The odd system for choosing the American president – the electoral college – has been defended on shifting grounds over the years. Only one of these grounds – federalism – currently remains. This article examines the historical record and concludes that federalism was not a significant reason for adoption of the system. Today, the electoral college provides at best a very meager form of federalism. Conversely, it encourages candidates to ignore states during each election and holds the potential for great mischief, including the election of a truly “regional” president.

The prohibition against “take” of endangered species would appear, at first blush, to be the most powerful protection of the federal Endangered Species Act. But the provision has not met its potential, the article argues, in part because its parameters remain fuzzy. This article examines the parameters of intent, directness, timing, proximate causation, and standard of proof. This examination reveals a prohibition that holds its greatest potential as a means of enjoining an impending harm to a species.