It seems almost beyond dispute that if the Federal Establishment Clause prohibits anything, it prohibits religious institutions from wielding governmental power. So thought the U.S. Supreme Court in Larkin v. Grendel’s Den, Inc. when it announced that the delegation of governmental power to churches amounted to an impermissible “fusion” of government and religion. Subsequent applications of the nondelegation rule have been...
Note
The special damage rule—a component of standing doctrine requiring a plaintiff’s alleged injury to differ somehow from that of the general public—has long thwarted citizen challenges to inaction by government regulators, particularly in environmental suits. While courts in many jurisdictions have trended toward relaxing the special damage rule in environmental cases, the requirement has not been similarly adjusted in other areas of...
The Treaty Clause of the Constitution describes the mechanism through which the United States enters into treaties with other nations. Though seemingly straightforward, the Clause is unique in that it is an “explicit constitutional mandate to share power.” As such, defining the precise contours of this power has led to several conflicts between the executive and legislative branches. One such dispute concerns the fate of a treaty’s...
With its decision in Brady v. NFL, the Eighth Circuit interpreted section 4(a) of the Norris-LaGuardia Act to broadly shield management from injunctions in labor disputes. This decision adopted a position briefly supported by the Second and Sixth Circuits, but thoroughly criticized by the First, Seventh, and Ninth Circuits. This Note argues that the Eighth Circuit’s decision potentially protects management to the detriment of workers...
In antitrust law, the state action doctrine allows states to take regulatory actions that would otherwise result in violations of the federal antitrust laws. Unfortunately, the Supreme Court has not always provided clear guidance in its state action jurisprudence, and lower courts have expressed frustration with this doctrinally confusing area of antitrust law. There is confusion among the lower courts over the relationship between state...
The economic substance and step transaction doctrines are two specific examples of courts’ general willingness to sometimes look past transactions’ technical form and impose taxes based on their underlying substance. As judicial creations, the two doctrines served as complements and functional equivalents. However, they also generated a wide variety of vague, overlapping, and conflicting formulations.
In 2010, Congress incorporated...