Law Commons^™

Sanctuary Cities And The Power Of The Purse: An Executive Dole Test, Douglas M. Spencer

Publications

A constitutional clash is brewing. Cities and counties are flexing their muscles to frustrate national immigration policy while the federal Executive is threatening to interfere with local law enforcement decision making and funding. Although the federal government generally has plenary authority over immigration law, the Constitution forbids the commandeering of state and local officials to enforce federal law against their will. One exception to this anti-commandeering principle is the Spending Clause of Article I that permits Congress to condition the receipt of federal funds on compliance with federal law. These conditions, according to more than 30 years of Supreme Court …

Free Speech And Democracy: A Primer For Twenty-First Century Reformers, Toni M. Massaro, Helen Norton

Publications

Left unfettered, the twenty-first-century speech environment threatens to undermine critical pieces of the democratic project. Speech operates today in ways unimaginable not only to the First Amendment’s eighteenth-century writers but also to its twentieth-century champions. Key among these changes is that speech is cheaper and more abundant than ever before, and can be exploited — by both government and powerful private actors alike — as a tool for controlling others’ speech and frustrating meaningful public discourse and democratic outcomes.

The Court’s longstanding First Amendment doctrine rests on a model of how speech works that is no longer accurate. This invites …

Accidents Of Federalism: Ratemaking And Policy Innovation In Public Utility Law, William Boyd, Ann E. Carlson

Publications

Decarbonizing the electric power sector will be central to any serious effort to fight climate change. Many observers have suggested that the congressional failure to enact a uniform system of electricity regulation could stifle the transition to a low-carbon electricity grid. This Article contends that the critique is overstated. In fact, innovation is occurring across different aspects of the electricity system and across different types of states in ways one would not expect to see under a single, national approach. As the Article demonstrates, this innovation stems in part from Congress’s failure to enact a single, national approach to electricity …

The Forgotten Core Of The Telecommunications Act Of 1996, Philip J. Weiser

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No abstract provided.

Immigration And Cooperative Federalism: Toward A Doctrinal Framework, Ming H. Chen

Publications

What can the new federalism teach us about what is happening in immigration law? The changing relationship of federal-state government in the regulation of immigrants has led to the creation of “immigration federalism” as a field of scholarship. Most of this scholarly attention has been directed at resisting restrictionist legislation that encourages vigorous law enforcement against undocumented immigrants. The scholarly tilt is especially pronounced since the Supreme Court recently struck down several provisions of S.B. 1070, Arizona’s restrictive law enforcement legislation. However, law enforcement is only one type of regulation, and the overwhelming focus on it skews the broader debate …

Paging Dr. Derrida: A Deconstructionist Approach To Understanding The Affordable Care Act Litigation, Laura A. Cisneros

Publications

Sovereignty federalism and cooperative federalism represent the two dominant federalism narratives among Supreme Court justices and scholars. The Court consistently invokes formal protections to safeguard the states' right to preside over their own empires.' Sovereignty scholars tend to embrace this dualistic vision of federalism that locates federalism's success in the state's ability to exercise supreme policymaking authority within its own sphere of influence without federal interference. By contrast, academics that lean toward cooperative federalism locate the states' power in their position as federal servants, not separate sovereigns. Scholars have commented that even though these academics tend to resist the rigid …

Same-Sex Marriage, Federalism, And Judicial Supremacy, Robert F. Nagel

Publications

Justice Kennedy's opinion in United States v. Windsor is characterized by a number of strained and wavering constitutional claims. Prominent among these is the argument that the principle of federalism calls into question the congressional decision to adopt the traditional definition of marriage, which the state of New York rejected. An examination of earlier federalism cases demonstrates that Kennedy's appreciation for federalism is in fact severely limited and suggests and that his lax use of legal authority is directly if perversely related to this limited appreciation.

Federalism cases prior to Windsor show that Justice Kennedy supports state authority only when …

Urbanization, Water Quality, And The Regulated Landscape, Dave Owen

Publications

Watershed scientists frequently describe urbanization as a primary cause of water quality degradation, and recent studies conclude that even in lightly-developed watersheds, urbanization often precludes attainment of water quality standards. This article considers legal responses to this pervasive problem. It explains why traditional legal measures have been ineffective, and it evaluates several recent innovations piloted in the northeastern United States and potentially applicable across the nation. Specifically, the innovations involve using impervious cover TMDLs, residual designation authority, and collective permitting. More generally, the innovations involve transferring regulatory focus from end-of-the-pipe to landscape-based controls. I conclude that the innovations, while raising …

Who Killed The Hybrid Car? State And Local Green Incentive Programs After Metropolitan Taxicab V. City Of New York, Jonathan Skinner

Publications

Unnecessarily broad preemption ruling under the Energy Policy and Conservation Act discourages other states and municipalities from pursuing innovative, environmentally beneficial policies.

The Intriguing Federalist Future Of Reproductive Rights, Scott A. Moss, Douglas M. Raines

Publications

As the decline of Roe v. Wade inspires renewed efforts to restrict federal constitutional abortion rights, the serious shortcomings of abortion rights advocates' strategies for preserving such rights will become increasingly apparent. Continued reliance on Roe is likely to fail with an increasingly unsympathetic Supreme Court. Even abortion rights supporters have begun to criticize the decision for weak reasoning, which is difficult to remedy at this late stage of federal abortion jurisprudence. Moreover, although autonomy and gender equality arguments for abortion rights would improve upon Roe's privacy rationale, such arguments would require abrogating substantial precedent and are, therefore, of limited …

A Digital Age Communications Act Paradigm For Federal-State Relations, Kyle D. Dixon, Philip J. Weiser

Publications

This article captures the effort of the Digital Age Communications Act (DACA) to craft a new framework for the federal-state relationship in implementing a next generation telecommunications regulatory regime. In particular, it sets forth a DACA model that would implement a "rule of law" regulatory paradigm for an era of technological dynamism. This era requires, as the article explains, a coherent federal framework that circumscribes the role of state and local authorities so as to advance sound competition policy goals. The sole exception to this policy is the recognition that a basic local service rate retains both political and practical …

The Supreme Court, Rule 10b-5, And The Federalization Of Corporate Law, Mark J. Loewenstein

Publications

This Article examines Supreme Court jurisprudence since 1997 under the federal securities laws in light of the Court's earlier securities law decisions and in light of its recent decisions construing the Constitution and federal statutes as they relate to the regulation of business. These post-1977 cases strongly suggest that the much-heralded new federalism philosophy of the Supreme Court is not a factor in securities law cases or in business cases generally. Indeed, the opposite seems to be the case. In this context, new federalism cases appear to be an anomaly, with the reality being that the Court is still as …

Nationalized Political Discourse, Robert F. Nagel

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No abstract provided.

Conflating Scope Of Right With Standard Of Review: The Supreme Court's Strict Scrutiny Of Congressional Efforts To Enforce The Fourteenth Amendment, Melissa Hart

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No abstract provided.

Judges And Federalism: A Comment On "Justice Kennedy's Vision Of Federalism", Robert F. Nagel

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No abstract provided.

Delaware As Demon: Twenty-Five Years After Professor Cary's Polemic, Mark J. Loewenstein

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No abstract provided.

Nineteenth-Century Orthodoxy, Richard B. Collins

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No abstract provided.

The Future Of Federalism, Robert F. Nagel

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No abstract provided.

The Term Limits Dissent: What Nerve, Robert F. Nagel

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No abstract provided.

Initiative Enigmas, Richard Collins

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No abstract provided.

Book Review, Richard B. Collins

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No abstract provided.

Federalism As A Fundamental Value: National League Of Cities In Perspective, Robert F. Nagel

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No abstract provided.

Separation Of Powers And The Scope Of Federal Equitable Remedies, Robert F. Nagel

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No abstract provided.