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Full-Text Articles in Law
Interest-Based Incorporation: Statutory Realism Exploring Federalism, Delegation, And Democratic Design, Sheldon Evans
Interest-Based Incorporation: Statutory Realism Exploring Federalism, Delegation, And Democratic Design, Sheldon Evans
Faculty Publications
Statutory interpretation is a unique legal field that appreciates fiction as much as fact. For years, judges and scholars have acknowledged that canons of interpretation are often based on erudite assumptions of how Congress drafts federal statutes. But a recent surge in legal realism has shown just how erroneous many of these assumptions are. Scholars have created a robust study of congressional practices that challenge many formalist canons of interpretation that are divorced from how Congress thinks about, drafts, and enacts federal statutes. This conversation, however, has yet to confront statutory incorporation, which describes when Congress incorporates state law into …
Federalism, Free Competition, And Sherman Act Preemption Of State Restraints, Alan J. Meese
Federalism, Free Competition, And Sherman Act Preemption Of State Restraints, Alan J. Meese
Faculty Publications
The Sherman Act establishes free competition as the rule governing interstate trade. Banning private restraints cannot ensure that competitive markets allocate the nation's resources. State laws can pose identical threats to free markets, posing an obstacle to achieving Congress's goal to protect free competition.
The Sherman Act would thus override anticompetitive state laws under ordinary preemption standards. Nonetheless, the Supreme Court rejected such preemption in Parker v. Brown, creating the "state action doctrine." Parker and its progeny hold that state-imposed restraints are immune from Sherman Act preemption, even if they impose significant harm on out-of-state consumers. Parker's progeny …
Vertical Power, Michael S. Green
Vertical Power, Michael S. Green
Faculty Publications
Many legal scholars and federal judges - including Justices Ginsburg and Scalia - have implicitly assumed that a state can extend its procedural law solely to federal courts within its borders. To date, however, no one has identified this assumption, much less defended it. Drawing upon an example discussed by Chief Justice Marshall in Wayman v. Southard, 23 U.S. (10 Wheat.) 1 (1825), I argue that such vertical power does not exist. Not only do states lack a legitimate interest in extending their law vertically, a state's assertion of vertical power would improperly discriminate against federal courts. If state …
Same-Sex Marriage And The New Judicial Federalism: Why State Courts Should Not Consider Out-Of-State Backlash, Neal Devins
Same-Sex Marriage And The New Judicial Federalism: Why State Courts Should Not Consider Out-Of-State Backlash, Neal Devins
Faculty Publications
No abstract provided.
Katrina And The Rhetoric Of Federalism, Christina E. Wells
Katrina And The Rhetoric Of Federalism, Christina E. Wells
Faculty Publications
The public's desire to assign blame for government's inadequate response to Hurricane Katrina has largely focused on the federal government's slow and seemingly inept response to the storm. In their own defense, federal officials cast federalism--the system that divides power among federal, state, and local governments--as the main culprit underlying their inadequate response to hurricane victims. Had power and authority not been split among three different units of government, the argument goes, the federal government might have been able to act more quickly to save lives and prevent suffering. In effect, federal authorities claim to have been hamstrung by a …
Dialectical Federalism: A Tribute To The West Virginia Supreme Court Of Appeals, Gene R. Nichol
Dialectical Federalism: A Tribute To The West Virginia Supreme Court Of Appeals, Gene R. Nichol
Faculty Publications
No abstract provided.
South Carolina: Her Present Attitude And Future Action, N. Beverley Tucker
South Carolina: Her Present Attitude And Future Action, N. Beverley Tucker
Faculty Publications
No abstract provided.
Political Science: A Discourse On The Questions, "What Is The Seat Of Sovereignty In The United States, And What The Relation Of The People Of Those States To The Federal And State Governments Respectively", N. Beverley Tucker
Faculty Publications
No abstract provided.
A Discourse On The Genius Of The Federative System Of The United States, N. Beverley Tucker
A Discourse On The Genius Of The Federative System Of The United States, N. Beverley Tucker
Faculty Publications
No abstract provided.