Law Commons^™

Solidarity Federalism, Erin F. Delaney, Ruth Mason

Notre Dame Law Review

Studies of federalism, especially in the United States, have mostly centered on state autonomy and the vertical relationship between the states and the federal government. This Article approaches federalism from a different perspective, one that focuses on state solidarity. We explain how solidarity structures found in constitutional federations—including the United States—generate solidarity obligations, such as duties not to harm other states or their citizens. These duties give rise to principles, such as nondiscrimination, that are vital to federalism. Focusing on interstate relations and relations between states and citizens of other states, we argue that affirming both solidarity and autonomy as …

Equity's Atrophy, Andrew Kull

Notre Dame Law Review

Current U.S. law sees numerous decisions from which a once- predictable, traditional equitable corrective has simply disappeared. The salient cases are those in which, until recently—recent history for this purpose comprising just one or two generations of lawyers and judges—equitable intervention would have been at least highly likely: because the unmodified legal outcome diverges so plainly from equity and good conscience, and because an established equitable response was part of what everybody knew. The idea that equity in U.S. law has been losing some previous degree of vitality is so venerable that it can scarcely be debatable at this point,11 …

Getting Into Equity, Samuel L. Bray, Paul B. Miller

Notre Dame Law Review

For two centuries, common lawyers have talked about a “cause of action.” But “cause of action” is not an organizing principle for equity. This Article shows how a plaintiff gets into equity, and it explains that equity is shaped by the interplay of its remedial, procedural, and substantive law. Equity is adjectival, that is, it modifies law rather than the other way around. Its power comes from remedies, not rights. And for getting into equity, what is central is a grievance. To insist on an equitable cause of action is to work a fundamental change in how a plaintiff gets …

Federal Judicial Power And Federal Equity Without Federal Equity Powers, John Harrison

Notre Dame Law Review

This Article discusses the ways in which the federal courts do and do not have equity powers. Article III courts have the judicial power, which enables them to apply the law, primary and remedial. Applicable remedial law often includes the law of equitable remedies, so the federal courts have the power and obligation to give remedies pursuant to equitable principles. The law of equitable remedies, written and unwritten, is external to the courts, not created by them, the same way written law is external to the courts. Because the unwritten law of equitable remedies is found largely in judicial practice, …

Equity's Federalism, Kellen Funk

Notre Dame Law Review

The United States has had a dual court system since its founding. One might expect such a pronouncement to refer to the division between state and federal courts, but in the early republic the equally obvious referent would have been to the division between courts of common law and the court of chancery—the distinction, that is, between law and equity. This Essay sketches a history of how the distinction between law and equity was gradually transformed into a doctrine of federalism by the Supreme Court. Congress’s earliest legislation jealously guarded federal equity against fusion with common law at either the …

Constitutional Tolling And Preenforcement Challenges To Private Rights Of Action, Michael T. Morley

Notre Dame Law Review

A person wishing to challenge the constitutionality of a law that regulates their conduct typically may sue the government official responsible for enforcing that provision for declaratory and injunctive relief pursuant to Ex parte Young. This approach is generally unavailable, however, when a plaintiff seeks preenforcement relief against laws that are enforceable exclusively through a private right of action. In such cases, there is no government official against whom to bring a typical Young claim, and constraints such as sovereign immunity and justiciability requirements often pose insurmountable obstacles. A person subject to an apparently unconstitu-tional law that is enforced …

Standing, Equity, And Injury In Fact, Ernest A. Young

Notre Dame Law Review

This contribution to the Notre Dame Law Review’s annual Federal Courts Symposium on “The Nature of the Federal Equity Power” asks what the traditions of equity can tell us about Article III standing. I take as my point of departure the observation by Professors Sam Bray and Paul Miller, in their contribution to the Symposium, that equity does not have causes of action as such—or at least not in the same way as actions at law. This is potentially important for standing, as many academic critiques of the Supreme Court's standing jurisprudence have argued that standing should turn on …

State Rejection Of Federal Law, Thomas B. Bennett

Notre Dame Law Review

Sometimes the United States Supreme Court speaks, and states do not follow. For example, in 2003, the Arizona Supreme Court agreed to “reject” a decision of the U.S. Supreme Court, because no “sound reasons justif[ied] following” it. Similarly, in 2006, Michigan voters approved a ballot initiative that, according to the legislature that drafted it, sought “at the very least[] to ‘freeze’ the state’s . . . law to prevent” state courts from following a ruling of the U.S. Supreme Court. Surprising though this language may be, there is nothing nefarious about these cases. Cooper v. Aaron this is not. Unlike …

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 …

Federalism And State Marijuana Legislation, Dean M. Nickles

Notre Dame Law Review

An increasing number of states have passed legislation legalizing medical and recreational marijuana. This Note provides a survey of the language utilized by these states in their legislation and legislative materials, searching for and highlighting those purposes and intentions of the states, which implicate, explicitly or implicitly, federalism. Through this survey of mostly primary source materials, various trends and similarities among the materials will be apparent, and this Note will provide a useful resource for those trying to understand why the states may have enacted these laws.