The Government as Fiduciary: A Practical Demonstration from the Reign of Trajan

This article addresses the potential objections to applying fiduciary standards to higher government functionaries by exploring a case that proved it feasible: the government of the Roman Emperor Trajan. The author asks, if fiduciary government was practicable in a narrowly based regime governing a multicultural empire -- where communication was slow and information expensive -- why is it not achievable in America today. The author concludes that the principles by which Trajan governed are a rebuke to our own, less exacting, standards of public law today and that holding government to fiduciary standards, even in a huge multicultural empire, is not merely a noble ideal--but an attainable one

Condominiums, Reform, and the Unit Ownership Act

Condominiums, Reform, and the Unit Ownership Ac

Proposing Constitutional Amendments by Convention: Rules for Governing the Process

Much of the mystery surrounding the Constitution\u27s state-application-and-convention amendment process is unnecessary as history and case law enable us to resolve most questions. This article is the first in legal literature to access the full Founding-Era record on the subject, including the practices of inter-colonial and interstate conventions held during the 1770s and 1780s. Relying on that record, together with post-Founding practices, understandings, and case law, this article clarifies the rules governing applications and convention calls, and the roles of legislatures and conventions in the process. The goal of the article is objective exposition rather tan advocacy or special pleading

Is the Constitution’s Convention for Proposing Amendments a “Mystery”? Overlooked Evidence in the Narrative of Uncertainty

Since the 1960s, leading academics and other commentators have claimed that the composition and protocols of the Constitution’s “Convention for proposing Amendments” are unknowable, subject to congressional control, or both. Today those claims are on a collision course with growing public sentiment for an amendments convention to address federal dysfunction

The Legal Meaning of Commerce in the Commerce Clause

In this article the author inquires into the meaning of the legal term commerce at the the time the Constitution was written, debated, and ratified. The article provides additional support for the conclusion that, for reasons of policy and politics, the founding generation inserted this conceptual and legal boundary into the Constitution and the clear inference from these findings collectively is that the Commerce Clause was designed to give Congress jurisdiction over the law merchant insofar as it pertained to interjurisdictional activities, which was the same jurisdiction that pre-Revolution American pamphleteers had conceded to Parliament. Part I examines contending definitions of commerce. Part II explores the effect of new Necessary and Proper Clause scholarship. Part III focuses on sources of eighteenth century legal meaning. Part IV answers the question of whether the legal meaning of commerce was different from the lay meaning. Part V examines the meaning of commerce in the founders\u27 legal sources. Part VI explains why the author\u27s findings should be no surprise. Finally, Part VII discusses why so many intelligent scholars have been confused as to the actual scope of the Commerce Clause

Consent, Coercion, and "Reasonableness" in Private Law: The Special Case of the Property Owners Association

This article examines property owner association decision making and the current standards of judicial review that prevail in reported cases. Part II outlines the factual and legal background of property owner associations. Part III provides an overview of the consent/coercion debate. Part IV addresses regulation without consent. Part V analyzes measuring utility under the efficiency principle. Part VI examines measuring harm under the unanimity and compensation principles. Part VII explores protection of personhood interests

Federal Land Retention and the Constitution\u27s Property Clause: The Original Understanding

This article analyzes whether the Property Clause, as originally understood, permitted widespread retention of federal land within state boundaries. The article re-focuses attention on the materials and factors most pertinent to reconstructing the provision\u27s original meaning. The article concludes that generally the Constitution\u27s original meaning was that lands not dedicated to enumerated functions were to be privatized or otherwise devolved on terms that best served the general interest

The Agency Law Origins of the Necessary and Proper Clause

In this article the author suggests that the meaning of the Necessary and Proper Clause has seemed unclear to modern commentators because they have not been looking in the right place. In Part II the author subjects the Necessary and Proper Clause to textual analysis, incorporating in that analysis the eighteenth century definitions of words and shows why textual analysis alone cannot clarify some uncertainties. Part III examines the drafting history of the Clause at the federal constitutional convention, concluding that the primary drafters intended it to incorporate concepts from contemporary agency law, specifically the doctrine of implied incidental agency powers and the limitations of fiduciary duty. Part IV surveys the development and content of the agency concepts that the drafters intended the Necessary and Proper Clause to embody. Part V examines proceedings in the federal convention after the Clause was drafted. Part VI surveys the ratification process in detail. Part VII shows how the 1791 debates over the first national bank, as contentious as they were on application of the Clause, still reflected a consensus as to its essential meaning and focuses on the disputants\u27 fundamental agreement on matters of principle. Part VIII suggests some interpretative implications arising from this study

The Founders\u27 Hermeneutic: The Real Original Understanding of Original Intent

This article re-examines the controversial question of whether the American Founders believed their own subjective understandings should guide future interpretation of the U.S. Constitution, or whether they thought the constitutional construction should be guided only by objective public meaning or some other hermeneutic standard

Condominiums, Reform, and the Unit Ownership Act

This article assesses the Montana Unit Ownership Act (UOA), the condominium statute adopted by the Montana legislature in the 1960s. Part II sketches the nature and history of condominium ownership. Part III provides the history, organization, language, and essential purpose of UOA. Part IV offers a philosophy for reform and concludes that the Montana legislature should amend the UOA rather than replace it. Part V makes detailed recommendations for such reform