While the 2005 revisions succeeded in eliminating an irksome circuit split, this Note illustrates the way in which they fostered deeper problems with asset retention. It argues that allowing ride-through – the option laid to rest in 2005 – would better achieve the bankruptcy goals of protecting debtors and creditors while promoting doctrinal uniformity.

This essay departs from a case of the South African Constitutional Court, Doctors for Life International v. the Speaker of the National Assembly & Others, regarding citizen participation in the legislative process. The piece establishes a scheme of four generations of participation rights and situates Doctors for Life in this context as a fourth-generation right. It reads the case as an invitation to reconsider the content of the “liberty of the ancients” by recognizing the importance and limitations of an enforceable regime of citizen participation in the legislative process. In that respect, the essay addresses both the novelty of the case but also tries to connect it with more traditional ideas, showing how it might revitalize the “liberty of the ancients.”

This Article seeks to solve both puzzles together by proposing a modern fiduciary theory of the Necessary and Proper Clause that provides meaning to Breyer’s considerations and clarifies the nature of a rational relation between legislated means and enumerated ends. After canvassing the range of possible readings of Comstock and its means-end fit test, the Article draws on newly uncovered history of the fiduciary and agency law roots of the Necessary and Proper Clause to argue that the means-end test that is the best reading of Comstock would ask whether Congress, in legislating, is acting as a proper fiduciary of the people of the United States, within the context of its enumerated powers. Using the Affordable Care Act as a case study, the Article demonstrates that the modern fiduciary theory brings to bear a new and valuable toolset in interpreting the Act, and ultimately makes clear that the Necessary and Proper Clause should not pose a challenge to the law’s constitutionality.

Specifically, the traditional American and English iterations of the waste doctrine provide a natural and tested tool for fashioning sustainability rules on a local scale. The age-old question of what precisely must be left to remaindermen is directly analogous to the modern questions concerning sustainable development and depletion of non-renewable resources. For this reason, the tests and rules applied in the courts of the early United States and England have a particularly useful and novel application to the modern policy discussion. Yet, an even deeper level of analytical significance exists because the choice between the extreme American and English versions of the waste doctrine maps onto the debate between the concepts of weak and strong sustainability. Through examination of the early cases and resultant rules in these two common law jurisdictions, this work provides a policy analysis tool and a recommended general course of action for environmental policymakers.

Since Public Committee, the Israeli executive and the judiciary worked hand in glove to protect this regime, which we label necessity management. Part II of the article revisits the Landau Commission, convened to investigate torture in the Israeli security services, which ultimately legitimated physical interrogation techniques. We argue that the roots of necessity management, which developed after Public Committee, are already spelled out in the Landau Commission report. These rules emerge from the needs of preserving an undemocratic regime of military occupation. Public Committee, in which the Israeli Supreme Court seemingly struck down the Landau Commission’s conclusions, actually cleared the way for implementing these conclusions behind a veil of prosecutorial discretion. Part III articulates some of the theoretical assumptions underlying the regime of necessity management. We argue that this regime, which originated in the undemocratic political context of occupation, foreshadowed protections for torturers under the Bush and the Obama administrations.

The prevailing view that the general statute of limitations does not apply to tax refund litigation is based on Detroit Trust Co. v. United States, 131 Ct. Cl. 223 (1955). Under Detroit Trust, a taxpayer may indefinitely sit on her right to sue the Government unless the I.R.S. issues a formal disallowance that triggers § 6532(a)(1). The contrary view advanced here, that the six-year bar imposes an “outside limit” on the tax-specific statute of limitations, was recently stated in dicta by a unanimous Supreme Court in United States v. Clintwood Elkhorn Mining Co., 553 U.S. 1 (2008). The persuasiveness of Detroit Trust was further eroded when a district court held that the case was “wrongly decided” and dismissed as untimely a refund suit filed more than six years after the claim accrued, even though the I.R.S. had never disallowed the underlying claim. Wagenet v. United States, No. 08-00142 AG (ANx), 2009 U.S. Dist. LEXIS 115547 (C.D. Cal. Sep. 14, 2009).

Applying the six-year bar as a backstop to tax refund suits would enforce its plain meaning, would accord with multiple canons of statutory construction, would promote timely resolution of tax refund claims, and would bring tax refund litigation into line with the rest of federal claims jurisprudence, thereby eliminating one manifestation of the tax exceptionalism that the Supreme Court recently criticized in Mayo Foundation for Medical Education & Research v. United States, No. 09-837, slip op. at 9 (U.S. Jan. 11, 2011).

The explanation for this key agricultural divergence, which created multiple advantages for English proto-industry, lies in differences between Chinese and English property rights regimes, but in an area largely overlooked by previous scholarship. Contrary to common assumptions, Qing and Republican laws and customs did recognize private property and, moreover, allowed reasonably free alienation of it. Significant inefficiencies existed, however, in the specific mechanisms of land transaction: The great majority of Chinese land transactions were “conditional sales” that, under most local customs, guaranteed the “seller” an interminable right of redemption at zero interest. In comparison, early modern English laws and customs prohibited the redemption of “conditional” conveyances—mainly mortgages—beyond a short time frame. Consequently, Chinese farmers found it very difficult to securely acquire land, whereas English farmers found it reasonably easy. Over the long run, this impeded the spread of capitalist agriculture in China, but promoted it in England.

Differences between Chinese and English norms of property transaction were, therefore, important to Qing and Republican China’s relative economic decline. By locating the causes of key global economic trends in customary property rights, the Article also has ramifications for influential theories of social norm formation and law and development.