114 Yale L.J. 929 (2005)

The duty of loyalty requires a trustee to administer the trust solely in the interest of the beneficiaries. Any transaction in which the trustee has an actual or potential interest violates the sole interest rule, no matter how beneficial the transaction to the beneficiaries. This Article develops the view that a transaction should not give rise to liability merely because the trustee also benefits. Sometimes beneficiaries are better off when a transaction also benefits the trustee. Corporation law has wholly abandoned the sole interest rule, preferring a rule that permits a conflicted transaction that satisfies disclosure and fairness standards.

Important changes have been undermining the trust law sole interest rule. The grievous procedural inadequacies of the equity courts that gave rise to the rule have now been overcome. The rise of professional trusteeship has required that the sole interest rule be abridged to permit trustee compensation. As trusteeship has increasingly become a branch of the financial services industry, major exceptions to the sole interest rule have been recognized to facilitate trustee-provided financial services. The rationale for these exceptions is that they benefit trust beneficiaries by promoting integration of functions and economies of scale.

This Article contends that the exceptions are wiser than the rule they modify. The duty of loyalty should be reformulated to prefer the best interest rather than the sole interest of the beneficiary. A conflicted transaction should continue to be presumed to violate the duty of loyalty, but rebuttably, not conclusively. The trustee should be allowed the defense that the transaction was in the best interest of the beneficiaries.

114 Yale L.J. 1021 (2005)

The Supreme Court has consistently decried the lack of standards for adjudicating partisan gerrymandering claims, most recently in last Term's Vieth v. Jubelirer. But it has ignored the potential for developing standards under the Elections Clause, which it held in Cook v. Gralike to bar attempts by state legislatures to influence federal election outcomes. This Note aims to reconcile these two cases. It mines the history of the Elections Clause to determine what limitations it imposes on state legislatures and, invoking congressional obligations under the Guarantee Clause, articulates a novel standard for review of partisan gerrymandering consistent with those limitations.

114 Yale L.J. 1099 (2005)

Contracts create property; contractual rights and obligations are property. In bankruptcy, however, this aspect of nonbankruptcy law is often not recognized. This Note argues that bankruptcy law and policy should recognize the property in contract. This Note examines instances of inconsistency within the Bankruptcy Code and in bankruptcy courts' holdings to demonstrate how the acceptance of property-contract parity would lead to greater efficiency in prebankruptcy contracting, a stronger policy foundation for bankruptcy law, greater protection for valid party expectations, and less inequity between interested parties in bankruptcy proceedings.

114 Yale L.J. 1177 (2005)

The Constitution does not prohibit "everything that is intensely undesirable." In particular, Justice Scalia argues, the Eighth Amendment does not prohibit disproportionately long prison sentences. Yet Scalia seems to offer some consolation to those who worry about the "intensely undesirable" prospect of disproportionate punishments: He implies that the cost of incarceration acts as a check on the length of prison terms, a check loosely standing in for proportionality review. Thus, Scalia tenders an economic rationale for his contested interpretation of the Eighth Amendment. Unfortunately, his rationale is faulty.

Fourteen years after Harmelin v. Michigan, Scalia's allusion to the costs of incarceration seems prescient: Grappling with budget deficits, state legislators across the country have indeed attempted to save money by curtailing the growth of their prison populations. However, this wave of legislation does not support Scalia's further suggestion that the costs of imprisonment should allay concern about disproportionate sentences. This Comment examines one typical response to rising prison costs, Connecticut's Act Concerning Prison Overcrowding. The Act trimmed small amounts of time served for a large number of incarcerated people, without altering the statutory penalty for any particular crime. Such laws are common because they quickly reduce corrections costs without making legislators appear "soft on crime." But, written to control the aggregate time served in states' prisons, they neither purport to address nor in effect do significantly alter the proportionality of individual sentences. Thus, although Scalia correctly posited the existence of fiscal limits to incarceration, he erred in asserting that fiscal considerations might obviate the need for proportionality review.

This Comment does not attempt to resolve the debate among legal historians about the existence of a proportionality principle in the Cruel and Unusual Punishments Clause. But it does refute the hypothetical rationalization Scalia offers to support his interpretation of the Founders' intent over that of the dissenters. Part I sets forth the relevant portion of Scalia's argument in Harmelin. Part II discusses the Connecticut Act, a representative example of states' attempts to reduce prison costs. Part III debunks Scalia's reasoning in Harmelin and concludes that fiscal checks are not a substitute for proportionality review.