Law Commons^™

Jurisdictional Mismatch In Environmental Federalism, Jonathan H. Adler

Faculty Publications

Jurisdictional mismatch plagues contemporary environmental law and policy. The division of authority and responsibility for environmental protection between the federal and state governments lacks any cohesive rationale or justification. The federal government regulates in many areas where there is no clear analytical basis for federal involvement. At the same time, the federal government is relatively absent where a stronger federal presence could be justified. Conversely, states are precluded, discouraged or otherwise inhibited from adopting environmental protections where state efforts would be worthwhile. At the same time, state intervention seeps into areas where a dominant federal role would be more defensible. …

Looking Ahead To The 2005-06 Term (2005), Jonathan H. Adler

Faculty Publications

This essay surveys the upcoming 2005-06 term of the Supreme Court, a term that may be as notable for what it says about the future direction of the Supreme Court as it is for specific decisions in any particular cases. This does not mean the term lacks important cases. To the contrary, this coming year the Court will consider the constitutionality of the Solomon Amendment, address the application of the Religious Freedom Restoration Act to religious use of drugs, and determine whether the federal government can effectively preempt Oregon's decision to legalize doctor-assisted suicide. It will revisit contemporary federalism and …

The Judicial Safeguards Of Federalism, Neal Devins

Faculty Publications

No abstract provided.

The Majoritarian Rehnquist Court?, Neal Devins

Faculty Publications

No abstract provided.

Rethinking The Role Of The Dormant Commerce Clause In State Tax Jurisdiction, Bradley W. Joondeph

Faculty Publications

Perhaps the biggest controversy in state and local taxation today concerns the constitutional authority of the states to impose taxes on goods purchased over the Internet. Some argue that the current, bright-line rule of "physical presence" is the appropriate standard for determining a state's jurisdiction under the dormant Commerce Clause. Others contend that jurisdiction should instead be resolved on the more pragmatic basis of a firm's "economic presence" in the taxing state. Regardless, commentators seem to agree that the dormant Commerce Clause imposes jurisdictional limits on state taxation; the dispute concerns the content of those standards. This article contends that …

Reconciling What The First Amendment Forbids With What The Copyright Clause Permits: A Summary Explanation And Review, William W. Van Alstyne

Faculty Publications

No abstract provided.

Ethnic Federalism: Its Promise And Pitfalls For Africa, Alemante G. Selassie

Faculty Publications

No abstract provided.

Vectoral Federalism, Scott Dodson

Faculty Publications

In this Article, I offer a new framework for understanding federalism. “Vectoral federalism” engages directional metaphors—horizontal and vertical—to group various federalism doctrines together into two principal groups.Horizontal federalism concerns the battle between the federal and the state governments for the power to regulate individuals. Vertical federalism concerns the federal government’s power to regulate states and the states’ concomitant power to resist this regulation. Viewing federalism doctrines as having vertical or horizontal vectors (or both) identifies their common justifications and characteristics, which can assist in understanding and in applying the principles of federalism. The directional synthesis also illuminates and helps to …

The Federalism-Rights Nexus: Explaining Why Senate Democrats Tolerate Rehnquist Court Decision Making But Not The Rehnquist Court, Neal Devins

Faculty Publications

No abstract provided.

On Revolution And Wetland Regulations, Michael J. Gerhardt

Faculty Publications

No abstract provided.

A Matter Of Power: Structural Federalism And Separation Doctrine In The Present, Frances Howell Rudko

Faculty Publications

Public reaction to the 1823 Supreme Court decision in Green v. Biddle prompted John Marshall’s letter to Henry Clay, who had argued the case as amicus curiae for the defendant. The letter is significant because Marshall, who had been a legislator himself, candidly expresses not only his personal dissatisfaction with the congressional assault on the 1823 decision but also the constitutional basis for his opinion. The significance of Marshall’s extrajudicial opinion becomes more apparent when it is considered in the aftermath of the recent tug-of-war between Congress and the Court which culminated in the decision in City of Boerne v. …

Comment, The Green Aspects Of Printz: The Revival Of Federalism And Its Implications For Environmental Law, Jonathan H. Adler

Faculty Publications

This Comment reviews the Printz decision in the context of the Supreme Court's recent federalism jurisprudence and assesses its implications for environmental law. Part I provides a brief historical overview of the federal-state relationship in the environmental context and recent Supreme Court decisions on federalism. Part II discusses and evaluates the Printz decision. Part III applies the Supreme Court holdings in Printz and related federalism cases to current environmental policies and identifies federal environmental programs that are constitutionally suspect. Finally, Part IV addresses the public policy concern that limiting the federal government's power in the environmental context will inevitably weaken …

Commandeering, The Tenth Amendment, And The Federal Requisition Power: New York V. United States Revisited, Erik M. Jensen

Faculty Publications

The Supreme Court's recent Tenth Amendment decisions, New York v. United States and Printz v. United States, have relied on the original understanding to hold that the Congress may not compel state officials to enact or administer federal programs. We present evidence from the field of taxation that raises questions about the Court's originalist approach to the Tenth Amendment. We explain why the results in New York and Printz are superficially supported by the history of the widely discredited system of requisitions that prevailed under the Articles of Confederation: the Constitution created a system of indirect and direct taxation to …

Justices Take The 11th, Richard C. Reuben

Faculty Publications

Until not long ago, the 11th Amendment with its barrier to some citizen suits in federal courts was a largely ignored provision of the U.S. Constitution. Those days may be coming to an end, however, as the Supreme Court has resurrected the dusty old amendment in its steady, if not always consistent, march toward a new federalism or what some scholars are calling the "antifederalist revival."

Finding The Right Target, Richard C. Reuben

Faculty Publications

It is no surprise that the most significant handgun control law passed by Congress has produced a potential blockbuster case before the U.S. Supreme Court. After all, intense debate has been going on for years over the extent of the right to bear arms under

the Second Amendment. Congress took more than a decade to pass the Brady Handgun Control Act of 1993, 18 U.S.C. § 922(s), named for James Brady, the press secretary to President Reagan who was wounded in a 1981 assassination attempt. But while a pair of cases challenging the Brady Act might have been expected to …

Introduction To Symposium, The New Federalism After United States V. Lopez, Jonathan L. Entin

Faculty Publications

Introduction to Symposium, The New Federalism After United States v. Lopez, Cleveland, Ohio, 1996.

The New Federalism, Richard C. Reuben

Faculty Publications

the 10th Amendment was something they noted for the bar exam and then promptly forgot about. But for many conservative lawyers and politicians, the 10th Amendment- which reserves to the states all powers not given to the federal government-has been anything but academic. For them, it embodies the founders' promise for a nation in which the states and federal government are near-equal partners. And they have fought long and hard to give the amendment its proper due. As the rise of House Speaker Newt Gingrich, R-Ga., and his Contract with America attest, their day may have finally come. Today, federalism, …

Dialectical Federalism: A Tribute To The West Virginia Supreme Court Of Appeals, Gene R. Nichol

Faculty Publications

No abstract provided.

Federalism, Congress, The States And The Tenth Amendment: Adrift In The Cellophane Sea, William W. Van Alstyne

Faculty Publications

Like Gaul, this essay is divided into three parts. The first two parts are adapted from a public address delivered at the Association of the Bar of the City of New York, as part of its Bicentennial series, in 1987. The third part was added later, originally as an Addendum Note. The general subject was introduced by the moderator, Mr. Robert MacCrate, President of the Amerian Bar Association, who put the following question: "Where does the federalism of the Constitution stand today?" Professor Martha Field of the Harvard Law School presented a paper in first response. This paper then followed, …

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

Faculty Publications

No abstract provided.