Law Commons^™

In States We "Trust": Self-Settled Trusts, Public Policy, And Interstate Federalism, Brendan Duffy

Northwestern University Law Review

Over the last twenty years, domestic asset protection trusts have risen in popularity as a means of estate planning and asset protection. A domestic asset protection trust is an irrevocable trust formed under state law which enables an independent trustee to allocate money to a class of

persons, which includes the settlor.

Since Alaska first enacted domestic asset protection legislation in 1997, fifteen states have followed its lead. The case law over the last twenty years addressing these trust mechanisms has, however, been surprisingly sparse. A Washington bankruptcy court decision, In re Huber, altered this drought, but caused more confusion …

Is The Supreme Court Disabling The Enabling Act, Or Is Shady Grove Just Another Bad Opera?, Robert J. Condlin

Faculty Scholarship

After seventy years of trying, the Supreme Court has yet to agree on whether the Rules Enabling Act articulates a one or two part standard for determining the validity of a Federal Rule. Is it enough that a Federal Rule regulates “practice and procedure,” or must it also not “abridge substantive rights”? The Enabling Act seems to require both, but the Court is not so sure, and the costs of its uncertainty are real. Among other things, litigants must guess whether the decision to apply a Federal Rule in a given case will depend upon predictable ritual, judicial power grab, …

One Federalism And The Judicial Role: Enforcing The Limits Of Article I, Alexa R. Baltes

Notre Dame Law Review

Part I of this Note offers a brief account of the two main theories of

federalism protection: the political safeguards (or process federalism) and

judicial review. Part II then suggests a dual-safeguards approach as the single

constitutionally grounded theory, and proceeds to situate the procedural

safeguards and, importantly, judicial review, in the history, text, and structure

of the Constitution. Next, delving into the Court’s New Federalism line of

decisions, Part III analyzes the implications for these two constitutionally

grounded safeguards to deduce the proper framework for their respective

applications. It suggests that while political safeguards may be conceived in

terms …

Rlupia And The Limits Of Religious Institutionalism, Zachary A. Bray

Zachary Bray

What special protections, if any, should religious organizations receive from local land use controls? The Religious Land Use and Institutionalized Persons Act (“RLUIPA”)—a deeply flawed statute—has been a magnet for controversy since its passage in 2000. Yet until recently, RLUIPA has played little role in debates about “religious institutionalism,” a set of ideas that suggest religious institutions play a distinctive role in developing the framework for religious liberty and that they deserve comparably distinctive deference and protection. This is starting to change: RLUIPA’s magnetic affinity for controversy has begun to connect conflicts over religious land use with larger debates about …

The Fourteenth Amendment And The Unconstitutionality Of Secession, Daniel A. Farber

Daniel A Farber

To understand fully the relevance of the first two clauses of the Fourteenth Amendment to secession, we need to examine the antebellum disputes about citizenship and sovereignty, the subject of Part II below. Issues about citizenship arose in the context of specific disputes about naturalization, expatriation, and the rights of freedmen, but they implicated conflicts over the seat of allegiance and the nature of the Union. Part III turns to the Reconstruction debates and shows how they reflect a fundamentally nationalistic view of citizenship. The Reconstruction Amendments to the Constitution were connected with a powerful vision of national citizenship and …

Book Review: Foreign Affairs And The Constitution. By Louis Henkin. Mineola, N.Y.: The Foundation Press, 1972. Pp. 553. $11.50., Carl Marcy

Georgia Journal of International & Comparative Law

No abstract provided.

Implementing Enumeration, Andrew Coan

William & Mary Law Review

The enumeration of legislative powers in Article I of the U.S. Constitution implies that those powers must have limits. This familiar “enumeration principle” has deep roots in American constitutional history and has played a central role in recent federalism decisions of the U.S. Supreme Court. Courts and commentators, however, have seldom rigorously considered what follows from embracing it. The answer is by no means straightforward. The enumeration principle tells us that federal power must be subject to some limit, but it does not tell us what that limit should be. Nor does it tell us how the Constitution’s commitment to …

Of Swords, Shields, And A Gun To The Head: Coercing Individuals, But Not States, Aviam Soifer

Seattle University Law Review

This Article begins with a brief reprise of what should be a textual “gotcha” about the Enforcement Clauses of the post-Civil War Amendments—if our current Supreme Court Justices actually cared about original texts, originalism, or a combination of the two. Next, the Article focuses on the gnarled issue of “coercion.” It argues that, contrary to a great deal of Anglo-American legal doctrine, coercion is best understood along a spectrum rather than as a binary phenomenon. Coercion is actually much contested and highly contextual across many legal categories. Federal coercion—also described as commandeering or dragooning— has become a particular constitutional focus …

When Can A State Sue The United States?, Tara Leigh Grove

Faculty Publications

State suits against the federal government are on the rise. From Massachusetts’ challenge to federal environmental policy, to Oregon’s confrontation over physician-assisted suicide, to Texas’s suit over the Obama administration’s immigration program, States increasingly go to court to express their disagreement with federal policy. This Article offers a new theory of state standing that seeks to explain when a State may sue the United States. I argue that States have broad standing to sue the federal government to protect state law. Accordingly, a State may challenge federal statutes or regulations that preempt, or otherwise undermine the continued enforceability of, state …

Distinctive Identity Claims In Federal Systems: Judicial Policing Of Subnational Variance, Antoni Abat I Ninet, James A. Gardner

Journal Articles

It is characteristic of federal states that the scope of subnational power and autonomy are subjects of frequent dispute, and that disagreements over the reach of national and subnational power may be contested in a wide and diverse array of settings. Subnational units determined to challenge nationally-imposed limits on their power typically have at their disposal many tools with which to press against formal boundaries. Federal systems, moreover, frequently display a surprising degree of tolerance for subnational obstruction, disobedience, and other behaviors intended to expand subnational authority and influence, even over national objection. This tolerance, however, has limits. In this …

The Federalism Cases, Leon Friedman

Touro Law Review

No abstract provided.

Special Economic Zones In The United States: From Colonial Charters, To Foreign-Trade Zones, Toward Ussezs, Tom W. Bell

Tom W. Bell

Insights From Canada For American Constitutional Federalism, Stephen Ross

Stephen F Ross

The U.S. Supreme Court's decision in National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566 (2012), has again focused widespread public attention on the Court as an arbiter of the balance of power between the federal government and the states. The topic of the proper role a nation's highest court in this respect has been important and controversial throughout not only American, but also Canadian history, raising questions of constitutional theory for a federalist republic: What justifies unelected judges interfering with the ordinary political process with regard to federalism questions? Can courts create judicially manageable doctrines to police …

North Carolina State Board Of Dental Examiners V. Ftc: Aligning Antitrust Law With Commerce Clause Jurisprudence Through A Natural Shift Of State-Federal Balance Of Power, Marie Forney

Indiana Law Journal

The Supreme Court’s holding in North Carolina State Board of Dental Examiners v. FTC (NC Dental)1 in February 2015 demonstrates a natural shift in the balance of power from the states to the national government. As the country’s interstate and international economy has become more integrated, federal authority has likewise expanded.2 And although the federalism dichotomy has undergone periodic back-and-forth “swings” since the nation’s founding, the end result has been a net increase in federal power. NC Dental exemplifies this trend toward increasing national au-thority through the organic development of interstate commerce.

The Extraterritoriality Doctrine Of The Dormant Commerce Clause Is Not Dead, Susan Lorde Martin

Marquette Law Review

In 1895, the New York Court of Appeals, in refusing to enforce a Kansas statute, referred to “a principle of universal application, recognized in all civilized states, that the statutes of one state have . . . no force or effect in another.” In 1897, the Court of Appeals of Kentucky noted that “[t]he statute of another state has, of course, no extraterritorial force.” That old notion describes the extraterritoriality doctrine of the dormant Commerce Clause. In recent years, the doctrine has become problematic for several reasons. One, the line between intrastate and interstate business has become blurred with many …

Dynamic Incorporation Of Federal Law, Jim Rossi

Vanderbilt Law School Faculty Publications

This Article provides a comprehensive analysis of state constitutional limits on legislative incorporation of dynamic federal law, as occurs when a state legislature incorporates future federal tax, environmental or health laws. Many state judicial decisions draw on the nondelegation doctrine to endorse an ex ante prohibition on state legislative incorporation of dynamic federal law. However, the analysis in this Article shows how bedrock principles related to separation of powers under state constitutions, such as protecting transparency, reinforcing accountability, and protecting against arbitrariness in lawmaking, are not consistent with this approach. Instead, this Article highlights two practices that can make dynamic …

The New Elections Clause, Michael T. Morley

Faculty Scholarship

No abstract provided.

Rluipa And The Limits Of Religious Institutionalism, Zachary A. Bray

Law Faculty Scholarly Articles

What special protections, if any, should religious organizations receive from local land use controls? The Religious Land Use and Institutionalized Persons Act (“RLUIPA”)—a deeply flawed statute—has been a magnet for controversy since its passage in 2000. Yet until recently, RLUIPA has played little role in debates about “religious institutionalism,” a set of ideas that suggest religious institutions play a distinctive role in developing the framework for religious liberty and that they deserve comparably distinctive deference and protection. This is starting to change: RLUIPA’s magnetic affinity for controversy has begun to connect conflicts over religious land use with larger debates about …

Congress And The Reconstruction Of Foreign Affairs Federalism, Ryan Baasch, Saikrishna Bangalore Prakash

Michigan Law Review

Though the Constitution conspicuously bars some state involvement in foreign affairs, the states clearly retain some authority in foreign affairs. Correctly supposing that state participation may unnecessarily complicate or embarrass our nation’s foreign relations, the Supreme Court has embraced aggressive preemption doctrines that sporadically oust the states from discrete areas in foreign affairs. These doctrines are unprincipled, supply little guidance, and generate capricious results. Fortunately, there is a better way. While the Constitution permits the states a limited and continuing role, it never goes so far as guaranteeing them any foreign affairs authority. Furthermore, the Constitution authorizes Congress to enact …

Black-Box Immigration Federalism, David S. Rubenstein

Michigan Law Review

In Immigration Outside the Law, Hiroshi Motomura confronts the three hardest questions in immigration today: what to do about our undocumented population, who should decide, and by what legal process. Motomura’s treatment is characteristically visionary, analytically rich, and eminently fair to competing views. The book’s intellectual arc begins with its title: “Immigration Outside the Law.” As the narrative unfolds, however, Motomura explains that undocumented immigrants are “Americans in waiting,” with moral and legal claims to societal integration.