Law Commons^™

Improving (And Avoiding) Interstate Interpretive Encounters, Aaron-Andrew P. Bruhl

Faculty Publications

State courts often encounter the statutes of other states. Any encounter with another state’s statutes raises an interesting but inconspicuous question about choice of law. In particular, the interstate encounter presents a choice of interpretive law. Despite some universal practices in statutory interpretation, there are methodological differences across jurisdictions—both at the level of overall approach and in the details of particular interpretive canons. When a state court encounters the statute of a sister state, may the forum state use its own interpretive methods or must it instead use the methods of the enacting state?

The existing doctrine on this choice-of-law …

Interpreting State Statutes In Federal Court, Aaron-Andrew P. Bruhl

Faculty Publications

This Article addresses a problem that potentially arises whenever a federal court encounters a state statute. When interpreting the state statute, should the federal court use the state’s methods of statutory interpretation—the state’s canons of construction, its rules about the use of legislative history, and the like—or should the court instead use federal methods of statutory interpretation? The question is interesting as a matter of theory, and it is practically significant because different jurisdictions have somewhat different interpretive approaches. In addressing itself to this problem, the Article makes two contributions. First, it shows, as a normative matter, that federal courts …

Federalism, Free Competition, And Sherman Act Preemption Of State Restraints, Alan J. Meese

Faculty Publications

The Sherman Act establishes free competition as the rule governing interstate trade. Banning private restraints cannot ensure that competitive markets allocate the nation's resources. State laws can pose identical threats to free markets, posing an obstacle to achieving Congress's goal to protect free competition.

The Sherman Act would thus override anticompetitive state laws under ordinary preemption standards. Nonetheless, the Supreme Court rejected such preemption in Parker v. Brown, creating the "state action doctrine." Parker and its progeny hold that state-imposed restraints are immune from Sherman Act preemption, even if they impose significant harm on out-of-state consumers. Parker's progeny …

The Impact Of Climate Change On Virginia's Coastal Areas, Jonathan L. Goodall, Antonio Elias, Elizabeth Andrews, Christopher "Kit" Chope, John Cosgrove, Jason El Koubi, Jennifer Irish, Lewis L. Lawrence Iii, Robert W. Lazaro Jr., William H. Leighty, Mark W. Luckenbach, Elise Miller-Hooks, Ann C. Phillips, Henry Pollard V, Emily Steinhilber, Charles Feigenoff, Jennifer Sayegh

Faculty Publications

As part of HJ47/SJ47 (2020), the Virginia General Assembly directed the Joint Commission on Technology and Science (JCOTS) to study the “safety, quality of life, and economic consequences of weather and climate-related events on coastal areas in Virginia.” In pursuit of this goal, the commission was to “accept any scientific and technical assistance provided by the nonpartisan, volunteer Virginia Academy of Science, Engineering, and Medicine (VASEM). VASEM convened an expert study board with representation from the Office of the Governor, planning district commissions in coastal Virginia, The Port of Virginia, the Virginia Economic Development Partnership, state universities, private industry, and …

First Amendment Lochnerism & The Origins Of The Incorporation Doctrine, James Y. Stern

Faculty Publications

The 20th century emergence of the incorporation doctrine is regarded as a critical development in constitutional law, but while issues related to the doctrine's justification have been studied and debated for more than fifty years, the causes and mechanics of its advent have received relatively little academic attention. This Essay, part of a symposium on Judge Jeffrey Sutton's recent book about state constitutional law, examines the doctrinal origins of incorporation, in an effort to help uncover why the incorporation doctrine emerged when it did and the way it did. It concludes that, for these purposes, incorporation is best understood as …

How Many Votes Is Too Few?, Rebecca Green

Faculty Publications

No abstract provided.

Innovating Federalism In The Life Sciences, Myrisha S. Lewis

Faculty Publications

This Article challenges the view that the US. Food and Drug Administration (FDA) has exclusive Jurisdiction over life sciences innovations. Many current and forthcoming life sciences innovations are "innovative therapies" such as gene editing, gene therapy, and regenerative stem cell treatments, which are actually "hybrids" of state and federal Jurisdiction. Thus, both state and federal Jurisdiction coexist: federal Jurisdiction exists to the extent that these medical innovations use drugs or biologics, but state Jurisdiction exists to the extent that these innovations are procedures regulated by states as the practice of medicine.

This Article argues that the regulation of numerous current …

State Constitutionalism In The Age Of Party Polarization, Neal Devins

Faculty Publications

No abstract provided.

Forward: Some Puzzles Of State Standing, Tara Leigh Grove

Faculty Publications

When should states have standing? In recent years, there has been an explosion in literature on that question.1 Yet, even today, there seem to be as many questions as answers. In this Foreword to the Notre Dame Law Review’s 2019 Federal Courts, Practice, and Procedure Symposium on state standing, I discuss a few such puzzles. First, should states have “special” standing when they sue the federal government—that is, greater access to federal court than private parties? Second, and conversely, should states have at least “equal” access to federal court, or should they face more barriers than private parties? These questions …

Fifty States, Fifty Attorneys General, And Fifty Approaches To The Duty To Defend, Neal Devins, Saikrishna B. Prakash

Faculty Publications

Whether a state attorney general has a duty to defend the validity of state law is a complicated question, one that cannot be decided by reference either to the oath state officers must take to support the federal Constitution or the supremacy of federal law. Instead, whether a state attorney general must defend state law turns on her own state’s laws. Each state has its own constitution, statutes, bar rules, and traditions, and not surprisingly, the duties of attorneys general vary across the states. To simplify somewhat, we believe that there are three types of duties. One set of attorneys …

Vertical Power, Michael S. Green

Faculty Publications

Many legal scholars and federal judges - including Justices Ginsburg and Scalia - have implicitly assumed that a state can extend its procedural law solely to federal courts within its borders. To date, however, no one has identified this assumption, much less defended it. Drawing upon an example discussed by Chief Justice Marshall in Wayman v. Southard, 23 U.S. (10 Wheat.) 1 (1825), I argue that such vertical power does not exist. Not only do states lack a legitimate interest in extending their law vertically, a state's assertion of vertical power would improperly discriminate against federal courts. If state …

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 Alaska Permanent Fund Dividend And Membership In The State's Political Community, Christopher L. Griffin Jr.

Faculty Publications

Despite decades of unmitigated administrative success, the Alaska Permanent Fund Dividend (PFD) is not immune from political and legal controversy. The symbolic and financial importance that Alaskans ascribe to their annual dividend checks has generated disputes between ordinary residents and executive agencies over eligibility. Litigation concerning three dominant status requirements - minimum residency, U.S. citizenship, and felony incarceration - reveal not only the extent to which Alaskans will pursue what they believe to be valid claims on their share of natural resource wealth, but also the limits of full political membership in the state. This Comment frames a sample of …

Same-Sex Marriage And The New Judicial Federalism: Why State Courts Should Not Consider Out-Of-State Backlash, Neal Devins

Faculty Publications

No abstract provided.

Horizontal Erie And The Presumption Of Forum Law, Michael S. Green

Faculty Publications

According to Erie Railroad v. Tompkins and its progeny, a federal
court interpreting state law must decide as the state’s supreme
court would. In this Article, I argue that a state court interpreting
the law of a sister state is subject to the same obligation. It must
decide as the sister state’s supreme court would.

Horizontal Erie is such a plausible idea that one might think it is
already established law. But the Supreme Court has in fact given
state courts significant freedom to misinterpret sister-state law. And
state courts have taken advantage of this freedom, by routinely presuming
that …

Terminating Calder: "Effects" Based Jurisdiction In The Ninth Circuit After Schwarzenegger V. Fred Martin Motor Co., A. Benjamin Spencer

Faculty Publications

In Calder v. Jones, the Supreme Court clearly and succinctly determined that personal jurisdiction is appropriate over a defendant whose only contact with the forum state is its intentional actions aimed at and having harmful "effects" in the forum state. Illustrating the extent to which the law of personal jurisdiction had been relaxed from the time of Pennoyer v. Neff and International Shoe Co. v. Washington, Calder also extended the reach of state courts by permitting jurisdiction over out-of-state defendants on the strength of the plaintiffs' connections with the forum state. Although Calder provided a welcome and much …

Court Administration As A Tool For Judicial Reform, Christie Warren

Faculty Publications

This paper focuses on court administration as a component of judicial branch reform in the United States and other countries.

Over the past fifty years, state and federal court systems in the United States have undergone a process of significant change. At the beginning of the twentieth century, courts were largely dependent upon the executive branch of government for administrative support and were for the most part externally dominated, disorganized, and poorly managed. By the end of the century, they had undergone a process of administrative innovation and improvement that changed the way they were managed. In other countries, judicial …

The Changing Tradition Of Constitutional Review Of Sign And Billboard Regulation, Ronald H. Rosenberg

Faculty Publications

No abstract provided.

Institutional Analysis Of Municipal Liability Under Section 1983, Michael J. Gerhardt

Faculty Publications

No abstract provided.

An Improved Choice: The Virginia Limited Liability Company, James J. Wheaton

Faculty Publications

When the General Assembly adopted the Virginia Limited Liability Company Act (the "Act")' in 1991, Virginia joined just four other states in recognizing the potential of a relatively obscure business entity, the limited liability company ("LLC"). The LLC concept has spread rapidly since the adoption of the Virginia Act early last year. Three other states enacted LLC legislation in 1991, and in just the first few months of 1992, six more states followed the trend.

[...]

Although the number of LLCs formed in Virginia since the Virginia Act took effect last July displays the willingness of Virginia attorneys to recommend …

State Constitutional Protection For Defendants In Criminal Prosecutions, Paul Marcus

Faculty Publications

No abstract provided.

Dialectical Federalism: A Tribute To The West Virginia Supreme Court Of Appeals, Gene R. Nichol

Faculty Publications

No abstract provided.

Referendum Zoning: Legal Doctrine And Practice, Ronald H. Rosenberg

Faculty Publications

No abstract provided.

Constitional Basis And Implications Of Federal Collective Bargaining Legislation For State And Local Employees, Ronald C. Brown

Faculty Publications

No abstract provided.

The Legal Implementation Of Coastal Zone Management: The North Carolina Model, Thomas J. Schoenbaum, Ronald H. Rosenberg

Faculty Publications

No abstract provided.

State Constitutions For The 20th Century, William F. Swindler

Faculty Publications

No abstract provided.

An Ombusdman For Local Government, Tom A. Collins

Faculty Publications

No abstract provided.

South Carolina: Her Present Attitude And Future Action, N. Beverley Tucker

Faculty Publications

No abstract provided.

Passages In The Virginia Legislature, Lucian Minor

Faculty Publications

No abstract provided.

Political Science: A Discourse On The Questions, "What Is The Seat Of Sovereignty In The United States, And What The Relation Of The People Of Those States To The Federal And State Governments Respectively", N. Beverley Tucker

Faculty Publications

No abstract provided.