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Sanctuaries As Equitable Delegation In An Era Of Mass Immigration Enforcement, Jason A. Cade Jan 2018

Sanctuaries As Equitable Delegation In An Era Of Mass Immigration Enforcement, Jason A. Cade

Scholarly Works

Opponents of—and sometimes advocates for—sanctuary policies describe them as obstructions to the operation of federal immigration law. This premise is flawed. On the better view, the sanctuary movement comports with, rather than fights against, dominant new themes in federal immigration law. A key theme—emerging both in judicial doctrine and on-the-ground practice—focuses on maintaining legitimacy by fostering adherence to equitable norms in enforcement decision-making processes. Against this backdrop, the sanctuary efforts of cities, churches, and campuses are best seen as measures necessary to inject normative (and sometimes legal) accuracy into real-world immigration enforcement decision-making. Sanctuaries can erect ...


Brandeis’S I.P. Federalism: Thoughts On Erie At Eighty, Joseph S. Miller Jan 2018

Brandeis’S I.P. Federalism: Thoughts On Erie At Eighty, Joseph S. Miller

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Justice Brandeis is, in intellectual property law’s precincts, most famous for his lone dissent in International News Service v. Associate Press, the misappropriation case one can find in virtually every i.p. survey casebook (and many property law casebooks as well). But in the wider legal world, Brandeis is likely most famous for his earthquake opinion in Erie Railroad Co. v. Tompkins. Do Brandeis’s opinions in these two cases speak to each other? Can considering them together inform broader reflections on the texture of our federalism in the i.p. context? This piece, prepared in connection with an ...


Judicial Federalism In The European Union, Michael Wells Jan 2017

Judicial Federalism In The European Union, Michael Wells

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This article compares European Union judicial federalism with the American version. Its thesis is that the European Union’s long-term goal of political integration probably cannot be achieved without strengthening its rudimentary judicial institutions. On the one hand, the EU is a federal system in which judicial power is divided between EU courts, of which there are only three, and the well-entrenched and longstanding member state court systems. On the other hand, both the preamble and Article 1 of the Treaty of Europe state that an aim of the European Union is “creating an ever closer union among the peoples ...


Crafting A Narrative For The Red State Option, Elizabeth Weeks Leonard Jan 2014

Crafting A Narrative For The Red State Option, Elizabeth Weeks Leonard

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This Article examines the current state of play following the Supreme Court's decision in NFIB v. Sebelius to allow states the option of expanding their Medicaid programs in accordance with the Patient Protection and Affordable Care Act (ACA). Holding that mandatory expansion was unconstitutionally coercive, the Court created the Red State Option. Despite the enormously generous federal financial support for Medicaid expansion, close to half of the states have declined. At the same time, at least eight Republican-led states have crossed Tea Party lines to accept federal funding for expansion. Drawing lessons from these states, including Arkansas, Arizona, Michigan ...


Convention On The Rights Of Persons With Disabilities - Testimony Of Timothy L. Meyer Before The U.S. Senate Committee On Foreign Relations, Timothy L. Meyer Nov 2013

Convention On The Rights Of Persons With Disabilities - Testimony Of Timothy L. Meyer Before The U.S. Senate Committee On Foreign Relations, Timothy L. Meyer

Presentations and Speeches

Testimony of Timothy L. Meyers before the U.S. Senate Foreign Relations Committee on November 5, 2013 concerning the Convention on the Rights of Persons with Disabilities.


A Response To Beyond Separation: Professor Copeland’S Ambitious Proposal For “Integrative” Federalism, Elizabeth Weeks Jan 2013

A Response To Beyond Separation: Professor Copeland’S Ambitious Proposal For “Integrative” Federalism, Elizabeth Weeks

Scholarly Works

No abstract provided.


The Rhetoric Hits The Road: State Resistance To Affordable Care Act Implementation, Elizabeth Weeks Leonard Jan 2012

The Rhetoric Hits The Road: State Resistance To Affordable Care Act Implementation, Elizabeth Weeks Leonard

Scholarly Works

This paper provides an update and reanalysis of my previously published article, Rhetorical Federalism: The Value of State-Based Dissent to Federal Health Reform, 93 Hofstra Law Review 111 (2010). In Rhetorical Federalism, I made an affirmative case for the widespread trend of state resistance to the then-recently enacted Patient Protection and Affordable Care Act of 2010 (ACA). Before and immediately after ACA’s enactment, a significant number of states engaged in various forms of objection to the new federal Act, including but not limited to lawsuits challenging the constitutionality of the individual insurance mandate. My article focused on five targets ...


Affordable Care Act Litigation: The Standing Paradox, Elizabeth Weeks Leonard Jan 2012

Affordable Care Act Litigation: The Standing Paradox, Elizabeth Weeks Leonard

Scholarly Works

The Patient Protection and Affordable Care Act (ACA) litigation presents a standing paradox. In the current posture, it appears that states lack standing to challenge the federal law on behalf of individuals, while individuals possess standing to challenge the federal law on behalf of states. This Article contends that there is no principled reason for this asymmetry and argues that standing doctrine should apply as liberally to states as individuals, assuming states allege the constitutional minimum requirements for standing and especially where the legal challenge turns on allocation of power between the federal government and states. The Article proceeds by ...


Rhetorical Federalism: The Value Of State-Based Dissent To Federal Health Reform, Elizabeth Weeks Leonard Oct 2010

Rhetorical Federalism: The Value Of State-Based Dissent To Federal Health Reform, Elizabeth Weeks Leonard

Scholarly Works

This Article makes the affirmative case for the widespread trend of state resistance to the recently enacted, comprehensive federal health reform law, the Patient Protection and Affordable Care Act of 2010, or ACA. A significant number of states have engaged in various forms of objection to the new federal laws, including filing lawsuits against the federal government, enacting laws providing that ACA will not apply to residents of the state, and refusing to cooperate with implementing the new laws. This Article identifies reasons why those actions should not be disregarded simply as Tea Party antics or election-year gamesmanship but instead ...


Federalism And Accountability: State Attorneys General, Regulatory Litigation, And The New Federalism, Timothy L. Meyer Jun 2007

Federalism And Accountability: State Attorneys General, Regulatory Litigation, And The New Federalism, Timothy L. Meyer

Scholarly Works

This Comment will examine how one particular state institution, state attorneys general (SAGs), has operated within a unique set of institutional and political constraints to create state-based regulation with nationwide impact in policy areas including consumer protection, antitrust, environmental regulation, and securities regulation. This state-based regulation casts doubt on one of the principle rationales advanced in the Supreme Court's anticommandeering line of cases for limiting federal power; namely, that such a move enhances electoral accountability, a concept central to our democracy. If in the absence of federal regulation a series of narrowly accountable state-based actors can create nationwide regulation ...


Cooperative Federalism And Healthcare Reform: The Medicare Part D 'Clawback' Example, Elizabeth Weeks Leonard Jan 2007

Cooperative Federalism And Healthcare Reform: The Medicare Part D 'Clawback' Example, Elizabeth Weeks Leonard

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This symposium article recounts recent litigation by several states over a provision of the Medicare Modernization Act Part D prescription drug benefit: The clawback, which requires states to pay the a potentially substantial portion of new federal program. I then examine the unique federalism implications of the clawback for ongoing state and federal health reform initiatives.

In spring 2006, several states petitioned the United States Supreme Court for original jurisdiction to hear a challenge to one provision of the new Medicare Part D prescription drug law. The federal government, while taking over prescription drug coverage for dually eligible beneficiaries, required ...


Apprendi And Federalism, Peter B. Rutledge Jan 2004

Apprendi And Federalism, Peter B. Rutledge

Scholarly Works

Since the emergence of the Apprendi majority and its newly minted (and evolving) constitutional limits on criminal punishment, many commentators have begun to address its implications for the horizontal relations between the branches of government — between legislators and courts, between judges and juries, and between judges and prosecutors. Less widely addressed, though equally (if not more) important, has been the Apprendi doctrine’s implications for vertical relations, particularly federalism.

This essay seeks to begin to fill that lacuna in the literature. Part I explains how Apprendi undermines principles of federalism, a curious tension because several of Apprendi’s strongest defenders ...


The Heart Of Federalism: Pretext Review Of Means-End Relationships, J. Randy Beck Jan 2003

The Heart Of Federalism: Pretext Review Of Means-End Relationships, J. Randy Beck

Scholarly Works

Section I of this article seeks to correct a common scholarly misconception regarding the sort of pretext review envisioned by McCulloch v. Maryland. All students of McCulloch understand the decision to call for judicial review of the means-end relationship underlying a federal statute. But McCulloch also indicated that the Court would strike down legislation "should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not entrusted to the government." Various constitutional scholars construe this pretext passage to contemplate a second inquiry--separate from the Court's scrutiny of means-end relationships--into whether the legislative motive behind ...


Federalism In Environmental Protection, Peter A. Appel Jan 2002

Federalism In Environmental Protection, Peter A. Appel

Scholarly Works

In the last seven years, the Supreme Court has decided several cases that potentially alter the balance between the states and the federal government. Although these decisions have generated much controversy, in some ways they only address some important federalism questions at the periphery. Professor Appel examines four areas of environmental law that the recent decisions either only inform or do not address at all: cleanup of hazardous waste sites; the effect of state enforcement actions on citizen enforcement brought under federal environmental laws; the effect of state enforcement actions on federal enforcement actions; and the management of federal lands ...


Commerce Clause Restraints On State Tax Incentives, Walter Hellerstein Dec 1997

Commerce Clause Restraints On State Tax Incentives, Walter Hellerstein

Scholarly Works

The states' provision of tax incentives designed to encourage economic development within their borders has long been a feature of the American legislative landscape. Today every state provides tax incentives as an inducement to local industrial location and expansion. Indeed, scarcely a day goes by without some state offering yet another tax incentive to spur economic development, often in an effort to attract a particular enterprise to the state.

The debate over the efficacy and wisdom of state tax and other business incentives is intense and important, as other articles in this Symposium plainly reveal. My purpose here, however, is ...


International Jurisdiction In Products Liability Cases (Analysis Of Asahi And Post-Asahi Cases), Tsutomu Kuribayashi Jan 1997

International Jurisdiction In Products Liability Cases (Analysis Of Asahi And Post-Asahi Cases), Tsutomu Kuribayashi

LLM Theses and Essays

With the increase of foreign trade, there has also been an increase in the number of foreign manufacturers and distributors involved in product liability litigation in the United States. In many cases, the products from these foreign manufacturers and distributors reach the forum states through the stream of commerce, and are distributed to the customers by regional distributors, wholesalers, and retailers. Therefore, in many product liability cases where defective products from these foreign manufacturers and distributors cause injuries to people in the United States, those foreign companies do not have a direct relationship with the forum states. In these cases ...


Testing Two Assumptions About Federalism And Tort Reform, Thomas A. Eaton, Susette M. Talarico Jan 1996

Testing Two Assumptions About Federalism And Tort Reform, Thomas A. Eaton, Susette M. Talarico

Scholarly Works

In, 1996 both the United States House of Representatives and Senate passed legislation that, if enacted, would preempt state tort laws in significant ways. Why would a Congress otherwise apparently committed to vesting states with greater policymaking autonomy call for federal control of tort law?

Tort policymaking has traditionally been done at the state level. One assumption underlying this distribution of power is that states are better able than the national government to fashion tort rules appropriate for local conditions and circumstances. In other words, states are thought to have a special competence in crafting tort rules responsive to local ...


Untangling The Market-Participant Exemption To The Dormant Commerce Clause, Dan T. Coenen Dec 1989

Untangling The Market-Participant Exemption To The Dormant Commerce Clause, Dan T. Coenen

Scholarly Works

This article focuses on an important vehicle through which the modern Court has moved to protect local prerogatives: the market-participant exemption to the dormant commerce clause. The core of the Court's dormant commerce clause jurisprudence is well-settled: "The commerce clause, by its own force, prohibits discrimination against interstate commerce, whatever its form or method...” Over the past two decades, however, the Court has lifted this prohibition when states act as "market participants" rather than as "market regulators." Invoking this distinction, the Court has shielded from commerce clause attack blatant favoritism of local interests when a state or municipality buys ...


Preliminary Injunctions And Abstention: Some Problems In Federalism, Michael L. Wells Nov 1977

Preliminary Injunctions And Abstention: Some Problems In Federalism, Michael L. Wells

Scholarly Works

Suppose a federal district court faces a challenge to state action that presents an unsettled issue of state law, a federal constitutional issue, and a plaintiff who will be irreparably harmed if the state is not immediately enjoined. May the court abstain from a decision on the merits, remand the case to the state courts for resolution of the state law issue, and yet grant a preliminary injunction against the challenged state action? Does it follow from the paucity of reported opinions coupling such interim relief with abstention that such a procedure is inconsistent with the policies underlying the abstention ...


State Taxation And The Supreme Court: Toward A More Unified Approach To Constitutional Adjudication?, Walter Hellerstein Jun 1977

State Taxation And The Supreme Court: Toward A More Unified Approach To Constitutional Adjudication?, Walter Hellerstein

Scholarly Works

The Supreme Court's decisions delineating the constitutional limitations on state tax power have often defied rational analysis. The Court read the commerce clause as forbidding a state tax on the privilege of doing interstate business but not on the privilege of doing interstate business in corporate form. It construed the import-export clause as prohibiting a state tax on bales of imported hemp awaiting use in manufacturing but not on piles of imported ore and plywood awaiting such use. It interpreted the supremacy clause as barring a state tax upon the sale of goods to one government contractor but not ...


A Commerce Power Seesaw: Balancing National League Of Cities, J. Ralph Beaird, C. Ronald Ellington Sep 1976

A Commerce Power Seesaw: Balancing National League Of Cities, J. Ralph Beaird, C. Ronald Ellington

Scholarly Works

This Article seeks to explore the developing principles of state sovereignty limitations on Congress’ exercise of its granted powers and the potential conflicts in reconciling the enforcement of strong federal policy interests with the allowance to the states of primary control over certain governmental functions. Since both tenth and eleventh amendment questions were raised by the application of the Fair Labor Standards Act’s ever broadening coverage to state employees and its grant of federal court jurisdiction over enforcement suits, and since the Act precipitated the League of Cities decision, the Court’s treatment of the Act will serve as ...