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Contumacious Responses To Firearms Legislation Balancing Federalism Concerns, Royce De R. Barondes Jan 2018

Contumacious Responses To Firearms Legislation Balancing Federalism Concerns, Royce De R. Barondes

Faculty Publications

The Law Enforcement Officers Safety Act (“LEOSA”) is one of the handful of federal statutes that preempt state firearms regulation. It allows covered individuals (certain current and retired qualified law enforcement personnel) to possess firearms notwithstanding assorted state restrictions — to protect themselves and to supplement local law enforcement efforts.

The act reflects a careful legislative balancing of federalism concerns. Although it relies on states and localities to issue the authorizing credentials, it does not mandate states create a licensing regime out of whole cloth. The act ultimately presents issues requiring a nuanced assessment of the doctrine proscribing federal commandeering of ...


Revisionist Municipal Liability, Avidan Y. Cover Jan 2018

Revisionist Municipal Liability, Avidan Y. Cover

Faculty Publications

The current constitutional torts system under 42 U.S.C. § 1983 affords little relief to victims of government wrongdoing. Victims of police brutality seeking accountability and compensation from local police departments find their remedies severely limited because the municipal liability doctrine demands plaintiffs meet near-impossible standards of proof relating to policies and causation.

The article provides a revisionist historical account of the Supreme Court’s municipal liability doctrine’s origins. Most private litigants’ claims for damages against cities or police departments do not implicate the doctrine’s early federalism concerns over protracted federal judicial interference with local governance. Meanwhile the ...


Federalism Implications Of Non-Recognition Of Licensure Reciprocity Under The Gun-Free School Zones Act, Royce De R. Barondes Jul 2017

Federalism Implications Of Non-Recognition Of Licensure Reciprocity Under The Gun-Free School Zones Act, Royce De R. Barondes

Faculty Publications

The Gun-Free School Zones Act (GFSZA) criminalizes firearms possession within 1000 feet of an elementary or secondary school in a State unless the possessor "is licensed to do so by the State in which the school zone is located" (or one of a few other exceptions applies). The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has in correspondence opined licensure through reciprocity does not make one so licensed by the State.

School zones covered by the act are ubiquitous. Were the ATF's interpretation adopted, large swaths of many States' non-rural areas would be prohibited zones for non-residents who ...


Progressive Era Conceptions Of The Corporation And The Failure Of The Federal Chartering Movement, Camden Hutchison Jan 2017

Progressive Era Conceptions Of The Corporation And The Failure Of The Federal Chartering Movement, Camden Hutchison

Faculty Publications

Despite the economic integration of the several states and the broad regulatory authority of the federal government, the internal affairs of business corporations remain primarily governed by state law. The origins of this system are closely tied to the decentralized history of the United States, but the reasons for its continued persistence—in the face of significant federalization pressures—are not obvious. Indeed, federalization of corporate law was a major political goal during the Progressive Era, a period which witnessed significant expansion of federal involvement in the national economy. By examining the historical record of Progressive Era policy debates, this ...


When Can A State Sue The United States?, Tara Leigh Grove May 2016

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 ...


A Jurisprudential Divide In U.S. V. Wong & U.S. V. June, Richard J. Peltz-Steele Jan 2015

A Jurisprudential Divide In U.S. V. Wong & U.S. V. June, Richard J. Peltz-Steele

Faculty Publications

In spring 2015, the U.S. Supreme Court decided two consolidated cases construing the Federal Tort Claims Act, U.S. v. Kwai Fun Wong and U.S. v June, Conservator. The Court majority, 5-4, per Justice Kagan, ruled in favor of the claimants and against the Government in both cases. On the face of the majority opinions, Wong and June come off as straightforward matters of statutory construction. But under the surface, the cases gave the Court a chance to wrestle with fundamental questions of statutory interpretation. The divide in Wong and June concerns the role of the courts vis-à-vis ...


Vertical Power, Michael Steven Green Nov 2014

Vertical Power, Michael Steven 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), 1 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 law ...


Erie's International Effect, Michael Steven Green Apr 2013

Erie's International Effect, Michael Steven Green

Faculty Publications

To what extent does the Erie doctrine apply in an international context? In his article When Erie Goes International, Professor Childress argues that a federal court choosing between state law and the law of a foreign nation should often (or perhaps always) ignore Klaxon Co. v. Stentor Electric Manufacturing Co. and use federal choice of law rules rather than the rules of the state where the federal court is located.

In this Essay, I have three points to make in response. The first is that Childress’s article, even if successful, leaves the bulk of the Erie doctrine unchanged in ...


The Twin Aims Of Erie, Michael Steven Green Apr 2013

The Twin Aims Of Erie, Michael Steven Green

Faculty Publications

We all remember the twin aims of the Erie rule from first-year civil procedure. A federal court sitting in diversity must use forum state law if it is necessary to avoid 'forum shopping" and the "inequitable administration of the laws." This Article offers a reading of the twin aims and a systematic analysis of their proper role in federal and state court. I argue that the twin aims apply in diversity cases not because they protect state interests, but because they serve the federal purposes standing behind the diversity statute. So understood, they are about separation of powers, not federalism ...


Defunding State Prisons, W. David Ball Jan 2013

Defunding State Prisons, W. David Ball

Faculty Publications

Local agencies drive criminal justice policy, but states pick up the tab for policy choices that result in state imprisonment. This distorts local policies and may actually contribute to increased state prison populations, since prison is effectively “free” to the local decisionmakers who send inmates there. This Article looks directly at the source of the “correctional free lunch” problem and proposes to end state funding for prisons. States would, instead, reallocate money spent on prisons to localities to use as they see fit — on enforcement, treatment, or even per-capita prison usage. This would allow localities to retain their decision-making autonomy ...


Immigration Federalism: A Reappraisal, Pratheepan Gulasekaram, Karthick Ramakrishnan Jan 2013

Immigration Federalism: A Reappraisal, Pratheepan Gulasekaram, Karthick Ramakrishnan

Faculty Publications

This Article identifies how the current spate of state and local regulation is changing the way elected officials, scholars, courts, and the public think about the constitutional dimensions of immigration law and governmental responsibility for immigration enforcement. Reinvigorating the theoretical possibilities left open by the Supreme Court in its 1875 Chy Lung v. Freeman decision, state and local offi- cials characterize their laws as unavoidable responses to the policy problems they face when they are squeezed between the challenges of unauthorized migration and the federal government’s failure to fix a broken system. In the October 2012 term, in Arizona ...


The Anti-Immigrant Game, Pratheepan Gulasekaram, Karthick Ramakrishnan Apr 2012

The Anti-Immigrant Game, Pratheepan Gulasekaram, Karthick Ramakrishnan

Faculty Publications

Laws such as Arizona's SB 1070 are not natural responses to undue hardship but are products of partisan politics.


Interstate Competition And The Race To The Top, Jonathan H. Adler Jan 2012

Interstate Competition And The Race To The Top, Jonathan H. Adler

Faculty Publications

This essay, based on remarks at the 211 Federalist Society Student Symposium, discusses some of the benefits of federalism. Many of the benefits of federalism derive from interjurisdictional competition, as competition among jurisdictions is a powerful means to discover and promote welfare-enhancing policies. Decentralizing authority over various policy matters also leaves states free to account for regional variation and can facilitate policy discovery and entrepreneurship and reduce the risks of policy failures. While the arguments for decentralization are strong, there are persuasive justifications for federal intervention in some instances, such as the existence of interstate spillovers. Fears of a “race ...


Why Should States Pay For Prisons, When Local Officials Decide Who Goes There?, W. David Ball Jun 2011

Why Should States Pay For Prisons, When Local Officials Decide Who Goes There?, W. David Ball

Faculty Publications

In the United States, states typically pay for prisons, even though the decisions that lead to prison admissions — arresting, charging, and sentencing — are made by local officials. The practice of state subsidies is relatively recent: there were no state prisons in the early part of the country’s history, and even as state institutions began to be developed, they largely supported themselves financially, rendering the notion of subsidies moot. Given the political economy of local decision-making, local preferences are unlikely to result in optimally-sized state prison populations. This Article suggests that since state prison subsidies may not be desirable and ...


From Rapists To Superpredators: What The Practice Of Capital Punishment Says About Race, Rights And The American Child, Robyn Linde Mar 2011

From Rapists To Superpredators: What The Practice Of Capital Punishment Says About Race, Rights And The American Child, Robyn Linde

Faculty Publications

At the turn of the 20th century, the United States was widely considered to be a world leader in matters of child protection and welfare, a reputation lost by the century’s end. This paper suggests that the United States’ loss of international esteem concerning child welfare was directly related to its practice of executing juvenile offenders. The paper analyzes why the United States continued to carry out the juvenile death penalty after the establishment of juvenile courts and other protections for child criminals. Two factors allowed the United States to continue the juvenile death penalty after most states ...


Deciding When To Decide: How Appellate Procedure Distributes The Costs Of Legal Change, Aaron-Andrew P. Bruhl Jan 2011

Deciding When To Decide: How Appellate Procedure Distributes The Costs Of Legal Change, Aaron-Andrew P. Bruhl

Faculty Publications

Legal change is a fact of life, and the need to deal with it has spawned a number of complicated bodies of doctrine. Some aspects of the problem of legal change have been studied extensively, such as doctrines concerning the retroactivity of new law and the question whether inferior courts can anticipatorily overrule a moribund superior court precedent. How such questions are answered affects the size and the distribution of the costs of legal change. Less appreciated is the way that heretofore almost invisible matters of appellate procedure and case handling also allocate the costs of legal transitions. In particular ...


Negotiating Federalism, Erin Ryan Jan 2011

Negotiating Federalism, Erin Ryan

Faculty Publications

Bridging the fields of federalism and negotiation theory, Negotiating Federalism analyzes how public actors navigate difficult federalism terrain by negotiating directly with counterparts across state-federal lines. In contrast to the stylized, zero-sum model of federalism that pervades political discourse and judicial doctrine, the Article demonstrates that the boundary between state and federal power is negotiated on scales large and small, and on an ongoing basis. It is also the first to recognize the procedural tools that bilateral federalism bargaining offers to supplement unilateral federalism interpretation in contexts of jurisdictional overlap.

The Article begins by situating its inquiry within the age-old ...


Same-Sex Marriage And The New Judicial Federalism: Why State Courts Should Not Consider Out-Of-State Backlash, Neal Devins Jan 2011

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.


Cooperation, Commandeering, Or Crowding Out? : Federal Intervention And State Choices In Health Care Policy, Jonathan H. Adler Jan 2011

Cooperation, Commandeering, Or Crowding Out? : Federal Intervention And State Choices In Health Care Policy, Jonathan H. Adler

Faculty Publications

The Patient Protection and Affordable Care Act (ACA) substantially alters the respective roles of the federal and state governments in health care policy. Beyond the individual mandate, the ACA presents many questions of federalism, both constitutional and policy-related. This paper, prepared for a symposium sponsored by the Kansas Journal of Law & Public Policy, addresses some of these federalism issues. After outlining some of the policy considerations for determining the proper federal and state balance in health care policy, it identifies constitutional limitations on the federal government’s ability to direct or even influence state policy choices, before discussing how federal ...


How State Supreme Courts Take Consequences Into Account: Toward A State-Centered Understanding Of State Constitutionalism, Neal Devins Jan 2010

How State Supreme Courts Take Consequences Into Account: Toward A State-Centered Understanding Of State Constitutionalism, Neal Devins

Faculty Publications

No abstract provided.


Federalism At The Cathedral: Property Rules, Liability Rules, And Inalienability Rules In Tenth Amendment Infrastructure, Erin Ryan Jan 2010

Federalism At The Cathedral: Property Rules, Liability Rules, And Inalienability Rules In Tenth Amendment Infrastructure, Erin Ryan

Faculty Publications

This Article explores the consequences for good governance of poorly constructed legal infrastructure in the Tenth Amendment context, and recommends a simple jurisprudential fix: exchanging a property rule for the inalienability remedy rule that the Supreme Court used to protect the anticommandeering entitlement in New York v. United States. Grounded in a values-based theory of American federalism, it shows how the New York inalienability rule unnecessarily removes tools for resolving interjurisdictional quagmires - exemplified by the radioactive waste capacity problem at the heart of the New York litigation - by prohibiting novel forms of state-federal bargaining. In New York, the Court held ...


Harmonious Federalism In Support Of National Energy Goals – Increased Wind Renewable Energy, Ronald H. Rosenberg Oct 2009

Harmonious Federalism In Support Of National Energy Goals – Increased Wind Renewable Energy, Ronald H. Rosenberg

Faculty Publications

American energy policy has slowly begun to change the mix in the sources of supply of electricity to residences, industry, and businesses. Renewable sources of electricity have been promoted as future contributors of large portions of the nation's electricity consumption. Wind power has been identified as a potentially substantial future electricity source contributing up to 20% of American demand 2030. To achieve these optimistic goals, there must be: (1) cost-effective, reliable energy technology; (2) sufficient investment capital to finance new construction; and (3) the existence of supportive governmental policies at all levels government. This article discusses the importance of ...


The Unconscionability Game: Strategic Judging And The Development Of Federal Arbitration Law, Aaron-Andrew P. Bruhl Nov 2008

The Unconscionability Game: Strategic Judging And The Development Of Federal Arbitration Law, Aaron-Andrew P. Bruhl

Faculty Publications

This Article uses recent developments in the enforcement of arbitration agreements to illustrate one way in which strategic dynamics can drive doctrinal change. In a fairly short period of time, arbitration has grown from a method of resolving disputes between sophisticated business entities into a phenomenon that pervades the contemporary economy. The United States Supreme Court has encouraged this transformation through expansive interpretations of the Federal Arbitration Act. But not all courts have embraced arbitration so fervently, and therefore case law in this area is marked by tension and conflict. The thesis of this Article is that we can better ...


Choice Of Law, The Constitution And Lochner, James Y. Stern Oct 2008

Choice Of Law, The Constitution And Lochner, James Y. Stern

Faculty Publications

No abstract provided.


Religious V. Secular Ideologies And Sex Education: A Response To Professors Cahn And Carbone, Vivian E. Hamilton Oct 2007

Religious V. Secular Ideologies And Sex Education: A Response To Professors Cahn And Carbone, Vivian E. Hamilton

Faculty Publications

No abstract provided.


Federalism And The Tug Of War Within: Seeking Checks And Balance In The Interjurisdictional Gray Area, Erin Ryan Jul 2007

Federalism And The Tug Of War Within: Seeking Checks And Balance In The Interjurisdictional Gray Area, Erin Ryan

Faculty Publications

Federalism and the Tug of War Within explores tensions that arise among the underlying values of federalism when state or federal actors regulate within the "interjurisdictional gray area" that implicates both local and national concerns. Drawing examples from the failed response to Hurricane Katrina and other interjurisdictional problems to illustrate this conflict, the Article demonstrates how the trajectory set by the New Federalism's "strict-separationist" model of dual sovereignty inhibits effective governance in these contexts. In addition to the anti-tyranny, pro-accountability, and localism-protective values of federalism, the Article identifies a problem-solving value inherent in the capacity requirement of American federalism ...


'There It Is: Take It' Endangered Species And Water Management In The San Francisco Bay Delta, W. David Ball May 2007

'There It Is: Take It' Endangered Species And Water Management In The San Francisco Bay Delta, W. David Ball

Faculty Publications

This paper explores endangered species and water management in the San Francisco Bay Delta. Two endangered species, the Delta Smelt and the Winter-run Chinook Salmon, use the Bay Delta for crucial portions of their life cycle. At the same time, California's agricultural industry, as well as population centers to the South, require substantial outflows of Bay-Delta water. The paper explores the multi-jurisdictional regulation of the Bay-Delta's water, takes a hard look at the purported success of the Environmental Water Account (EWA) program, and reports on the tensions between scientists at regulatory agencies and the political appointees who oversee ...


How Congress Paved The Way For The Rehnquist Court's Federalism Revival: Lessons From The Federal Partial Birth Abortion Ban, Neal Devins Apr 2007

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.


Active Sovereignty, Timothy Zick Apr 2007

Active Sovereignty, Timothy Zick

Faculty Publications

No abstract provided.


The "Federalism Five" As Supreme Court Nominees, 1971-1991, John Q. Barrett Jan 2007

The "Federalism Five" As Supreme Court Nominees, 1971-1991, John Q. Barrett

Faculty Publications

This article looks back at the Senate confirmation hearing testimonies of five Supreme Court nominees. Following their appointments to the Court, these justices—Chief Justice Rehnquist and Associate Justices O'Connor, Scalia, Kennedy and Thomas—generally voted together in path-breaking federalism cases. They reinvigorated constitutional law limits or decreed new ones on national legislative power, supported the "sovereignty" of state governments, and thus came to be known in some circles as the Rehnquist Court's "Federalism Five." As nominees testifying before the Senate Judiciary Committee, however, these "federalism" justices did not announce, or for the most part even much hint ...