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Articles 1 - 30 of 41
Full-Text Articles in Entire DC Network
The Imperial Sovereign: Sovereign Immunity & The Ada, Judith Olans Brown, Wendy E. Parmet
The Imperial Sovereign: Sovereign Immunity & The Ada, Judith Olans Brown, Wendy E. Parmet
University of Michigan Journal of Law Reform
Professors Brown and Parmet examine the impact of the Supreme Court's resurrection of state sovereign immunity on the rights of individuals protected by the Americans with Disabilities Act in light of the recent decision, Board of Trustees of the University of Alabama v. Garrett. Placing Garrett within the context of the Rehnquist Court's evolving reallocation of state and federal authority, they argue that the Court has relied upon a mythic and dangerous notion of sovereignty that is foreign to the Framers' understanding. Brown and Parmet go on to show that, by determining that federalism compels constraining congressional power to …
Presidential Review As Constitutional Restoration, John O. Mcginnis
Presidential Review As Constitutional Restoration, John O. Mcginnis
Duke Law Journal
No abstract provided.
How The Spending Clause Can Solve The Dilemma Of State Sovereign Immunity From Intellectual Property Suits, Jennifer Cotner
How The Spending Clause Can Solve The Dilemma Of State Sovereign Immunity From Intellectual Property Suits, Jennifer Cotner
Duke Law Journal
No abstract provided.
The Republican Constitution Of 1963: The Supreme Court And Federalism In Nigeria, Akin Alao
The Republican Constitution Of 1963: The Supreme Court And Federalism In Nigeria, Akin Alao
University of Miami International and Comparative Law Review
No abstract provided.
Causes Of The Recent Turn In Constitutional Interpretation, Christopher H. Schroeder
Causes Of The Recent Turn In Constitutional Interpretation, Christopher H. Schroeder
Duke Law Journal
No abstract provided.
A Localist Critique Of The New Federalism, David J. Barron
A Localist Critique Of The New Federalism, David J. Barron
Duke Law Journal
No abstract provided.
Tripping On The Threshold: Federal Courts’ Failure To Observe Controlling State Law Under The Federal Arbitration Act, Charles Davant Iv
Tripping On The Threshold: Federal Courts’ Failure To Observe Controlling State Law Under The Federal Arbitration Act, Charles Davant Iv
Duke Law Journal
No abstract provided.
Federalism And The Double Standard Of Judicial Review, Lynn A. Baker, Ernest A. Young
Federalism And The Double Standard Of Judicial Review, Lynn A. Baker, Ernest A. Young
Duke Law Journal
From 1937 to 1995, federalism was part of a “Constitution in exile.” Except for the brief interlude of the National League of Cities doctrine2—which, like Napoleon’s ill-fated return from Elba, met with crushing defeat3—the post–New Deal Supreme Court has been almost completely unwilling to enforce constitutional limits on national power vis-à-vis the states. The reason, by all accounts, has much to do with federalism’s historic link to other aspects of our expatriate constitution—e.g., economic substantive due process, legislative nondelegation— which were banished for their collusion against the New Deal.
Taking What They Give Us: Explaining The Court’S Federalism Offensive, Keith E. Whittington
Taking What They Give Us: Explaining The Court’S Federalism Offensive, Keith E. Whittington
Duke Law Journal
No abstract provided.
Narratives Of Federalism: Of Continuities And Comparative Constitutional Experience, Vicki C. Jackson
Narratives Of Federalism: Of Continuities And Comparative Constitutional Experience, Vicki C. Jackson
Duke Law Journal
No abstract provided.
Creating Better Governance, Denise D. Fort
Creating Better Governance, Denise D. Fort
Two Decades of Water Law and Policy Reform: A Retrospective and Agenda for the Future (Summer Conference, June 13-15)
17 pages (includes illustration).
Contains 2 pages of references.
Adjudication And The Problems Of Incommensurability, Brett G. Scharffs
Adjudication And The Problems Of Incommensurability, Brett G. Scharffs
William & Mary Law Review
No abstract provided.
The Family Medical Leave Act: State Sovereignty And The Narrowing Of Fourteenth Amendment Protection, Stephanie C. Bovee
The Family Medical Leave Act: State Sovereignty And The Narrowing Of Fourteenth Amendment Protection, Stephanie C. Bovee
William & Mary Journal of Race, Gender, and Social Justice
No abstract provided.
Enforcing The Endangered Species Act Against The States, Jean O. Melious
Enforcing The Endangered Species Act Against The States, Jean O. Melious
William & Mary Environmental Law and Policy Review
No abstract provided.
The Failure Of Public Company Bankruptcies In Delaware And New York: Empirical Evidence Of A "Race To The Bottom", Lynn M. Lopucki, Sara D. Kalin
The Failure Of Public Company Bankruptcies In Delaware And New York: Empirical Evidence Of A "Race To The Bottom", Lynn M. Lopucki, Sara D. Kalin
Vanderbilt Law Review
Commentators sometimes recognize Delaware's preeminence in corporate law, but they almost invariably treat Delaware's recent popularity as a bankruptcy venue choice as raising entirely different issues. In fact, the two are integrally related. Specifically, just as the efforts of Delaware and other states to attract corporations--a process often referred to as "charter competition'-has induced Delaware to regulate corporate law in a generally efficient manner, the same forces will have a beneficial effect on Delaware's bankruptcy judges
. -Professor David Skeet'
Judging Judging: The Problem Of Second-Guessing State Judges' Interpretation Of State Law In Bush V. Gore, Harold J. Krent
Judging Judging: The Problem Of Second-Guessing State Judges' Interpretation Of State Law In Bush V. Gore, Harold J. Krent
All Faculty Scholarship
No abstract provided.
Judging Judging: The Problem Of Second-Guessing State Judges' Interpretation Of State Law In Bush V. Gore, Harold Krent
Judging Judging: The Problem Of Second-Guessing State Judges' Interpretation Of State Law In Bush V. Gore, Harold Krent
Harold J. Krent
No abstract provided.
When Inclusion Leads To Exclusion: The Uncharted Terrain Of Community Participation In Economic Development, Audrey Mcfarlane
When Inclusion Leads To Exclusion: The Uncharted Terrain Of Community Participation In Economic Development, Audrey Mcfarlane
All Faculty Scholarship
Since the advent of federally-sponsored urban development, the federal government has sought to facilitate decentralized decision-making by local governments. These federal programs have also strongly encouraged local governments to include community participation in the development decision-making process. Participation evokes notions of democracy, egalitarianism, and inclusion and it is easy to support in principle. But participation is often less easy to support in practice because of its structural disconnect with urban development. This disconnect between principle and practice has been reflected in an ebb and flow of contrastingly strong and weak mandates for participation. This ebb and flow of federally-mandated participation …
Litigating Age And Disability Claims Against State And Local Government Employers In The New "Federalism" Era, Ivan E. Bodensteiner, Rosalie Levinson
Litigating Age And Disability Claims Against State And Local Government Employers In The New "Federalism" Era, Ivan E. Bodensteiner, Rosalie Levinson
Law Faculty Publications
No abstract provided.
Starbucks And The New Federalism: The Court's Answer To Globalization, Robert Knowles
Starbucks And The New Federalism: The Court's Answer To Globalization, Robert Knowles
Law Faculty Publications
No abstract provided.
Massachusetts, Burma And The World Trade Organization: A Commentary On Blacklisting, Federalism, And Internet Advocacy In The Global Trading Era, Peter L. Fitzgerald
Massachusetts, Burma And The World Trade Organization: A Commentary On Blacklisting, Federalism, And Internet Advocacy In The Global Trading Era, Peter L. Fitzgerald
Cornell International Law Journal
No abstract provided.
Pressure From Abroad Against Use Of Capital Punishment In The United States, John Quigley
Pressure From Abroad Against Use Of Capital Punishment In The United States, John Quigley
ILSA Journal of International & Comparative Law
Foreign pressure on the United States on the capital punishment issue continues to build.
Understanding The "Understanding": Federalism Constraints On Human Rights Implementation, Brad R. Roth
Understanding The "Understanding": Federalism Constraints On Human Rights Implementation, Brad R. Roth
Law Faculty Research Publications
No abstract provided.
The Constitutional Convention Of 1937: The Original Meaning Of The New Jurisprudential Deal, Kurt T. Lash
The Constitutional Convention Of 1937: The Original Meaning Of The New Jurisprudential Deal, Kurt T. Lash
Law Faculty Publications
The paper traces the dramatic jurisprudential innovations of the New Deal Revolution, including the articulation of incorporation theory, the abandonment of judicial construction of state common law, and the ascension of textual originalism as the Court's method of constitutional interpretation. I argue that the New Deal Court transcended the political goals of the Roosevelt administration and attempted to restructure the nature of legitimate judicial review in a post-Lochner world. Acting, in effect, as a constitutional convention, the Court not only changed the nature of judicial review, it altered the shape of the Constitution in ways that cut across modern political …
Toward Political Safeguards Of Self-Determination, Gregory P. Magarian
Toward Political Safeguards Of Self-Determination, Gregory P. Magarian
Scholarship@WashULaw
The theorists of the political safeguards of federalism (primarily Herbert Wechsler, Jesse Choper, and Larry Kramer) contend that various features of the American political system are sufficient to protect the values of federalism, obviating the need for federalist judicial review. These theorists have identified constitutional features of the system (i.e., equal representation in the Senate) and extolled subconstitutional features (notably the strength of the major political parties) as guarantors of state prerogatives against the federal government. They have not, however, developed a substantial account of the reasons why state prerogatives need or deserve protection and how those reasons bear on …
A Brave New Lochner Era? The Constitutionality Of Nafta Chapter 11, Steve Louthan
A Brave New Lochner Era? The Constitutionality Of Nafta Chapter 11, Steve Louthan
Vanderbilt Journal of Transnational Law
In the eight years since its adoption, NAFTA Chapter 11 has escaped significant scrutiny from academics and journalists alike. However, with the recent filing of several Chapter 11 expropriation claims involving U.S. states, Chapter 11 has begun to gain some notoriety in the press and sparked at least two legal symposia this past year.
This Note begins by highlighting the recent Methanex Chapter 11 claim involving the State of California. Methanex, a Canadian chemical manufacturer and importer, claimed $1.6 billion in damages over California's ban of the chemical MTBE. Despite the EPA'S classification of MTBE as a possible carcinogen and …
'Appropriate' Means-Ends Constraints On Section 5 Powers, Evan H. Caminker
'Appropriate' Means-Ends Constraints On Section 5 Powers, Evan H. Caminker
Articles
With the narrowing of Congress' Article I power to regulate interstate commerce and to authorize private suits against states, Section Five of the Fourteenth Amendment provides Congress with an increasingly important alternative source of power to regulate and police state conduct. However, in City of Boerne v. Flores and subsequent cases, the Supreme Court has tightened the doctrinal test for prophylactic legislation based on Section Five. The Court has clarified Section Five's legitimate ends by holding that Congress may enforce Fourteenth Amendment rights only as they are defined by the federal judiciary, and the Court has constrained Section Five's permissible …
Dispelling The Misconceptions Raised By The Davis Dissent, Joan E. Schaffner
Dispelling The Misconceptions Raised By The Davis Dissent, Joan E. Schaffner
GW Law Faculty Publications & Other Works
This article argues that the Supreme Court’s majority opinion in Davis v. Monroe County Board of Education did not do enough to explicitly assuage the dissenters’ concerns and aims to do so itself. Davis permitted liability for school districts that purposely ignore instances of student-on-student sexual harassment that deprived a student of the opportunity for education. The three issues raised by the dissent were federalism, whether the conduct at issue is sexual harassment, and First Amendment concerns about the aggressor’s speech being protected. In response, I argue that the majority opinion does not violate federalism principles, the harassment qualifies as …
Federalism, Preclearance, And The Rehnquist Court, Ellen D. Katz
Federalism, Preclearance, And The Rehnquist Court, Ellen D. Katz
Articles
Lopez v. Monterey County is an odd decision. Justice O'Connor's majority opinion easily upholds the constitutionality of a broad construction of section 5 of the Voting Rights Act (VRA) in language reminiscent of the Warren Court. Acknowledging the "substantial 'federalism costs" resulting from the VRA's "federal intrusion into sensitive areas of state and local policymaking," Lopez recognizes that the Reconstruction Amendments "contemplate" this encroachment into realms "traditionally reserved to the States." Justice O'Connor affirms as constitutionally permissible the infringement that the section 5 preclearance process "by its nature" effects on state sovereignty, and applies section 5 broadly, holding the statute …
Party As A 'Political Safeguard Of Federalism': Martin Van Buren And The Constitutional Theory Of Party Politics, Gerald F. Leonard
Party As A 'Political Safeguard Of Federalism': Martin Van Buren And The Constitutional Theory Of Party Politics, Gerald F. Leonard
Faculty Scholarship
In the last decade or so, the Supreme Court has revitalized judicial enforcement of federalism. This development has spurred the partisans of Herbert Wechsler's "political safeguards of federalism" to begin a serious investigation of the ways in which extra-judicial politics can and does substitute for and complement the judicial role in enforcing federalism and the Constitution. Similarly, constitutional scholars have turned in increasing numbers to the question of how even judicially promulgated doctrines of constitutional law turn out to be more derivative of popular politics than vice versa. Necessarily, much of the investigation on both fronts has turned historical and …