commercial law and failed to deliver. Swift has few modern defenders.

This Note shows that Swift may have unified the general commercial law more than modern federal courts theorists suggest. State courts sought to promote uniformity in the commercial law. In deciding their state commercial law cases, they would look not just to their own law, but to the law of other states, the United States, or foreign countries, and choose the position they felt would most likely evolve into a uniform rule. State courts often followed Supreme Court precedent because they felt it would be most likely to become the uniform rule of the country. Through its power to influence the consensus view, the Supreme Court could change not just the commercial law to be applied in federal courts, but the commercial law to be applied in the state courts as well. Contrary to modern federal courts theory, the Supreme Court not only tried, but succeeded in regulating and unifying commercial law in the antebellum United States.

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