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Articles 1 - 30 of 244
Full-Text Articles in State and Local Government Law
S.B. H(8): Battle Of The Bills And Private Enforcement, Hailey Martin
S.B. H(8): Battle Of The Bills And Private Enforcement, Hailey Martin
University of Cincinnati Law Review
No abstract provided.
The New Comity Abstention, John Harland Giammatteo
The New Comity Abstention, John Harland Giammatteo
Journal Articles
In the past ten years, lower federal courts have quietly but regularly abstained from hearing federal claims challenging state court procedures, citing concerns of comity and federalism. Federal courts have dismissed a broad range of substantive challenges tasked to them by Congress, including under the Americans with Disabilities Act, the Indian Child Welfare Act, and various constitutional provisions, involving state court eviction proceedings, foster care determinations, bail and criminal justice policies, COVID-era safety practices, and other instances where state courts determine state policy.
This paper is the first to argue that these decisions constitute a new abstention doctrine, unmoored from …
Preference-Based Federalism, Marquan Robertson
Preference-Based Federalism, Marquan Robertson
St. Mary's Law Journal
No abstract provided.
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/
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.
The New Laboratories Of Democracy, Gerald S. Dickinson
The New Laboratories Of Democracy, Gerald S. Dickinson
Articles
Nearly a century ago, Justice Louis D. Brandeis’s dissent in New State Ice Co. v. Liebman coined one of the most profound statements in American law: “It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” Justice Brandeis reminded us of our strong tradition of federalism, where the states, exercising their sovereign power, may choose to experiment with new legislation within their separate jurisdictions without the concern that such …
Solidarity Federalism, Erin F. Delaney, Ruth Mason
Solidarity Federalism, Erin F. Delaney, Ruth Mason
Notre Dame Law Review
Studies of federalism, especially in the United States, have mostly centered on state autonomy and the vertical relationship between the states and the federal government. This Article approaches federalism from a different perspective, one that focuses on state solidarity. We explain how solidarity structures found in constitutional federations—including the United States—generate solidarity obligations, such as duties not to harm other states or their citizens. These duties give rise to principles, such as nondiscrimination, that are vital to federalism. Focusing on interstate relations and relations between states and citizens of other states, we argue that affirming both solidarity and autonomy as …
Pandemic Governance, Yanbai Andrea Wang, Justin Weinstein-Tull
Pandemic Governance, Yanbai Andrea Wang, Justin Weinstein-Tull
All Faculty Scholarship
The COVID-19 pandemic created an unprecedented need for governance by a multiplicity of authorities. The nature of the pandemic—globally communicable, uncontrolled, and initially mysterious—required a coordinated response to a common problem. But the pandemic was superimposed atop our decentralized domestic and international governance structures, and the result was devastating: the United States has a death rate that is eighteenth highest in the world, and the pandemic has had dramatically unequal impacts across the country. COVID-19’s effects have been particularly destructive for communities of color, women, and intersectional populations.
This Article finds order in the chaos of the pandemic response by …
A Tipping Point In Ohio: The Primacy Model As A Path To A Consistent Application Of Judicial Federalism, The Honorable Pierre Bergeron
A Tipping Point In Ohio: The Primacy Model As A Path To A Consistent Application Of Judicial Federalism, The Honorable Pierre Bergeron
University of Cincinnati Law Review
No abstract provided.
State Rejection Of Federal Law, Thomas B. Bennett
State Rejection Of Federal Law, Thomas B. Bennett
Notre Dame Law Review
Sometimes the United States Supreme Court speaks, and states do not follow. For example, in 2003, the Arizona Supreme Court agreed to “reject” a decision of the U.S. Supreme Court, because no “sound reasons justif[ied] following” it. Similarly, in 2006, Michigan voters approved a ballot initiative that, according to the legislature that drafted it, sought “at the very least[] to ‘freeze’ the state’s . . . law to prevent” state courts from following a ruling of the U.S. Supreme Court. Surprising though this language may be, there is nothing nefarious about these cases. Cooper v. Aaron this is not. Unlike …
Bringing History Home: Strategies For The International Repatriation Of Native American Cultural Property, Alec Johnson
Bringing History Home: Strategies For The International Repatriation Of Native American Cultural Property, Alec Johnson
Dickinson Law Review (2017-Present)
The theft of Native American cultural items has been ongoing since Europeans began to colonize the Americas. As a result, millions of Native American artifacts are now located outside the borders of the United States. Native American tribes have long sought international repatriation—the return of these cultural objects to their tribal owners. Unfortunately, many countries have been unsupportive of repatriation attempts and Native Americans seeking the return of their cultural items face nearly insurmountable barriers in foreign courts. The U.S. government has a moral imperative to assist Native American tribes in these repatriation efforts. The debate over repatriation is defined …
Enforcing Interstate Compacts In Federal Systems, Michael Osborn
Enforcing Interstate Compacts In Federal Systems, Michael Osborn
Indiana Journal of Constitutional Design
The central goal of a federal system is for local government units to retain degrees of independence, specifically over matters of importance to that local unit. A logical corollary to that independence is the ability for local units to negotiate and contract with other local units on matters of importance. Therefore, it is not surprising that almost every federal system allows, either implicitly or explicitly, member states to form binding compacts with other states, the union government, or municipalities.1 Some federal democracies even allow member states to compact with foreign governments. Furthermore, almost every federal constitution includes a provision outlining …
Answering The Call: A History Of The Emergency Power Doctrine In Texas And The United States, P. Elise Mclaren
Answering The Call: A History Of The Emergency Power Doctrine In Texas And The United States, P. Elise Mclaren
St. Mary's Law Journal
During times of emergency, national and local government may be allowed to take otherwise impermissible action in the interest of health, safety, or national security. The prerequisites and limits to this power, however, are altogether unknown. Like the crises they aim to deflect, courts’ modern emergency power doctrines range from outright denial of any power of constitutional circumvention to their flagrant use. Concededly, courts’ approval of emergency powers has provided national and local government opportunities to quickly respond to emergency without pause for constituency approval, but how can one be sure the availability of autocratic power will not be abused? …
Interest-Based Incorporation: Statutory Realism Exploring Federalism, Delegation, And Democratic Design, Sheldon Evans
Interest-Based Incorporation: Statutory Realism Exploring Federalism, Delegation, And Democratic Design, Sheldon Evans
Faculty Publications
Statutory interpretation is a unique legal field that appreciates fiction as much as fact. For years, judges and scholars have acknowledged that canons of interpretation are often based on erudite assumptions of how Congress drafts federal statutes. But a recent surge in legal realism has shown just how erroneous many of these assumptions are. Scholars have created a robust study of congressional practices that challenge many formalist canons of interpretation that are divorced from how Congress thinks about, drafts, and enacts federal statutes. This conversation, however, has yet to confront statutory incorporation, which describes when Congress incorporates state law into …
How Federalism Built The Fbi, Sustained Local Police, And Left Out The States, Daniel C. Richman, Sarah Seo
How Federalism Built The Fbi, Sustained Local Police, And Left Out The States, Daniel C. Richman, Sarah Seo
Faculty Scholarship
This Article examines the endurance of police localism amid the improbable growth of the FBI in the early twentieth century when the prospect of a centralized law enforcement agency was anathema to the ideals of American democracy. It argues that doctrinal accounts of federalism do not explain these paradoxical developments. By analyzing how the Bureau made itself indispensable to local police departments rather than encroaching on their turf, the Article elucidates an operational, or collaborative, federalism that not only enlarged the Bureau’s capacity and authority but also strengthened local autonomy at the expense of the states. Collaborative federalism is crucial …
Article Iii And The Political Question Doctrine, Scott Dodson
Article Iii And The Political Question Doctrine, Scott Dodson
Northwestern University Law Review
Courts and commentators have often sourced the political question doctrine in Article III, a repository of other separation-of-powers doctrines applicable to the federal courts. Rucho v. Common Cause, a blockbuster political question case decided in 2019, explicitly tied the doctrine to Article III. But the historical development of the doctrine undermines the depth of that connection. Further, sourcing the doctrine in Article III leads to some very odd effects, including leaving state courts free to answer federal political questions. This Article argues that the source of the political question doctrine is in substantive law, not in Article III. Such …
New Federalism And Civil Rights Enforcement, Alexander Reinert, Joanna C. Schwartz, James E. Pfander
New Federalism And Civil Rights Enforcement, Alexander Reinert, Joanna C. Schwartz, James E. Pfander
Northwestern University Law Review
Calls for change to the infrastructure of civil rights enforcement have grown more insistent in the past several years, attracting support from a wide range of advocates, scholars, and federal, state, and local officials. Much of the attention has focused on federal-level reforms, including proposals to overrule Supreme Court doctrines that stop many civil rights lawsuits in their tracks. But state and local officials share responsibility for the enforcement of civil rights and have underappreciated powers to adopt reforms of their own. This Article evaluates a range of state and local interventions, including the adoption of state law causes of …
Federalism, Free Competition, And Sherman Act Preemption Of State Restraints, Alan J. Meese
Federalism, Free Competition, And Sherman Act Preemption Of State Restraints, Alan J. Meese
Faculty Publications
The Sherman Act establishes free competition as the rule governing interstate trade. Banning private restraints cannot ensure that competitive markets allocate the nation's resources. State laws can pose identical threats to free markets, posing an obstacle to achieving Congress's goal to protect free competition.
The Sherman Act would thus override anticompetitive state laws under ordinary preemption standards. Nonetheless, the Supreme Court rejected such preemption in Parker v. Brown, creating the "state action doctrine." Parker and its progeny hold that state-imposed restraints are immune from Sherman Act preemption, even if they impose significant harm on out-of-state consumers. Parker's progeny …
Reconsidering Federalism And The Farm: Toward Including Local, State And Regional Voices In America's Food System, Margaret Sova Mccabe
Reconsidering Federalism And The Farm: Toward Including Local, State And Regional Voices In America's Food System, Margaret Sova Mccabe
Journal of Food Law & Policy
Why is the relationship between our food system and federalism important to American law and health? It is important simply because federal law controls the American food system. This essay considers how federal law came to structure our food system, and suggests that though food is an essential part of our national economy, the dominating role of the federal government alienates citizens from their food system. It does so by characterizing food as a primarily economic issue, rather than one that has ethical, health, and cultural components. However, state and local governments have much to offer in terms of broadening …
Rules Of The Road: The Struggle For Safety And The Unmet Promise Of Federalism, Sara C. Bronin
Rules Of The Road: The Struggle For Safety And The Unmet Promise Of Federalism, Sara C. Bronin
Cornell Law Faculty Publications
American streets have become increasingly dangerous. 2020 saw the highest year-over-year increase in roadway death rates in 96 years, and the last year for which we have data on non-drivers, 2018, was the was the deadliest year for pedestrians and cyclists in three decades. Though this resurgence of road violence has many complex causes, what makes American roads uniquely deadly are laws that lock in two interrelated design problems: unfriendly streets and unsafe vehicles.
Design standards articulate how streets and vehicles look and function. As they have been enshrined in law, they favor drivers and their passengers over any other …
Executive Unilateralism And Individual Rights In A Federalist System, Meredith Mclain, Sharece Thrower
Executive Unilateralism And Individual Rights In A Federalist System, Meredith Mclain, Sharece Thrower
William & Mary Bill of Rights Journal
Presidents have a wide array of tools at their disposal to unilaterally influence public policy, without the direct approval of Congress or the courts. These unilateral actions have the potential to affect a variety of individual rights, either profitably or adversely. Governors too can employ unilateral directives for similar purposes, often impacting an even wider range of rights. In this Article, we collect all executive orders and memoranda related to individual rights issued between 1981 and 2018 at the federal level, and across the U.S. states, to analyze their use over time. We find that chief executives of all kinds …
Territorial Exceptionalism And The Americanwelfare State, Andrew Hammond
Territorial Exceptionalism And The Americanwelfare State, Andrew Hammond
Michigan Law Review
Federal law excludes millions of American citizens from crucial public benefits simply because they live in the United States territories. If the Social Security Administration determines a low-income individual has a disability, that person can move to another state and continue to receive benefits. But if that person moves to, say, Guam or the U.S. Virgin Islands, that person loses their right to federal aid. Similarly with SNAP (food stamps), federal spending rises with increased demand—whether because of a recession, a pandemic, or a climate disaster. But unlike the rest of the United States, Puerto Rico, the Northern Mariana Islands, …
Takings Localism, Nestor M. Davisdson, Timothy M. Mulvaney
Takings Localism, Nestor M. Davisdson, Timothy M. Mulvaney
Faculty Scholarship
Conflicts over “sanctuary” cities, minimum wage laws, and gender-neutral bathrooms have brought the problematic landscape of contemporary state preemption of local governance to national attention. This Article contends that more covert, although equally robust, state interference can be found in property, with significant consequences for our understanding of takings law.
Takings jurisprudence looks to the states to mediate most tensions between individual property rights and community needs, as the takings federalism literature recognizes. Takings challenges, however, often involve local governments. If the doctrine privileges the democratic process to resolve most takings claims, then, that critical process is a largely local …
Sanctuary Cities And The Power Of The Purse: An Executive Dole Test, Douglas M. Spencer
Sanctuary Cities And The Power Of The Purse: An Executive Dole Test, Douglas M. Spencer
Publications
A constitutional clash is brewing. Cities and counties are flexing their muscles to frustrate national immigration policy while the federal Executive is threatening to interfere with local law enforcement decision making and funding. Although the federal government generally has plenary authority over immigration law, the Constitution forbids the commandeering of state and local officials to enforce federal law against their will. One exception to this anti-commandeering principle is the Spending Clause of Article I that permits Congress to condition the receipt of federal funds on compliance with federal law. These conditions, according to more than 30 years of Supreme Court …
Reconstructing State Republics, Francesca L. Procaccini
Reconstructing State Republics, Francesca L. Procaccini
Vanderbilt Law School Faculty Publications
Our national political dysfunction is rooted in constitutionally dysfunctional states. States today are devolving into modern aristocracies through laws that depress popular control, entwine wealth and power, and insulate incumbents from democratic oversight and accountability. These unrepublican states corrupt the entire United States. It is for this reason that the Constitution obligates the United States to restore ailing states to their full republican strength. But how? For all its attention to process, the Constitution is silent on how the United States may exercise its sweeping Article IV power to “guarantee to every State in this Union a Republican Form of …
The Democracy Principle In State Constitutions, Jessica Bulman-Pozen, Miriam Seifter
The Democracy Principle In State Constitutions, Jessica Bulman-Pozen, Miriam Seifter
Faculty Scholarship
In recent years, antidemocratic behavior has rippled across the nation. Lame-duck state legislatures have stripped popularly elected governors of their powers; extreme partisan gerrymanders have warped representative institutions; state officials have nullified popularly adopted initiatives. The federal constitution offers few resources to address these problems, and ballot-box solutions cannot work when antidemocratic actions undermine elections themselves. Commentators increasingly decry the rule of the many by the few.
This Article argues that a vital response has been neglected. State constitutions embody a deep commitment to democracy. Unlike the federal constitution, they were drafted – and have been repeatedly rewritten and amended …
Dirty Johns: Prosecuting Prostituted Women In Pennsylvania And The Need For Reform, Mckay Lewis
Dirty Johns: Prosecuting Prostituted Women In Pennsylvania And The Need For Reform, Mckay Lewis
Dickinson Law Review (2017-Present)
Prostitution is as old as human civilization itself. Throughout history, public attitudes toward prostituted women have varied greatly. But adverse consequences of the practice—usually imposed by men purchasing sexual services—have continuously been present. Prostituted women have regularly been subject to violence, discrimination, and indifference from their clients, the general public, and even law enforcement and judicial officers.
Jurisdictions can choose to adopt one of three general approaches to prostitution regulation: (1) criminalization; (2) legalization/ decriminalization; or (3) a hybrid approach known as the Nordic Model. Criminalization regimes are regularly associated with disparate treatment between prostituted women and their clients, high …
United/States: A Revolutionary History Of American Statehood, Craig Green
United/States: A Revolutionary History Of American Statehood, Craig Green
Michigan Law Review
Where did states come from? Almost everyone thinks that states descended immediately, originally, and directly from British colonies, while only afterward joining together as the United States. As a matter of legal history, that is incorrect. States and the United States were created by revolutionary independence, and they developed simultaneously in that context as improvised entities that were profoundly interdependent and mutually constitutive, rather than separate or sequential.
“States-first” histories have provided foundational support for past and present arguments favoring states’ rights and state sovereignty. This Article gathers preconstitutional evidence about state constitutions, American independence, and territorial boundaries to challenge …
Reflections On The Effects Of Federalism On Opioid Policy, Matthew B. Lawrence
Reflections On The Effects Of Federalism On Opioid Policy, Matthew B. Lawrence
Dickinson Law Review (2017-Present)
No abstract provided.
Mhpaea & Marble Cake: Parity & The Forgotten Frame Of Federalism, Taleed El-Sabawi
Mhpaea & Marble Cake: Parity & The Forgotten Frame Of Federalism, Taleed El-Sabawi
Dickinson Law Review (2017-Present)
No abstract provided.