Open Access. Powered by Scholars. Published by Universities.®

Digital Commons Network

Open Access. Powered by Scholars. Published by Universities.®

Articles 1 - 6 of 6

Full-Text Articles in Entire DC Network

Constitutional Impediments To National Health Reform: Tenth Amendment And Spending Power Hurdles, S. Candice Hoke Mar 2013

Constitutional Impediments To National Health Reform: Tenth Amendment And Spending Power Hurdles, S. Candice Hoke

S. Candice Hoke

This Article proceeds in four Parts. The first briefly summarizes the approach of each of the pending health reform bills and distills those portions relevant to current Tenth Amendment and Spending Clause analysis. Provisions that would impose on States the financial and administrative responsibility for achieving Federal regulatory objectives or that specify punitive measures to be taken against States choosing not to participate in the cooperative program are critical features for the inquiry. Employing these criteria, the first Part identifies seven distinct and largely novel models of problematic regulatory instructions that warrant more probative analysis.The second Part briefly outlines ...


Book Review, S. Candice Hoke Mar 2013

Book Review, S. Candice Hoke

S. Candice Hoke

The author reviews Federalism and Rights by Ellis Katz and G. Alan Tarr and To Make a Nation: The Rediscovery of American Federalism by Samuel H. Beer.


Reasons To Eschew Federal Lawmaking And Embrace Common Law Approaches To Genetic Discrimination, S. Candice Hoke Mar 2013

Reasons To Eschew Federal Lawmaking And Embrace Common Law Approaches To Genetic Discrimination, S. Candice Hoke

S. Candice Hoke

The main charge to me is to show you alternatives other than, for instance, federal legislation that could be deployed to rectify genetic discrimination.You may have noticed that in our conference materials, and in a number of the presentations, there has been either an explicit or an implicit call along the lines of “there ought to be a law that ...” Professor Hoffman and I agree: there ought to be some laws, but I want to talk to you a little bit about two possible, two real goals here.One is to ask you to critically evaluate whether a federal ...


State Discretion Under New Federal Welfare Legislation: Illusion, Reality, And A Federalism-Based Constitutional Challenge, S. Candice Hoke Mar 2013

State Discretion Under New Federal Welfare Legislation: Illusion, Reality, And A Federalism-Based Constitutional Challenge, S. Candice Hoke

S. Candice Hoke

This article challenges the common characterization of the 1996 welfare reforms. States do not have the ability to do “almost anything they want.” Most notably, states with more compassionate political leadership who wish to counter the national trend may seek areas of flexibility in vain. The Act's mandates and penalties will force all states into particular policies that they may not have chosen had Edelman been correct about the range of their discretionary powers.Edelman's critique typifies the standard assessment of the Act. According to the prevailing view, the Act's policies are objectionable because the federal government ...


Arendt, Tushnet, And Lopez: The Philosophical Challenge Behind Ackerman's Theory Of Constitutional Moments, S. Candice Hoke Mar 2013

Arendt, Tushnet, And Lopez: The Philosophical Challenge Behind Ackerman's Theory Of Constitutional Moments, S. Candice Hoke

S. Candice Hoke

In his provocative article, Mark Tushnet asks whether United States v. Lopez signals a major constitutional shift in federalism-- specifically in the allocation of political and regulatory power between State and Nation. Tushnet uses the Lopez problem to test the adequacy of the political theory that Bruce Ackerman terms “dualist democracy,” delineated in Ackerman's work in progress. Like many other reviewers, Tushnet finds Ackerman's theory wanting in crucial respects.My response takes two tracks. First, I will argue that the import of Ackerman's theory is better understood and evaluated when it is considered more as a work ...


Transcending Conventional Supremacy: A Reconstruction Of The Supremacy Clause, S. Candice Hoke Mar 2013

Transcending Conventional Supremacy: A Reconstruction Of The Supremacy Clause, S. Candice Hoke

S. Candice Hoke

Perhaps because the predominant strands of contemporary Supremacy Clause jurisprudence originate in two of the most venerable cases in the Court's history, the Court and academics alike have sidestepped some of their problematic pronouncements. In Part I, this Article questions the legacy of McCulloch v. Maryland and Gibbons v. Ogden, finding their Supremacy Clause principles unacceptably nationalistic and hence unfaithful to the balance of the Constitution. While their centralizing tendencies may have been understandable during the nation's infancy, their raison d'être has evaporated; the pendulum of state versus national regulatory power on matters other than individual liberties ...