Law Commons^™

Health And Welfare Preempted: How National Meat Association V. Harris Undermines Federalism, Food Safety, And Animal Protection, Marya Torrez

Journal of Food Law & Policy

In 2008, the Humane Society of the United States (HSUS) released an undercover video filmed at the Hallmark Meat Packing Company and Westland Meat Company (Hallmark/Westland) in Chino, California. "The footage depicted nonambulatory cows being kicked, dragged, electrocuted, jammed with forklifts and sprayed in the nostrils with water to simulate drowning - in an effort to get them to stand up and walk to their slaughter." At least five inspectors from the U.S. Department of Agriculture (USDA) - the federal agency tasked with ensuring that food safety and animal welfare guidelines are followed - were present at the time. The …

For All Who Have Borne The Battle: A Wish List For The Incoming Secretary Of The United States Department Of Veterans Affairs, Benjamin Pomerance

Touro Law Review

No abstract provided.

Finding Parity Through Preclusion: Novel Mental Health Parity Solutions At The State Level, Ryan D. Kingshill

Dickinson Law Review (2017-Present)

Recently, the federal government has taken numerous steps to promote the equal treatment (also known as parity) of mental and physical health issues. The two most impactful actions are the Mental Health Parity and Addiction Act of 2008 and the Affordable Care Act. These acts focus on the traditional avenue for parity change—insurance regulation. While these acts have improved parity, major gaps in coverage and treatment between mental health/substance use disorder treatment and medical/surgical treatment persist. ERISA Preemption, evasive insurer behavior, lack of enforcement, and lack of consumer education continue to plague patients and healthcare professionals. On its own, federal …

Environmental Federalism As Forum Shopping, Cale Jaffe

William & Mary Environmental Law and Policy Review

Public policy advocates of all stripes—litigators, politicians, or newspaper columnists—invoke principles of federalism when they are imploring Congress to respect limits imposed by Article I, and when they are insisting that a state legislature accede to the supremacy of a duly enacted national law, invoking Article VI. Yet historically, application of the term, “federalism,” at least in the context of environmental law, has been driven far more by pragmatic considerations than constitutional ones.

This pragmatic approach should not be surprising because, at its core, federalism simply asks what is the right level of government to solve a given problem. After …

Federal Ignorance And The Battle For Supervised Injection Sites, Ben Longnecker

University of Miami Law Review

From 1999 to 2017, over 400,000 people have died from opioid overdoses. The federal government recognizes the opioid epidemic as a crisis, yet it has failed to slow the surge of overdose deaths. Some states are, therefore, looking at the implementation of supervised injection sites. There are over 100 supervised injection sites around the world in twelve different countries, and these sites have produced hopeful data on counteracting the opioid crisis’s negative societal effects. However, the federal government has seemingly ignored any empirical evidence and continues to threaten state-sponsored supervised injection sites with criminal prosecution. This Note argues that any …

Disuniformity Of Federal Constitutional Rights, Joseph Blocher

Faculty Scholarship

Judge Jeffrey Sutton’s 51 Imperfect Solutions describes and celebrates the crucial role of state constitutional law in “making” American constitutional law. The fact that states do not speak with one voice in doing so is, in Sutton’s account, a feature rather than a bug. The diversity in their approaches permits experimentation and tailoring, and ultimately produces a stronger and more supple constitutional fabric.

Sutton’s enthusiasm for the diversity and dynamism of state constitutional law is entirely convincing. But is the federal alternative quite so flat? Although federal constitutional rights are undoubtedly more uniform than those of states, they are not …

State Standing And Cooperative Federalism, Ernest A. Young

Faculty Scholarship

State lawsuits challenging federal policy generally encounter arguments that the states lack standing to sue, either under Article III’s “case or controversy” clause or under various prudential standing doctrines. These arguments have often taken novel forms—such as claims that states’ injuries are “self-inflicted” or offset by other benefits of federal policies—that have few precedents or analogs in the standing jurisprudence governing suits by private individuals. The United States has taken the position, in other words, that states should have special disabilities in filing lawsuits that would not apply to ordinary litigants. Likewise, prominent academics have argued that uniquely narrow standing …

Effects Of Senate Bill 4 On Wage-Theft: Why All Workers Are At Risk In Low-Income Occupations, Daniella Salas-Chacon

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming

State Public-Law Litigation In An Age Of Polarization, Margaret H. Lemos, Ernest A. Young

Faculty Scholarship

Public-law litigation by state governments plays an increasingly prominent role in American governance. Although public lawsuits by state governments designed to challenge the validity or shape the content of national policy are not new, such suits have increased in number and salience over the last few decades — especially since the tobacco litigation of the late 1990s. Under the Obama and Trump Administrations, such suits have taken on a particularly partisan cast; “red” states have challenged the Affordable Care Act and President Obama’s immigration orders, for example, and “blue” states have challenged President Trump’s travel bans and attempts to roll …

Slides: Flpma In Its Historical Context, John D. Leshy

FLPMA Turns 40 (October 21)

Presenter: John D. Leshy, Sunderland Distinguished Professor of Law Emeritus, U.C. Hastings College of the Law

36 slides

This session traces the history of FLPMA including, among other things, its legislative, administrative, and historical antecedents, including for example, the Public Land Law Review Commission’s 1970 report, One Third of Our Nation’s Lands. It then considers FLPMA’s unique public lands policies and requirements and how they are reflected in the BLM’s management of public lands today.

See: https://www.nps.gov/parkhistory/online_books/blm/history/contents.htm

Modern-Day Nullification: Marijuana And The Persistence Of Federalism In An Age Of Overlapping Regulatory Jurisdiction, Ernest A. Young

Faculty Scholarship

No abstract provided.

Exit, Voice, And Loyalty As Federalism Strategies: Lessons From The Same-Sex Marriage Debate, Ernest A. Young

Faculty Scholarship

No abstract provided.

Federalism, Treaty Implementation, And Political Process: Bond V. United States, Curtis A. Bradley

Faculty Scholarship

No abstract provided.

Agenda: Water, Oil And Gas: Nuts And Bolts Of Oil And Gas Leases, Surface Use Agreements, And Water Rights For Non-Oil And Gas Attorneys, University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment, Rocky Mountain Land Use Institute (Denver, Colo.), Colorado Bar Association. Natural Resources & Energy Section

Water, Oil and Gas: Nuts and Bolts of Oil and Gas Leases, Surface Use Agreements, and Water Rights for Non-Oil and Gas Attorneys (September 26)

This third program in the Water, Oil, and Gas 101 series was designed to provide those who don’t practice in the area with essential information regarding leases, surface use agreements, siting considerations for oil and gas facilities, the resolution of disputes before the Colorado Oil and Gas Conservation Commission (COGCC), the ins and outs of nontributary and produced nontributary ground water, and water rights as an asset.

Program topics include:

• Oil and Gas Leases
• Surface Use Agreements (SUAs)
• Government’s Role in Authorizing Locations for Oil and Gas Development
• Technical Aspects of Nontributary and Produced Nontributary Ground Water
• Produced Nontributary Ground …

The Quiet Revolution And Federalism: Into The Future, Patricia E. Salkin

Patricia E. Salkin

This Article offers an examination of the federal role in land use planning and regulation set in the context of varying theories of federalism by presenting a historical and modern overview of the increasing federal influence in local land use planning and regulation, specifically highlighting how federal statutes and programs impact local municipal decision making in the area of land use planning. Part II provides a brief introduction into theories of federalism and their application to local land use regulation in the United States. Part III provides a brief overview of federal legislation in the United States which affected local …

Engaging Deliberative Democracy At The Grassroots: Prioritizing The Effects Of The Fiscal Crisis In New York At The Local Government Level, Patricia E. Salkin, Charles Gottlieb

Patricia E. Salkin

Part I of this Article discusses many of the factors contributing to the fiscal crisis at the local level in New York including historic decreases in federal and state revenue sharing, the imposition of a new property tax cap, the failure of New York to address meaningfully the subject of unfunded mandates on local governments, and the dependency of some local jurisdictions on the timely adoption of a state budget. Part II discusses concepts of deliberative democracy and how local residents might be engaged to become partners with local officials in making difficult fiscal decisions that impact all community residents. …

Brief Of Federalism Scholars As Amici Curiae In Support Of Respondent Windsor, Ernest A. Young

Faculty Scholarship

No abstract provided.

A General Defense Of Erie Railroad Co. V. Tompkins, Ernest A. Young

Faculty Scholarship

Erie Railroad Co. v. Tompkins was the most important federalism decision of the Twentieth Century. Justice Brandeis’s opinion for the Court stated unequivocally that “[e]xcept in matters governed by the Federal Constitution or by acts of Congress, the law to be applied in any case is the law of the state. . . . There is no federal general common law.” Seventy-five years later, however, Erie finds itself under siege. Critics have claimed that it is “bereft of serious intellectual or constitutional support” (Michael Greve), based on a “myth” that must be “repressed” (Craig Green), and even “the worst decision …

A Research Agenda For Uncooperative Federalists, Ernest A. Young

Faculty Scholarship

No abstract provided.

Reverse-Commandeering, Margaret Hu

Faculty Publications

Although the anti-commandeering doctrine was developed by the Supreme Court to protect state sovereignty from federal overreach, nothing prohibits flipping the doctrine in the opposite direction to protect federal sovereignty from state overreach. Federalism preserves a balance of power between two sovereigns. Thus, the reversibility of the anticommandeering doctrine appears inherent in the reasoning offered by the Court for the doctrine’s creation and application. In this Article, I contend that reversing the anti-commandeering doctrine is appropriate in the context of contemporary immigration federalism laws. Specifically, I explore how an unconstitutional incursion into federal sovereignty can be seen in state immigration …

The Quiet Revolution And Federalism: Into The Future, Patricia E. Salkin

Scholarly Works

This Article offers an examination of the federal role in land use planning and regulation set in the context of varying theories of federalism by presenting a historical and modern overview of the increasing federal influence in local land use planning and regulation, specifically highlighting how federal statutes and programs impact local municipal decision making in the area of land use planning. Part II provides a brief introduction into theories of federalism and their application to local land use regulation in the United States. Part III provides a brief overview of federal legislation in the United States which affected local …

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 …

Engaging Deliberative Democracy At The Grassroots: Prioritizing The Effects Of The Fiscal Crisis In New York At The Local Government Level, Patricia E. Salkin, Charles Gottlieb

Scholarly Works

Part I of this Article discusses many of the factors contributing to the fiscal crisis at the local level in New York including historic decreases in federal and state revenue sharing, the imposition of a new property tax cap, the failure of New York to address meaningfully the subject of unfunded mandates on local governments, and the dependency of some local jurisdictions on the timely adoption of a state budget. Part II discusses concepts of deliberative democracy and how local residents might be engaged to become partners with local officials in making difficult fiscal decisions that impact all community residents. …

Slides: Smart Fallowing: New Strategies In Ag Forbearance, Bonnie Colby

Navigating the Future of the Colorado River (Martz Summer Conference, June 8-10)

Presenter: Dr. Bonnie Colby, Department of Agriculture & Resource Economics, University of Arizona

34 slides

Slides: Arctic Ecosystem Services Measurement And Modeling Project, Eric Biltonen

Best Management Practices (BMPs): What? How? And Why? (May 26)

Presenter: Eric Biltonen, PhD, Environment Economist, Houston Advanced Research Center

8 slides

The Case For The Repeal Amendment, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Today, a political movement has arisen to oppose what seems to be a highly discretionary and legally unconstrained federal government. Beginning in the Bush Administration during the Panic of 2008 and accelerating during the Obama Administration, the federal government has bailed out or taken over banks, car companies, and student loans. It is now preparing to vastly expand the Internal Revenue Service to help it take charge of the practice of medicine for the first time in American history. This marked and rapid increase of power has shaken many Americans who are now looking to the United States Constitution with …

The Unsettled Nature Of The Union, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

This article is a response to Bradford R. Clark, The Eleventh Amendment and the Nature of the Union, 123 Harv. L. Rev. 1817 (2010).

In his article, The Eleventh Amendment and the Nature of the Union, Professor Bradford Clark offeres an explanation for the puzzling text of the Eleventh Amendment, which appears to preclude federal jurisdiction over suits against a state by citizens of other states but not by its own citizens. Professor Clark argues that the Amendment's text made sense to the Founders because they did not envision any suits against the states arising under federal law. …

Pooling For Horizontal Wells: Can They Teach An Old Dog New Tricks?, Bruce M. Kramer

Shale Plays in the Intermountain West: Legal and Policy Issues (November 12)

74 pages.

This paper was originally published as:

Bruce M. Kramer, “Pooling for Horizontal Wells: Can They Teach an Old Dog New Tricks?,” 55 Rocky Mt. Min. L. Inst. 8-1, § 8.05 (2009).

Slides: Assessing Opportunities And Barriers To Reducing The Environmental Footprint Of Oil And Gas Development In Utah, Douglas Jackson-Smith, Lorien Belton, Brian Gentry, Gene Theodori

Opportunities and Obstacles to Reducing the Environmental Footprint of Natural Gas Development in Uintah Basin (October 14)

Presenter: Dr. Douglas Jackson-Smith, Utah State University--Logan Campus

37 slides

Slides: Costs And Benefits Of Oil Shale Development, James T. Bartis

The Promise and Peril of Oil Shale Development (February 5)

Presenter: James T. Bartis, Senior Policy Researcher, Rand Corporation

21 slides