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Full-Text Articles in Law
A Prophylactic Approach To Compact Constitutionality, Katherine Mims Crocker
A Prophylactic Approach To Compact Constitutionality, Katherine Mims Crocker
Faculty Scholarship
From COVID-19 to climate change, immigration to health insurance, firearms control to electoral reform: state politicians have sought to address all these hot-button issues by joining forces with other states. The U.S. Constitution, however, forbids states to “enter into any Agreement or Compact” with each other “without the Consent of Congress,” a requirement that proponents of much interstate action, especially around controversial topics, would hope to circumvent.
The Supreme Court lets them do just that. By interpreting “any Agreement or Compact” so narrowly that it is difficult to see what besides otherwise unlawful coordination qualifies, the Court has essentially read …
Even Some International Law Is Local: Implementation Of Treaties Through Subnational Mechanisms, Charlotte Ku, William H. Henning, David P. Stewart, Paul F. Diehl
Even Some International Law Is Local: Implementation Of Treaties Through Subnational Mechanisms, Charlotte Ku, William H. Henning, David P. Stewart, Paul F. Diehl
Faculty Scholarship
Multilateral treaties today rarely touch on subjects where there is no domestic law in the United States, In the U.S. federal system, this domestic law may not be national law, but law of the constituent States of the United States. However, in light of the U.S. Constitution Article VI, treaties in their domestic application unavoidably federalize the subjects they address. The most sensitive issues arise when a treaty focuses on matters primarily or exclusively dealt with in the United States at the State or local level. Although U.S. practice allows for some flexibility to accommodate State/local interests, the federal government …
Qualified Immunity And Constitutional Structure, Katherine Mims Crocker
Qualified Immunity And Constitutional Structure, Katherine Mims Crocker
Faculty Scholarship
A range of scholars has subjected qualified immunity to a wave of criticism—and for good reasons. But the Supreme Court continues to apply the doctrine in ever more aggressive ways. By advancing two claims, this Article seeks to make some sense of this conflict and to suggest some thoughts toward a resolution.
First, while the Court has offered and scholars have rejected several rationales for the doctrine, layering in an account grounded in structural constitutional concerns provides a historically richer and analytically thicker understanding of the current qualified-immunity regime. For suits against federal officials, qualified immunity acts as a “compensating …
Subfederal Immigration Regulation And The Trump Effect, Huyen Pham, Pham Hoang Van
Subfederal Immigration Regulation And The Trump Effect, Huyen Pham, Pham Hoang Van
Faculty Scholarship
The restrictive changes made by the Trump presidency on U.S. immigration policy have been widely reported: the significant increases in both interior and border enforcement, the travel ban prohibiting immigration from majority-Muslim countries, and the termination of the DACA program. Beyond the traditional levers of federal immigration control, this administration has also moved aggressively to harness the enforcement power of local and state police to increase interior immigration enforcement. To that end, the administration has employed both voluntary measures (like signing 287(g) agreements deputizing local police to enforce immigration laws) and involuntary measures (threatening to defund jurisdictions with so-called “sanctuary” …
A Prudential Take On A Prudential Takings Doctrine, Katherine Mims Crocker
A Prudential Take On A Prudential Takings Doctrine, Katherine Mims Crocker
Faculty Scholarship
The Supreme Court is set to decide a case requesting reconsideration of a doctrine that has long bedeviled constitutional litigants and commentators. The case is Knick v. Township of Scott, and the doctrine is the “ripeness” rule from Williamson County Regional Planning Commission v. Hamilton Bank that plaintiffs seeking to raise takings claims under the Fifth Amendment must pursue state-created remedies first — the so-called “compensation prong” (as distinguished from a separate “takings prong”). This Essay argues that to put the compensation prong in the best light possible, the Court should view the requirement as a “prudential” rule rather than …
Constitutional Challenges And Regulatory Opportunities For State Climate Policy Innovation, Felix Mormann
Constitutional Challenges And Regulatory Opportunities For State Climate Policy Innovation, Felix Mormann
Faculty Scholarship
This Article explores constitutional limits and regulatory openings for innovative state policies to mitigate climate change by promoting climate-friendly, renewable energy. In the absence of a comprehensive federal policy approach to climate change and clean energy, more and more states are stepping in to fill the policy void. Already, nearly thirty states have adopted renewable portfolio standards that create markets for solar, wind, and other clean electricity. To help populate these markets, a few pioneering states have recently started using feed-in tariffs that offer eligible generators above-market rates for their clean, renewable power.
But renewable portfolio standards, feed-in tariffs, and …
What Is The Erie Doctrine? (And What Does It Mean For The Contemporary Politics Of Judicial Federalism?), Adam N. Steinman
What Is The Erie Doctrine? (And What Does It Mean For The Contemporary Politics Of Judicial Federalism?), Adam N. Steinman
Faculty Scholarship
As when Erie Railroad Co. v. Tompkins was decided seventy years ago, federal courts today are seen as more favorable to corporate and business interests than many of their state-court brethren. The current situation is due in no small part to federal courts' comparatively pro-defendant approaches to summary judgment, class certification, and other procedural issues. The Court's decision in Bell Atlantic Corp. v. Twombly, which tilts federal pleading standards in favor of defendants, will likely have similar federalism implications. This Article presents a straightforward argument that the Erie doctrine may require federal courts to follow state-law standards on summary judgment, …
Reconceptualizing Federal Habeas Corpus For State Prisoners: How Should Aedpa's Standard Of Review Operate After Williams V. Taylor?, Adam N. Steinman
Reconceptualizing Federal Habeas Corpus For State Prisoners: How Should Aedpa's Standard Of Review Operate After Williams V. Taylor?, Adam N. Steinman
Faculty Scholarship
This Article aims to expand the debate over the proper standard of review that applies in state prisoner habeas corpus actions in federal court. To date, this debate has centered on whether federal habeas courts should defer to the state court's resolution of federal legal questions, or whether federal habeas courts should assess and apply federal law de novo. However, in Williams v. Taylor, 529 U.S. 362 (2000), the Supreme Court held that the Antiterrorism and Effective Death Penalty Act (AEDPA) imposes a deferential standard of review that precludes a federal habeas court from granting relief based simply on its …