Related Doctrines Research Articles

Martín Lutero y la abolición del Cristo legislador.

This study deals with Martin Luther‘s doctrine in relation to the interpretation of divine justice in the religious and theological thought of his time. It is interesting to show that the reformer‘s originality is based on the utilization of an essentially Catholic doctrine, manipulation, and biblical interpretation conducted through particular theological strategies. Our work takes distance from the sad man abandoned by God that history has considered as one of the greatest opponents to human free will. On the contrary, the present paperfocuses on a young university student –son of his epoch– that was able to find an explanation through tradition –Saint Paul and Saint Augustin– of what should be the real essence of the divine law and the sense of love and will that should be taught among his contemporary fellows.

Liberalism and racism: an ‘elective affinity’?

This appraisal of David Scott FitzGerald and David Cook-Martín's Culling the Masses: The Democratic Origins of Racist Immigration Policy in the Americas argues that there is no ‘elective affinity’ between liberalism and racism, which is the core argument of the book. The notion of ‘elective affinity’, which the authors borrow from Max Weber, requires a structural homology between the ‘electively’ related elements that just does not exist in this case. The relationship between both is entirely contingent, ‘racism’ being a doctrine of inter-group relations while ‘liberalism’ is a doctrine of intra-group relations, with no consideration of how the boundaries of the group are constituted.

Marxism and the doctrine of internal relations

Marx’s dialectical method is based upon a Hegelian philosophy of ‘internal relations’. This was the subject of an extensive dispute between F. H. Bradley and other neo-Hegelians and some of the main founders of analytical philosophy, including G. E. Moore and Bertrand Russell. Similar arguments have recently been used in defence of analytical Marxism by G. A. Cohen. In this paper, I defend the dialectical approach and show how it implies a profound critique of the analytical approach. A bibliography of the earlier dispute is included.

The Plurality of Substantial Forms in John Pecham

The Plurality of Substantial Forms in John Pecham Caleb Glenn Colley (bio) John Pecham was a Franciscan theologian who took both a strongly anti-Thomist position and a strongly anti-Averroist position in late-13th-century debates in philosophy of mind. Following a successful career as a theologian, Pecham was Archbishop of Canterbury from 1279 until his death in 1292. Pecham is one of a number of Franciscan philosophers who advocated for what has become known as the “Binarium Famosissimum,” or the two famous and related doctrines of the plurality of forms and universal hylomorphism.1 These two doctrines were vigorously opposed by Thomas Aquinas. They had a history prior to the 13th century, with an embryonic presence in the work of Augustine and then fuller expression in Avicebron and his translator/interpreter Dominicus Gundissalinus. The traditional view of the scholarship has been that Avicebron and Gundissalinus were the primary inspiration for the 13th-century emphasis on these doctrines, although a recent doctoral dissertation by Michael B. Sullivan has claimed that Augustine is the inspiration for 13th-century teaching in support of spiritual matter.2 Yet in Sullivan’s discussion of Pecham in particular, we find the Binarium Famosissimum have been artificially separated. Furthermore, Sullivan leaves out the direct relevance of the doctrines to the theological controversies that were pressing in the 13th century and which provided motivation for the doctrines. Here, I will argue based on Pecham’s texts3 that one cannot properly understand Pecham’s doctrine of spiritual matter (and why he would vigorously [End Page 59] oppose Aquinas’ doctrine of matter) without taking into account the larger philosophical and theological context, which includes the plurality of forms debate. It will become clear that (1) Sullivan’s emphasis on Augustine’s influence must be significantly qualified; (2) It is possible to develop a more complete understanding of Pecham according to which his views are more fully motivated and relevant to his historical context. Sullivan’s Discussion Sullivan’s discussion of spiritual matter includes a summarization of some of Pecham’s passages on spiritual matter. Sullivan rightly emphasizes some aspects of Pecham’s writing on the subject, particularly Pecham’s connection to Bonaventure. These aspects include the following: Pecham argues for spiritual matter based on the soul as a moving principle. Pecham cites what he takes to be Plato’s doctrine: “the soul moves itself and that movement is continuous.”4 Pecham argues that the corporeal body cannot be the principle that individuates the soul, since the soul retains its individuality even when [End Page 60] separated from the body. That is, matter must have already played a role in individuating the spiritual substance, independent of the body.5 Pecham argues that matter could possibly exist without form.6 Pecham argues that the genus of substance is divided into spiritual and corporeal substances, and that all substances must be composed of matter and form.7 Pecham assumes the Boethian authenticity of the Gundissalinus text De Unitate et Uno.8 In this report of what Sullivan includes in his brief discussion of Pecham, I have provided citations from a number of Pecham texts. Sullivan, however, actually cites only three Pecham passages—one from the Commentary on the Sentences, one from the fourth Quodlibet [Romanum], and one from the Tractatus De Anima. This limited reading gives very little attention to the Tractatus and no attention to Pecham’s Summa De Ente et Essentia or Quaestiones De Anima. The rationale behind the limited nature of Sullivan’s reading would seem to be the fact that Sullivan’s project is oriented toward presenting Augustine as the leading inspiration for the doctrine of spiritual matter in the 13th century. In fact, despite what Sullivan says, Avicebron (through his translator and interpreter Gundissalinus) must be considered the primary source for the Binarium Famosissimum.9 But one cannot understand Pecham’s doctrine [End Page 61] of spiritual matter without taking into account the larger philosophical and theological context of his writing, which is highlighted by the plurality of forms debate. Pecham’s Doctrines of Spiritual Matter and the Plurality of Forms Pecham believes in universal hylomorphism. One cannot believe in universal hylomorphism without believing...

Metaphysics of Change and Continuity: Exactly What is Changing and What Gets Continued?

This is a metaphysical and conceptual analysis of the concepts ‘change’ and ‘continuity’. The Buddhists are in agreement with Heraclitus that all are flowing and nothing remains. However, the Buddhists have a much more elaborate theory about change and continuity, and this theory is a key element in the entire Buddhist system of related doctrines, viz., that of karma and rebirth, the possibility of Liberation (nirvana) and others. The Buddhist emphasizes that change is there in every aspect of reality. A later teaching, known as the Doctrine of Emptiness, extends this idea even further to deny that there are essences to things which endure through all the changes. Since things are empty they can change, and continuity is possible, not because there is something that exists and endures, but only because there is change. This has many implications for the dialog between science and religion, especially the object/subject distinction.

Chevron Inside the Regulatory State: An Empirical Assessment

For three decades, scholars (as well as courts and litigants) have written thousands of articles (and opinions and briefs) concerning the impact of the Chevron deference regime on judicial review of agency statutory interpretation. This should come as no surprise as Chevron is the most-cited administrative-law decision of all time. Little attention, however, has been paid to how Chevron and its progeny have actually shaped statutory interpretation inside the regulatory state. As part of the Fordham Law Review symposium Chevron at 30: Looking Back and Looking Forward, this Essay presents the findings of the first comprehensive empirical investigation into the effect of Chevron and related doctrines on how federal agencies interpret statutes they administer. The Essay draws on a larger, 195-question survey of federal agency rule drafters that covered a variety of topics related to agency statutory interpretation. (The survey is available online at http://ssrn.com/abstract=2481631.) The author administered the survey during a five-month period in 2013 at seven executive departments (Agriculture, Commerce, Energy, Homeland Security, Health and Human Services, Housing and Urban Development, and Transportation) and two independent agencies (Federal Communications Commission and Federal Reserve). Responses were received from 128 agency officials whose primary duties included statutory interpretation and rulemaking (for a 31% response rate). This Essay provides a new and important window into the role of Chevron and its progeny inside the regulatory state. Based on the findings presented in this Essay, it would not be an understatement to conclude that thirty years of Chevron have saturated the federal agency rulemaking process. The rule drafters surveyed overwhelmingly indicated familiarity with and use of Chevron and related doctrines in their statutory interpretation efforts. Moreover, two in five rule drafters surveyed agreed or strongly agreed — and another two in five somewhat agreed — that a federal agency is more aggressive in its interpretive efforts if it is confident that Chevron deference (as opposed to Skidmore deference or de novo review) applies.

Federal Courts, Overbreadth, And Vagueness: Guiding Principles For Constitutional Challenges To Uninterpreted State Statutes

When a federal court is asked to declare an uninterpreted state law to be unconstitutionally overbroad or vague, it faces several tensions. On one side, the overbreadth and vagueness doctrines urge the court to strike down the statute on its face. On the other side, the related doctrines of constitutional avoidance, narrowing interpretations, abstention and certification all urge the court to find some way to save the statute at least as to some applications. But because of the cardinal principle that federal courts are not the final authority on the interpretation of state law, many federal courts err on the side of facial invalidation, thinking that any narrowing interpretation or abstention might be pointless. This was especially prevalent in the federal courts' handling of the 20 or so partial-birth abortion cases, in which many different federal courts heard challenges to state laws that were largely drafted on the same model. Using this set of cases as an example, we examine how federal courts handled the doctrinal tensions, and suggest ways for federal courts to prevent unconstitutional applications without using the strong remedy of facial invalidation. Specifically, we argue that federal courts in overbreadth/vagueness cases - which are facial challenges - have the same power that they do in as-applied challenges to limit the scope and applicability of a state statute. We argue that federal courts should consider a more prominent use of this power to avoid overly interfering with state laws.

To Build Proportions in Time, or Tie Knots in Space? A Reassessment of the Renaissance Turn in Architectural Proportions

Since Alberti, and most critically since Wittkower’s Architectural Principles , architectural theory has tended to construe ‘proportions’ in plenary, static terms. The dimension of time and change that relentlessly affects all human endeavor is not accommodated by the celebrated Albertian ideal of immutable design perfection, so perfect in all respects that once attained ‘nothing can be added, taken away, or altered, but for the worse’. This article, drawing on the author’s recent book, Building-in-Time from Giotto to Alberti and Modern Oblivion (Yale, 2010), outlines the antithetical, dynamic proportional methodology of the pre-Albertian architectural regime. Its point of departure was the author’s concept of durational aesthetics, according to which perfected architectural form is produced by a process of incessant revision. What distinguished this process from related ancient or neo-antique doctrines was above all its dynamic modality and participation in the fluid orientation and processes of ‘building-in-time’.

Sins of the Father

Are the sins of previous generations of energy development, such as with oil and gas, being visited on the newest forms of energy? That is the question this article attempts to address. Specifically, this article will focus on the problems created by the severance of the mineral estate from the surface and the related dominant mineral–servient surface estate doctrine.Hydrofracturing or “fracking” for oil and natural gas has placed the problems of split estates in the spotlight more than they been in generations. People have been shocked to find drill rigs in their backyards, school playgrounds, and parks. They have been even more appalled to learn that the law of mineral severance has evolved over time to hold that they, as surface owners, have little or no control over such choices by the holders of the mineral estate. The ensuing outrage may ultimately change the current balances in severance law; fracking moratoriums, bans, and lawsuits have slowed fossil fuel development somewhat. However, the unintended casualty in this fray may be renewable energy. Fossil fuel interests are entrenched and well-funded, so state legislators would have difficulty turning back the clock on ownership rights in fossil fuels. However, in the furor against severance, legislators have found it easier to control unestablished renewable energy resources and to enact bans on their severance. While banning severance of wind may be good for many reasons, it becomes problematic if wind also is relegated to a servient estate position in relation to fossil fuel development. This additional handicap will make it more difficult for these new, fledgling energy sources to gain a toehold and survive in competitive energy markets.This article will first provide some general background about severance and the related doctrine of dominant–servient estates. Next, it will address oil and gas severance specifically. Third, it will track the parallels and distinctions between the history of wind severance and the oil and gas history set out in Section II. Finally. Section IV will address the problems with the current responses to wind severance.

Stained glass as a model for consciousness

Contemporary phenomenal externalists are motivated to a large extent by the transparency of experience and by the related doctrine of representationalism. On their own, however, transparency and representationalism do not suffice to establish externalism. Hence we should hesitate to dismiss phenomenal internalism, a view shared by many generations of competent philosophers. Rather, we should keep both our options open, internalism and externalism. It is hard, however, to see how to keep open the internalist option, for although transparency and representationalism have not yet definitively established externalism, they have indeed made it quite intuitive. Internalism, by comparison, comes across at first sight as antiquated and ridden with difficulties. This is why I propose the Stained Glass model of consciousness. I do so with the following two aims: first, to make internalism intuitive in the age of transparency, and second, to show how to resist the many recent anti-internalist arguments. In particular, I argue that phenomenal internalism need not be epistemically worrisome, that it is compatible at once with transparency, representationalism, and content externalism, and that although it requires an error theory, this error theory is a harmless one.

The Transmission of Sin: Augustine and the Pre-Augustinian Sources by Pier Franco Beatrice (review)

Reviewed by: The Transmission of Sin: Augustine and the Pre-Augustinian Sources by Pier Franco Beatrice Allan Fitzgerald O.S.A. The Transmission of Sin: Augustine and the Pre-Augustinian Sources. By Pier Franco Beatrice. Translated by Adam Kamesar. [AAR Religions in Translation.] (New York: Oxford University Press. 2013. Pp. xii, 299. $74.00. ISBN 978-0-19-975141-9.). This book is a translation of Tradux Peccati: Alle fonti della dottrina agostiniana del peccato originale (Milan, 1978). The author collaborated significantly in the translation, making minor revisions and a few bibliographical additions to the English edition. Since the reception of the Italian edition was quite mixed, it would have been helpful to have a new state of the question from the author, who says that he remains convinced of the main theses but does not provide an explanation for that conviction. The book is divided into three sections, seeking to discover the source of St. Augustine’s doctrine of original sin. Pier Franco Beatrice agrees that Augustine was defending a widely-held doctrine, but he locates the Augustinian expression of that doctrine in relation to the popular piety of North Africa, which retained elements of Encratism. Thus the first section of the book describes Augustine’s doctrine of original sin, and the second section discusses the biblical and patristic texts on which, it is said, that doctrine is based. In the third section, the author explores the thesis that the real basis for Augustine’s doctrine can be traced back to Judeo-Christian Encratism—as if it could be seen as a definable movement in the West. The question of the transmission of original sin is certainly circumscribed by the polemical atmosphere within which it developed. That means that some effort is needed to see beyond the terms of the debate between Julian of Eclanum and Augustine on marriage and concupiscence. In fact, the sharp distinctions that are drawn in this book may be the clearest signs of how it was necessary to simplify the issues. Augustine, for example, was never able to decide on a theory for the origin of the soul, a fact that has to be part of any understanding of the transmission of original sin. Hence, the fact that this book does not deal with what Augustine says that he does not know makes its thesis less helpful than it might first appear. There is also a methodological issue that needs to be noted. The author defines Augustine’s understanding of the doctrine of original sin at the beginning and then asks whether St. Paul’s writings did, in fact, affirm that doctrine. That way of proceeding seems to make the answer a foregone conclusion. [End Page 105] Also, an extended discussion of Romans 5:12—the text that was used to typify his thinking by other authorities after his death—seems to pay more attention to how Augustine’s doctrine was received than it does with the fullness of his thought on this matter. Augustine’s doctrine of original sin, in fact, was based more on chapters 7 and 9 of the letter to the Romans and on 1 Corinthians 15 than on Romans 5:12. A 1963 study by Stanislas Lyonnet—cited in the bibliography—makes that very point; it should have been more fully represented in the discussion of Paul’s thought. In that context, it may not be all that surprising that the scriptures are not given the primary role in the formation of Augustine’s idea of transmission of original sin (chapter 6). When first published, this book stimulated the conversation about the transmission of original sin in a good way. But it would have been very helpful to see how the conversation about the transmission of original sin and infant baptism has developed in the thirty-five intervening years—a task to which this book has unfortunately not contributed. Allan Fitzgerald O.S.A. The Augustinian Institute Villanova University Copyright © 2014 The Catholic University of America Press

Sins of the Father

This Article will first provide some general background about severance and the related doctrine of dominant–servient estates. Next, it will address oil and gas severance specifically. Third, it will track the parallels and distinctions between the history of wind severance and the oil and gas history set out in Section II. Finally, Section IV will address the problems with the current responses to wind severance.

The Legal Characteristics of Consumer Arbitration Clause and Defenses in the U.S. Contract Laws

The U.S. Supreme Court delivered a decision on the case between AT&T and Concepcion, which confirmed the contractuality of a defense as a threshold to distinguish between what is a viable defense for invalidation of consumer arbitration agreement and what is not. In this paper, the adhesiveness of arbitration clause, which is a unique character for consumer arbitration, is investigated in the U.S. as a legal defense to invalidate the consumer arbitration agreements, and its contractualityand related legal doctrines are analyzed. The legal issues of consumer arbitration have been analysed in several legal perspectives including the voluntary, knowing and intelligent doctrine, doctrine of separation, contract of adhesion and the contractuality of defenses. Among all of these, the first three issues are related with arbitration clause, and the last one, the contractuality of defenses, reflects the nature of defenses invalidating the consumer arbitration agreement.

Spyware and the Limits of Surveillance Law

For policymakers, litigants, and commentators seeking to address the threats digital technology poses for privacy, electronic surveillance law remains a weapon of choice. The debate over how best to respond to the spyware problem provides only the most recent illustration of that fact. Although there is much controversy over how to define spyware, that label encompasses at least some software that monitors a computer user's electronic communications. Federal surveillance statutes thus present an intuitive fit for responding to the regulatory challenges of spyware, because those statutes bar the unauthorized acquisition of electronic communications and related data in some circumstances. Indeed, those who argue that no new federal legislation is needed to address the spyware problem rely in part on the opportunities for criminal prosecution and civil suits under surveillance statutes and related doctrines. As the debate on the need for new federal legislation proceeds, however, there is good reason to question whether federal electronic surveillance statutes can successfully combat anything but the most extreme forms of spyware. Electronic surveillance law does not apply by any reasonable construction to many forms of spyware. Moreover, the overall record on application of surveillance law statutes to a variety of digital-age problems is in fact quite mixed. Courts have reached privacy-protective outcomes on very bad facts, but have also let seemingly problematic practices pass unsanctioned. The difficulty with efforts to apply surveillance law statutes to new privacy problems is that our federal electronic surveillance statutes are emphatically not general data privacy statutes. Unfortunately, efforts to treat them as such have produced a body of confused - even incoherent - case law. That case law, moreover, tends to make many impediments to application of surveillance law seem technical rather than structural or conceptual. To that extent, it diverts attention from important policy questions, including whether Congress should consider legislative solutions tailored to specific privacy threats (such as spyware), or whether broader data privacy statutes are necessary or appropriate. This Article uses the difficulties of applying electronic surveillance law statutes to spyware to illustrate the broader limits of surveillance law. Current case law suggests that electronic surveillance statutes are likely to constrain only the most egregious forms of spyware, and there may even be some difficulties in surveillance law performing that limited task. Efforts to use surveillance law to push for more privacy-sensitive industry practices are likely to fail altogether. My predictive judgments may be controversial, partly because surveillance law is sufficiently unstable that there is room for courts to adopt approaches that are more privacy-protective. I thus consider whether courts should use surveillance law to respond more aggressively to privacy challenges such as spyware. Drawing upon case law from other contexts, I show that there is good reason to be wary of using surveillance law as a vehicle for addressing various information privacy problems. Indeed, if electronic surveillance cases were to more plainly expose the limits of surveillance law, they would generate a more fruitful legislative debate about the propriety of true data privacy legislation, whether broadly or narrowly conceived.

The Public Trust in Wildlfe

The public trust doctrine, derived from ancient property principles, is thought to mostly apply to navigable waters and related land resources. The doctrine supplies a mediating force to claims of both private ownership and unfettered government discretion over these resources, vesting the state with trust responsibility to ensure that the use of these resources promotes long-term sustainability. A related doctrine — sovereign ownership of wildlife — is also an ancient public property doctrine inherited from England. State ownership of wildlife has long defeated private ownership claims and enabled states to enact and implement wildlife conservation regulations. This paper claims that these two doctrines should be merged, and that state sovereign ownership of wildlife means that wildlife — like navigable waters — is held in trust for the public and must be managed for long-term sustainable use by future generations. Merging the doctrines would mean that state ownership would not only give states with the authority to manage their wildlife populations but also the duty to do so and would equip members of the public with standing to enforce the states’ trust duties in court. This paper shows that the public trust in wildlife has already been employed in California and in several other states, and suggests that it deserves more widespread judicial recognition, particularly — as we demonstrate — in view of the fact that no fewer than forty-seven states use trust or trust-like language in describing state authority to manage wildlife. We include an appendix citing the sources of the wildlife trust in all forty-seven states for reference.

Assessing the Control-Theory

AbstractAs the first cases before the ICC proceed to the Appeals Chamber, the judges ought to critically evaluate the merits and demerits of the control-theory of perpetratorship and its related doctrines. The request for a possible recharacterization of the form of responsibility in the case ofKatangaand the recent acquittal of Ngudjolo can be taken as indications that the control-theory is problematic as a theory of liability. The authors, in a spirit of constructive criticism, invite the ICC Appeals Chamber to take this unique opportunity to reconsider or improve the control-theory as developed by the Pre-Trial Chambers in theLubangaandKatangacases.

WHAT DID RUSSELL LEARN FROM LEIBNIZ?

Russell’s rejection in 1898 of the doctrine of internal relations — the view that all relations are grounded in the intrinsic properties of the terms related — was a decisive part of his break with Hegelianism and opened the way for his turn to analytic philosophy. Before rejecting it, Russell had given the doctrine little thought, though it played an essential role in the most intractable of the problems facing his attempt to construct a Hegelian dialectic of the sciences. I argue that it was Russell’s early reading of Leibniz, in preparation for his lectures on Leibniz given at Cambridge in 1899, that most probably alerted him to the role the doctrine was playing in his own philosophy. Leibniz defended a similar doctrine and extricated it from difficulties like those faced by Russell by means of devices that were not open to Russell. Russell would have come across these views of Leibniz in writings by Leibniz that he read in the summer of 1898, just before he rejected the doctrine of internal relations.ReferencesF. H. Bradley. Appearance and Reality. Oxford: Clarendon Press, 1968. Originally published 1893.Nicholas Griffin. Russell’s Idealist Apprenticeship. Oxford: Clarendon Press, 1991.Nicholas Griffin. Russell and Leibniz on the Classification of Propositions. In Ralf Krömer and Yannick Chin-Drian, editors, New Essays on Leibniz Reception. Basel, Birkhäuser, pp. 85–127, 2012.http://dx.doi.org/10.1007/978-3-0346-0504-5G. W. Leibniz. Die Philosophischen Schriften von Leibniz, 7 Volumes. Edited by C.I. Gerhardt. Berlin, Weidman, 1875–90.G. W. Leibniz. The Philosophical Works of Leibnitz. Edited by G.M. Duncan. New Haven, Tuttle, Morehouse and Taylor, 1890.G. W. Leibniz. New Essays Concerning Human Understanding, Translated by A.G. Langley. London, Macmillan, 1896.G. W. Leibniz. The Monadology and other Philosophical Writings. Edited by R. Latta. Oxford: Oxford University Press, 1898.G. W. Leibniz. Philosophical Papers and Letters, 2 Volumes. Edited by L.E. Loemker. Chicago, University of Chicago Press, 1956.G. W. Leibniz. New Essays Concerning Human Understanding, Translated and Edited by Peter Remnant and Jonathan Bennett. Cambridge, Cambridge University Press, 1981.Massimo Mugnai. Leibniz’ Theory of Relations. Stuttgart: Steiner, 1992.Massimo Mugnai. Leibniz’s Ontology of Relations: A Last Word?. In Oxford Studies in Early Modern Philosophy, Volume IV. Edited by Daniel Garber and Donald Rutherford. Oxford, Oxford University Press, 2012.http://dx.doi.org/10.1093/acprof:oso/9780199659593.001.0001Walter H. O’Briant. Russell on Leibniz. Studia Leibniziana, 11: 159–222, 1979.B. Russell. An Essay on the Foundations of Geometry. New York, Dover, 1956.B. Russell. My Philosophical Development. London, Allen and Unwin, 1959.B. Russell. The Principles of Mathematics. London: Allen and Unwin, 1964.B. Russell. The Monistic Theory of Truth. In Philosophical Essays New York, Simon and Schuster, pages 131–46, 1968.B. Russell. A Critical Exposition of the Philosophy of Leibniz. London, Allen and Unwin, 1975.B. Russell, The Collected Papers of Bertrand Russell, vol. 1, Cambridge Essays, 1888–99, edited by Kenneth Blackwell, et al. London, Allen and Unwin, 1983.B. Russell. The Collected Papers of Bertrand Russell, vol. 2, Philosophical Papers, 1896–99, edited by Nicholas Grif?n and Albert C. Lewis. London, Routledge, 1989a.B. Russell. On the Relations of Number and Quantity (1897). In Russell [1989a], pages 70–82, 1989b.B. Russell. An Analysis of Mathematical Reasoning (1898). In Russell [1989a], pages 163–241, 1989c.B. Russell. The Classification of Relations (1899), in Russell [1989a], pages 138–46, 1989d.B. Russell. The Fundamental Ideas and Axioms of Mathematics (1899). In Russell [1989a], pages 265–305, 1989e.B. Russell. The Collected Papers of Bertrand Russell, vol. 3, Towards “The Principles of Mathematics”, 1900–02, edited by Gregory H. Moore. London, Routledge, 1993a.B. Russell. The Principles of Mathematics, 1899–1900 Draft. In Russell [1993a], pages 13–180, 1993b.B. Russell. The Collected Papers of Bertrand Russell, vol. 11, Last Philosophical Testament, 1943–68. Edited by John G. Slater. London, Routledge, 1997.

Not Confucius, nor Kung Fu: Economy and Business as Chinese Soft Power in Africa

The Chinese presence in Africa is a fact that cannot be ignored by anybody interestedin China, Africa or in international affairs in general. Various explanationsare given for the source of China’s success on the continent. Pang (2009)emphasises Chinese foreign policy: its engagement in the Non-Aligned Movementand the Chinese doctrine of international relations – the so-called Beijingconsensus as the main reason why many African governments have decided totighten their relations with China.Some others, like Bräutigam (2010), Rotberg (2008), and so on, emphasize economicfactors: Chinese economic aid, engagement in infrastructure developmentand its ability to start and conduct business in a difficult African business environment.

The Interbellum Constitution and the Spending Power

Today, the mechanism of the spending power drives the gears of the modern federal machine. But early nineteenth century constitutional debates demonstrate that the spending power is essentially a workaround, and a recent one at that – a tool by which Congress achieves certain political and legal ends while respecting the formal boundaries set by Article I and the Tenth Amendment. This “interbellum” period was enormously significant for American constitutional law, in particular the constellation of related doctrines concerning congressional power that we now place under the general heading of “federalism”: the spending power, the enumerated powers of Article I, and the anticommandeering principle of the Tenth Amendment. As a historical matter, political and legal actors in the early nineteenth century believed themselves to be living in what this Article argues was a long founding moment, in which the fundamental terms of the federal-state relationship were still open to debate. Constitutional scholars have mistakenly overlooked the constitutional creativity of the period. As a normative matter, I argue for an approach to millennial constitutional interpretation that recognizes the ever-changing nature of the landscape of constitutional permissibility, and that offers documentary evidence of the precise contours of that change. Studying the evolution of the spending power over time, especially where the text itself remains constant, demonstrates that ideas about federal structure are not fixed. Therefore, constitutional federalism itself is not fixed – a particularly important insight in an area of constitutional doctrine that is dominated by originalist approaches.

Extraterritoriality and the Dormant Commerce Clause: A Doctrinal Post-Mortem

Among the various branches of the dormant Commerce Clause doctrine (“DCCD”) — the judge-made rules grounded in the Constitution’s grant of power over interstate commerce to Congress — is that which prohibits so-called “extraterritorial” state legislation. As recently as 1989, the Supreme Court held that the DCCD “precludes the application of a state statute to commerce that takes place wholly outside of the State's borders, whether or not the commerce has effects within the State...” That broad articulation of the principle, however, represented extraterritoriality’s high tide. The Court has since retreated; in 2003 it seemed to limit the extraterritoriality principle dramatically, rejecting arguments that a Maine prescription drug subsidy program actually attempted to fix prices outside the state. At this point, the extraterritoriality principle looks to be quite moribund. This essay, then, is an autopsy of sorts. Assuming, as I do, that extraterritoriality — at least the strong form articulated by the Court in the 1980s — is dead, and unlikely to be revived by the current Court, its passing offers an opportunity to examine the lifecycle of constitutional doctrine, from birth to death. In Part I, I describe extraterritoriality’s early emergence. In its early form, it was not exclusively yoked to the DCCD. The Due Process Clause of the Fourteenth Amendment was also cited as a source, as were less clause-bound structural principles. Beginning in the early twentieth century, however, the doctrine became closely linked with the DCCD; it emerged as a robust branch of that doctrine in the 1980s. This association is described in Part II. Its decline is detailed in Part III; in Part IV, I return to the question of what “killed” extraterritoriality. I conclude that extraterritoriality’s demise was likely overdetermined. Factors contributing to its demise include what Kermit Roosevelt calls a “loss of fit” between the doctrine and the purposes of the DCCD generally, as well as the doctrine’s calcification; the lack of a limiting principle that would prevent it from curtailing legitimate state regulatory power; the Court’s decision to locate limits on punitive damage awards in the Due Process Clause after flirting with the notion that those limits grew out of DCCD extraterritoriality; and shift in attitude on the Court itself from robust enforcement of the DCCD to a desire to limit the doctrine. In Part V, I consider the impact of extraterritoriality’s demise on a related doctrine: the Court’s periodic invalidation of state laws that presented the problem of “inconsistent state regulations.” A brief conclusion follows.