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The Missing Regulatory State: Monitoring Businesses In An Age Of Surveillance, Rory Van Loo Oct 2019

The Missing Regulatory State: Monitoring Businesses In An Age Of Surveillance, Rory Van Loo

Faculty Scholarship

An irony of the information age is that the companies responsible for the most extensive surveillance of individuals in history—large platforms such as Amazon, Facebook, and Google—have themselves remained unusually shielded from being monitored by government regulators. But the legal literature on state information acquisition is dominated by the privacy problems of excess collection from individuals, not businesses. There has been little sustained attention to the problem of insufficient information collection from businesses. This Article articulates the administrative state’s normative framework for monitoring businesses and shows how that framework is increasingly in tension with privacy concerns. One ...


Authors’ Response: An Enquiry Concerning Constitutional Understanding, Gary Lawson, Guy I. Seidman Jul 2019

Authors’ Response: An Enquiry Concerning Constitutional Understanding, Gary Lawson, Guy I. Seidman

Faculty Scholarship

One of Professor Lawson’s first students, alluding to a 1985 article with the provocative title “Why Professor [Marty] Redish Is Wrong about Abstention,” declared that his ambition was to inspire someone to write an article entitled “Why [the student] Is Wrong about XXX.” The student claimed that, regardless of what filled in the “XXX,” this event would be the pinnacle of academic accomplishment.

If that view is even close to the mark, then having an entire conference devoted to explaining why Professors Lawson and Seidman are wrong about the Constitution is an extraordinary honor. In all seriousness, we are ...


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 ...


The Depravity Of The 1930s And The Modern Administrative State, Gary Lawson, Steven Calabresi Dec 2018

The Depravity Of The 1930s And The Modern Administrative State, Gary Lawson, Steven Calabresi

Faculty Scholarship

Gillian Metzger’s 2017 Harvard Law Review foreword, entitled 1930s Redux: The Administrative State Under Siege, is a paean to the modern administrative state, with its massive subdelegations of legislative and judicial power to so-called “expert” bureaucrats, who are layered well out of reach of electoral accountability yet do not have the constitutional status of Article III judges. We disagree with this celebration of technocratic government on just about every level, but this Article focuses on two relatively narrow points.

First, responding more to implicit assumptions that pervade modern discourse than specifically to Professor Metzger’s analysis, we challenge the ...


The Never-Ending Assault On The Administrative State, Jack Beermann Jul 2018

The Never-Ending Assault On The Administrative State, Jack Beermann

Faculty Scholarship

This Article is an exploration of the twists and turns of the never-ending assault on the administrative state. Without attempting to resolve all of the separation of powers controversies that have existed since the beginning of the Republic, this Article examines and analyzes the fundamental constitutional challenges to the administrative state as well as the more peripheral constitutional difficulties involving the administrative state and the nonconstitutional legal challenges that have arisen over the decades. In my view, the legal and political arguments made in favor of major structural changes to the administrative state do not provide sufficient normative bases for ...


Political Norms, Constitutional Conventions, And President Donald Trump, Neil S. Siegel Jan 2018

Political Norms, Constitutional Conventions, And President Donald Trump, Neil S. Siegel

Faculty Scholarship

This symposium Essay argues that what is most troubling about the conduct of President Trump during and since the 2016 U.S. presidential campaign is not any potential violations of the U.S. Constitution or federal law. There likely have been some such violations, and there may be more. But what is most troubling about President Trump is his disregard of political norms that had previously constrained presidential candidates and Presidents, and his flouting of nonlegal but obligatory “constitutional conventions” that had previously guided and disciplined occupants of the White House. These norms and conventions, although not “in” the Constitution ...


Brief Of Professor Ernest A. Young As Amicus Curiae In Support Of Plaintiff Appellant Urging Reversal, Ernest A. Young Jan 2018

Brief Of Professor Ernest A. Young As Amicus Curiae In Support Of Plaintiff Appellant Urging Reversal, Ernest A. Young

Faculty Scholarship

No abstract provided.


State Public-Law Litigation In An Age Of Polarization, Margaret H. Lemos, Ernest A. Young Jan 2018

State Public-Law Litigation In An Age Of Polarization, Margaret H. Lemos, Ernest A. Young

Faculty Scholarship

Public-law litigation by state governments plays an increasingly prominent role in American governance. Although public lawsuits by state governments designed to challenge the validity or shape the content of national policy are not new, such suits have increased in number and salience over the last few decades — especially since the tobacco litigation of the late 1990s. Under the Obama and Trump Administrations, such suits have taken on a particularly partisan cast; “red” states have challenged the Affordable Care Act and President Obama’s immigration orders, for example, and “blue” states have challenged President Trump’s travel bans and attempts 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 ...


What Can Europe Tell Us About The Future Of American Federalism?, Ernest A. Young Jan 2017

What Can Europe Tell Us About The Future Of American Federalism?, Ernest A. Young

Faculty Scholarship

No abstract provided.


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 ...


The European Union: A Comparative Perspective, Ernest A. Young Jan 2016

The European Union: A Comparative Perspective, Ernest A. Young

Faculty Scholarship

This chapter, to be included in the Oxford Principles of EU Law volume, compares the federalisms of Europe and the United States. It argues that Europe can be sensibly viewed from both federal and intergovernmental perspectives, and that particular aspects of the European Union’s structure fit each model. In particular, the EU is federal—that is, integrated to a comparable degree to the U.S.—with respect to its distribution of competences and the sovereignty attributed to EU law and institutions. But it is intergovernmental—that is, it preserves a center of gravity within the individual member states—with ...


Litigating State Interests: Attorneys General As Amici, Margaret H. Lemos, Kevin M. Quinn Jan 2015

Litigating State Interests: Attorneys General As Amici, Margaret H. Lemos, Kevin M. Quinn

Faculty Scholarship

An important strain of federalism scholarship locates the primary value of federalism in how it carves up the political landscape, allowing groups that are out of power at the national level to flourish—and, significantly, to govern—in the states. On that account, partisanship, rather than a commitment to state authority as such, motivates state actors to act as checks on federal power. Our study examines partisan motivation in one area where state actors can, and do, advocate on behalf of state power: the Supreme Court. We compiled data on state amicus filings in Supreme Court cases from the 1979 ...


Federalism As A Constitutional Principle, Ernest A. Young Jan 2015

Federalism As A Constitutional Principle, Ernest A. Young

Faculty Scholarship

This essay was given as the William Howard Taft Lecture in Constitutional Law in October, 2014. It addresses three questions: Why care about federalism? How does the Constitution protect federalism? and What does Federalism need to survive? I argue that federalism is worth caring about because it protects liberty and fosters pluralism. Observing that constitutional law has mostly shifted from a model of dual federalism to one of concurrent jurisdiction, I contend that the most effective protections for federalism focus on maintaining the political and procedural safeguards that limit national power. Finally, I conclude that although both judicial review and ...


The Volk Of New Jersey? State Identity, Distinctiveness, And Political Culture In The American Federal System, Ernest A. Young Jan 2015

The Volk Of New Jersey? State Identity, Distinctiveness, And Political Culture In The American Federal System, Ernest A. Young

Faculty Scholarship

The legal literature on federalism has long taken for granted that Americans no longer meaningfully identify with, or feel strong loyalties to, their states. This assumption has led some scholars to reject federalism altogether; others argue that federalism must be reoriented to serve national values. But the issue of identity and loyalty sweeps far more broadly, implicating debates about the political safeguards of federalism, the ability of states to check national power, and the likelihood that states will produce policy innovations or good opportunities for citizen participation in government. The ultimate question is whether American federalism lacks the cultural and ...


Race, Federalism, And Voting Rights, Guy-Uriel E. Charles, Luis Fuentes-Rohwer Jan 2015

Race, Federalism, And Voting Rights, Guy-Uriel E. Charles, Luis Fuentes-Rohwer

Faculty Scholarship

In Shelby County v. Holder, the Court struck down an important provision of the Voting Rights Act, section 4, on federalism grounds. The Court argued that Congress no longer had the power to enact section 4 because of the “federalism costs” imposed by the Act and because the Act violated "basic principles" of federalism. Unfortunately, the Court failed to articulate the costs to federalism imposed by the Act, much less conduct a cost-benefit analysis in order to determine whether the benefits of the Act outweighed its costs. Moreover, the Court failed to discuss whether the Reconstruction Amendments ought to matter ...


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.


One(?) Nation Over-Extended, Gary Lawson Jan 2014

One(?) Nation Over-Extended, Gary Lawson

Faculty Scholarship

The conventional wisdom prior to the founding was that republics needed to be small. The conventional wisdom today is that James Madison, and the example of the United States, proves this to be mistaken. But what if Madison was actually wrong and Montesquieu was right? In this article, I consider whether the United States has gotten too big for its Constitution, whether this massive size contributes to political dysfunction, and what might be done to remedy the problem if there is indeed a problem. I suggest that size can increase rather than decrease the dangers of faction because the increased ...


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 ...


The ‘Competition Of The Market’: “Enter The Elephant!” [A Restatement Of A Most Perplexing First Amendment Conundrum], William W. Van Alstyne Jan 2014

The ‘Competition Of The Market’: “Enter The Elephant!” [A Restatement Of A Most Perplexing First Amendment Conundrum], William W. Van Alstyne

Faculty Scholarship

This short essay revisits the enduring problem of “government propaganda” in the domestic marketplace of “competing ideas.” Drawing his argument from the suggestions and from strongly worded dicta by several famous twentieth century justices (most notably Oliver Wendell Holmes, Jr., Louis Brandeis, Robert Jackson and Hugo Black), Van Alstyne suggests that the First Amendment invests every ordinary citizen with suitable standing (akin to that of a corporate shareholder) to call upon any judge bound by oath of office, as set forth in Article VI, and whose aid is thus appropriately invoked, to enjoin the government from acting as an ideological ...


The Development And Evolution Of The U.S. Law Of Corporate Criminal Liability, Sara Sun Beale Jan 2014

The Development And Evolution Of The U.S. Law Of Corporate Criminal Liability, Sara Sun Beale

Faculty Scholarship

In the United States, corporate criminal liability developed in response to the industrial revolution and the rise in the scope and importance of corporate activities. This article focuses principally on federal law, which bases corporate criminal liability on the respondeat superior doctrine developed in tort law. In the federal system, the formative period for the doctrine of corporate criminal liability was the early Twentieth Century, when Congress dramatically expanded the reach of federal law, responding to the unprecedented concentration of economic power in corporations and combinations of business concerns as well as new hazards to public health and safety. Both ...


Completing The Energy Innovation Cycle: The View From The Public Utility Commission, Jonas J. Monast, Sarah K. Adair Jan 2014

Completing The Energy Innovation Cycle: The View From The Public Utility Commission, Jonas J. Monast, Sarah K. Adair

Faculty Scholarship

Achieving widespread adoption of innovative electricity generation technologies involves a complex system of research, development, demonstration, and deployment, with each phase then informing future developments. Despite a number of non-regulatory programs at the federal level to support this process, the innovation premium—the increased cost and technology risk often associated with innovative generation technologies—creates hurdles in the state public utility commission (“PUC”) process. These state level regulatory hurdles have the potential to frustrate federal energy goals and prevent the learning process that is a critical component to technology innovation. This Article explores how and why innovative energy technologies face ...


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.


Is There A Federal Definitions Power?, Ernest A. Young Jan 2014

Is There A Federal Definitions Power?, Ernest A. Young

Faculty Scholarship

Although the Supreme Court decided United States v. Windsor on equal protection grounds, that case also raised important and recurring questions about federal power. In particular, defenders of the Defense of Marriage Act (DOMA) argued that Congress may always define the terms used in federal statutes, even if its definition concerns a matter reserved to the States. As the DOMA illustrates, federal definitions concerning reserved matters that depart from state law may impose significant burdens on state governments and private citizens alike. This Article argues that there is no general, freestanding federal definitions power and that sometimes—as with marriage ...


Selling State Borders, Joseph Blocher Jan 2014

Selling State Borders, Joseph Blocher

Faculty Scholarship

Sovereign territory was bought and sold throughout much of American history, and there are good reasons to think that an interstate market for borders could help solve many contemporary economic and political problems. But no such market currently exists. Why not? And could an interstate market for sovereign territory help simplify border disputes, resolve state budget crises, respond to exogenous shocks like river accretion, and improve democratic responsiveness? Focusing on the sale of borders among American states, this Article offers constitutional, political, and ethical answers to the first question, and a qualified yes to the second.


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.


Reverse-Commandeering, Margaret Hu Jan 2013

Reverse-Commandeering, Margaret Hu

Faculty Scholarship

Although the anti-commandeering doctrine was developed by the Supreme Court to protect state sovereignty from federal overreach, nothing prohibits flipping the doctrine in the opposite direction to protect federal sovereignty from state overreach. Federalism preserves a balance of power between two sovereigns. Thus, the reversibility of the anti-commandeering doctrine appears inherent in the reasoning offered by the Court for the doctrine’s creation and application. In this Article, I contend that reversing the anti-commandeering doctrine is appropriate in the context of contemporary immigration federalism laws. Specifically, I explore how an unconstitutional incursion into federal sovereignty can be seen in state ...


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 ...