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Articles 1 - 7 of 7
Full-Text Articles in State and Local Government Law
Interposition: A State-Based Constitutional Tool That Might Help Preserve American Democracy, Christian G. Fritz
Interposition: A State-Based Constitutional Tool That Might Help Preserve American Democracy, Christian G. Fritz
Faculty Scholarship
Interposition was not a claim that state sovereignty could or should displace national authority, but a claim that American federalism needed to preserve some balance between state and national authority.
http://commonplace.online/article/interposition/
Personhood, Property, And Public Education: The Case Of Plyler V. Doe, Rachel F. Moran
Personhood, Property, And Public Education: The Case Of Plyler V. Doe, Rachel F. Moran
Faculty Scholarship
Property law is having a moment, one that is getting education scholars’ attention. Progressive scholars are retooling the concepts of ownership and entitlement to incorporate norms of equality and inclusion. Some argue that property law can even secure access to public education despite the U.S. Supreme Court’s longstanding refusal to recog- nize a right to basic schooling. Others worry that property doctrine is inherently exclusionary. In their view, property-based concepts like resi- dency have produced opportunity hoarding in schools that serve affluent, predominantly white neighborhoods. Many advocates therefore believe that equity will be achieved only by moving beyond property-based claims, …
Monitoring American Federalism: The Overlooked Tool Of Sounding The Alarm Interposition, Christian G. Fritz
Monitoring American Federalism: The Overlooked Tool Of Sounding The Alarm Interposition, Christian G. Fritz
Faculty Scholarship
One key feature of the U.S. Constitution – the concept of federalism – was unclear when it was introduced, and that lack of clarity threatened the Constitution’s ratification by those who feared the new government would undermine state sovereignty. Proponents of the new governmental framework were questioned about the underlying theory of the Constitution as well as how it would operate in practice, and their explanations produced intense and extended debate over how to monitor federalism.
Extreme Risk Protection Orders In The Post-Bruen Age: Weighing Evidence, Scholarship, And Rights For A Promising Gun Violence Prevention Tool, Andrew Willinger, Shannon Frattaroli
Extreme Risk Protection Orders In The Post-Bruen Age: Weighing Evidence, Scholarship, And Rights For A Promising Gun Violence Prevention Tool, Andrew Willinger, Shannon Frattaroli
Faculty Scholarship
Extreme Risk Protection Orders (ERPOs) are civil court orders that temporarily prohibit gun purchase and possession by people who are behaving dangerously and at risk of committing imminent violence. As of September 2023, ERPOs are available in 21 states and the District of Columbia. This Article presents an overview of ERPO laws, the rationale behind their development, and a review and analysis that considers emerging constitutional challenges to these laws (under both the Second Amendment and due process protections) in the post-Bruen era. This Article notes that the presence of multiple constitutional challenges in many ERPO-related cases has confused judicial …
State Constitutional Rights And Democratic Proportionality, Jessica Bulman-Pozen, Miriam Seifter
State Constitutional Rights And Democratic Proportionality, Jessica Bulman-Pozen, Miriam Seifter
Faculty Scholarship
State constitutional law is in the spotlight. As federal courts retrench on abortion, democracy, and more, state constitutions are defining rights across the nation. Despite intermittent calls for greater attention to state constitutional theory, neither scholars nor courts have provided a comprehensive account of state constitutional rights or a coherent framework for their adjudication. Instead, many state courts import federal interpretive practices that bear little relationship to state constitutions or institutions.
This Article seeks to begin a new conversation about state constitutional adjudication. It first shows how in myriad defining ways state constitutions differ from the U.S. Constitution: They protect …
States Of Emergency: Covid-19 And Separation Of Powers In The States, Richard Briffault
States Of Emergency: Covid-19 And Separation Of Powers In The States, Richard Briffault
Faculty Scholarship
No event in recent years has shone a brighter spotlight on state separation of powers than the COVID-19 pandemic. Over a more than two-year period, governors exercised unprecedented authority through suspending laws and regulations, limiting business activities and gatherings, restricting individual movement, and imposing public health requirements. Many state legislatures endorsed these measures or were content to let governors take the lead, but in some states the legislature pushed back, particularly — albeit not only—where the governor and legislative majorities were of different political parties. Some of these conflicts wound up in state supreme courts.
This Essay examines the states’ …
The Right To Amend State Constitutions, Jessica Bulman-Pozen, Miriam Seifter
The Right To Amend State Constitutions, Jessica Bulman-Pozen, Miriam Seifter
Faculty Scholarship
This Essay explores the people's right to amend state constitutions and threats to that right today. It explains how democratic proportionality review can help courts distinguish unconstitutional infringement of the right from legitimate regulation. More broadly, the Essay considers the distinctive state constitutional architecture that popular amendment illuminates.