The work of Professor Martin Shapiro is distinguished by lucidity, an analytical turn of mind, formidable sophistication, and a thoroughly readable style. A political scientist by training, Shapiro is very much at home with the tools and techniques of the lawyer. His flair for case analysis is much in evidence in Law and Politics in the Supreme Court In the chapters on tax and labor policy, for example, his view of the Court as a political agency furthering its interests through interaction with other agencies such as the Internal Revenue Service and the National Labor Relations Board is developed through close readings of decisions 2 and comparisons among groups of cases.' Indeed, Shapiro's analysis of the reapportionment controversy demonstrates a regard for lawyers' sensibilities seemingly above and beyond the call of duty-considerably more than half the chapter is devoted to a closely reasoned parsing of the "political question" cases." Shapiro's regard for "lawyer's law," however, is only apparently excessive. His focus on the interaction among governmental agencies inevitably involves consideration of cases in which the Court paces the boundaries of its own jurisdiction. And as Professor Bickel's work in The Least Dangerous Branch' testifies, this judicial mapping of spheres of competence is preeminently "lawyer's law," with compass directions provided in the arcane terminology of "case and controversy," "standing," and "ripeness." Yet it is precisely here that Shapiro breaks decisively with conventional legal approaches. Shapiro denominates his view "political jurisprudence." ' Postulating
THE HIsToRIcAL BACKGROUND* BECAUSE the United States was a comparatively new nation when its constitution was drafted, it could in many areas-among which church and state is one of the most important-embark upon a revolutionary political and social experiment without having to clear away the debris left by previous builders. The compromises crystalized in the Weimar constitution, on the other hand, represented but one stage in a lengthy process of interaction which had already molded both church and state. Consequently, although both the Weimar and the Philadelphia documents were products of a political revolution, any examination of the historical background of the 1919 provisions should serve not only to make the compromises they contained more explicable, but simultaneously to demonstrate why the two situations cannot be equated.' The delicate structures which embody institutional compromises, unlike Scottish castles, rarely survive transAtlantic voyages. In Germany, the institutional role of religion and churches was inextricably connected with the rise of the nation-state itself. During the Aliddle Ages, for example, because the territorial magnates who controlled vast tracts of land under the nominal authority of the Holy Roman Emperor in fact represented competing centers of secular authority, the Emperor was forced to turn to church officials for the performance of imperial administrative tasks. This tradition, deriving from the time of the Carolingian Renaissance in the ninth century, resulted in so close a relationship between church and state that Papal efforts to reform the German church in the eleventh century-aimed at the achievement of institutional independence-inevitably led to open conflict with the Emperors. The ensuing Papal victory was complete, the ruling Hohenstaufen line having been literally exterminated by 1268, and the resultant weakening of the central authority played a significant role in permitting centrifugal elements to prevent the unification of Germany until well into the nineteenth century. The heritage of open conflict between church and state, furthermore, mas to play an important role in German history in the period immediately following unification. *The constitutional provisions are being analyzed in legal rather than historical terms. The historical introduction is presented primarily to provide background rather than to explain details of the compromises and underlying historical factors. Historians interested in why the compromises mentioned herein took the form they did must be content with the cited, and other, historical literature. 1. For an attempt to account for the disparities between European and American political developments in general terms, see HARTz, THE LIBEAL TRADrro, n; AuMncA (1955). An insightful analysis of one of the material bases of the ideological superstructure delineated by Hartz is contained in PortER, PnoPLE or PLETm (1954).
In 1974, Professors Victor Brudney and Marvin Chirelstein published an article that suggested formulae for deciding whether minority shareholders of a subsidary receive fair treatment in a controlled merger.' In 1977, in Mills v. Electric Auto-Lite Co., 2 the Seventh Circuit relied on that article in concluding that the merger terms being reviewed were fair. As Professor Simon Lorne pointed out recently, "it is clear from the Seventh Circuit decision in Mills that the court did not fully understand the concepts set forth in the Brudney & Chirelstein article." 3 "A least in stock mergers," he explained,
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