Law Commons^™

The Baker Doctrine And The New Federalism: Developing Independent Constitutional Principles Under The Alaska Constitution, Thomas V. Van Flein

Alaska Law Review

No abstract provided.

Section 6: Federalism, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Statehood As The New Personhood: The Discovery Of Fundamental "States' Rights", Timothy Zick

William & Mary Law Review

No abstract provided.

The Judicial Safeguards Of Federalism, Neal Devins

Faculty Publications

No abstract provided.

The Chimera And The Cop: Local Enforcement Of Federal Immigration Law, Michael M. Hethmon

University of the District of Columbia Law Review

The questions of if, when, and how local police can enforce federal immigration laws go to the heart of the legal hunt for the chimera that is contemporary American immigration law.1 In the opening years of this century, the estimated illegal alien population in the United States has reached historic levels. The national response to the attacks of September 11, 2001 transformed what had been largely a municipal conflict between ethnic organizations, the immigration bar, and local governments in high-immigration jurisdictions into a much larger national debate about national security, civil liberties, and federalism.z After the devastating attacks on the …

Speech And Strife, Robert L. Tsai

Law and Contemporary Problems

Tsai examines the ways in which the US Supreme Court uses language to signal its authority. One technique of the Court is to frequently use the image of institutional conflict within its rulings.

The Constitutional Floor Doctrine And The Right To A Speedy Trial, Darren Allen

Campbell Law Review

This article will begin with a quick description of the historical origins of the speedy trial right and the events marking its quiet evolution into a hallmark of our criminal justice system. It will then move into a discussion of the decisions articulating principles of new federalism which require that state courts defer to the federal interpretations of fundamental rights, before discussing of the controlling Supreme Court cases fashioning the test by which violations of the right are measured. Next, this article will showcase the critical differences between Spivey and Barker to demonstrate why North Carolina's speedy trial test intrudes …

The Majoritarian Rehnquist Court?, Neal Devins

Law and Contemporary Problems

Devins examines the reasons behind the tendency of the US Supreme Court under William Rehnquist to strike down federal laws. Majoritarian forces, including the use of the Court as a check against Congress, have led to the invalidation of many federal statutes.

The Majoritarian Rehnquist Court?, Neal Devins

Faculty Publications

No abstract provided.

The Inherent Flaws In The Inherent Authority Position: Why Inviting Local Enforcement Of Immigration Laws Violates The Constitution, Immigr. & Nat'lity L. Rev., Huyen Pham

Faculty Scholarship

After 9/11, Attorney General John Ashcroft announced that state and local authorities have "inherent authority" as sovereigns to enforce federal immigration laws. This announcement, a reversal from previous legal positions taken by DOJ, sent shockwaves through the immigrant and law enforcement communities. Previously, immigration law had been treated, both by law and in practice, as the exclusive province of the federal government.

This article considers the constitutional barriers to local enforcement. Although the fascinating interplay among immigration law, national security and anti-terrorism, and federalism has been highlighted in some of the debate up to now, the federalism-related issues go beyond …

Our Corporate Federalism And The Shape Of Corporate Law, Marcel Kahan, Edward B. Rock

All Faculty Scholarship

In the public debate sparked by the corporate scandals of the last years, Delaware has been strikingly absent. In contrast to the high profile activity of Congress, the Securities and Exchange Commission, the stock exchanges, federal prosecutors, and even state law enforcement officials, Delaware has been largely mute: no legislation; no rule-making; no criminal investigations; few headlines. In this Article, we use Delaware's relative passivity during this latest episode of corporate law-making as a starting point in the analysis of the shape of American corporate federalism and Delaware's place within it. We argue that Delaware long ago opted for what …

Re-Balancing State And Federal Power: Toward A Political Principle Of Subsidiarity In The United States, Jared Bayer

American University Law Review

No abstract provided.

Federalism And Drug Control, Michael M. O'Hear

Vanderbilt Law Review

Federalism issues have been neglected in the scholarship on drug control policy. This Article addresses both empirical and normative questions relating to federal-state-local relations in the "war on drugs." Contrary to common views of federal domination and national uniformity, drug control policy actually varies considerably from state to state. State diversity has increased since the mid- 1990s, when drug reformers began to use the ballot initiative to change state laws. While the federal government has contested these reforms, it has not sought to use its preemption powers to enforce federal preferences.

The Article employs public choice models to explain the …

Correcting Federalism Mistakes In Statutory Interpretation: The Supreme Court And The Federal Arbitration Act, David S. Schwartz

Law and Contemporary Problems

The current judicial treatment of the Federal Arbitration Act is an embarrassment to a Supreme Court whose majority is supposed to be leading a federalism revival, if not a federalism revolution. In 1984, in Southland Corp. v. Keating, the Court held that the FAA is substantive federal law that preempts state laws regulating arbitration agreements. The Court thereby transformed a quaint, 60-year-old procedural statute into "a permanent, unauthorized eviction of state-court power to adjudicate a potentially large class of disputes," as well as an eviction of state lawmaking power over the traditional state domain of contract law. Even worse, Southland …

Making Federalism Doctrine, Ernest A. Young

ExpressO

This article develops and defends a general approach to constitutional federalism doctrine. My position is probably best described as sympathetic criticism of the Rehnquist Court’s “Federalist Revival.” I think that the Court’s project of reviving a judicial role in enforcing federalism is terribly important, but that many of the Court’s particular measures in that vein are unhelpful or, sometimes, counterproductive.

The article makes three claims. The first is methodological: I argue that courts can and should formulate doctrines to enforce the federal balance, even when those doctrines cannot be tied directly to constitutional text and history. Recognizing that constitutional doctrine …

The Rehnquist Revolution, Erwin Chemerinsky

The University of New Hampshire Law Review

[Excerpt] "When historians look back at the Rehnquist Court, without a doubt they will say that its greatest changes in constitutional law were in the area of federalism. Over the past decade, and particularly over the last five years, the Supreme Court has dramatically limited the scope of Congress’ powers and has greatly expanded the protection of state Sovereign Immunity. Virtually every area of law, criminal and civil, is touched by these changes. Since I began teaching constitutional law in 1980, the most significant differences in constitutional law are a result of the Supreme Court’s revival of federalism as a …

Connecting The Dots: Grutter, School Desegregation, And Federalism, Wendy Parker

William & Mary Law Review

No abstract provided.

Toward A New Constitutional Anatomy, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

There is an important sense in which our Constitution's structure is not what it appears to be--a set of activities or functions or geographies, the 'judicial" or the "executive" or the "legislative" power, the "truly local and the truly national. "Indeed, it is only if we put these notions to the side that we can come to grips with the importance of the generative provisions of the Constitution: the provisions that actually create our federal government; that bind citizens, through voting, to a House of Representatives, to a Senate, to a President, and even, indirectly, to a Supreme Court. In …

Overcoming The Obstacles Of Garrett: An As Applied Saving Construction For The Ada's Title Ii, S. Elizabeth Malloy, Timothy J. Cahill

Faculty Articles and Other Publications

Recent Supreme Court cases regarding Congress's abrogation authority have seriously impaired Congress's ability to demonstrate a valid exercise of its Section 5 power under the Fourteenth Amendment to subject nonconsenting states to suit for money damages in federal court. During its 2003 term, the Supreme Court has again granted certiorari to a case involving the proper scope of Congress's section 5 power, Lane v. Tennessee. Lane involves a suit for money damages under Title II of the ADA based on the alleged failure of the State of Tennessee to make its courthouses accessible. Many commentators suggest that the Supreme Court …

Federalism And Foreign Affairs: How To Remedy Violations Of The Vienna Convention And Obey The U.S. Constitution, Too, Joshua A. Brook

University of Michigan Journal of Law Reform

This Note discusses various ways to bring the United States into better compliance with the 1963 Vienna Convention on Consular Relations The introduction to this Note discusses how violations of the Vienna Convention are currently treated in the United States. In particular, the introduction discusses the unsuccessful attempts to prevent the execution of Karl and Walter LaGrand, two German nationals sentenced to death in Arizona. The LaGrands were convicted after a violation of their rights under the Vienna Convention because they were not informed without delay of their right to consular notification and assistance. In later appeals, United States courts …

Of Federalism, Human Rights, And The Holland Caveat: Congressional Power To Iplement Treaties, Ana Maria Merico-Stephens

Michigan Journal of International Law

This Article explores whether the Rehnquist Court's federalism doctrine, as elaborated during this last decade, should or ought to extend to the domestication of discrete provisions of ratified human rights treaties. It explores this question by examining the International Covenant on Civil and Political Rights (Covenant) and by considering the civil remedy provision of Violence Against Women Act (VAWA) as potential implementing legislation for the equality provisions of the Covenant. In the context of this inquiry, the discussion engages federalism, as developed by the current Court, on its own terms. That is, I do not seek here to defend it …

Promise And Perils Of State-Based Road To Universal Health Insurance In The U.S., Carol S. Weissert

Journal of Health Care Law and Policy

No abstract provided.

Federalism, Through A Global Lens: A Call For Deferential Judicial Review, Alfred C. Aman

Indiana Journal of Global Legal Studies

Globalization, Courts, and Judicial Power Symposium

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 …

Of Power And Responsibility: The Political Morality Of Federal Systems, Daniel Halberstam

Articles

In comparative constitutional discourse, Americans are from Mars and Europeans from Venus; we eagerly tell our European counterparts about the U.S. constitutional experience, but rarely do we listen when they talk to us about their own. Whereas Europeans routinely examine U.S. constitutionalism as an illuminating point of comparison or contrast, as Americans, we seem convinced that we have nothing to learn from looking abroad. This Article challenges that assumption. In particular, it argues that American courts and scholars have overlooked an important alternative to the dominant interpretation of the division of powers in the United States by ignoring the theory …

Inter-American System, Diego Rodriguez-Pinzon

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Guns, Drugs, And Federalism: Rethinking Commerce-Enabled Regulation Of Mere Possession, Marcus Green

Fordham Law Review

No abstract provided.

Federalism And The Federal Criminal Law, Craig M. Bradley

Articles by Maurer Faculty

No abstract provided.

Apprendi And Federalism, Peter B. Rutledge

Scholarly Works

Since the emergence of the Apprendi majority and its newly minted (and evolving) constitutional limits on criminal punishment, many commentators have begun to address its implications for the horizontal relations between the branches of government — between legislators and courts, between judges and juries, and between judges and prosecutors. Less widely addressed, though equally (if not more) important, has been the Apprendi doctrine’s implications for vertical relations, particularly federalism.

This essay seeks to begin to fill that lacuna in the literature. Part I explains how Apprendi undermines principles of federalism, a curious tension because several of Apprendi’s strongest defenders, particularly …

Federalism Re-Constructed: The Eleventh Amendment's Illogical Impact On Congress' Power, Marcia L. Mccormick

All Faculty Scholarship

The Constitution is designed to protect individual liberty and equality by diffusing power among the three branches of the federal government and between the federal and state governments, and by providing a minimum level of protection for individual rights. Yet, the Supreme Court seems to think that federalism is about protecting states as states rather than balancing governmental power to protect individuals. In the name of federalism, the Supreme Court has been paring away at Congress' power to enact civil rights legislation. In doing so, it has transformed the Fourteenth Amendment into a vehicle for protecting states rights rather than …