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Articles 31 - 38 of 38
Full-Text Articles in Law
Patent Law Federalism, Paul Gugliuzza
Patent Law Federalism, Paul Gugliuzza
Faculty Scholarship
Most lawsuits arising under federal law can be filed in either state or federal court. Patent suits, however, may be filed only in federal court. Why do patent cases receive exceptional treatment? The usual answer is that federal courts, unlike state courts, provide uniformity and expertise in patent matters. This Article analyzes whether exclusive jurisdiction actually serves those policy aims and concludes that the uniformity-expertise rationale is overstated. If exclusive federal patent jurisdiction is to be justified, attention must also be given to pragmatic considerations, such as the respective quality of state and federal trial courts, the courts’ ability to …
From Sovereignty And Process To Administration And Politics: The Afterlife Of American Federalism, Jessica Bulman-Pozen
From Sovereignty And Process To Administration And Politics: The Afterlife Of American Federalism, Jessica Bulman-Pozen
Faculty Scholarship
Announcing the death of dual federalism, Edward Corwin asked whether the states could be “saved as the vital cells that they have been heretofore of democratic sentiment, impulse, and action.” The federalism literature has largely answered in the affirmative. Unwilling to abandon dual federalism’s commitment to state autonomy and distinctive interests, scholars have proposed new channels for protecting these forms of state-federal separation. Yet today state and federal governance are more integrated than separate. States act as co-administrators and co-legislatures in federal statutory schemes; they carry out federal law alongside the executive branch and draft the law together with Congress. …
Medicaid Expansion As Completion Of The Great Society, Nicole Huberfeld, Jessica L. Roberts
Medicaid Expansion As Completion Of The Great Society, Nicole Huberfeld, Jessica L. Roberts
Law Faculty Scholarly Articles
On the doorstep of its fiftieth anniversary, Medicaid at last could achieve the ambitious goals President Lyndon B. Johnson enunciated for the Great Society upon signing Medicare and Medicaid into law in 1965. Although the spotlight shone on Medicare at the time, Medicaid was the “sleeper program” that caught America’s neediest in its safety net—but only some of them. Medicaid’s exclusion of childless adults and other “undeserving poor” loaned an air of “otherness” to enrollees, contributing to its stigma and seeming political fragility. Now, Medicaid touches every American life. One in five Americans benefits from Medicaid’s healthcare coverage, and that …
The Jurisprudence Of Union, Gil Seinfeld
The Jurisprudence Of Union, Gil Seinfeld
Articles
The primary goal of this Article is to demonstrate that the interest in national unity does important, independent work in the law of vertical federalism. We have long been accustomed to treating union as a constitutionally operative value in cases involving the duties states owe one another (i.e. horizontal federalism cases), but in cases involving the relationship between the federal government and the states, the interest in union is routinely ignored. This Article shows that, across a wide range of cases relating to the allocation of power between the federal government and the states, the states are constrained by a …
Viva Conditional Federal Spending!, Samuel R. Bagenstos
Viva Conditional Federal Spending!, Samuel R. Bagenstos
Articles
From the rise of the New Deal through the constitutional litigation over the Affordable Care Act (ACA), conditional federal spending has been a major target for those who have sought to limit the scope of federal power. There are a couple of reasons for this. First, as the Supreme Court narrowed Congress's power to regulate private primary conduct and state conduct in the last twenty years,' conditional spending looked like the way Congress might be able to circumvent the limitations imposed by the Court's decisions. Thus, members of Congress quickly sought to blunt the impact of the Court's decision to …
Autonomy And Isomorphism: The Unfulfilled Promise Of Structural Autonomy In American State Constitutions, James A. Gardner
Autonomy And Isomorphism: The Unfulfilled Promise Of Structural Autonomy In American State Constitutions, James A. Gardner
Journal Articles
In the American system of federalism, states have almost complete freedom to adopt institutions and practices of internal self-governance that they find best-suited to the needs and preferences of their citizens. Nevertheless, states have not availed themselves of these opportunities: the structural provisions of state constitutions tend to converge strongly with one another and with the U.S. Constitution. This paper examines two important periods of such convergence: the period from 1776 through the first few decades of the nineteenth century, when states were inventing institutions of democratic governance and representation; and the period following the Supreme Court’s one person, one …
Partisan Federalism, Jessica Bulman-Pozen
Partisan Federalism, Jessica Bulman-Pozen
Faculty Scholarship
Among the questions that vex the federalism literature are why states check the federal government and whether Americans identify with the states as well as the nation. This Article argues that partisanship supplies the core of an answer to both questions. Competition between today’s ideologically coherent, polarized parties leads state actors to make demands for autonomy, to enact laws rejected by the federal government, and to fight federal programs from within. States thus check the federal government by channeling partisan conflict through federalism’s institutional framework. Partisanship also recasts the longstanding debate about whether Americans identify with the states. Democratic and …
Agency Enforcement Of Spending Clause Statutes: A Defense Of The Funding Cut-Off, Eloise Pasachoff
Agency Enforcement Of Spending Clause Statutes: A Defense Of The Funding Cut-Off, Eloise Pasachoff
Georgetown Law Faculty Publications and Other Works
This article contends that federal agencies ought more frequently to use the threat of cutting off funds to state and local grantees that are not adequately complying with the terms of a grant statute. Scholars tend to offer four arguments to explain—and often to justify—agencies’ longstanding reluctance to engage in funding cut-offs: first, that funding cut-offs will hurt the grant program’s beneficiaries and so will undermine the agency’s ultimate goals; second, that federalism concerns counsel against federal agencies’ taking funds away from state and local grantees; third, that agencies are neither designed nor motivated to pursue funding cut-offs; and fourth, …