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Articles 31 - 52 of 52
Full-Text Articles in Law
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.
Anti-Federalist Procedure, A. Benjamin Spencer
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 …
Katrina And The Rhetoric Of Federalism, Christina E. Wells
Katrina And The Rhetoric Of Federalism, Christina E. Wells
Faculty Publications
The public's desire to assign blame for government's inadequate response to Hurricane Katrina has largely focused on the federal government's slow and seemingly inept response to the storm. In their own defense, federal officials cast federalism--the system that divides power among federal, state, and local governments--as the main culprit underlying their inadequate response to hurricane victims. Had power and authority not been split among three different units of government, the argument goes, the federal government might have been able to act more quickly to save lives and prevent suffering. In effect, federal authorities claim to have been hamstrung by a …
Al Capone's Revenge: An Essay On The Political Economy Of Pretextual Prosecution, Daniel C. Richman, William J. Stuntz
Al Capone's Revenge: An Essay On The Political Economy Of Pretextual Prosecution, Daniel C. Richman, William J. Stuntz
Faculty Scholarship
Most analyses of pretextual prosecutions – cases in which prosecutors target defendants based on suspicion of one crime but prosecute them for another, lesser crime – focus on the defendant's interest in fair treatment. Far too little attention is given to the strong social interest in non-pretextual prosecutions. Charging criminals with their "true" crimes makes criminal law enforcement more transparent, and hence more politically accountable. It probably also facilitates deterrence. Meanwhile, prosecutorial strategies of the sort used to "get" Al Capone can create serious credibility problems. The Justice Department has struggled with those problems as it has used Capone-style strategies …
Federalism And The Allocation Of Sovereignty Beyond The State In The European Union, Ronald A. Brand
Federalism And The Allocation Of Sovereignty Beyond The State In The European Union, Ronald A. Brand
Articles
Any discussion of federalism necessarily runs headlong into concepts of sovereignty, with both terms being subject to Tocqueville's statement that, in discussing federalism, "the human understanding more easily invents new things than new words." Thus, just as systems previously considered to have been "federal" at the dawn of the United States of America were something much different from what was developed for our nation at that time, so is the "federal" system of today's United States different from anything to which we make comparisons.
This article reviews a paper by Professor Peter Tettinger's, and extends his analysis. As Professor Tettinger …
The Constitutionality Of An Executive Spending Plan, Paul E. Salamanca
The Constitutionality Of An Executive Spending Plan, Paul E. Salamanca
Law Faculty Scholarly Articles
Operation of government in the absence of appropriations has become relatively common in the United States, particularly when projected expenses exceed projected revenue, making adoption of a budget a difficult task for the legislature. This Article focuses on the budget crisis in the Commonwealth of Kentucky from 2002 through 2003. In Part I, this Article recapitulates the history of the spending plan, including the action filed in Franklin Circuit Court to affirm its constitutionality. In Part II, this Article discusses certain theoretical, historical, and legal principles that inform analysis of the plan. In Part III, it considers certain deviations and …
Federalism, Democratization, And The Rule Of Law In Russia, Jeffrey D. Kahn
Federalism, Democratization, And The Rule Of Law In Russia, Jeffrey D. Kahn
Faculty Journal Articles and Book Chapters
Combining the approaches of three fields of scholarship - political science, law and Russian area studies - the author of this 2002 Oxford University Press book explores the foundations and future of the Russian Federation. Russia's political elite have struggled to build an extraordinarily complex federal system, one that incorporates eighty-nine different units and scores of different ethnic groups, which sometimes harbor long histories of resentment against Russian imperial and Soviet legacies. This book examines the public debates, official documents and political deals that built Russia's federal house on very unsteady foundations, often out of the ideological, conceptual and physical …
Florida On Trial: Federalism In The 2000 Presidential Election, Jon L. Mills
Florida On Trial: Federalism In The 2000 Presidential Election, Jon L. Mills
UF Law Faculty Publications
This article analyzes how Florida's state election laws operated during the aftermath of the 2000 presidential election. The intersection of law and politics in this controversy was critical. Political considerations affected decisions in both the Bush and Gore camps. The aftermath of the 2000 election found the federal government, the National Conference of State Legislatures, and the State of Florida (among others) commissioning task forces and committees to investigate and suggest election reforms.
Ultimately, the State of Florida passed significant election reform legislation. On May 10, 2001, Florida enacted sweeping election reform legislation entitled the Florida Election Reform Act of …
Toward Political Safeguards Of Self-Determination, Gregory P. Magarian
Toward Political Safeguards Of Self-Determination, Gregory P. Magarian
Scholarship@WashULaw
The theorists of the political safeguards of federalism (primarily Herbert Wechsler, Jesse Choper, and Larry Kramer) contend that various features of the American political system are sufficient to protect the values of federalism, obviating the need for federalist judicial review. These theorists have identified constitutional features of the system (i.e., equal representation in the Senate) and extolled subconstitutional features (notably the strength of the major political parties) as guarantors of state prerogatives against the federal government. They have not, however, developed a substantial account of the reasons why state prerogatives need or deserve protection and how those reasons bear on …
Nationalized Political Discourse, Robert F. Nagel
Party As A 'Political Safeguard Of Federalism': Martin Van Buren And The Constitutional Theory Of Party Politics, Gerald F. Leonard
Party As A 'Political Safeguard Of Federalism': Martin Van Buren And The Constitutional Theory Of Party Politics, Gerald F. Leonard
Faculty Scholarship
In the last decade or so, the Supreme Court has revitalized judicial enforcement of federalism. This development has spurred the partisans of Herbert Wechsler's "political safeguards of federalism" to begin a serious investigation of the ways in which extra-judicial politics can and does substitute for and complement the judicial role in enforcing federalism and the Constitution. Similarly, constitutional scholars have turned in increasing numbers to the question of how even judicially promulgated doctrines of constitutional law turn out to be more derivative of popular politics than vice versa. Necessarily, much of the investigation on both fronts has turned historical and …
Judges And Federalism: A Comment On "Justice Kennedy's Vision Of Federalism", Robert F. Nagel
Judges And Federalism: A Comment On "Justice Kennedy's Vision Of Federalism", Robert F. Nagel
Publications
No abstract provided.
The Vertical Separation Of Powers, Victoria Nourse
The Vertical Separation Of Powers, Victoria Nourse
Georgetown Law Faculty Publications and Other Works
Standard understandings of the separation of powers begin with the concept of function. The author argues that function alone cannot predict important changes in structural incentives and thus serves as a poor proxy for assessing real risks to governmental structure. To illustrate this point, the article returns to proposals considered at the Constitutional Convention and considers difficult contemporary cases such as Morrison v. Olson, Clinton v. Jones, and the Supreme Court's more recent federalism decisions. In each instance, function appears to steer us wrong because it fails to understand separation of powers questions as ones of structural incentive …
Testing Two Assumptions About Federalism And Tort Reform, Thomas A. Eaton, Susette M. Talarico
Testing Two Assumptions About Federalism And Tort Reform, Thomas A. Eaton, Susette M. Talarico
Scholarly Works
In, 1996 both the United States House of Representatives and Senate passed legislation that, if enacted, would preempt state tort laws in significant ways. Why would a Congress otherwise apparently committed to vesting states with greater policymaking autonomy call for federal control of tort law?
Tort policymaking has traditionally been done at the state level. One assumption underlying this distribution of power is that states are better able than the national government to fashion tort rules appropriate for local conditions and circumstances. In other words, states are thought to have a special competence in crafting tort rules responsive to local …
The Term Limits Dissent: What Nerve, Robert F. Nagel
The Term Limits Dissent: What Nerve, Robert F. Nagel
Publications
No abstract provided.
The Future Of Federalism, Robert F. Nagel
The Electoral College And The Constitution : The Case For Preserving Federalism, Robert M. Hardaway
The Electoral College And The Constitution : The Case For Preserving Federalism, Robert M. Hardaway
Sturm College of Law: Faculty Scholarship
This study examines how the Electoral College actually works, how it is supposed to work, and how it might be reformed. Robert Hardaway first looks at the Constitutional Convention, the Twelfth Amendment, and historical elections where the Electoral College has come into play, providing the historical background to the present-day College.
Section 9: The Court And Politics, Institute Of Bill Of Rights Law, William & Mary Law School
Section 9: The Court And Politics, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
Planning As A Major Tool Of Public Land Management, John D. Leshy
Planning As A Major Tool Of Public Land Management, John D. Leshy
The Public Lands During the Remainder of the 20th Century: Planning, Law, and Policy in the Federal Land Agencies (Summer Conference, June 8-10)
25 pages.
Prospects For Federalism, Maurice J. Holland
Prospects For Federalism, Maurice J. Holland
Articles by Maurer Faculty
No abstract provided.
Judicial Review And The National Political Process: A Functional Reconsideration Of The Role Of The Supreme Court, Henry Paul Monaghan
Judicial Review And The National Political Process: A Functional Reconsideration Of The Role Of The Supreme Court, Henry Paul Monaghan
Faculty Scholarship
Imagine a cold morning early in February. Slowly sipping coffee in an effort to awaken fully, you are reading through the Supreme Court advance sheets. You come across the following brief opinion:
PER CURIAM. Fisher v. Rye Co., No. 81-1, and First Savings Bank v. Smith, No. 81-2. These petitions for certiorari have been consolidated for disposition in a single opin-ion. No. 81-1 challenges an Executive Order that, in an effort to combat gender-based discrimination, requires government contractors to adopt affirmative action programs. No argument is made that the Executive Order is authorized by statute. Concluding that the …
The Reapportionment Cases: Cognitive Lag, The Malady And Its Cure, E. F. Roberts, Paul T. Shultz Iii
The Reapportionment Cases: Cognitive Lag, The Malady And Its Cure, E. F. Roberts, Paul T. Shultz Iii
Cornell Law Faculty Publications
The reapportionment cases have been considered by many to be the product of a liberal, activist Court which is endeavoring to reshape America’s political life according to its own views. The authors of this article assert that, to the contrary, the Court actually is reacting to the incontrovertible fact of the modern predominance of urban complexities which have rendered inappropriate our older political boundaries. In this sense, they consider the Court’s decisions conservative rather than liberal- because the Court’s purpose is to maintain a version of federalism along state boundaries which may have become outmoded even before the Court entered …