Law Commons^™

Section 8: Federalism, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

State Extraterritorial Powers Reconsidered, Mark D. Rosen

All Faculty Scholarship

No abstract provided.

How State Supreme Courts Take Consequences Into Account: Toward A State-Centered Understanding Of State Constitutionalism, Neal Devins

Faculty Publications

No abstract provided.

Federalism At The Cathedral: Property Rules, Liability Rules, And Inalienability Rules In Tenth Amendment Infrastructure, Erin Ryan

Faculty Publications

This Article explores the consequences for good governance of poorly constructed legal infrastructure in the Tenth Amendment context, and recommends a simple jurisprudential fix: exchanging a property rule for the inalienability remedy rule that the Supreme Court used to protect the anticommandeering entitlement in New York v. United States. Grounded in a values-based theory of American federalism, it shows how the New York inalienability rule unnecessarily removes tools for resolving interjurisdictional quagmires - exemplified by the radioactive waste capacity problem at the heart of the New York litigation - by prohibiting novel forms of state-federal bargaining. In New York, the …

Judicial Elections As Popular Constitutionalism, David E. Pozen

Faculty Scholarship

One of the most important recent developments in American legal theory is the burgeoning interest in "popular constitutionalism." One of the most important features of the American legal system is the selection of state judges – judges who resolve thousands of state and federal constitutional questions each year – by popular election. Although a large literature addresses each of these subjects, scholarship has rarely bridged the two. Hardly anyone has evaluated judicial elections in light of popular constitutionalism, or vice versa.

This Article undertakes that thought experiment. Conceptualizing judicial elections as instruments of popular constitutionalism, the Article aims to show, …

Federal Regulation Of State Court Procedures, Anthony J. Bellia

Journal Articles

May Congress regulate the procedures by which state courts adjudicate claims arising under state law? Recently, Congress not only has considered several bills that would do so, but has enacted a few of them. This Article concludes that such laws exceed Congress's constitutional authority. There are serious questions as to whether a regulation of court procedures qualifies as a regulation of interstate commerce under the Commerce Clause. Even assuming, however, that it does qualify as such, the Tenth Amendment reserves the power to regulate court procedures to the states. Members of the Founding generation used conflict-of-laws language to describe a …

Federal Governmental Power: Preemption From The October 2008 Term (Twenty-First Annual Supreme Court Review & Selected Excerpts: Practicing Law Institutes Twenty-Sixth Annual Section 1983 Civil Rights Litigation Program), Eileen Kaufman

Scholarly Works

No abstract provided.