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Articles 31 - 57 of 57

Full-Text Articles in Law

The Liberty Of Free Riders: The Minimum Coverage Provision, Mill’S “Harm Principle,” And American Social Morality, Jedediah Purdy, Neil S. Siegel Jan 2012

The Liberty Of Free Riders: The Minimum Coverage Provision, Mill’S “Harm Principle,” And American Social Morality, Jedediah Purdy, Neil S. Siegel

Faculty Scholarship

In this Article, the authors show that cost-shifting and adverse selection problems link the federalism dimension of the debate over the Affordable Care Act to the doctrinally separate and suppressed individual rights dimension. As the scope of these free-rider problems justifies federal power to require individuals to obtain health insurance coverage, so the very existence of the free-rider problems illuminates the difficulty of arguing directly — as opposed to indirectly through the Commerce Clause — that the minimum coverage provision infringes individual liberty. The interdependence between some people’s decisions to forgo insurance and the well-being of other people means that refusing ...


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 ...


Government Property And Government Speech, Joseph Blocher Jan 2011

Government Property And Government Speech, Joseph Blocher

Faculty Scholarship

The relationship between property and speech is close but complicated. Speakers use places and things to deliver their messages, and rely on property rights both to protect expressive acts and to serve as an independent means of expression. And yet courts and scholars have struggled to make sense of the property-speech connection. Is property merely a means of expression, or can it be expressive in and of itself? And what kind of “property” do speakers need to have – physical things, bundles of rights, or something else entirely?

In the context of government property and government speech, the ill-defined relationship between ...


Transforming Property Into Speech, Joseph Blocher Jan 2011

Transforming Property Into Speech, Joseph Blocher

Faculty Scholarship

No abstract provided.


State Enforcement Of Federal Law, Margaret H. Lemos Jan 2011

State Enforcement Of Federal Law, Margaret H. Lemos

Faculty Scholarship

Federal law is enforced through a combination of public and private efforts. Virtually all federal civil statutes vest enforcement authority in a federal agency; some also create private rights of action that permit private parties to sue to enforce federal law. Decades of commentary on the choice between public and private enforcement have generated a remarkably stable set of arguments about the strengths and weaknesses of each type. But the conventional wisdom tells only part of the story, as it ignores variations within the category of public enforcement. In fact, there are two distinct types of public enforcement. Many federal ...


Viewpoint Neutrality And Government Speech, Joseph Blocher Jan 2011

Viewpoint Neutrality And Government Speech, Joseph Blocher

Faculty Scholarship

Government speech creates a paradox at the heart of the First Amendment. To satisfy traditional First Amendment tests, the government must show that it is not discriminating against a viewpoint. And yet if the government shows that it is condemning or supporting a viewpoint, it may be able to invoke the government speech defense and thereby avoid constitutional scrutiny altogether. Government speech doctrine therefore rewards what the rest of the First Amendment forbids: viewpoint discrimination against private speech. This is both a theoretical puzzle and an increasingly important practical problem. In cases like Pleasant Grove City, Utah v. Summum, 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 ...


Sonia, What’S A Nice Person Like You Doing In Company Like That, Thomas D. Rowe Jr. Dec 2010

Sonia, What’S A Nice Person Like You Doing In Company Like That, Thomas D. Rowe Jr.

Faculty Scholarship

No abstract provided.


What Does It Take To Make A Federal System? On Constitutional Entrenchment, Separate Spheres, And Identity, Ernest A. Young Jan 2010

What Does It Take To Make A Federal System? On Constitutional Entrenchment, Separate Spheres, And Identity, Ernest A. Young

Faculty Scholarship

No abstract provided.


On The Constitutionality Of Health Care Reform, Barak D. Richman Jan 2010

On The Constitutionality Of Health Care Reform, Barak D. Richman

Faculty Scholarship

This commentary describes the legal challenges to the Patient Protection and Affordable Care Act.


Collective Action Federalism: A General Theory Of Article I, Section 8, Neil S. Siegel, Robert D. Cooter Jan 2010

Collective Action Federalism: A General Theory Of Article I, Section 8, Neil S. Siegel, Robert D. Cooter

Faculty Scholarship

The Framers of the United States Constitution wrote Article I, Section 8 in order to address some daunting collective action problems facing the young nation. They especially wanted to protect the states from military warfare by foreigners and from commercial warfare against one another. The states acted individually when they needed to act collectively, and Congress lacked power under the Articles of Confederation to address these problems. Section 8 thus authorized Congress to promote the “general Welfare” of the United States by tackling many collective action problems that the states could not solve on their own.

Subsequent interpretations of Section ...


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.


Amending The Exceptions Clause, Joseph Blocher Jan 2008

Amending The Exceptions Clause, Joseph Blocher

Faculty Scholarship

Jurisdiction stripping is the new constitutional amendment, and the Exceptions Clause is the new Article V. But despite legal academia’s long-running obsessions with the meaning of constitutional amendment and the limits (if any) on Congress’s power to control federal jurisdiction, we still lack even a basic understanding of how these two forms of constitutional politicking interact. As legislators increasingly propose and pass jurisdiction-stripping legislation and pursue politically charged constitutional amendments, these constitutional processes have begun to step off of the pages of law reviews and into the halls of Congress. The looming collision between them makes it all ...


Executive Preemption, Ernest A. Young Jan 2008

Executive Preemption, Ernest A. Young

Faculty Scholarship

Preemption of state regulatory authority by national law is the central federalism issue of our time. Most analysis of this issue has focused on the preemptive effects of federal statutes. But as Justice White observed in INS v. Chadha,“[f]or some time, the sheer amount of law . . . made by the [administrative] agencies has far outnumbered the lawmaking engaged in by Congress through the traditional process.” Whether one views this development as a “bloodless constitutional revolution” or as a necessary “renovation” of the constitutional structure in response to the complexity of modern society, the advent of the administrative state has ...


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.


The Commerce Power And Criminal Punishment: Presumption Of Constitutionality Or Presumption Of Innocence?, Margaret H. Lemos Jan 2006

The Commerce Power And Criminal Punishment: Presumption Of Constitutionality Or Presumption Of Innocence?, Margaret H. Lemos

Faculty Scholarship

The Constitution requires that the facts that expose an individual to criminal punishment be proved to a jury beyond a reasonable doubt. In recent years, the Supreme Court has taken pains to ensure that legislatures cannot evade the requirements of proof beyond a reasonable doubt and jury presentation through artful statutory drafting. Yet current Commerce Clause jurisprudence permits Congress to do just that. Congress can avoid application of the reasonable-doubt and jury-trial rules with respect to certain critical facts-the facts that establish the basis for federal action by linking the prohibited conduct to interstate commerce-by finding those facts itself rather ...


Just Blowing Smoke? Politics, Doctrine, And The Federalist Revival After Gonzales V. Raich, Ernest A. Young Jan 2005

Just Blowing Smoke? Politics, Doctrine, And The Federalist Revival After Gonzales V. Raich, Ernest A. Young

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 ...


When Can A State Be Sued?, William W. Van Alstyne Jan 2001

When Can A State Be Sued?, William W. Van Alstyne

Faculty Scholarship

In her Popular Government article "When You Can't Sue the State: State Sovereign Immunity" (Summer 2000), Anita R. Brown-Graham described a series of recent decisions in which a sharply divided U.S. Supreme Court barred individuals from suing states for money damages for certain violations of federal law, such as laws prohibiting discrimination against employees because of their age. In the response that follows, William Van Alstyne argues that this barrier to relief is neither unduly imposing nor novel. The debate over the significance of these decisions is likely to continue. In February 2001, in another case decided by ...


The Electoral College, The Right To Vote, And Our Federalism: A Comment On A Lasting Institution, Luis Fuentes-Rohwer, Guy-Uriel Charles Jan 2001

The Electoral College, The Right To Vote, And Our Federalism: A Comment On A Lasting Institution, Luis Fuentes-Rohwer, Guy-Uriel Charles

Faculty Scholarship

No abstract provided.


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.


The New Etiquette Of Federalism: New York, Printz And Yeskey, Matthew D. Adler, Seth F. Kreimer Jan 1998

The New Etiquette Of Federalism: New York, Printz And Yeskey, Matthew D. Adler, Seth F. Kreimer

Faculty Scholarship

In New York v. United States, 505 U.S. 144 (1992), the Court revived "state sovereignty" as a justiciable constitutional constraint on federal mandates, and struck down portions of the Low-Level Radioactive Waste Policy Amendments Act on the grounds that the statute impermissibly "commandeered" state governments. Printz v. United States, 117 S.Ct. 2365 (1997), confirmed the anti-commandeering principle and relied upon it to invalidate elements of another federal statute, the Brady Act. This Article analyzes and criticizes the anti-commandeering jurisprudence, as it has emerged in New York, Printz, and a case decided by the Court last Term, Pennsylvania Department ...


The New Reno Bluesheet: A Little More Candor Regarding Prosecutorial Discretion, Sara Sun Beale Jan 1994

The New Reno Bluesheet: A Little More Candor Regarding Prosecutorial Discretion, Sara Sun Beale

Faculty Scholarship

No abstract provided.


Dual Sovereignty, Federalism And National Criminal Law: Modernist Constitutional Doctrine And The Nonrole Of The Supreme Court, William W. Van Alstyne Jan 1989

Dual Sovereignty, Federalism And National Criminal Law: Modernist Constitutional Doctrine And The Nonrole Of The Supreme Court, William W. Van Alstyne

Faculty Scholarship

This paper examines the growing movement away from the functional nature of federalism contained within the Constitution toward a federalist system that gives extensive discretion to Congress and is only limited by political checks. This political system of federalism has limited the role of the Court in national criminal law because of the deference the Court is expected to give Congress.