Articles
Money and Federalism
Dan Awrey | PDF
The United States is the only country in the world in which both federal and state governments possess independent and yet overlapping authority for bank chartering, regulation, and supervision. The roots of this unique "dual" banking system can be traced back to the Constitution, written almost a century before banks rose to the apex of the financial system and became the dominant source of money. Beginning with the landmark Supreme Court decision in McCulloch v. Maryland, this system has been a wellspring of jurisdictional conflict. Yet over time, this highly fragmented and hotly contested system has also produced strong federal oversight and a financial safety net that protects bank depositors, prevents destabilizing runs, and promotes monetary stability.
This system is now under stress. The source of this stress is a new breed of technology-driven financial institutions, licensed and regulated almost entirely at the state-level, that provide money and payments outside the perimeter of both conventional bank regulation and the financial safety net. This Article examines the rise of these new monetary institutions, the state-level regulatory frameworks that govern them, and the nature of the threats they may one day pose to monetary stability. It also examines the legal and policy cases for federal supremacy over the regulation of these new institutions and advances two potential models: one based on complete federal preemption, the other more tailored to reflect the narrow yet critical objective of promoting public confidence and trust in the U.S. monetary system.
Personal Jurisdiction and the Declaration of Independence
Ryan C. Williams | PDF
The Declaration of Independence accuses King George III of having "obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers." But despite the seemingly natural resonance of this particular charge with the legal profession, legal scholars have given remarkably little attention to the controversy that provoked this particular complaint. This Article traces the colonists' complaint to a somewhat surprising and unexpected source—a dispute about personal jurisdiction.
During the late eighteenth century, administrative officials responsible for overseeing Britain's North American possessions sought to eliminate the use of the custom of foreign attachment by colonial court systems. This device, which had proliferated throughout the colonies, provided a mechanism by which local courts could exercise jurisdiction over suits against non-resident defendants by attaching the defendants' property within the colony. The elected representatives of the colony of North Carolina pushed back against the Crown's efforts to deprive them of their privilege of foreign attachment by refusing the governor's insistence that a provision authorizing the procedure be stricken from a bill renewing authorization for the colony's court system. The resulting impasse effectively terminated judicial authority in North Carolina and left the residents of the colony without a fully functioning court system for more than three years. The Declaration of Independence, drafted amidst the North Carolinians' showdown over foreign attachment, incorporated their complaint as one of the twenty-eight charges of royal abuse that the colonists claimed justified their separation and independence.
Two recent trends in the Supreme Court's personal jurisdiction doctrine may render the Revolutionary-era showdown over the territorial reach of North Carolina's courts newly relevant to assessing the permissible scope of state-court jurisdiction. First, in a series of decisions stretching back to the early 2010s, the Supreme Court has limited the reach of state jurisdiction to levels not seen since the early portion of the twentieth century. Second, over the same period, at least some Justices have expressed reservations about the current state of the Court's doctrine and a potential openness to steering personal jurisdiction in a more originalist-oriented direction. Against this backdrop, the North Carolinians' struggle to determine for themselves the jurisdictional reach of their local courts may hold important lessons for the proper understanding of state sovereignty and its connection to the constitutional standards governing state court jurisdiction.
Notes
The Second Amendment's Catholic Problem
Jared Danaher | PDF
After New York State Rifle & Pistol Association v. Bruen, history is the touchstone of Second Amendment analysis. Thus, this Note explores an understudied part of America's long and complicated history with weapons: Catholic disarmament. By undertaking a detailed historical analysis of three Catholic disarmament measures in the late colonial United States, this Note attempts to determine what the history means for present day firearms law. It concludes that even though courts frequently cite America’s history of Catholic disarmament, they rarely use it in a historically accurate way. Modern courts use Catholic disarmament to justify weapons bans on people the state considers dangerous or disrespectful to its laws, but those uses are out of step with the history. The historical analysis in this Note demonstrates that Catholic disarmament laws were narrow measures that targeted a particularly suspect group during a time of national emergency. The history of Catholic disarmament can only justify modern laws based on similar principles of "immediate distrust" (a term this Note coins).
But the journey toward this conclusion reveals as much as the conclusion itself. By faithfully applying the rules laid down in Bruen and United States v. Rahimi, this Note exposes the limits of their historically focused test. On the path to developing the "immediate distrust" principle, this Note exposes historically erroneous claims courts make, illuminates the difficulty of scouring the historical record, and explores the challenges raised by tying modern regulation to context-bound historical episodes.
Sticker Shock Due Process
Alex Dougherty Neumann | PDF
To address undesirable conduct like infringing a copyright or placing a robocall, legislatures have created statutory causes of action that enable plaintiffs to file private suits. Instead of needing to prove actual damages from a defendant's conduct, many statutory causes of action allow a plaintiff to pursue a predefined damages amount per statutory violation. The damages are known as statutory damages, and their elegance lies in how they scale linearly, or one-to-one, with every violation by a defendant. But in the digital age, where automated technologies can generate millions of violations without human oversight, courts are now confronting monstrous aggregate awards composed of small individual violations performed by machines and artificial intelligence. To deal with this problem, the Ninth Circuit recently held in Wakefield v. ViSalus that an aggregate award comprised of constitutionally valid per-violation statutory damages could warrant a substantive due process reduction when the award is excessive to the underlying legislative goals.
This Note warns that the Ninth Circuit's limit in Wakefield is a "sticker shock" approach to substantive due process—one that improperly focuses on the sheer size of a final aggregate award rather than the fairness or constitutionality of the underlying individual penalties. By allowing discomfort with large class action outcomes to override other considerations, Wakefield threatens to erode statutory enforcement mechanisms, deter class action plaintiffs, and alter due process doctrine to benefit large-scale violators across the country.