In Print
lower courts and tribunals, James Pfander
control of such state conduct and puts
advances a departmental conception of
forward a legal framework in which to
the judiciary. He argues that Congress
understand state commercial activity. It is a
can enlist the state courts, lower federal
study of constitutional law and commercial
Wellspring of Liberty How Virginia’s Religious Dissenters Helped Win the American Revolution and Secured Religious Liberty
courts, and administrative agencies to hear
law, which attempts to develop an
John A. Ragosta ’84
federal claims in the first instance, but all
understanding of a peculiar social practice
Oxford University Press
of these tribunals must operate within a
within a particular legal framework.
hierarchical framework over which the
This is a book on methodology,
Before the American Revolution, no colony more assiduously protected
“one supreme Court” identified in the
not a book on the nuts and bolts of
its established church or more severely
Constitution exercises ultimate supervisory
state commercial activity or public
persecuted religious dissenters than
authority. In offering the first general
procurement regulation. Its premise is
Virginia. Both its politics and religion were
account of the Court as department
that by focusing on the courts’ approach
dominated by an Anglican establishment,
head, Pfander takes up such important
to state commercial activity one can
and dissenters from the established Church
debates in the federal courts’ literature
develop a theoretical understanding of
of England were subject to numerous
as Congress’s power to strip the federal
the conceptualization of state commercial
legal infirmities and serious persecution.
courts of jurisdiction to review state court
conduct in law. The book primarily deals
By 1786, no state more fully protected
decisions, its authority to assign decision-
with South African law, but it also contains
religious freedom.
making authority to state courts and
comparative perspectives from English,
non-Article III tribunals, its control over
German, and French law. It includes
transformation, as
the doctrine of vertical stare decisis, and
chapters dealing in detail with the court’s
John A. Ragosta
its ability to craft rules of practice for the
role as regulator of state commercial
shows in this book,
federal system.
conduct, the capacity of the state to
arose not from a
engage in commercial transactions, and
new-found cultural
Northwestern University School of Law.
various ways the courts can exercise their
tolerance. Rather,
Since 1998 he has served as a consultant to
regulatory function in this regard.
as the Revolution
Pfander is a Professor of Law at
The book
the Federal-State Jurisdiction Committee
This profound
approached,
of the Judicial Conference of the United
concludes with an
Virginia’s political establishment needed
States, in which capacity he considers
analysis of alternative
the support of the religious dissenters,
the impact of proposed legislation on
methods in terms of
primarily Presbyterians and Baptists, for
the jurisdiction of the federal courts. A
which South African
the mobilization effort. Dissenters seized
member of the American Law Institute, he
courts can approach
this opportunity to insist on freedom of
has chaired both the Federal Courts and
their regulatory
religion in return for their mobilization.
Civil Procedure Sections of the Association
function in this field
Their demands led to a complex and
of American Law Schools.
with particular focus
extended negotiation in which the religious
on the transformative agenda of the South
establishment slowly and grudgingly
African Constitution. Peer reviewers give
offered just enough reforms to maintain
State Commercial Activity: A Legal Framework
high praise to the author: “[This book]
the crucial support of the dissenters.
Geo Quinot LL.M. ’02
African law. It contains extensive local
support was no longer needed, the
Juta & Co
as well as comparative research, which
establishment leaders sought to recapture
enhances its value, and is thorough in its
control, but found they had seriously
approach.”
miscalculated: wartime negotiations
In South Africa there are many legal rules that can apply to state conduct in the marketplace, but there isn’t a coherent view
breaks new ground in South African and
Quinot is an Associate Professor
After the war, when dissenters’
had politicized the dissenters. As a result
of the legal concept of state commercial
in the Department of Public Law at
dissenters’ demands for the separation
activity. Without a clear picture of how
Stellenbosch University Law Faculty, South
of church and state triumphed over the
state commercial activity should be
Africa, where he teaches in the areas of
establishment’s efforts and Jefferson’s
conducted, legal regulation is extremely
administrative law, constitutional law, and
Statute for Establishing Religious Freedom
challenging.
public procurement regulation. He is also
was adopted.
State Commercial Activity: A Legal Framework analyses the state’s conduct
the author of Administrative Law Cases and Materials (2008).
Historians and the Supreme Court have repeatedly noted that the foundation
as a market participant from a legal
of the First Amendment’s protection of
perspective. It focuses on the judicial
religious liberty lies in Virginia’s struggle,
UVA Lawyer • Spring • 2010
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