Law Commons^™

Is The Supreme Court Disabling The Enabling Act, Or Is Shady Grove Just Another Bad Opera?, Robert J. Condlin

Faculty Scholarship

After seventy years of trying, the Supreme Court has yet to agree on whether the Rules Enabling Act articulates a one or two part standard for determining the validity of a Federal Rule. Is it enough that a Federal Rule regulates “practice and procedure,” or must it also not “abridge substantive rights”? The Enabling Act seems to require both, but the Court is not so sure, and the costs of its uncertainty are real. Among other things, litigants must guess whether the decision to apply a Federal Rule in a given case will depend upon predictable ritual, judicial power grab, …

Body Of Preemption: Health Law Traditions And The Presumption Against Preemption, Elizabeth Mccuskey

Faculty Scholarship

Preemption plays a prominent role in health law, establishing the contours of coexistence for federal and state regulatory authorities over health topics as varied as medical malpractice, insurance coverage, drug safety, and privacy. When courts adjudicate crucial preemption questions, they must divine Congress's intent by applying substantive canons of statutory interpretation, including presumptions against preemption.

This Article makes three main contributions to health law and preemption doctrine. First, it identifies a variant of the presumption against preemption that applies to health laws-referred to throughout as the "tradition presumption." Unlike the general presumption against preemption on federalism grounds, courts base this …

Closing The Retirement Savings Gap: Are State Automatic Enrollment Iras The Answer?, Kathryn L. Moore

Law Faculty Scholarly Articles

Drawing on insights from behavioral law and economics, automatic enrollment IRAs are intended to address the nation’s retirement savings gap by taking advantage of workers’ inertia. Although automatic enrollment IRAs were initially intended to apply at the federal level, they have gained little traction at the federal level, and states have begun to step into the breach. Between September 2012 and June 2016, five states enacted state automatic enrollment IRA programs.

Studies have uniformly shown that workers are more likely to participate in an automatic enrollment 401(k) plan than in a traditional opt-in 401(k) plan. Proponents of state automatic enrollment …

Intrastate Federalism, Rick Su

Journal Articles

In debates about the role of federalism in America, much turns on the differences between states. But what about divisions within states? The site of political conflict in America is shifting: battles once marked by interstate conflict at the national level are increasingly reflected in intrastate clashes at the local. This shift has not undermined the role of federalism in American politics, as many predicted. Rather, federalism's role has evolved to encompass the growing divide within states and between localities. In other words, federalism disputes — formally structured as between the federal government and the states — are increasingly being …

Good Ole Rocky Top: Rocky Top Tennessee, Brian Krumm

Scholarly Works

No abstract provided.

Uncontrolled Experiments From The Laboratories Of Democracy: Traditional Cash Welfare, Federalism, And Welfare Reform, Jonah B. Gelbach

All Faculty Scholarship

In this chapter I discuss the history and basic incentive effects of two key U.S. cash assistance programs aimed at families with children. Starting roughly in the 1980s, critics of the Aid to Families with Dependent Children (AFDC) program argued that the program -- designed largely to cut relatively small checks -- failed to end poverty or promote work. After years of federally provided waivers that allowed states to experiment with changes to their AFDC programs, the critics in 1996 won the outright elimination of AFDC. It was replaced by the Temporary Assistance to Needy Families (TANF) program, over which …

When Can A State Sue The United States?, Tara Leigh Grove

Faculty Publications

State suits against the federal government are on the rise. From Massachusetts’ challenge to federal environmental policy, to Oregon’s confrontation over physician-assisted suicide, to Texas’s suit over the Obama administration’s immigration program, States increasingly go to court to express their disagreement with federal policy. This Article offers a new theory of state standing that seeks to explain when a State may sue the United States. I argue that States have broad standing to sue the federal government to protect state law. Accordingly, a State may challenge federal statutes or regulations that preempt, or otherwise undermine the continued enforceability of, state …

Flint Drinking Water Contamination: Frames Of Reference, Clifford J. Villa

Faculty Scholarship

Presentation given at Harvard Law School on Flint, Michigan, lead toxicity and what we can do as a matter of law.

Distinctive Identity Claims In Federal Systems: Judicial Policing Of Subnational Variance, Antoni Abat I Ninet, James A. Gardner

Journal Articles

It is characteristic of federal states that the scope of subnational power and autonomy are subjects of frequent dispute, and that disagreements over the reach of national and subnational power may be contested in a wide and diverse array of settings. Subnational units determined to challenge nationally-imposed limits on their power typically have at their disposal many tools with which to press against formal boundaries. Federal systems, moreover, frequently display a surprising degree of tolerance for subnational obstruction, disobedience, and other behaviors intended to expand subnational authority and influence, even over national objection. This tolerance, however, has limits. In this …

Patent Exhaustion And Federalism: A Historical Note, Herbert J. Hovenkamp

All Faculty Scholarship

This essay, written as a response to John F. Duffy and Richard Hynes, Statutory Domain and the Commercial Law of Intellectual Property, 102 VA. L. REV. 1 (2016), argues that the patent exhaustion (first sale) doctrine developed as a creature of federalism, intended to divide the line between the law of patents, which by that time had become exclusively federal, and the law of patented things, which were governed by the states. Late nineteenth and early twentieth century courts were explicit on the point, in decisions stretching from the 1850s well into the twentieth century.

By the second half of …

A Two-Step Plan For Puerto Rico, Clayton P. Gillette, David A. Skeel Jr.

All Faculty Scholarship

Few still believe that Puerto Rico is capable of meeting all of its financial obligations and continuing to provide basic services. The territory is already in default, and conditions are rapidly deteriorating. Is there a way forward? We think there is. In this short article, we outline a two-part plan for correcting Puerto Rico’s most urgent fiscal and financial problems.

The first step is to create an independent financial control board that has authority over Puerto Rico’s budgets and related issues. Notwithstanding concerns that an externally imposed financial control board (FCB) may interfere with the decision making processes of democratically …

Evolving Contours Of Immigration Federalism: The Case Of Migrant Children, Elizabeth Keyes

All Faculty Scholarship

In a unique corner of immigration law, a significant reallocation of power over immigration has been occurring with little fanfare. States play a dramatic immigration gatekeeping role in the process for providing protection to immigrant youth, like many of the Central American children who sought entry to the United States in the 2014 border “surge.” This article closely examines the history of this Special Immigrant Juvenile Status provision, enacted in 1990, which authorized a vital state role in providing access to an immigration benefit. The article traces the series of shifts in allocation of power between the federal government and …

Justice Brennan And The Foundations Of Human Rights Federalism, James A. Gardner

Journal Articles

In a well-known and widely cited 1977 law review article, Justice William J. Brennan called on state courts to “step into the breach” and use their authority as independent interpreters of state constitutions to continue on the state level the expansion of individual liberties begun on the national level by the Warren Court. Justice Brennan was right about the importance of independent state constitutional law, but he was wrong about the reason. The benefits of independent state constitutional law have little to do with expanding human rights and everything to do with federalism. The confusion is understandable; both individual rights …

Federalism, Regulatory Architecture, And The Clean Water Rule: Seeking Consensus On The Waters Of The United States, Erin Ryan

Scholarly Publications

This article reviews the troubled history of the “Waters of the United States” Rule of the Clean Water Act, and analyzes how its newest incarnation harnesses a surprising point of convergence between the conflicting Supreme Court interpretations in Rapanos v. United States that necessitated its development. While debate over the federalism implications of the Rule rages on, the framework it creates from the multiple Rapanos opinions suggests that the path forward hinges less on the substantive rule of jurisdiction and more on the regulatory architecture of presumptions, default rules, and burden shifting. Splitting the difference between competing judicial approaches, the …

Secession And Federalism In The United States: Tools For Managing Regional Conflict In A Pluralist Society, Erin Ryan

Scholarly Publications

This Article explores the use of federalism and secession as tools for managing regional conflict within pluralist governance, drawing on underappreciated features of the American experience. Epic struggles to balance autonomy with interdependence have taken on new urgency as dissatisfaction with globalization inspires political cataclysms unimaginable just a few years ago—including ‘Brexit’ from the European Union and American threats to leave NATO. The same impetus toward devolution also surfaces in heated intra-national conflicts. Recent calls for secession in Catalonia, Iraqi Kurdistan, Scotland, Québec, South Sudan, and even the United States reveal multiple political contexts in which questions have been raised …

Marijuana Legalization In Colorado: Lessons For Colombia, Sam Kamin

Sturm College of Law: Faculty Scholarship

In 2012 Colorado became the first jurisdiction anywhere in the world to legalize marijuana possession and use for all adults. The regulated and taxed marijuana industry that arose in Colorado following legalization was also the first of its kind and stands a model for other states considering marijuana law reform. In this brief article I discuss the results of the Colorado experiment; I demonstrate that while Colorado’s regulatory model was largely successful, it also demonstrates the limits of generating revenue through taxing and regulating marijuana. I then discuss the implications of this conclusion for post-conflict Colombia, drawing a comparison to …

Independence And Immigration, Amanda Frost

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Federalism Anew, Sara Mayeux, Karen Tani

Vanderbilt Law School Faculty Publications

One of the most remarked-upon events of the recent past is the August 2014 death of a black teenager, Michael Brown, at the hands of a white police officer, Darren Wilson, in Ferguson, Missouri. Attention initially focused on individual actions and local circumstances, but quickly expanded to a broader set of injustices. Brown died just days before he was scheduled to start college, a significant accomplishment in his local context. His school district's graduation rate was less than 62 percent, compared to 96 percent in a wealthier district down the road, belying Missouri's constitutional commitments to public education and equal …

The New Elections Clause, Michael T. Morley

Faculty Scholarship

No abstract provided.

Ferc V. Epsa, Jim Rossi, Jon Wellinghoff

Vanderbilt Law School Faculty Publications

This Essay explores the implications of the U.S. Supreme Court's decision in FERC .v. EPSA for state regulation of customer energy resource initiatives, such as net metering policies for rooftop solar and energy storage programs. Unlike many past judicial decision that fixate on a jurisdictional "bright line," EPSA does not define a turf for state policymaking as beyond FERC's reach but instead recognizes how state policies operate adjacent to FERC's regulation of practices affecting wholesale rates. As the first Supreme Court case to explicitly recognize cooperative federalism programs in the regulation of modern energy markets under the FPA, ESPA is …

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 …

Health Care And The Myth Of Self-Reliance, Nicole Huberfeld, Jessica L. Roberts

Law Faculty Scholarly Articles

King v. Burwell asked the Supreme Court to decide if, in providing assistance to purchase insurance “through an Exchange established by the State,” Congress meant to subsidize policies bought on the federally run exchange. With its ruling, the Court saved the Patient Protection and Affordable Care Act’s low-income subsidy. But King is only part of a longer, more complex story about health care access for the poor. In a move toward universal coverage, two pillars of the ACA facilitate health insurance coverage for low-income Americans, one private and one public: (1) the subsidy and (2) Medicaid expansion. Although both have …

State Judges And The Right To Vote, Joshua A. Douglas

Law Faculty Scholarly Articles

State courts are paramount in defining the constitutional right to vote. This primacy of state courts exists in part because the right to vote is a state-based right protected under state constitutions. In addition, election administration is largely state-driven, with states regulating most of the rules for casting and counting ballots. State law thus guarantees—and state courts interpret—the voting rights that we cherish so much as a society. State courts that issue rulings broadly defining the constitutional right to vote best protect the most fundamental right in our democracy; state decisions that constrain voting to a narrower scope do harm …

Rluipa And The Limits Of Religious Institutionalism, Zachary A. Bray

Law Faculty Scholarly Articles

What special protections, if any, should religious organizations receive from local land use controls? The Religious Land Use and Institutionalized Persons Act (“RLUIPA”)—a deeply flawed statute—has been a magnet for controversy since its passage in 2000. Yet until recently, RLUIPA has played little role in debates about “religious institutionalism,” a set of ideas that suggest religious institutions play a distinctive role in developing the framework for religious liberty and that they deserve comparably distinctive deference and protection. This is starting to change: RLUIPA’s magnetic affinity for controversy has begun to connect conflicts over religious land use with larger debates about …

A Closer Look At The Iras In State Automatic Enrollment Ira Programs, Kathryn L. Moore

Law Faculty Scholarly Articles

The United States faces a serious retirement savings funding gap. In an effort to fill that gap, a number of states and municipalities have begun to consider, and in some instances adopt, automatic enrollment IRA programs. Indeed, between September 2012 and June 2016, five states enacted state automatic enrollment IRA programs.

This Article takes a closer look at the IRAs in these state programs. It begins by providing an overview of the state laws creating automatic enrollment IRA programs. It then discusses the requirements that the state programs must satisfy in order to qualify as IRAs for purposes of the …

Good Ole Rocky Top: Rocky Top Tennessee, Brian Krumm, Liz Natal

College of Law Faculty Scholarship

No abstract provided.

The Sad, Quiet Death Of Missouri V. Holland: How Bond Hobbled The Treaty Power, Robert D. Sloane, Michael Glennon

Faculty Scholarship

Many anticipated that Bond v. United States (2014) would confirm or overrule Justice Holmes’s canonical decision in Missouri v. Holland (1920). Bond is now considered to have done neither; rather, it purportedly elided the constitutional issue by applying the canon of constitutional avoidance to the treaty’s implementing legislation, thus resolving Bond on statutory grounds alone and leaving Holland’s validity for another day. We argue to the contrary that Bond eviscerated Holland. Chief Justice Roberts proceeded from the premise that “the statute — unlike the [treaty] — must be read consistent with principles of federalism inherent in our constitutional structure.” This …

Governance Reform And The Judicial Role In Municipal Bankruptcy, Clayton P. Gillette, David A. Skeel Jr.

All Faculty Scholarship

Recent proceedings involving large municipalities such as Detroit, Stockton, and Vallejo illustrate both the utility and the limitations of using the Bankruptcy Code to adjust municipal debt. In this article, we contend that, to truly resolve the distress of a substantial city, municipal bankruptcy needs to do more than simply provide immediate debt relief. Debt adjustment alone does nothing to remedy the fragmented decision-making and incentives for expanding municipal budgets that underlie municipal distress. Unless bankruptcy also addresses governance dysfunction, the city may slide right back into financial crisis. Governance restructuring has long been an essential element of corporate bankruptcy. …

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

Publications

No abstract provided.

The Local Turn; Innovation And Diffusion In Civil Rights Law, Olatunde C.A. Johnson

Faculty Scholarship

Is the future of civil rights subnational? If one is looking for civil rights innovation, much of this innovation might be happening through legislation, regulatory frameworks, and policies adopted by state and local governments. In recent years, states and cities have adopted legislation banning discrimination in housing based on the source of an individual's income, regulating the consideration of arrest or conviction in employment decisions, and prohibiting discrimination in employment based on an applicant's credit history.

This deployment of subnational power is not new to civil rights. Many of the laws and regulatory frameworks that are now core to the …