Rather than merely complain about federal government failures in its tax credit program, this article provides a self help model from the private sector - a carefully configured substrata of the African American middle class- to play a greater role in solving the urban crisis. I term that investor group “Ethnivestors”. The model rejects several types of African Americans, and identifies only one with requisite characteristics akin ethnic entrepreneurship of its prior generations and other immigrants. Those groups also faced hostility and exclusion, who nonetheless formed vertically and horizontally hyper-efficient ethnic economies, armed with rotating credit unions and most importantly a trusting nurturing role within their respective small businesses for its otherwise marginalized co-ethnics. It is past time for such a reconfigured African American middle class on its own collective volition to be part of the revitalization of the urban core cities through a revitalization of its own, fostering a reunion of sorts with low income residents of common ethnicity.

Part I of this article examines the historical development of ethnic enclaves in the United States, and how ethnic entrepreneurship gave rise to an ethnic enclave economy that can provide a valuable template for a modern day Ethnivestor. I maintain the NMTC target communities are also ethnic enclaves. Part II sets forth the conceptual precepts and then the Ethnivestor model, including various characteristics and investment motivations that make an Ethnivestor well suited for a NMTC transaction. Part III is the application of economic principles to further explore whether the Ethnivestor model may lead to increased utility for the target low-income residents and the Ethnivestor in a NMTC transaction beyond that of investor groups not similarly engaged in social entrepreneurship. Finally, Part IV is the application of the theoretical model to provide concrete illustrations of how the Ethnivestor more efficiently meets the congressional purpose of assisting low income residents without marginalizing them in the process. This discussion emphasizes the importance of small business modeling that incorporates the experiences of other ethnic enclave economies. The NMTC structure and transactional scheme is also explained, followed by a discussion of how the Ethnivestor can seamlessly operate within that structure.

Environmental governance in Canada is based on an institutionalized form of collaborative federalism with deep historical and philosophical roots. This pattern of relations cannot be ignored when implementing international environmental law domestically in Canada. This is demonstrated in Part II of the paper through a case study examining the domestic implementation of the Convention on International Trade in Endangered Species of Wild Fauna and Flora.

In 1992, the Law Lords (the judicial arm of the House of Lords) overruled more than two centuries of precedent when it decided in Pepper v. Hart that courts could refer to and rely on legislative history to aid in construing enacted laws. The ensuing fourteen years have witnessed a robust debate among British judges and legal scholars as to the scope and propriety of Pepper. This article offers the first empirical and comparative analysis of how Britain’s highest court has used previously excluded legislative history materials in its judicial decisions.

Although the Law Lords opened the door to reliance on legislative history at a time when the U.S. Supreme Court has been clamping down on such usage, the article demonstrates that citation to parliamentary materials by the Law Lords since 1996 does not approach the levels of reliance on congressional materials currently practiced by the Supreme Court. Notwithstanding Justice Scalia’s appreciable influence, Supreme Court justices continue to make use of legislative history in their opinions between three and five times more often than their counterparts in Britain. The article accounts for this divergent pattern of U.S. and British usage based on certain key differences in their respective lawmaking processes and structures—notably the disparate roles played by standing committees, the varying importance of legislative bargains following bill introduction, and the breadth of legislative history sources available under each system.

Still, despite a spirited reaction to Pepper by several judges on the Law Lords, references to legislative history have increased since 2000. Moreover, the Law Lords in two very recent decisions have gone beyond Pepper in setting forth grounds for relying on parliamentary materials. The article predicts that Britain’s highest court is in the process of consolidating if not augmenting a permanent role for legislative history as an interpretive asset. The article then suggests how this development should invite a different kind of dialogue about legislative history among justices on the U.S. Supreme Court.

A process-based account of the state action exception recognizes federalism and efficiency as important values, but changes the primary emphasis of the judicial inquiry. Federalism values and economic efficiency may well be advanced by applications of the state action exception, but that does not require courts to ground their decisions in individual cases entirely on federal preemption legal analysis or on an assessment of the substantive efficiency of state or local regulation. On a process-based account, federalism goals could be advanced by state and local political processes as much as by federal courts attempting to identify and apply the substantive values in broad federal statutes such as the Sherman Act. Moreover, a process-based account of antitrust defenses, such as the state action exception, recognizes the possibility that economic efficiency can inform the application of the substantive standards of antitrust law without requiring economic efficiency to be the primary focus in evaluating every governmental program, particularly at the state and local level. By discouraging courts from directly addressing economic efficiency concerns before addressing the merits of an antitrust violation, such an approach promotes judicial economy and, if properly cabined, can also have a positive effect on the behavior of private groups in the lawmaking process. Even within alternative accounts that give priority to federalism or economic efficiency, the delegation approach should be used to inform the evidentiary assessment of procedure, serving as predicate any judicial decision to extend a state action antitrust exception.

The Article proceeds in four parts. Part I discusses the problems with current formulations and applications of the antitrust state action exception, which no one finds satisfactory. As I argue, traditional approaches, such as a federal preemption-oriented understanding of state action doctrine, have serious limitations given a state and local regulatory environment that is increasingly characterized by regulatory transition and inaction. Part II introduces Chevron, the predominant paradigm for judicial review of regulation in administrative law, highlighting its delegation structure and aspects of it that are useful to understanding the problems state regulation present for antitrust law. Part III explains limits to the analogy between Chevron step one and the clear articulation requirement for antitrust state action. Part IV draws an analogy to step two of Chevron and analyzes the implications of recasting the state action antitrust exception to focus on agency reasons, not power or history. The Article concludes by addressing the kinds of reasons that should suffice for purposes of addressing active regulatory supervision at the state and local level as a predicate to extending an antitrust state action exception.

The Court’s doctrine of choice, “severability,” raises serious concerns for the hallmark decision, Erie Railroad Co. v. Tompkins. Erie’s firm principle that federal courts may not (constitutionally) create a general federal common law is imperiled by the Court’s use of severability. A recent en banc decision from the Ninth Circuit, offered in the form of an engaging dialogue between a majority judge and a dissenting judge, demonstrates where the Supreme Court has gone awry and offers a fix. The solution offered is an Erie-based zone of deference for state contract law that both, is constitutional and respects the dictates of the Federal Arbitration Act.

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This article clarifies the distinction between the federalist and libertarian models of the Ninth Amendment and argues that the two models are in critical ways incompatible. In addition to critiquing Professor Barnett’s reading of the historical evidence, I also present newly discovered evidence of the original meaning of the Ninth which fills in critical gaps in the historical record and strongly supports an originally federalist understanding of the Amendment. The article concludes by distinguishing the Ninth from the Tenth Amendment and considering the potential impact of the Fourteenth Amendment on the meaning and scope of the Ninth.