法律翻译 | 《斯坦福法律评论》第74卷第4期目录+摘要

It would be difficult to overstate the centrality of Brown v. Board of Education to American law and life. Legal scholars from across the ideological spectrum have lavished more attention on that Supreme Court decision than any other issued during the last century. In recent decades, the standard account of Brown has placed that most-scrutinized opinion in a geopolitical context. Brown, the standard account maintains, must be viewed as a product of the Cold War era. By the 1950s, the persistence of laws codifying racial subordination had become an embarrassment for the United States on the global stage. The U.S. effort to defeat communism around the world thus rendered the recognition of civil rights for Black Americans a Cold War imperative.

This Article complicates and challenges that account by exploring the central role that anticommunism played in segregationists’ opposition to Brown and civil rights. Throughout most of the twentieth century, a broad array of Americans contended that preserving Jim Crow was a Cold War imperative in its own right. For this group, anticommunism and segregation were not just compatible, but inextricably intertwined. Their ranks included northerners and southerners alike: politicians, jurists, columnists, and ordinary citizens. White supremacists did not invoke anticommunism merely as a disingenuous ploy to combat Brown. Both long before and long after 1954, anticommunism helped to shape the contours of segregationist thought. The defenders of Jim Crow assailed integration as a product of communistic central government authority. They insisted that racial equality would create discord within the United States, just as the Soviets desired, and that civil rights activists were tainted by communist affiliations. Many segregationists viewed themselves as committed Cold Warriors, undertaking closely connected fights against both a foreign ideological threat and a domestic social one. As such, the Cold War represented not only a divide between the United States and the Soviet Union; it also reflected a debate within the United States over the relationship between racial justice, national security, and foreign policy.

Understanding that segregationists viewed their cause as a Cold War imperative recasts dominant views within legal academia, where this essential component of Brown’s geopolitical context remains underappreciated. While it is tempting to dismiss every segregationist invocation of anticommunism as the product of either irrationality or opportunism, it would be a mistake to do so. Linking segregation with anticommunism transformed the defense of Jim Crow from a regional priority into a national one. Anticommunism also helped resolve a core tension in the segregationist belief that Black citizens did not actually want integration, allowing civil rights lawsuits to be attributed to communist agitation. Reckoning with this significant element of the civil rights era, this Article thus illuminates the logic of a racist worldview. In so doing, it provides a fuller, more accurate portrait of a critical period in constitutional history, of the complex dynamics undergirding legal change, and of the malleable, tenacious character of racism in modern America.

（学界）应当研究种族隔离主义者将（种族隔离）视为冷战工具的思想，因为这将重新塑造法律学界对于布朗案的误解。而这一误解源于对地缘政治因素的忽视。虽然（人们）倾向于将种族隔离者有关反共产主义的思想视为非理性或是机会主义的，但是这是错误的。将反共产主义与种族隔离联系起来会使得对布朗案的辩护从地区优先变为国家优先。反共产主义思想同时帮助种族隔离者解释了一个矛盾——种族隔离者声称非洲裔美国人不希望种族融合政策与不断发生的（种族有关的）民权诉讼。种族隔离者将这些诉讼视为共产主义国家的攻击。通过思考民权运动时期的这一重要因素，本文同时展现了种族歧视在全球视角下的逻辑。通过以上分析，本文展现了一个更加完整、精准的有关美国宪法历史这一特殊时期的描述。这些分析展现了法律变化的复杂性以及当代美国种族歧视的多变而又顽固的特征。

At the start of the twentieth century, women made up a small proportion of shareholders in American publicly traded companies. By 1956, women were the majority of individual shareholders. Although this change in shareholder gender demographics happened gradually, it was evident early in the century: Before the 1929 stock market crash, women shareholders had come to outnumber men at some of America’s largest and most influential corporations, including AT&T, General Electric, and the Pennsylvania Railroad. This Article synthesizes information from a range of historical sources to reveal an overlooked narrative of corporate history—the feminization of capital, or the transformation of American public-company shareholders from majority male to majority female. It charts the growing proportion of women shareholders over the first half of the twentieth century, describes the business community’s response to this trend, and explores the impact of the rise of intermediation on the gender politics of corporate control.

Corporate law scholarship has never before acknowledged that the early decades of the twentieth century, a transformational era in corporate law and theory, coincided with a change in the gender composition of the shareholder class. Scholars have not considered the possibility that shareholders’ gender—which was being tracked internally at companies, disclosed in annual reports, and publicly reported in the press—might have influenced business leaders’ views about corporate organization and governance. This Article considers the implications of this history for some of the most important ideas in corporate law theory, including the separation of ownership and control, shareholder “passivity,” stakeholderism, and board representation. It argues that early-twentieth-century gender politics helped shape foundational ideas of corporate-governance theory, especially ideas concerning the role of shareholders. Outlining a research agenda where history intersects with corporate law’s most vital present-day problems, this Article lays out evidence showing that the feminization of capital shaped changing ideas about the role of shareholders in corporate governance. In so doing, it invites scholars to begin a conversation about gender, power, and the evolution of corporate law.

公司法学者此前从未想过20世纪初的公司法以及公司（治理）理论的转变恰逢股东构成的性别变化。学者们从未考虑过股东的性别——这一在公司内部统计、在年度财报上公布并且被媒体宣传的数据可能会影响商业领袖们对公司组织及管理的观点。本文思考这段历史是基于包括公司所有权和控制权分离、股东“被动性”、利害关系人理论及董事会代表制等在内的公司法重要理论在这一时期产生。本文论证了20世纪初的性别政治塑造了公司治理理论，尤其是关于股东角色的基础。通过展现历史是如何影响当今公司法的核心问题，本文为资本的女性主义化塑造了股东在公司治理中的地位的理论提供了证据。如此，本文希望能够推动法律学者关心性别、权力及公司法三者之间相互影响的关系。

The Fourth Amendment requires that warrants be supported by “Oath or affirmation.” Under current doctrine, a police officer may swear the oath to obtain a warrant merely by repeating the account of an informant. This Article shows, however, that the Fourth Amendment, as originally understood, required that the real accuser with personal knowledge swear the oath.

That real-accuser requirement persisted for nearly two centuries. Almost all federal courts and most state courts from 1850 to 1960 held that the oath, by its very nature, required a witness with personal knowledge. Only in 1960 did the Supreme Court hold in Jones v. United States that a warrant could rely upon hearsay. Jones radically altered criminal investigations. But the decision rested entirely on policy preferences, ignoring text, original meaning, and rich contrary precedent.

This Article argues that we should return to the original understanding that the oath requirement bans thirdhand accounts. Remarkably, this is the first comprehensive study to consider whether the oath requires personal knowledge.

In broad terms, the Vacancies Act authorizes the temporary service of non-Senate-confirmed leaders (commonly called “actings”), while the de facto officer doctrine allows courts to validate the past acts of improperly serving officials. This Note examines whether, when, and how the de facto officer doctrine has applied and should apply to the past acts of improper actings.

广义上，《职位空缺法》授权参议员未批准的领导级官员临时任职（通常称为“代理”），同时，当前的官员准则允许法庭检验官员过去的不正当行为。本笔记将检视官员准则如何、何时以及应当如何适用于过去的不当行为。

Both the Vacancies Act and the de facto officer doctrine are understudied. That fact is somewhat unsurprising: Both doctrines are considered niche areas of the law. Within academia, the Vacancies Act is considered the province of administrative law experts, and even within the federal government, most agency personnel receive only ad hoc training and guidance on it. For its part, the de facto officer doctrine is an ancient tool of equity that many consider to be of decreasing import. But that lack of scholarly treatment is surprising given the ubiquity and importance of acting officials (and the many roles agencies play in our lives). Between 1981 and 2020, there were 147 acting cabinet secretaries and just 171 confirmed ones, and empirical studies have shown that Senate-confirmed positions are vacant between 15% and 25% of the time. Likewise, the de facto officer doctrine has surged to national prominence more than once—most recently in the 2020 Supreme Court case Aurelius. And, notably, courts have already been confronted by many of the questions this Note seeks to address.

This Note does not analyze the Vacancies Act or the de facto officer doctrine at length. Instead, it explores the themes, potential, and pitfalls of using the de facto officer doctrine to validate the actions of officials who have not only skirted Senate confirmation, but also violated the constraints of the Vacancies Act. This Note thus seeks to chart the topography of the intersection of those two bodies of law and to provide a roadmap to future courts confronted with Vacancies Act violations.

本笔记并不长篇分析职位空缺法或是实然的官员准则。相反，本笔记探讨使用实然官员准则检视那些绕过参议员同意、违反职位空缺法的代理官员的行为相关的议题、可能性及风险。因此，本笔记展现了这两个法律间的相互影响并且为未来法院面对《职位空缺法》提供了路径。