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Historical Gloss, Madisonian Liquidation, And The Originalism Debate, Curtis A. Bradley, Neil S. Siegel Jan 2019

Historical Gloss, Madisonian Liquidation, And The Originalism Debate, Curtis A. Bradley, Neil S. Siegel

Faculty Scholarship

The U.S. Constitution is old, relatively brief, and very difficult to amend. In its original form, the Constitution was primarily a framework for a new national government, and for 230 years the national government has operated under that framework even as conditions have changed in ways beyond the Founders’ conceivable imaginations. The framework has survived in no small part because government institutions have themselves played an important role in helping to fill in and clarify the framework through their practices and interactions, informed by the realities of governance. Courts, the political branches, and academic commentators commonly give weight to ...


Brief Of Professors William Baude And Stephen E. Sachs As Amici Curiae In Support Of Neither Party, William Baude, Stephen E. Sachs Jan 2018

Brief Of Professors William Baude And Stephen E. Sachs As Amici Curiae In Support Of Neither Party, William Baude, Stephen E. Sachs

Faculty Scholarship

This case presents the question whether to overrule Nevada v. Hall, 440 U.S. 410 (1979). That question requires careful attention to the legal status of sovereign immunity and to the Constitution’s effect on it, which neither Hall nor either party has quite right. The Founders did not silently constitutionalize a common-law immunity, but neither did they leave each State wholly free to hale other States before its courts. While Hall’s holding was mostly right, other statements in Hall are likely quite wrong—yet this case is a poor vehicle for reconsidering them.

Hall correctly held that States ...


Our Prescriptive Judicial Power: Constitutive And Entrenchment Effects Of Historical Practice In Federal Courts Law, Ernest A. Young Jan 2016

Our Prescriptive Judicial Power: Constitutive And Entrenchment Effects Of Historical Practice In Federal Courts Law, Ernest A. Young

Faculty Scholarship

Scholars examining the use of historical practice in constitutional adjudication have focused on a few high-profile separation-of-powers disputes, such as the recent decisions in NLRB v. Noel Canning and Zivotofsky v. Kerry. This essay argues that “big cases make bad theory” — that the focus on high-profile cases of this type distorts our understanding of how historical practice figures in constitutional adjudication more generally. I shift focus here to the more prosaic terrain of federal courts law, in which practice plays a pervasive role. That shift reveals two important insights: First, while historical practice plays an important constitutive role, structuring and ...


Modern-Day Nullification: Marijuana And The Persistence Of Federalism In An Age Of Overlapping Regulatory Jurisdiction, Ernest A. Young Jan 2015

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

Faculty Scholarship

No abstract provided.


Federalism As A Way Station: Windsor As Exemplar Of Doctrine In Motion, Neil S. Siegel Jan 2014

Federalism As A Way Station: Windsor As Exemplar Of Doctrine In Motion, Neil S. Siegel

Faculty Scholarship

This Article asks what the Supreme Court’s opinion in United States v. Windsor stands for. It first shows that the opinion leans in the direction of marriage equality but ultimately resists any dispositive “equality” or “federalism” interpretation. The Article next examines why the opinion seems intended to preserve for itself a Delphic obscurity. The Article reads Windsor as an exemplar of what judicial opinions may look like in transition periods, when a Bickelian Court seeks to invite, not end, a national conversation, and to nudge it in a certain direction. In such times, federalism rhetoric—like manipulating the tiers ...


The Puzzling Persistence Of Dual Federalism, Ernest A. Young Jan 2014

The Puzzling Persistence Of Dual Federalism, Ernest A. Young

Faculty Scholarship

This essay began life as a response to Sotirios Barber’s essay (soon to be a book) entitled “Defending Dual Federalism: A Self-Defeating Act.” Professor Barber’s essay reflects a widespread tendency to associate any judicially-enforceable principle of federalism with the “dual federalism” regime that dominated our jurisprudence from the Founding down to the New Deal. That regime divided the world into separate and exclusive spheres of federal and state regulatory authority, and it tasked courts with defining and policing the boundary between them. “Dual federalism” largely died, however, in the judicial revolution of 1937, and it generally has not ...


Exit, Voice, And Loyalty As Federalism Strategies: Lessons From The Same-Sex Marriage Debate, Ernest A. Young Jan 2014

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

Faculty Scholarship

No abstract provided.


In Praise Of Judge Fletcher-And Of General Standing Principles, Ernest A. Young Jan 2013

In Praise Of Judge Fletcher-And Of General Standing Principles, Ernest A. Young

Faculty Scholarship

No abstract provided.


Exhuming The “Diversity Explanation” Of The Eleventh Amendment, Thomas D. Rowe Jr. Jan 2013

Exhuming The “Diversity Explanation” Of The Eleventh Amendment, Thomas D. Rowe Jr.

Faculty Scholarship

This essay, in a symposium honoring the scholarship of Ninth Circuit Judge William A. Fletcher, explores the “diversity explanation” of the Eleventh Amendment that he had advanced in articles while he was a UC-Berkeley law professor. That explanation, contrary to existing Supreme Court doctrine that heavily constitutionalizes state sovereign immunity from suits by private parties and foreign countries, would view the Eleventh Amendment as having solely to do with federal courts’ constitutional jurisdiction and nothing to do with states’ sovereign immunity. The essay notes the cleanness of interpretation provided by the diversity explanation, in contrast with the convoluted nature of ...


A General Defense Of Erie Railroad Co. V. Tompkins, Ernest A. Young Jan 2013

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 of ...


A Research Agenda For Uncooperative Federalists, Ernest A. Young Jan 2013

A Research Agenda For Uncooperative Federalists, Ernest A. Young

Faculty Scholarship

No abstract provided.


Federalism, Liberty, And Equality In United States V. Windsor, Ernest A. Young, Erin C. Blondel Jan 2013

Federalism, Liberty, And Equality In United States V. Windsor, Ernest A. Young, Erin C. Blondel

Faculty Scholarship

This essay argues that federalism played a profoundly important role in the Supreme Court's decision in United States v. Windsor, which struck down the federal Defense of Marriage Act. Arguments to the contrary have failed to appreciate how Justice Kennedy's opinion employed federalism not as a freestanding argument but as an essential component of his rights analysis. Far from being a "muddle," as many have claimed, Justice Kennedy's analysis offered one of the most sophisticated examples to date of the interconnections between federalism, liberty, and equality.


‘The Ordinary Diet Of The Law’: The Presumption Against Preemption In The Roberts Court, Ernest A. Young Jan 2012

‘The Ordinary Diet Of The Law’: The Presumption Against Preemption In The Roberts Court, Ernest A. Young

Faculty Scholarship

In a preemption case decided over a decade ago, Justice Breyer wrote that “in today’s world, filled with legal complexity, the true test of federalist principle may lie . . . in those many statutory cases where courts interpret the mass of technical detail that is the ordinary diet of the law.” This article surveys the Roberts Court’s preemption jurisprudence, focusing on five cases decided in OT 2010. Young argues that Justice Breyer was right — that is, that because current federalism jurisprudence largely eschews any effort to define exclusive spheres of state and federal regulatory jurisdiction, the most important federalism cases ...


Its Hour Come Round At Last? State Sovereign Immunity And The Great State Debt Crisis Of The Early Twenty-First Century, Ernest A. Young Jan 2012

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 ...


What State Constitutional Law Can Tell Us About The Federal Constitution, Joseph Blocher Jan 2011

What State Constitutional Law Can Tell Us About The Federal Constitution, Joseph Blocher

Faculty Scholarship

Courts and scholars have long sought to illuminate the relationship between state and federal constitutional law. Yet their attention, like the relationship itself, has largely been one-sided: State courts have consistently adopted federal constitutional law as their own, and scholars have attempted to illuminate why this is, and why it should or should not be so. By contrast, federal courts tend not to look to state constitutional law, even for persuasive authority. Nor have scholars argued at any length that federal courts can or should look to state constitutional law for guidance in answering the many constitutional questions common to ...


Treaties As "Part Of Our Law", Ernest A. Young Jan 2009

Treaties As "Part Of Our Law", Ernest A. Young

Faculty Scholarship

No abstract provided.


Preemption And Federal Common Law, Ernest A. Young Jan 2008

Preemption And Federal Common Law, Ernest A. Young

Faculty Scholarship

No abstract provided.


The Other Delegate: Judicially Administered Statutes And The Nondelegation Doctrine, Margaret H. Lemos Jan 2008

The Other Delegate: Judicially Administered Statutes And The Nondelegation Doctrine, Margaret H. Lemos

Faculty Scholarship

The nondelegation doctrine is the subject of a vast and everexpanding body of scholarship. But nondelegation literature, like nondelegation law, focuses almost exclusively on delegations of power to administrative agencies. It ignores Congress's other delegate-the federal judiciary.

This Article brings courts into the delegation picture. It demonstrates that, just as agencies exercise a lawmaking function when they fill in the gaps left by broad statutory delegations of power, so too do courts. The nondelegation doctrine purports to limit the amount of lawmaking authority Congress can cede to another institution without violating the separation of powers. Although typically considered only ...


The Federal Judicial Power And The International Legal Order, Curtis A. Bradley Jan 2007

The Federal Judicial Power And The International Legal Order, Curtis A. Bradley

Faculty Scholarship

No abstract provided.


Medellin V. Dretke: Federalism And International Law, Curtis A. Bradley, Lori Fisler Damrosch, Martin Flaherty Jan 2005

Medellin V. Dretke: Federalism And International Law, Curtis A. Bradley, Lori Fisler Damrosch, Martin Flaherty

Faculty Scholarship

This is an edited version of a debate held at Columbia Law School on February 21, 2005.


Constitutional Existence Conditions And Judicial Review, Matthew D. Adler, Michael C. Dorf Jan 2003

Constitutional Existence Conditions And Judicial Review, Matthew D. Adler, Michael C. Dorf

Faculty Scholarship

Although critics of judicial review sometimes call for making the entire Constitution nonjusticiable, many familiar norms of constitutional law state what we call "existence conditions" that are necessarily enforced by judicial actors charged with the responsibility of applying, and thus as a preliminary step, identifying, propositions of sub-constitutional law such as statutes. Article I, Section 7, which sets forth the procedures by which a bill becomes a law, is an example: a putative law that did not go through the Article I, Section 7 process and does not satisfy an alternative test for legal validity (such as the treaty-making provision ...


The Section 5 Mystique, Morrison, And The Future Of Federal Antidiscrimination Law, Margaret H. Lemos, Samuel Estreicher Jan 2000

The Section 5 Mystique, Morrison, And The Future Of Federal Antidiscrimination Law, Margaret H. Lemos, Samuel Estreicher

Faculty Scholarship

No abstract provided.