Past and Present Proposed Amendments to the United States Constitution Regarding Marriage

Edward Stein
Proposals to amend the Constitution to prohibit same-sex marriage were recently actively discussed and voted on in the U.S. Congress. This Article situates arguments for these proposals within the history of attempts to amend the Constitution related to marriage by providing the first detailed, synthetic analysis of such previously proposed amendments. This examination reveals 133 previously proposed amendments to the Constitution relating to marriage, consisting primarily of proposals to prohibit…

The Seventh Amendment, Modern Procedure, and the English Common Law

Suja A. Thomas
This Article assumes the validity of the English common law historical test to the constitutionality analysis. It argues, however, that the underlying test, unconnected to actual principles of the common law devices, has caused the invariable constitutionalization of procedures that are increasingly used by the federal courts. This Article develops principles derived from the English common law by which modern procedures that affect the jury trial right can be reassessed.…

Skybox Schools: Public Education As Private Luxury

Laurie Reynolds
For the past three decades, plaintiffs in hundreds of state and federal court lawsuits have challenged state laws that fund public schools with the local property tax. As socioeconomic segregation remains at extremely high levels across the country, reliance on a tax that is based on the wealth of the property within a school district’s territory produces huge inequality in revenues. As the result of numerous court opinions, legislative reforms,…

Structural Bias and the Need for Substantive Review

Julian Velasco
One of the fundamental debates in corporate law pits the authority of the board of directors to make business decisions without judicial interference against the accountability of directors to shareholders for their decisions. The business judgment rule attests to the value ascribed to authority by providing only limited judicial review for claims of breach of the duty of care, while the entire fairness test demonstrates the value ascribed to accountability…

Minority Religions and the Religion Clauses

Thomas C. Berg
Part I of the Article offers reasons why the protection of minority religions should be an important consideration in interpreting the Religion Clauses. Part II then addresses various difficulties and complications in the idea of protecting minority faiths. In addition to the fact that the constitutional text protects all religious faiths, there are difficulties in the effort to define which faiths are minorities. Because of America’s complex patterns of religious…

Beyond Accountability: The Constitutional, Democratic, and Strategic Problems with Privatizing War

Jon D. Michaels
This Article proceeds in six parts. I begin in Part II first by tracing the modern evolution of military privatization and next by discussing six contemporary case studies. Then, I attempt to locate some of the normative impulses motivating this new wave of privatization and to situate them within the broader pattern of American privatization policy; this last section serves to frame the principal conceptual differences between combat-related and more…