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Full-Text Articles in Law

Why Can't A Chicken Vote For Colonel Sanders? U.S. Term Limits, Inc. V. Thornton And The Constitutionality Of Term Limits, Julie Heintz Oct 2012

Why Can't A Chicken Vote For Colonel Sanders? U.S. Term Limits, Inc. V. Thornton And The Constitutionality Of Term Limits, Julie Heintz

Pepperdine Law Review

No abstract provided.


Effectuating Principles Of Federalism: Reevaulating The Federal Spending Power As The Great Tenth Amendment Loophole, Ryan C. Squire Oct 2012

Effectuating Principles Of Federalism: Reevaulating The Federal Spending Power As The Great Tenth Amendment Loophole, Ryan C. Squire

Pepperdine Law Review

No abstract provided.


The False Promise Of The Converse-1983 Action, John F. Preis Oct 2012

The False Promise Of The Converse-1983 Action, John F. Preis

Indiana Law Journal

The federal government is out of control. At least that’s what many states will tell you. Not only is the federal government passing patently unconstitutional legislation, but its street-level officers are ignoring citizens’ constitutional rights. How can states stop this federal juggernaut? Many are advocating a “repeal amendment,” whereby two-thirds of the states could vote to repeal federal legislation. But the repeal amendment will only address unconstitutional legislation, not unconstitutional actions. States can’t repeal a stop-and-frisk that occurred last Thursday. States might, however, enact a so-called “converse-1983” action. The idea for converse-1983 laws has been around for some time but …


The Liberty Of Free Riders: The Minimum Coverage Provision, Mill’S “Harm Principle,” And American Social Morality, Jedediah Purdy, Neil S. Siegel Jan 2012

The Liberty Of Free Riders: The Minimum Coverage Provision, Mill’S “Harm Principle,” And American Social Morality, Jedediah Purdy, Neil S. Siegel

Faculty Scholarship

In this Article, the authors show that cost-shifting and adverse selection problems link the federalism dimension of the debate over the Affordable Care Act to the doctrinally separate and suppressed individual rights dimension. As the scope of these free-rider problems justifies federal power to require individuals to obtain health insurance coverage, so the very existence of the free-rider problems illuminates the difficulty of arguing directly — as opposed to indirectly through the Commerce Clause — that the minimum coverage provision infringes individual liberty. The interdependence between some people’s decisions to forgo insurance and the well-being of other people means that …


Its Hour Come Round At Last? State Sovereign Immunity And The Great State Debt Crisis Of The Early Twenty-First Century, Ernest A. Young Jan 2012

Its Hour Come Round At Last? State Sovereign Immunity And The Great State Debt Crisis Of The Early Twenty-First Century, Ernest A. Young

Faculty Scholarship

State sovereign immunity is a sort of constitutional comet, streaking across the sky once a century to the amazement and consternation of legal commentators. The comet’s appearance has usually coincided with major state debt crises: The Revolutionary War debts brought us Chisholm v. Georgia and the Eleventh Amendment, and the Reconstruction debts brought us Hans v. Louisiana and the Amendment’s extension to federal question cases. This essay argues that much of our law of state sovereign immunity, including its odd fictions and otherwise-incongruous exceptions, can be understood as an effort to maintain immunity’s core purpose — protecting the states from …


‘The Ordinary Diet Of The Law’: The Presumption Against Preemption In The Roberts Court, Ernest A. Young Jan 2012

‘The Ordinary Diet Of The Law’: The Presumption Against Preemption In The Roberts Court, Ernest A. Young

Faculty Scholarship

In a preemption case decided over a decade ago, Justice Breyer wrote that “in today’s world, filled with legal complexity, the true test of federalist principle may lie . . . in those many statutory cases where courts interpret the mass of technical detail that is the ordinary diet of the law.” This article surveys the Roberts Court’s preemption jurisprudence, focusing on five cases decided in OT 2010. Young argues that Justice Breyer was right — that is, that because current federalism jurisprudence largely eschews any effort to define exclusive spheres of state and federal regulatory jurisdiction, the most important …


Depoliticizing Federalism, Louis Michael Seidman Jan 2012

Depoliticizing Federalism, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

In his great biography of President Andrew Jackson, Arthur Schlesinger, Jr. celebrated Jackson’s defense of the rights of states and opposition to federal power. Yet as a mid-twentieth century liberal, Schlesinger was a strong supporter of the federal government and an opponent of states’ rights. Was Schlesinger’s position inconsistent? He did not think so, and neither does the author. In Jackson’s time, an entrenched economic elite controlled the federal government and used federal power to dominate the lower classes. State governments served as a focal point for opposition to this domination. By mid-twentieth century, the federal government was an engine …