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2000

Federalism

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Articles 1 - 30 of 33

Full-Text Articles in Law

The Second Amendment: Structure, History, And Constitutional Change, David Yassky Dec 2000

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 to ...


Toward A Pragmatic Understanding Of Status-Consciousness: The Case Of Deregulated Education, Tomiko Brown-Nagin Dec 2000

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 ...


The Amended Gun-Free School Zones Act: Doubt As To Its Constitutionality Remains, Seth J. Safra Nov 2000

The Amended Gun-Free School Zones Act: Doubt As To Its Constitutionality Remains, Seth J. Safra

Duke Law Journal

No abstract provided.


The Racial Origins Of Modern Criminal Procedure, Michael J. Klarman Oct 2000

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 ...


Federalism And Foreign Affairs: Congress's Power To "Define And Punish...Offenses Against The Law Of Nations", Beth Stephens Oct 2000

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.


Section 7: Federalism, Institute Of Bill Of Rights Law At The College Of William & Mary School Of Law Sep 2000

Section 7: Federalism, Institute Of Bill Of Rights Law At The College Of William & Mary School Of Law

Supreme Court Preview

No abstract provided.


Checking Congress And Balancing Federalism: A Lesson From Separation-Of-Powers Jurisprudence, Keith Werham Sep 2000

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. Jul 2000

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 ...


Alden V. Maine And The Jurisprudence Of Structure, Ernest A. Young May 2000

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 Apr 2000

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 Mar 2000

The Supreme Court's "New" Federalism: An Anti-Rights Agenda?, Mitchell F. Crusto

Georgia State University Law Review

No abstract provided.


Negotiating Federalism: State Bargaining And The Dormant Treaty Power, Edward T. Swaine Mar 2000

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 Feb 2000

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 Feb 2000

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 Feb 2000

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.


Federalism Versus The Greater Good ... Should Powerful Franchisors Be Allowed To Contract For The Home Court Advantage Through Forum Selection Clauses - Kkw Enterprises, Inc. V. Gloria Jean's Gourmet Coffees Franchising Corp., Nathan E. Ross Jan 2000

Federalism Versus The Greater Good ... Should Powerful Franchisors Be Allowed To Contract For The Home Court Advantage Through Forum Selection Clauses - Kkw Enterprises, Inc. V. Gloria Jean's Gourmet Coffees Franchising Corp., Nathan E. Ross

Journal of Dispute Resolution

When Congress condified the Federal Arbitration Act (F.A.A.), it sought to make arbitration a viable alternative to tradition litigation. Since the enactment of the FAA, the United States Supreme Court has addressed and answered numerous issues regarding the functioning of the FAA. However, the Supreme Court has yet to determine whether the FAA preempts state laws that invalidate forum selection clauses contained in franchise agreements. In Gloria Jean's, the First Circuit Court of Appeals squarely faced this issue and held that the FAA preempts state laws that attempt to negate the terms contained in a forum selection ...


Moving The Climate Change Debate From Models To Proposed Legislation: Lessons From State Experience, John C. Dernbach Jan 2000

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 ...


Delaware As Demon: Twenty-Five Years After Professor Cary's Polemic, Mark J. Loewenstein Jan 2000

Delaware As Demon: Twenty-Five Years After Professor Cary's Polemic, Mark J. Loewenstein

Articles

No abstract provided.


Constitutional Federalism, Individual Liberty, And The Securities Litigation Uniform Standards Act Of 1998, A. C. Pritchard Jan 2000

Constitutional Federalism, Individual Liberty, And The Securities Litigation Uniform Standards Act Of 1998, A. C. Pritchard

Washington University Law Review

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. Part III focuses on the Court’s decisions applying the principles of constitutional federalism to state courts. Part IV provides background to Congress’s enactment of the Uniform Act and explains why it adopted the form of preemption that it did.


Maintaining State Discretion Versus Mandating Universal Medicaid Coverage: Renewed Federalism And A Reasonable Standard Of Care, Danielle Teachout Uy Jan 2000

Maintaining State Discretion Versus Mandating Universal Medicaid Coverage: Renewed Federalism And A Reasonable Standard Of Care, Danielle Teachout Uy

Washington University Journal of Law & Policy

No abstract provided.


Antitrust Regulation Of Land Use: Federalism's Triumph Over Competition, The Last Fifty Years, E. Thomas Sullivan Jan 2000

Antitrust Regulation Of Land Use: Federalism's Triumph Over Competition, The Last Fifty Years, E. Thomas Sullivan

Washington University Journal of Law & Policy

This Essay analyzes antitrust regulation of land use during the last fifty years, the time period Dan Mandelker played such a leading role. It is a story of how federalism as a judicial doctrine achieved ascendance over the marketplace model of competition in the field of land use regulation.


Families And Federalism, Sylvia Law Jan 2000

Families And Federalism, Sylvia Law

Washington University Journal of Law & Policy

This Essay asks: When, as a matter of common sense, experience, and public policy, should family law issues be resolved as a matter of federal, rather than state law? Many political actors confront this question today. Advocates ask Congress to decide whether a federal response to a family law question is desirable, and the Supreme Court, in interpreting the act of Congress, must choose between deference to state discretion and affirmation of federal authority.


Judges And Federalism: A Comment On "Justice Kennedy's Vision Of Federalism", Robert F. Nagel Jan 2000

Judges And Federalism: A Comment On "Justice Kennedy's Vision Of Federalism", Robert F. Nagel

Articles

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 Jan 2000

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.


Transparency And Accountability: Rethinking Corporate Fiduciary Law's Relevance To Disclosure, Faith Stevelman Jan 2000

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 ...


Federalism: An Antidote To Congress's Separation Of Powers Anxiety And Executive Order 13,083, Brian E. Bailey Jan 2000

Federalism: An Antidote To Congress's Separation Of Powers Anxiety And Executive Order 13,083, Brian E. Bailey

Indiana Law Journal

No abstract provided.


Appendix I Jan 2000

Appendix I

Touro Law Review

No abstract provided.


The Parade Of Sovereignties: Establishing The Vocabulary Of The New Russian Federalism, Jeffrey Kahn Jan 2000

The Parade Of Sovereignties: Establishing The Vocabulary Of The New Russian Federalism, Jeffrey Kahn

Faculty Scholarship

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.


Private Remedies For Public Wrongs Under Section 5 (Symposium: New Directions In Federalism), Evan H. Caminker Jan 2000

Private Remedies For Public Wrongs Under Section 5 (Symposium: New Directions In Federalism), Evan H. Caminker

Articles

The Supreme Court has ushered in the new millennium with a renewed emphasis on federalism-based limits to Congress's regulatory authority in general, and Congress's Section 5 power to enforce the Fourteenth Amendment in particular. In a recent string of cases, the Court has refined and narrowed Section 5's enforcement power in two significant ways.1 First, the Court made clear that Congress lacks the authority to interpret the scope of the Fourteenth Amendment's substantive provisions themselves, and may only "enforce" the judiciary's definition of Fourteenth Amendment violations. 2 Second, the Court embraced a relatively stringent ...


Constitutional Federalism, Individual Liberty, And The Securities Litigation Uniform Standards Act Of 1998, Adam C. Pritchard Jan 2000

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 ...