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Conflicting Commerce Clauses: How Raich And American Trucking Dishonor Their Doctrines, John W. Moorman

William & Mary Bill of Rights Journal

No abstract provided.

Federalism, Positive Law, And The Emergence Of The American Administrative State: Prohibition In The Taft Court Era, Robert Post

William & Mary Law Review

This Article offers a detailed analysis of major Taft Court decisions involving prohibition, including Olmstead v. United States, Carroll v. United States, United States v. Lanza, Lambert v. Yellowley, and Tumey v. Ohio. Prohibition, and the Eighteenth Amendment by which it was constitutionally entrenched, was the result of a social movement that fused progressive beliefs in efficiency with conservative beliefs in individual responsibility and self-control.

During the 1920s the Supreme Court was a strictly "bone-dry"institution that regularly sustained the administrative and law enforcement techniques deployed by the federal government in its losing effort to prevent the manufacture and sale of …

State Courts And The Interpretation Of Federal Statutes, Anthony J. Bellia Jr.

Vanderbilt Law Review

In the debate over how federal courts should interpret federal statutes, "faithful agent" theories stand pitted against "dynamic" theories of statutory interpretation. The following questions lie at the heart of the debate: Is the proper role of federal courts to strive to implement the commands of the legislature-in other words, to act as Congress's faithful agents? Or, is the proper role of federal courts to act as partners with Congress in the forward-looking making of federal law-in other words, to interpret statutes dynamically? Proponents of faithful agent theories include both "textualists" and "purposivists." Textualists have argued that federal courts best …

Commandeering And Its Alternatives: A Federalism Perspective, Neil S. Siegel

Vanderbilt Law Review

This inquiry argues that current Tenth Amendment jurisprudence causes net harm to federalism values under certain circumstances. Specifically, New York v. United States and Printz v. United States protect state autonomy to some extent by requiring the federal government to internalize more of the costs of federal regulation before engaging in regulation. But anticommandeering doctrine harms state autonomy in situations where the presence of the rule triggers more preemption going forward. Preemption generally causes a greater compromise of federalism values than does commandeering by eroding state regulatory control.

While it is a context-sensitive empirical question whether specific applications of the …

Criminal Justice Collapse: The Constitution After Hurricane Katrina, Brandon L. Garrett, Tania Tetlow

Duke Law Journal

The New Orleans criminal justice system collapsed after Hurricane Katrina, resulting in a constitutional crisis. Eight thousand people, mostly indigent and charged with misdemeanors such as public drunkenness or failure to pay traffic tickets, languished indefinitely in state prisons. The court system shut its doors, the police department fell into disarray, few prosecutors remained, and a handful of public defenders could not meet with, much less represent, the thousands detained. This dire situation persisted for many months, long after the system should have been able to recover. We present a narrative of the collapse of the New Orleans area criminal …

The Virtue Of Vagueness: A Defense Of South Dakota V. Dole, Reeve T. Bull

Duke Law Journal

No abstract provided.

Gonzales V. Raich; Federalism As A Casualty Of The War On Drugs, Ilya Somin

Cornell Journal of Law and Public Policy

No abstract provided.

Preempting The People: The Judicial Role In Regulatory Concurrency And Its Implications For Popular Lawmaking, Theodore W. Ruger

Chicago-Kent Law Review

The phrase "popular constitutionalism" most commonly refers to the role of the public—or perhaps its elected representatives—in framing answers to particular substantive questions of constitutional interpretation. This essay explores a different aspect of the popular constitution of the United States, one that is indifferent to particular substantive questions but that forms the basic structure in which most lawmaking takes place. The United States is not merely a federal system but one with concurrent federalism, in which many issues are regulated by both state and federal governments. This norm of regulatory concurrency became entrenched in the twentieth century even as the …

Popular Constitutionalism As Presidential Constitutionalism?, David L. Franklin

Chicago-Kent Law Review

This essay, which focuses on Larry Kramer's book The People Themselves, makes three points. First, although Kramer makes popular constitutionalism the conceptual centerpiece of his book, it's not at all clear what popular constitutionalism is. Kramer's work can be read to embody two very different versions of popular constitutionalism: a populist sensibility model and a departmentalist model. Second, whichever model Kramer has in mind, he has performed a valuable service by reminding us that the meaning of the Constitution is not identical to the doctrines the Supreme Court uses to implement that meaning. Third, popular constitutionalism in 2006 may in …

Circumventing The Supremacy Clause? Understanding The Constitutional Implications Of The United States' Treatment Of Treaty Obligations Through An Analysis Of The New York Convention, Amber A. Ward

San Diego International Law Journal

The United States participation in treaties and other international agreements is becoming more necessary and an increasingly prevalent occurrence as a result of globalization. The rapid pace of technological innovation and more effective means of transportation have caused our world to shrink, making countries even more interconnected. The corresponding explosion of international business and commercial transactions has resulted in high levels of risk and uncertainty due to a complex mix of laws, monetary factors, politics and cultures that vary across countries. For global players, it has become essential to have international agreements that can mitigate the risks inherent in international …

Fatal In Theory And Strict In Fact: An Empirical Analysis Of Strict Scrutiny In The Federal Courts, Adam Winkler

Vanderbilt Law Review

A popular myth in American constitutional law is that the "strict scrutiny" standard of review applied to enforce rights such as free speech and equal protection is 'strict' in theory and fatal in fact."' This phrase, coined by the late legal scholar Gerald Gunther in 1972, has been called "one of the most famous epithets in American constitutional law"' and has effectively defined the strict scrutiny standard in the minds of lawyers for two generations. Born of Gunther's observation, supported by the iconic decisions of the Warren Court, and reinforced in constitutional law teaching and scholarship, the myth teaches that …

Tax Assignment And Revenue Sharing In Nigeria: Challenges And Options, S. C. Rapu

Economic and Financial Review

This paper build on the history as well as the current legal framework of tax assignment and revenue-sharing in Nigeria to identify the challenges while also drawing from the theoretical framework for policy options which will provide for a stable federal system in Nigeria. The paper recommended among others the strengthening of states internal revenue bases, adjustments on the vertical and horizontal revenue-sharing formula, effective compliance with the allocation of the mandatory 10% of states internally generated revenue. The paper concludes that changes to the existing tax assignment and revenue-sharing arrangements will go a long way in protecting our nascent …

"Tucker's Rule": St. George Tucker And The Limited Construction Of Federal Power, Kurt T. Lash

William & Mary Law Review

No abstract provided.

St. George Tucker And The Limits Of States' Rights Constitutionalism: Understanding The Federal Compact In The Early Republic, David Thomas Konig

William & Mary Law Review

No abstract provided.

Reflections On Bush V. Gore: The Role Of The United States Supreme Court, David Boies

Florida A & M University Law Review

No abstract provided.

Federalism In Securities Regulation: A Brief Introduction And Reflection, Christopher M. Wood

University of San Francisco Law Review

No abstract provided.

Federalism In Corporate/Securities Law: Reflections On Delaware, California, And State Regulation Of Insider Trading, Donald C. Langevoort

University of San Francisco Law Review

No abstract provided.

Federalism And Antitrust Reform, Herbert Hovenkamp

University of San Francisco Law Review

No abstract provided.

Federalism In Securities Regulation: An Economist’S Perspective, Joseph E. Stiglitz

University of San Francisco Law Review

No abstract provided.

Liberty From On High: The Growing Reliance On A Centralized Judiciary To Protect Individual Liberty, Patrick M. Garry

Kentucky Law Journal

No abstract provided.

Countermajoritarian Federalism, Thomas H. Lee

Fordham Law Review

No abstract provided.

Judicial Oversight In Two Dimensions: Charting Area And Intensity In The Decisions Of Justice Stevens, Allison Marston Danner, Adam Marcus Samaha

Fordham Law Review

No abstract provided.

Fighting Federalism With Federalism: If It's Not Just A Battle Between Federalists And Nationalists, What Is It?, David J. Barron

Fordham Law Review

No abstract provided.

Justice Stevens's Theory Of Interactive Federalism, Robert A. Schapiro

Fordham Law Review

No abstract provided.

The Commerce Clause And Federal Abortion Law: Why Progressives Might Be Tempted To Embrace Federalism, Jordan Goldberg

Fordham Law Review

No abstract provided.

From States' Rights Blues To Blue States' Rights: Federalism After The Rehnquist Court, Kathleen M. Sullivan

Fordham Law Review

No abstract provided.

Federalism, Peter H. Schuck

Case Western Reserve Journal of International Law

No abstract provided.

Federalism As Westphalian Liberalism, Roderick M. Hills, Jr.

Fordham Law Review

No abstract provided.

Cafa And Erie: Unconstitutional Consequences?, Justin D. Forlenza

Fordham Law Review

No abstract provided.

Introduction: A Tale Of (At Least) Two Federalisms, Denise C. Morgan

NYLS Law Review

No abstract provided.