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2006

Federalism

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Articles 1 - 30 of 64

Full-Text Articles in Law

Conflicting Commerce Clauses: How Raich And American Trucking Dishonor Their Doctrines, John W. Moorman Dec 2006

Conflicting Commerce Clauses: How Raich And American Trucking Dishonor Their Doctrines, John W. Moorman

William & Mary Bill of Rights Journal

No abstract provided.


State Courts And The Interpretation Of Federal Statutes, Anthony J. Bellia Jr. Oct 2006

State Courts And The Interpretation Of Federal Statutes, Anthony J. Bellia Jr.

Vanderbilt Law Review

In the debate over how federal courts should interpret federal statutes, "faithful agent" theories stand pitted against "dynamic" theories of statutory interpretation. The following questions lie at the heart of the debate: Is the proper role of federal courts to strive to implement the commands of the legislature-in other words, to act as Congress's faithful agents? Or, is the proper role of federal courts to act as partners with Congress in the forward-looking making of federal law-in other words, to interpret statutes dynamically? Proponents of faithful agent theories include both "textualists" and "purposivists." Textualists have argued that federal courts ...


Commandeering And Its Alternatives: A Federalism Perspective, Neil S. Siegel Oct 2006

Commandeering And Its Alternatives: A Federalism Perspective, Neil S. Siegel

Vanderbilt Law Review

This inquiry argues that current Tenth Amendment jurisprudence causes net harm to federalism values under certain circumstances. Specifically, New York v. United States and Printz v. United States protect state autonomy to some extent by requiring the federal government to internalize more of the costs of federal regulation before engaging in regulation. But anticommandeering doctrine harms state autonomy in situations where the presence of the rule triggers more preemption going forward. Preemption generally causes a greater compromise of federalism values than does commandeering by eroding state regulatory control.

While it is a context-sensitive empirical question whether specific applications of the ...


Federalism, Positive Law, And The Emergence Of The American Administrative State: Prohibition In The Taft Court Era, Robert Post Oct 2006

Federalism, Positive Law, And The Emergence Of The American Administrative State: Prohibition In The Taft Court Era, Robert Post

William & Mary Law Review

This Article offers a detailed analysis of major Taft Court decisions involving prohibition, including Olmstead v. United States, Carroll v. United States, United States v. Lanza, Lambert v. Yellowley, and Tumey v. Ohio. Prohibition, and the Eighteenth Amendment by which it was constitutionally entrenched, was the result of a social movement that fused progressive beliefs in efficiency with conservative beliefs in individual responsibility and self-control.

During the 1920s the Supreme Court was a strictly "bone-dry"institution that regularly sustained the administrative and law enforcement techniques deployed by the federal government in its losing effort to prevent the manufacture and sale ...


Criminal Justice Collapse: The Constitution After Hurricane Katrina, Brandon L. Garrett, Tania Tetlow Oct 2006

Criminal Justice Collapse: The Constitution After Hurricane Katrina, Brandon L. Garrett, Tania Tetlow

Duke Law Journal

The New Orleans criminal justice system collapsed after Hurricane Katrina, resulting in a constitutional crisis. Eight thousand people, mostly indigent and charged with misdemeanors such as public drunkenness or failure to pay traffic tickets, languished indefinitely in state prisons. The court system shut its doors, the police department fell into disarray, few prosecutors remained, and a handful of public defenders could not meet with, much less represent, the thousands detained. This dire situation persisted for many months, long after the system should have been able to recover. We present a narrative of the collapse of the New Orleans area criminal ...


The Virtue Of Vagueness: A Defense Of South Dakota V. Dole, Reeve T. Bull Oct 2006

The Virtue Of Vagueness: A Defense Of South Dakota V. Dole, Reeve T. Bull

Duke Law Journal

No abstract provided.


Florida East Coast Railway And The Structure Of Administrative Law, Michael P. Healy Oct 2006

Florida East Coast Railway And The Structure Of Administrative Law, Michael P. Healy

Law Faculty Scholarly Articles

A typical Administrative Law course presents the Supreme Court's decision in United States v. Florida East Coast Railway Co. as establishing the rule that statutory text quite close to the magic words, "on the record after opportunity for an agency hearing," is needed to trigger the Administrative Procedure Act's (APA) formal hearing requirements for a rulemaking. Florida East Coast Railway is a prime example of an underrated case because, even though the case is well known, its renown is a consequence only of its black letter rule about rulemaking procedures. Many scholars and practitioners do not appreciate the ...


Essay -- Preemption, Agency Cost Theory, And Predatory Lending By Banking Agents: Are Federal Regulators Biting Off More Than They Can Chew?, Christopher L. Peterson Sep 2006

Essay -- Preemption, Agency Cost Theory, And Predatory Lending By Banking Agents: Are Federal Regulators Biting Off More Than They Can Chew?, Christopher L. Peterson

ExpressO

A pitched battle is currently being waged for control of the American banking industry. For over a hundred years, the federal and state governments have maintained a complex, but relatively stable truce in their contest for power. At the beginning of our republic, state governments were the primary charterers and regulators of banks. In the wake of the Civil War, the National Bank Act created parity between federal and state banks, cementing the notion of a “dual banking system” that endured through the twentieth century. But in the past five years, the federal government has increasingly used its powers under ...


The Foreign Affairs Power: Does The Constitution Matter?, D. A. Jeremy Telman Aug 2006

The Foreign Affairs Power: Does The Constitution Matter?, D. A. Jeremy Telman

ExpressO

Peter Irons’ WAR POWERS favors congressional initiative in questions of war and peace but makes a historical argument that our government has strayed from the constitutional design in the service of an imperialist foreign policy. John Yoo’s THE POWERS OF WAR AND PEACE seeks to overthrow the traditional perspective on war powers espoused by Irons in favor of executive initiative in war. Yoo also pursues a revisionist perspective on the treaty power, which favors executive initiative in treaty negotiation and interpretation but insists on congressional implementation so as to minimize the impact of international obligations on domestic law. This ...


Sherman's March (In)To The Sea, Andrew S. Oldham Aug 2006

Sherman's March (In)To The Sea, Andrew S. Oldham

ExpressO

This Article argues that the Sherman Act is unconstitutional. At the very least, scholars and jurists must not take for granted Congress's ability to statutorily deputize the federal courts with common-lawmaking powers. The federal antitrust statute—which has been described as the Magna Carta of free enterprise—raises serious constitutional questions that have heretofore gone unexplored and unanswered. Specifically, it is difficult (if not impossible) to reconcile the Sherman Act with the separation of powers, the nondelegation doctrine, and the Supremacy Clause.


Modern Public Trust Principles: Recognizing Rights And Integrating Standards, Alexandra B. Klass Aug 2006

Modern Public Trust Principles: Recognizing Rights And Integrating Standards, Alexandra B. Klass

ExpressO

The public trust doctrine has a long history from its beginnings as an obligation on states to hold lands submerged under navigable waters in trust for the public, to its resurgence in the 1970s as a protector of natural resources, to its influence on state statutory and constitutional law as the public embraced environmental protection principles. However, many have argued that the public trust doctrine has not lived up to its potential as a major player in environmental and natural resources law. This article proposes a new framework for the public trust doctrine as a state tool for environmental protection ...


Federalism And Private International Law: Implementing The Hague Choice Of Court Convention In The United States, Stephen B. Burbank Jul 2006

Federalism And Private International Law: Implementing The Hague Choice Of Court Convention In The United States, Stephen B. Burbank

Faculty Scholarship at Penn Law

Federalism is important in the United States. It is also important that the United States be able to participate effectively in a global economy and that those charged with the conduct of the country's foreign affairs be able to make, and that the country abide by, international agreements that are designed to facilitate transnational commercial activity. The Hague Choice of Court Convention is one such agreement, the modest fruits of more than a decade of work in an international lawmaking effort that was initiated by the United States. However modest the fruits of the enterprise, the rest of the ...


Gonzales V. Raich; Federalism As A Casualty Of The War On Drugs, Ilya Somin Jul 2006

Gonzales V. Raich; Federalism As A Casualty Of The War On Drugs, Ilya Somin

Cornell Journal of Law and Public Policy

No abstract provided.


Florida’S Past And Future Roles In Education Finance Reform Litigation, Scott R. Bauries Jul 2006

Florida’S Past And Future Roles In Education Finance Reform Litigation, Scott R. Bauries

Law Faculty Scholarly Articles

In federalist parlance, the states often are called laboratories of democracy. Nowhere is this truer than in the field of education, and almost no subset of the education field lends itself to this label more than education finance. Since 1973, with very few notable exceptions, the entire development of the practice of education finance has proceeded through state-specific reforms. These reforms have occurred mostly through legislative policymaking, but the courts have played an important role in directing that policy development.

If one were to seek to observe one of these laboratories in action—to witness the interaction of the courts ...


Preempting The People: The Judicial Role In Regulatory Concurrency And Its Implications For Popular Lawmaking, Theodore W. Ruger Jun 2006

Preempting The People: The Judicial Role In Regulatory Concurrency And Its Implications For Popular Lawmaking, Theodore W. Ruger

Chicago-Kent Law Review

The phrase "popular constitutionalism" most commonly refers to the role of the public—or perhaps its elected representatives—in framing answers to particular substantive questions of constitutional interpretation. This essay explores a different aspect of the popular constitution of the United States, one that is indifferent to particular substantive questions but that forms the basic structure in which most lawmaking takes place. The United States is not merely a federal system but one with concurrent federalism, in which many issues are regulated by both state and federal governments. This norm of regulatory concurrency became entrenched in the twentieth century even ...


Popular Constitutionalism As Presidential Constitutionalism?, David L. Franklin Jun 2006

Popular Constitutionalism As Presidential Constitutionalism?, David L. Franklin

Chicago-Kent Law Review

This essay, which focuses on Larry Kramer's book The People Themselves, makes three points. First, although Kramer makes popular constitutionalism the conceptual centerpiece of his book, it's not at all clear what popular constitutionalism is. Kramer's work can be read to embody two very different versions of popular constitutionalism: a populist sensibility model and a departmentalist model. Second, whichever model Kramer has in mind, he has performed a valuable service by reminding us that the meaning of the Constitution is not identical to the doctrines the Supreme Court uses to implement that meaning. Third, popular constitutionalism in ...


Foundations Of Federalism: An Exchange, Randall P. Bezanson, Steven Moeller May 2006

Foundations Of Federalism: An Exchange, Randall P. Bezanson, Steven Moeller

ExpressO

Our manuscript entitled "The Foundations of Federalism: An Exchange" is occasioned by the Supreme Court's federalism jurisprudence which, in our judgment, calls for a broad ranging exploration of the constitutional concept of federalism itself. That exploration takes place in the form of a dialog between us which, while rewritten from its original form, nevertheless reflects our actual exchanges over an 18 month period. Our conclusion is that such terms as "sovereignty" generally have no place in American constitutional federalism, that the Supreme Court's efforts to enforce federalism limitations have been ineffective and, in some instances, counterproductive, and most ...


Using Capture Theory And Chronology In Eminent Domain Proceedings, John H. Ryskamp May 2006

Using Capture Theory And Chronology In Eminent Domain Proceedings, John H. Ryskamp

ExpressO

Capture theory--in which private purpose is substituted for government purpose--sheds light on a technique which is coming into greater use post-Kelo v. New London. That case affirmed that eminent domain use need only be rationally related to a legitimate government purpose. Capture theory focuses litigators' attention on "government purpose." That is a question of fact for the trier of fact. This article shows how to use civil discovery in order to show the Court that private purpose has been substituted for government purpose. If it has, the eminent domain use fails, because the use does not meet minimum scrutiny. This ...


Toward A New Horizontal Federalism: Interstate Water Management In The Great Lakes Region, Noah D. Hall May 2006

Toward A New Horizontal Federalism: Interstate Water Management In The Great Lakes Region, Noah D. Hall

Noah D Hall

This article presents a new model for environmental policy, called cooperative horizontal federalism. The cooperative horizontal federalism approach utilizes a constitutional mechanism for states to bind themselves to common substantive and procedural environmental protection standards, implemented individually with regional resources and enforcement. Here, the concept of cooperative horizontal federalism model is illustrated through the recently proposed Great Lakes-St. Lawrence River Basin Water Resources Compact. Under this proposed compact, the eight Great Lakes states would cooperatively manage the world’s largest freshwater resource under common minimum standards, which are then incorporated into state law and implemented individually. This cooperative horizontal federalism ...


Circumventing The Supremacy Clause? Understanding The Constitutional Implications Of The United States' Treatment Of Treaty Obligations Through An Analysis Of The New York Convention, Amber A. Ward May 2006

Circumventing The Supremacy Clause? Understanding The Constitutional Implications Of The United States' Treatment Of Treaty Obligations Through An Analysis Of The New York Convention, Amber A. Ward

San Diego International Law Journal

The United States participation in treaties and other international agreements is becoming more necessary and an increasingly prevalent occurrence as a result of globalization. The rapid pace of technological innovation and more effective means of transportation have caused our world to shrink, making countries even more interconnected. The corresponding explosion of international business and commercial transactions has resulted in high levels of risk and uncertainty due to a complex mix of laws, monetary factors, politics and cultures that vary across countries. For global players, it has become essential to have international agreements that can mitigate the risks inherent in international ...


Our Anticompetitive Patriotism, Todd E. Pettys Apr 2006

Our Anticompetitive Patriotism, Todd E. Pettys

Todd E. Pettys

In this article, I contend that the nation’s seemingly exclusive claim to citizens’ patriotism significantly shields the federal government from the competitive forces that the Framers believed would restrain Congress’s and the President’s ability to govern in objectionable ways. I argue that, because America is a nation-state built upon certain core convictions about public life, there are strong connections in this country between the entity about which people feel patriotic and the sovereign that people would like to govern many—perhaps even most—of their important public affairs. I argue that American patriotism was constructed in a ...


Jurisdiction To Adjudicate: A Revised Analysis, A. Benjamin Spencer Apr 2006

Jurisdiction To Adjudicate: A Revised Analysis, A. Benjamin Spencer

Faculty Publications

Personal jurisdiction doctrine as articulated by the Supreme Court is in disarray. As a constitutional doctrine whose contours remain imprecise, the law of personal jurisdiction has generated confusion, unpredictability, and extensive satellite litigation over what should be an uncomplicated preliminary issue. Many commentators have long lamented these defects, making suggestions for how the doctrine could be improved. Although many of these proposals have had much to offer, they generally have failed to articulate (or adequately justify or explain) a simple and sound approach to jurisdiction that the Supreme Court can embrace. This Article revises the law of personal jurisdiction by ...


Fatal In Theory And Strict In Fact: An Empirical Analysis Of Strict Scrutiny In The Federal Courts, Adam Winkler Apr 2006

Fatal In Theory And Strict In Fact: An Empirical Analysis Of Strict Scrutiny In The Federal Courts, Adam Winkler

Vanderbilt Law Review

A popular myth in American constitutional law is that the "strict scrutiny" standard of review applied to enforce rights such as free speech and equal protection is 'strict' in theory and fatal in fact."' This phrase, coined by the late legal scholar Gerald Gunther in 1972, has been called "one of the most famous epithets in American constitutional law"' and has effectively defined the strict scrutiny standard in the minds of lawyers for two generations. Born of Gunther's observation, supported by the iconic decisions of the Warren Court, and reinforced in constitutional law teaching and scholarship, the myth teaches ...


Before Competition: Origins Of The Internal Affairs Doctrine, Frederick Tung Mar 2006

Before Competition: Origins Of The Internal Affairs Doctrine, Frederick Tung

ExpressO

To the modern corporate scholar and lawyer, the internal affairs doctrine seems in the natural order of things. Corporate law is state law. Each corporation is formed under the law of its chosen state of incorporation. To ensure consistency and predictability, that law must govern the corporation’s internal affairs. Yet the origin of such a doctrine is puzzling. Respecting the firm’s choice of corporate law, the doctrine forces state legislatures into competition to attract incorporations. But how did legislatures come to concede their traditional territorial regulatory authority, and instead agree to compete? This Article solves this puzzle, offering ...


When Worlds Collide: Federal Construction Of State Institutional Competence, Marcia L. Mccormick Mar 2006

When Worlds Collide: Federal Construction Of State Institutional Competence, Marcia L. Mccormick

ExpressO

The federal courts routinely encounter issues of state law. Often a state court will have already analyzed the law at issue, either in a separate case or in the very situation before the federal court. In every one of those cases, the federal courts must decide whether to defer to the state court analysis and, if so, how much. The federal courts will often defer, but many times have not done so, and they rarely explain the reasons for the departures they make. While this lack of transparency gives the federal courts the greatest amount of discretion and power, it ...


"Tucker's Rule": St. George Tucker And The Limited Construction Of Federal Power, Kurt T. Lash Feb 2006

"Tucker's Rule": St. George Tucker And The Limited Construction Of Federal Power, Kurt T. Lash

William & Mary Law Review

No abstract provided.


St. George Tucker And The Limits Of States' Rights Constitutionalism: Understanding The Federal Compact In The Early Republic, David Thomas Konig Feb 2006

St. George Tucker And The Limits Of States' Rights Constitutionalism: Understanding The Federal Compact In The Early Republic, David Thomas Konig

William & Mary Law Review

No abstract provided.


From Cooperative To Inoperative Federalism: The Perverse Mutation Of Environmental Law And Policy, Robert L. Glicksman Jan 2006

From Cooperative To Inoperative Federalism: The Perverse Mutation Of Environmental Law And Policy, Robert L. Glicksman

Robert L. Glicksman

Beginning in 1970, Congress adopted a series of statutes to protect public health and the environment that represented an experiment in cooperative federalism. The operative principle of cooperative federalism is that the federal government establishes a policy - such as protection of public health and the environment and sustainable natural resource use - and then enlists the aid of the states, through a combination of carrots and sticks, in pursuing that policy. The result is a system in which both levels of government work together to achieve a common goal. If the process works well, the synergism of related federal and state ...


Katrina And The Rhetoric Of Federalism, Christina E. Wells Jan 2006

Katrina And The Rhetoric Of Federalism, Christina E. Wells

Faculty Publications

The public's desire to assign blame for government's inadequate response to Hurricane Katrina has largely focused on the federal government's slow and seemingly inept response to the storm. In their own defense, federal officials cast federalism--the system that divides power among federal, state, and local governments--as the main culprit underlying their inadequate response to hurricane victims. Had power and authority not been split among three different units of government, the argument goes, the federal government might have been able to act more quickly to save lives and prevent suffering. In effect, federal authorities claim to have been ...


Constitutional Thematics And The Peculiar Federal Marriage Amendment, Scott Dodson Jan 2006

Constitutional Thematics And The Peculiar Federal Marriage Amendment, Scott Dodson

Faculty Publications

These symposium remarks are a discussion of themes running through the Constitution, how the FMA, if adopted, might affect those themes, and why we ought to care. I first demonstrate that our Constitution is a thematic document, filled with broad, recognizable, and (mostly) coherent concepts. Separation of powers, representative democracy, federalism, individual liberty, and equality come readily to mind. I then explain that the thematic nature and the inter-coherence of these themes is critical in two ways: to identify those values held to be fundamental in our society, and to assist in the interpretation of the Constitution. The themes in ...