Issue 1

The Government-Could-Not-Work Doctrine

The Supreme Court has recently declared that it is presumptively unconstitutional for the government to compel individuals to do or pay for things to which they have religious or political objections. Last Term, the Court applied this declaration to uphold the First Amendment arguments made by public-sector employees, and it appears poised to vindicate similar claims by religious objectors to antidiscrimination laws in the future. But this declaration is wrong. Indeed, throughout American history—from the Articles of Confederation through Lochner v. New York and Employment Division v. Smith, the Court itself has repeatedly rejected the notion that compulsory laws, in and of themselves, are presumptively unconstitutional.

This Article offers a novel examination of the history of challenges to compulsory laws inside and outside the context of the First Amendment. For centuries, the Supreme Court has faced hundreds of challenges to objectionable taxes, objectionable drafts, objectionable regulations, and objectionable funding conditions. With few exceptions, the Court has responded that the “government could not work” if it lacked the power to compel people to do things to which they objected. Although the Constitution prescribes many specific limits on the powers of the federal and state governments, the Constitution’s very purpose was to create a union that had the power to compel political minorities to accept the will of a political majority. Such a union would be incompatible with a governing document that prohibited officials from compelling people to take any action to which they religiously or politically objected—even when those objections were sincerely held.

Borrowing the Supreme Court’s own language, this Article calls the Court’s typical response the “government-could-not-work” doctrine, and conclude that objectionable compulsion, in and of itself, should not trigger the strict scrutiny of Abood v. Detroit Board of Education. Rather, compulsory laws should be treated the same as any other law, and analyzed for whether they are arbitrary, are discriminatory, or otherwise violate specific constitutional limits.

“Don’t Elect Me”: Sheriffs and the Need for Reform in County Law Enforcement

Most state constitutions require that counties have an elected sheriff who serves as the county’s chief law enforcement officer. The sheriff’s office is over a thousand years old and today has strong cultural associations with independence and populism. Ironically, however, the sheriff’s office has not been studied in the legal literature on policing as an entity separate and distinct from municipal police departments. This Note attempts to remedy that deficiency by identifying the unique pathologies of the American sheriff and proposing dramatic reforms to county law enforcement.

Although his elected status creates a perception that the sheriff is a local county officer, this Note argues that this perception is inaccurate because the sheriff is independent of the county and is actually, in many important ways, an agent of the state. The sheriff’s hybrid state-and-local status creates misalignments between different levels of government that obstruct efforts to hold the sheriff accountable.

County law enforcement is in need of reform. This Note argues that elections are not functioning as an effective accountability mechanism and that county government must be given power to act as a check on county law enforcement. This Note further argues that, although the sheriff in his current form is emphatically not the officer for the job, the county is actually the best level of government at which to provide policing. This Note discusses the merits of two models of achieving consolidation of policing to the county level, with insights gleaned from America’s experiences with sheriffs.

Fee-Shifting and Shareholder Litigation

A fee-shifting provision, in a corporate charter or bylaws, requires the plaintiff-shareholder to reimburse the litigation expenses of the defendant-corporation when the plaintiff is not successful in litigation. After the Delaware Supreme Court ruled that such a provision is enforceable in 2014, a number of corporations adopted fee-shifting bylaws, utilizing the directors’ right to unilaterally amend bylaws without express shareholder approval. In 2015, the Delaware legislature reversed course by prohibiting fee-shifting provisions in both charters and bylaws. This back-and-forth history has left an important question unanswered: should fee-shifting be allowed in shareholder litigation and, if so, in what form?

This Article first makes a theoretical claim that the optimal fee-shifting arrangement lies somewhere between the pro-defendant version adopted by the corporations and the no-fee-shifting version mandated by the Delaware legislature. A more balanced fee-shifting provision will do better in encouraging meritorious lawsuits while discouraging nonmeritorious ones, especially with respect to direct shareholder lawsuits. For derivative lawsuits, a balanced fee-shifting rule will impose a higher threshold on the merits than the traditional, no-fee-shifting rule. The Article also undertakes an empirical investigation of fee-shifting provisions that are used in commercial agreements, notably stock purchase agreements and bond indentures, that employ more balanced fee-shifting arrangements but with variation. Building upon both the theoretical and empirical analyses, the Article finally argues that, instead of a categorical ban, the law should allow fee-shifting provisions in charters and bylaws but subject them to more robust judicial oversight. This will better allow the corporations and shareholders to realize the screening benefits of fee-shifting while protecting shareholders’ right to bring suit.

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