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Articles 1 - 30 of 33
Full-Text Articles in Law
Toward A Pragmatic Understanding Of Status-Consciousness: The Case Of Deregulated Education, Tomiko Brown-Nagin
Toward A Pragmatic Understanding Of Status-Consciousness: The Case Of Deregulated Education, Tomiko Brown-Nagin
Duke Law Journal
This Article discusses the relationship between federal equal protection doctrine and the states' experiment with deregulated education-in particular, charter schools whose student bodies are identifiable on the basis of status. I argue that the states' experiment with deregulated education and the Supreme Court's understanding of the limitations imposed by the federal Equal Protection Clause on status-conscious state action are substantially in conflict, though not inevitably so. Reconciling state policy and federal constitutional law requires, first, that state legislatures draft laws that are consistent with the Court's skepticism of explicitly status-conscious state action, and its ambivalence toward state action that addresses …
The Second Amendment: Structure, History, And Constitutional Change, David Yassky
The Second Amendment: Structure, History, And Constitutional Change, David Yassky
Michigan Law Review
A fierce debate about the Second Amendment has been percolating in academia for two decades, and has now bubbled through to the courts. The question at the heart of this debate is whether the Amendment restricts the government's ability to regulate the private possession of firearms. Since at least 1939 - when the Supreme Court decided United States v. Miller, its only decision squarely addressing the scope of the right to "keep and bear Arms" - the answer to that question has been an unqualified "no." Courts have brushed aside Second Amendment challenges to gun control legislation, reading the Amendment …
The Amended Gun-Free School Zones Act: Doubt As To Its Constitutionality Remains, Seth J. Safra
The Amended Gun-Free School Zones Act: Doubt As To Its Constitutionality Remains, Seth J. Safra
Duke Law Journal
No abstract provided.
Federalism And Foreign Affairs: Congress's Power To "Define And Punish...Offenses Against The Law Of Nations", Beth Stephens
Federalism And Foreign Affairs: Congress's Power To "Define And Punish...Offenses Against The Law Of Nations", Beth Stephens
William & Mary Law Review
No abstract provided.
The Racial Origins Of Modern Criminal Procedure, Michael J. Klarman
The Racial Origins Of Modern Criminal Procedure, Michael J. Klarman
Michigan Law Review
The constitutional law of state criminal procedure was born between the First and Second World Wars. Prior to 1920, the Supreme Court had upset the results of the state criminal justice system in just a handful of cases, all involving race discrimination in jury selection. By 1940, however, the Court had interpreted the Due Process Clause of the Fourteenth Amendment to invalidate state criminal convictions in a wide variety of settings: mob-dominated trials, violation of the right to counsel, coerced confessions, financially-biased judges, and knowingly perjured testimony by prosecution witnesses. In addition, the Court had broadened its earlier decisions forbidding …
Section 7: Federalism, Institute Of Bill Of Rights Law, William & Mary Law School
Section 7: Federalism, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
Checking Congress And Balancing Federalism: A Lesson From Separation-Of-Powers Jurisprudence, Keith Werham
Checking Congress And Balancing Federalism: A Lesson From Separation-Of-Powers Jurisprudence, Keith Werham
Washington and Lee Law Review
No abstract provided.
The Insidious Remnants Of State Rules Respecting Capital Formation, Rutheford B. Campbell Jr.
The Insidious Remnants Of State Rules Respecting Capital Formation, Rutheford B. Campbell Jr.
Law Faculty Scholarly Articles
As we move into the Twenty-First Century, state blue sky laws and regulations continue to govern a significant portion of the capital formation activities of our domestic businesses. As a result, state administrators, influenced by their historically informed preferences and local traditions, continue to play important roles when businesses attempt to access external capital sources.
Today, however, the effects of state blue sky laws, regulations, and administrators on capital formation are felt almost exclusively by small businesses. The capital formation activities of larger businesses generally have been freed from state control, most recently by the preemption contained in the National …
Losing Faith: America Without Judicial Review?, Erwin Chemerinsky
Losing Faith: America Without Judicial Review?, Erwin Chemerinsky
Michigan Law Review
In the last decade, it has become increasingly trendy to question whether the Supreme Court and constitutional judicial review really can make a difference. Gerald Rosenberg, for example, in The Hollow Hope, expressly questions whether judicial review achieves effective social change. Similarly, Michael Klarman explores whether the Supreme Court's desegregation decisions were effective, except insofar as they produced a right-wing backlash that induced action to desegregate. In Taking the Constitution Away from the Courts, Mark Tushnet approvingly invokes these arguments (pp. 137, 145), but he goes much further. Professor Tushnet contends that, on balance, constitutional judicial review is harmful. He …
Alden V. Maine And The Jurisprudence Of Structure, Ernest A. Young
Alden V. Maine And The Jurisprudence Of Structure, Ernest A. Young
William & Mary Law Review
No abstract provided.
No Federalists Here: Anti-Federalism And Nationalism On The Rehnquist Court, Michael C. Dorf
No Federalists Here: Anti-Federalism And Nationalism On The Rehnquist Court, Michael C. Dorf
Cornell Law Faculty Publications
No abstract provided.
The Supreme Court's "New" Federalism: An Anti-Rights Agenda?, Mitchell F. Crusto
The Supreme Court's "New" Federalism: An Anti-Rights Agenda?, Mitchell F. Crusto
Georgia State University Law Review
No abstract provided.
Treaty-Making And The Nation: The Historical Foundations Of The Nationalist Conception Of The Treaty Power, David M. Golove
Treaty-Making And The Nation: The Historical Foundations Of The Nationalist Conception Of The Treaty Power, David M. Golove
Michigan Law Review
Characteristic of the most enduring constitutional controversies is a clash between fundamental but ultimately irreconcilable principles. Unable to synthesize opposing precepts, we visit and revisit certain issues in an endless cycle. Each generation marches forward heedless, and sometimes only dimly aware, of how many times the battle has already been fought. Even the peace of exhaustion achieves only a temporary respite. The abiding controversy over the relationship between the treaty power of the national government and the legislative powers of the states is paradigmatic in this respect. Beginning as early as in the first debate over ratification of the Articles …
Negotiating Federalism: State Bargaining And The Dormant Treaty Power, Edward T. Swaine
Negotiating Federalism: State Bargaining And The Dormant Treaty Power, Edward T. Swaine
Duke Law Journal
The orthodox view that states have no role in U. S. foreign relations is not only inconsistent with their place in the modern global economy, but the constitutional basis for a "dormant" bar on state participation-that is, absent a controlling federal statute or treaty-is obscure. Revisionist scholarship and recent Supreme Court case law suggest that Congress alone should decide when the states must stay out of foreign relations. In this Article, Professor Swaine argues that both the orthodox and revisionist views neglect an alternative basis for a judicial role-the Treaty Clause, enforced through the dormant treaty power. The text, structure, …
Federal Jurisdiction Over State Claims To Shipwrecks: Should The Eleventh Amendment Go Down With The Ship?, Mark R. Baumgartner
Federal Jurisdiction Over State Claims To Shipwrecks: Should The Eleventh Amendment Go Down With The Ship?, Mark R. Baumgartner
William & Mary Bill of Rights Journal
The Eleventh Amendment prohibits citizens from bringing actions in law or equity against individual states in federal courts. The Amendment does not address whether states are subject to federal jurisdiction for actions in admiralty in which both a shipwreck salvor and a state claim title to a shipwreck Analyzing applicable admiralty, federal, and common law in the context of Eleventh Amendment jurisprudence, this Note examines whether the states are subject to pure admiralty actions in federal court by citizen-salvors seeking either title to or reward for salvaging a shipwreck. The original intentions of admiralty law: rewarding salvors for their efforts, …
Enforcement Of Federal Rights Against States: Alden And Federalism Non-Sense , Daan Braveman
Enforcement Of Federal Rights Against States: Alden And Federalism Non-Sense , Daan Braveman
American University Law Review
No abstract provided.
Admiralty And Federalism In The Wake Of Yamaha Motor Corp., Usa V. Calhoun: Is Yamaha A Cry By The Judiciary For Legislative Action In State Territorial Waters?, David R. Lapp
William & Mary Law Review
No abstract provided.
Transparency And Accountability: Rethinking Corporate Fiduciary Law's Relevance To Disclosure, Faith Stevelman
Transparency And Accountability: Rethinking Corporate Fiduciary Law's Relevance To Disclosure, Faith Stevelman
Articles & Chapters
This article explores the duty of “disclosure/complete candor” (among directors, from boards to shareholders and from controllers to minority shareholders) within state corporate fiduciary law (especially Delaware’s, the most developed). It observes the odd minimization of the candor/disclosure duty within the core doctrines of fiduciary care, loyalty and good faith. It analyzes the evolution of the fiduciary disclosure duty and its “moment of truth” in the watershed litigation in Malone v. Brincat. The belated appearance of the fiduciary disclosure duty is partly the result of historical, customary and political understandings which have dwarfed logic and conceptual coherence in this area …
Moving The Climate Change Debate From Models To Proposed Legislation: Lessons From State Experience, John C. Dernbach
Moving The Climate Change Debate From Models To Proposed Legislation: Lessons From State Experience, John C. Dernbach
John C. Dernbach
This Article assesses the relationship between state climate change mitigation measures and potential national climate change legislation. It describes and evaluates eleven different legal and policy tools being employed by states. These are: customer choice of electricity providers, environmental labeling requirements for electricity sources, building codes requiring energy efficiency, demand-side management, system benefit charges, cap-and-trade programs, tax credits, net metering, planning and siting preferences for renewable energy facilities, CO2 limits for new power plants, and renewable energy portfolio standards. Two broad conclusions emerge from this analysis. First, these tools have considerable potential to reduce greenhouse gas emissions. They achieve reductions …
'Our Federalism’ In The Context Of Federal Courts And Tribal Courts: An Open Letter To The Federal Courts’ Teaching And Scholarly Community, Frank Pommersheim
'Our Federalism’ In The Context Of Federal Courts And Tribal Courts: An Open Letter To The Federal Courts’ Teaching And Scholarly Community, Frank Pommersheim
Frank Pommersheim
No abstract provided.
Federalism: An Antidote To Congress's Separation Of Powers Anxiety And Executive Order 13,083, Brian E. Bailey
Federalism: An Antidote To Congress's Separation Of Powers Anxiety And Executive Order 13,083, Brian E. Bailey
Indiana Law Journal
No abstract provided.
The Parade Of Sovereignties: Establishing The Vocabulary Of The New Russian Federalism, Jeffrey D. Kahn
The Parade Of Sovereignties: Establishing The Vocabulary Of The New Russian Federalism, Jeffrey D. Kahn
Faculty Journal Articles and Book Chapters
On the basis of extensive on-site interviews and documentary sources, the author interprets the dynamics of the collapse of the Soviet Union by analyzing the cascade of sovereignty declarations issued by republics of the USSR as well as by autonomous republics and other subunits of the Russian republic, in 1990-1991. Interrelationships among the declarations, and other putative causes of their content and timing, are explored. A case study of Tatarstan is provided. The study also analyzes the impact of the process on subsequent Russian approaches to federalism.
Judges And Federalism: A Comment On "Justice Kennedy's Vision Of Federalism", Robert F. Nagel
Judges And Federalism: A Comment On "Justice Kennedy's Vision Of Federalism", Robert F. Nagel
Publications
No abstract provided.
Supreme Court Federalism Decisions, Leon Friedman
Supreme Court Federalism Decisions, Leon Friedman
Touro Law Review
No abstract provided.
Reno V. Condon: The Supreme Court Takes A Right Turn In Its Tenth Amendment Jurisprudence By Upholding The Constitutionality Of The Driver's Privacy Protection Act, Richard T. Cosgrove
Reno V. Condon: The Supreme Court Takes A Right Turn In Its Tenth Amendment Jurisprudence By Upholding The Constitutionality Of The Driver's Privacy Protection Act, Richard T. Cosgrove
Fordham Law Review
No abstract provided.
Democracy Within Federalism: An Attempt To Reestablish Middle Ground, Alexander Hanebeck
Democracy Within Federalism: An Attempt To Reestablish Middle Ground, Alexander Hanebeck
San Diego Law Review
the conflict between the two levels of government, state and federal, is a very old one. The main battleground of this debate, however, has been over states' rights and the protection of individual rights by federal courts. As John Hart Ely observed, this is not where federalism hangs in the balance. He correctly points out what is becoming obvious in recent Supreme Court decisions. For the existence of states as independent entities, it is more important where legislative competence lies. 3 This Article is concerned with the groundwork for a debate over the distribution of legislative competence, because it attempts …
Delaware As Demon: Twenty-Five Years After Professor Cary's Polemic, Mark J. Loewenstein
Delaware As Demon: Twenty-Five Years After Professor Cary's Polemic, Mark J. Loewenstein
Publications
No abstract provided.
Constitutional Federalism, Individual Liberty, And The Securities Litigation Uniform Standards Act Of 1998, Adam C. Pritchard
Constitutional Federalism, Individual Liberty, And The Securities Litigation Uniform Standards Act Of 1998, Adam C. Pritchard
Articles
This Article proceeds in four parts. Part I provides background on the historical development of constitutional federalism, the Supreme Court's decisions in this area, and the apparent demise of constitutional limits on federal power. Part II then reviews the Court's revival of constitutional federalism over the last decade. Based on this review, I argue that the Supreme Court's current federalism doctrine can be understood as a "constrained libertarianism" that attempts to use constitutional structure as a check on government interference with individual liberty. In this model, states are respected in our constitutional system because of the counterbalance that they provide …
Davis V. Monroe County Board Of Education: The Unresolved Questions,, Joan E. Schaffner
Davis V. Monroe County Board Of Education: The Unresolved Questions,, Joan E. Schaffner
GW Law Faculty Publications & Other Works
This article focuses on the recent trend of permitting liability of schools when students are sexually harassed, which the Supreme Court has only recognized for twenty years. I examine the majority and dissenting opinions of the Court’s most recent decision about this topic, Davis v. Monroe County Board of Education and analyze three questions brought to light by Davis and Gebser v. Lago Vista Independent School District. These questions are: (1) what qualifies as “actionable” sexual harassment, (2) who must receive notice, and (3) what satisfies the “deliberate indifference” standard from Davis. The answers to these questions are just …