Law Commons^™

Religious V. Secular Ideologies And Sex Education: A Response To Professors Cahn And Carbone, Vivian E. Hamilton

Faculty Publications

No abstract provided.

Federalism And The Tug Of War Within: Seeking Checks And Balance In The Interjurisdictional Gray Area, Erin Ryan

Faculty Publications

Federalism and the Tug of War Within explores tensions that arise among the underlying values of federalism when state or federal actors regulate within the "interjurisdictional gray area" that implicates both local and national concerns. Drawing examples from the failed response to Hurricane Katrina and other interjurisdictional problems to illustrate this conflict, the Article demonstrates how the trajectory set by the New Federalism's "strict-separationist" model of dual sovereignty inhibits effective governance in these contexts. In addition to the anti-tyranny, pro-accountability, and localism-protective values of federalism, the Article identifies a problem-solving value inherent in the capacity requirement of American federalism's subsidiarity …

Slides: The Future Of Oil And Gas Development On Federal Lands, Mike Chiropolos

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

Presenter: Mike Chiropolos, Lands Program Director, Western Resource Advocates

44 slides

Agenda: The Future Of Natural Resources Law And Policy, University Of Colorado Boulder. Natural Resources Law Center, Rocky Mountain Mineral Law Foundation

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

The Natural Resources Law Center's 25th Anniversary Conference and Natural Resources Law Teachers 14th Biennial Institute provided an opportunity for some of the best natural resources lawyers to discuss future trends in the field. The conference focused on the larger, cross-cutting issues affecting natural resources policy. Initial discussions concerned the declining role of scientific resource management due to the increased inclusion of economic-cost benefit analysis and public participation in the decision-making process. The effectiveness of this approach was questioned particularly in the case of non-market goods such as the polar bear. Other participants promoted the importance of public participation and …

Federalism And Natural Resources Policy [Outline], Robert L. Fischman

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

2 pages.

"Robert L. Fischman, Indiana University School of Law–Bloomington"

"Outline of Presentation"

Law Casebook Description And Table Of Contents: Constitutional Environmental And Natural Resources Law [Outline], Jim May, Robin Craig

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

6 pages.

"James May, Widener University School of Law" -- Agenda

Federalism And Accountability: State Attorneys General, Regulatory Litigation, And The New Federalism, Timothy L. Meyer

Scholarly Works

This Comment will examine how one particular state institution, state attorneys general (SAGs), has operated within a unique set of institutional and political constraints to create state-based regulation with nationwide impact in policy areas including consumer protection, antitrust, environmental regulation, and securities regulation. This state-based regulation casts doubt on one of the principle rationales advanced in the Supreme Court's anticommandeering line of cases for limiting federal power; namely, that such a move enhances electoral accountability, a concept central to our democracy. If in the absence of federal regulation a series of narrowly accountable state-based actors can create nationwide regulation in …

How Congress Paved The Way For The Rehnquist Court's Federalism Revival: Lessons From The Federal Partial Birth Abortion Ban, Neal Devins

Faculty Publications

No abstract provided.

Active Sovereignty, Timothy Zick

Faculty Publications

No abstract provided.

The Third Death Of Federalism, A. Christopher Bryant

Faculty Articles and Other Publications

Federal drug laws proved a stumbling block to the Rehnquist Court's attempted federalism revival. In its final year, the Court's fragile federalism coalition splintered in a pair of cases arising under the Controlled Substances Act ("CSA"). Missing from the emerging legal literature concerning those two decisions is any substantive discussion of the Supreme Court's much earlier, ill-fated efforts to preserve both judicial enforcement of the enumerated powers doctrine and federal narcotics laws. This article fills that gap.

Ninety-odd years ago the Court arrived at the same jurisprudential juncture it now confronts. In the early decades of the twentieth century, the …

The People Or The State?: Chisholm V. Georgia And Popular Sovereignty, Randy E. Barnett

Georgetown Law Faculty Lectures and Appearances

Chisholm v. Georgia was the first great constitutional case decided by the Supreme Court. In Chisholm, the Court addressed the fundamental question: Who is Sovereign? The People or the State? It adopted an individual concept of popular sovereignty rather than the modern view that limits popular sovereignty to collective or democratic self-government. It denied that the State of Georgia was a sovereign entitled, like the King of England, to assert immunity from a lawsuit brought by a private citizen. Despite all this, Chisholm is not among the canon of cases that all law students are taught. Why not? In this …

The 2006 Winthrop And Frances Lane Lecture: The Unintended Legal And Policy Consequences Of The No Child Left Behind Act, Michael Heise

Cornell Law Faculty Publications

No abstract provided.

Anti-Federalist Procedure, A. Benjamin Spencer

Faculty Publications

"[T]he new federal government will ... be disinclined to invade the rights of the individual States, or the prerogatives of their governments."

"[T]he Constitution of the United States ... recognizes and preserves the autonomy and independence of the States-independence in their legislative and independence in their judicial departments. . . . Any interference with either, except as [constitutionally] permitted, is an invasion of the authority of the State and, to that extent, a denial of its independence."

The understanding expressed by these opening quotes-that the national government was designed to be one of limited powers that would refrain from encroaching …

Constitutional Avoidance And The Roberts Court, Neal Devins

Faculty Publications

No abstract provided.

Constitutional Isolationism And The Limits Of State Separation Of Powers As A Barrier To Interstate Compacts, Jim Rossi

Vanderbilt Law School Faculty Publications

In this Essay, I address the question of which branch of state government ought to have the authority to negotiate interstate compacts - a question of state separation of powers. Recent case law interpreting state constitutions in the context of Indian gambling compacts provides a particularly fertile ground for exploring this question, as it illustrates how courts are struggling to find a way to allow state executive officials greater autonomy to negotiate interstate compacts. Part I illustrates how traditional notions of separation of powers under state constitutions can be understood to pose a barrier to executive branch negotiation of interstate …

The Populist Safeguards Of Federalism, Robert A. Mikos

Vanderbilt Law School Faculty Publications

Extant legal scholarship often portrays citizens as the catalysts of federalization. Scholars say that citizens pressure Congress to impose their morals on people living in other states, to trump home-state laws with which they disagree, or to shift the costs of regulatory programs onto out-of-state taxpayers, all to the demise of states' rights. Since Congress (usually) gives citizens what they want, scholars insist the courts must step in to protect states from federal encroachments. By contrast, this Article proposes a new theory of the populist safeguards of federalism. It develops two distinct but mutually reinforcing reasons why populist demands on …

Federalism And The Commerce Clause: A Comparative Perspective, Reuven S. Avi-Yonah

Articles

The U.S. Supreme Court has on numerous occasions addressed the constitutionality of state taxes under the U.S. Constitution (most often under the Commerce Clause, but sometimes under the Equal Protection and Due Process Clauses). In general, the Supreme Court has granted wide leeway to the states to adopt any tax system they wish, only striking down the most egregious cases of discrimination against out-of-state residents. Thus, for example, the Court has generally refused to intervene against state tax competition to attract business into the state. It has twice upheld a method of calculating how much income of a multinational enterprise …

Devolution Of Implementing Policymaking In Network Governments, Charles H. Koch Jr.

Faculty Publications

No abstract provided.

When Worlds Collide: Federal Construction Of State Institutional Competence, Marcia L. Mccormick

All Faculty Scholarship

The federal courts routinely encounter issues of state law. Often a state court will have already analyzed the law at issue, either in a separate case or in the very situation before the federal court. In every one of those cases, the federal courts must decide whether to defer to the state court analysis and, if so, how much. The federal courts will often defer, but many times have not done so, and they rarely explain the reasons for the departures they make. While this lack of transparency gives the federal courts the greatest amount of discretion and power, it …

The Origins Of Article Iii "Arising Under" Jurisdiction, Anthony J. Bellia

Journal Articles

Article III of the Constitution provides that the judicial Power of the United States extends to all cases arising under the Constitution, laws, and treaties of the United States. What the phrase arising under imports in Article III has long confounded courts and scholars. This Article examines the historical origins of Article III arising under jurisdiction. First, it describes English legal principles that governed the jurisdiction of courts of general and limited jurisdiction--principles that animated early American jurisprudence regarding the scope of arising under jurisdiction. Second, it explains how participants in the framing and ratification of the Constitution understood arising …

The "Federalism Five" As Supreme Court Nominees, 1971-1991, John Q. Barrett

Faculty Publications

This article looks back at the Senate confirmation hearing testimonies of five Supreme Court nominees. Following their appointments to the Court, these justices—Chief Justice Rehnquist and Associate Justices O'Connor, Scalia, Kennedy and Thomas—generally voted together in path-breaking federalism cases. They reinvigorated constitutional law limits or decreed new ones on national legislative power, supported the "sovereignty" of state governments, and thus came to be known in some circles as the Rehnquist Court's "Federalism Five." As nominees testifying before the Senate Judiciary Committee, however, these "federalism" justices did not announce, or for the most part even much hint at, what came to …