Law Commons^™

The Framers' Federalism And The Affordable Care Act, 44 Conn. L. Rev. 1071 (2012), Steven D. Schwinn

UIC Law Open Access Faculty Scholarship

Federalism challenges to the Affordable Care Act ("ACA") are inspired by the relatively recent resurgence in federalism concerns in the Supreme Court's jurisprudence. Thus, ACA opponents seek to leverage the Court-created distinction between encouragement and compulsion (in opposition to Medicaid expansion), and the Court-created federalism concern when Congress regulates in a way that could destroy the distinction between what is national and what is local (in opposition to universal coverage).

But outside the jurisprudence, the text and history of constitutional federalism tell another story. The text and history suggest that the Constitution created a powerful federal government, of the people …

Which The Deader Hand - A Counter To The American Law Institute's Proposed Revival Of Dying Perpetuities Rules, 86 Tul. L. Rev. 559 (2012), Scott Andrew Shepard

UIC Law Open Access Faculty Scholarship

Encouraged primarily by a fluke in federal estate and gift law, more than half of the states have either effectively or entirely abolished their rules against perpetuities in the past two decades. The American Law Institute, deeply troubled by this development has adopted for its Third Restatement a proposed rule against perpetuities that would essentially prohibit conditional gifts to continue for the benefit of parties born more than two generations after the transferor.

The ALI's efforts are misguided. The rule against perpetuities was the product of a legal, political, and social age very different than our own. It was designed …

The Use Of Federal Law To Curb Excessive Executive Compensation: Lessons In Past Failures And Lessons For The Future, 57 Vill. L. Rev. 551 (2012), Kathryn J. Kennedy

UIC Law Open Access Faculty Scholarship

When one thinks of the use of legislative power to curb the size and the type of compensation paid to executives, one normally thinks such power is reserved to the states. That is, one tends to think that regulating corporate governance falls within traditional state police powers. However, while state courts have been willing to review the processes boards of directors use in setting the size and type of executive compensation, they have been less willing to review the actual results of such decisions. Hence, it is no shock that Congress continues to dabble in the area of corporate governance …