Note

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.

Rethinking the Road to Gault: Limiting Social Control in the Juvenile Court, 1957-1972

Although almost all existing scholarship considers the Supreme Court’s 1967 decision in In re Gault, which provided certain procedural rights to juveniles, to be the start of juvenile justice reform, that view ignores substantive discussion and legislative change preceding the Court’s ruling. This paper relies heavily on previously untapped archival sources to examine the beliefs and accomplishments of lawyers, judges, probation officers, and professors who led and resisted change in the administration of juvenile justice before and after Gault. These sources show that reformers advocated for a reduction in the court’s jurisdictional scope, a restriction on institutional dispositions, and an increase in procedural formalities (including an increase of the burden of proof, the rights to counsel, notice, and confrontation of witnesses, and the right to remain silent) concurrently and consistently throughout the period from 1957 to 1972. These reforms should be understood together, as means to limit the scope of courts’ authority over children whose non-criminal behavior deviated from middle-class social norms. This limitation of social control is consistent with contemporary limitations in adult criminal law, which sought to restrict judges’ discretion and increase rehabilitative services for adult offenders. Through both revision of substantive law and procedural formalization, reformers sought to transform the juvenile court into an institution that treated young law violators with dignity and allowed non-law violators to live their lives free from the social controls of others. In an age of incarceration, this paper demands a reconsideration of the juvenile court’s purpose.

Restoring the Original Meaning of the Speech or Debate Clause

A proper analysis of the original meaning of the Speech or Debate Clause identifies two, and only two, protections it affords a federal legislator: an immunity from punishment for legislative acts, and a privilege from testifying about those acts. Yet, the U.S. Supreme Court has interpreted the clause as prohibiting even the mention of legislative acts during a bribery prosecution. This evidentiary privilege lacks basis in text and prior precedent; what produced it was a deeply flawed understanding of the clause’s implications as a matter of constitutional structure. These flaws did not stop the D.C. Circuit from applying this unsound structural reasoning and thereby broadening the testimonial privilege well beyond its proper boundaries. These erroneous decisions needlessly frustrate the enforcement of anti-bribery laws which are necessary to punish and deter abuse of the public trust. Seeking to unsettle the foundations of nearly fifty years of precedent, this Note argues that the Court should remove the evidentiary privilege from the Speech or Debate Clause and return the testimonial privilege to its proper narrow scope. The Ninth Circuit’s recent disagreement with the D.C. Circuit’s interpretation of the clause gives the Supreme Court a prime opportunity to restore its original meaning this term.

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