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Full-Text Articles in Law

Foreign Affairs Federalism And The Limits On Executive Power, Zachary D. Clopton Jun 2012

Foreign Affairs Federalism And The Limits On Executive Power, Zachary D. Clopton

Michigan Law Review First Impressions

On February 23 of this year, the Ninth Circuit Court of Appeals invalidated a California statute permitting victims of the Armenian genocide to file insurance claims, finding that the state's use of the label "Genocide" intruded on the federal government's conduct of foreign affairs. This decision, Movsesian v. Versicherung AG, addresses foreign affairs federalism—the division of authority between the states and the federal government. Just one month later, the Supreme Court weighed in on another foreign affairs issue: the separation of foreign relations powers within the federal government. In Zivotofsky v. Clinton, the Supreme Court ordered the lower courts to …


Blackmun (And Scalia) At The Bat: The Court's Separation-Of-Powers Strike Out In Freytag, Tuan Samahon Jun 2012

Blackmun (And Scalia) At The Bat: The Court's Separation-Of-Powers Strike Out In Freytag, Tuan Samahon

Nevada Law Journal

No abstract provided.


What Federalism & Why? Science Versus Doctrine, Stephen E. Gottlieb Mar 2012

What Federalism & Why? Science Versus Doctrine, Stephen E. Gottlieb

Pepperdine Law Review

The Constitution does not use the words federal or federalism. It gives Congress a set of powers and prohibits the national government, the states or both from doing some things. The Court has inferred principles of federalism from those provisions. The political science community has treated the advantages of federalism as contingent on whether federalism deepens or diffuses conflict or opens competition for power. The United States Supreme Court's approach does neither; it has been trying to clarify and police a very different boundary. Even on its own terms, however, the Court's justifications do not work - a problem made …


Congress's Power To Regulate The Federal Judiciary: What The First Congress And The First Federal Courts Can Teach Today's Congress And Courts , Paul Taylor Feb 2012

Congress's Power To Regulate The Federal Judiciary: What The First Congress And The First Federal Courts Can Teach Today's Congress And Courts , Paul Taylor

Pepperdine Law Review

No abstract provided.


The Chief Or The Court: Article Ii And The Appointment Of Inferior Judicial Officers, James E. Pfander Jan 2012

The Chief Or The Court: Article Ii And The Appointment Of Inferior Judicial Officers, James E. Pfander

Faculty Working Papers

Each year, the Chief Justice of the United States makes a number of appointments to offices within the Article III judicial establishment. On its face, such a Chief-based appointment practice seems hard to square with the text of Article II, which provides for the appointment of inferior officers by the "courts of law." Scholars have noted the switch from a court-based to a Chief-based appointment system, but generally regard the Chief's authority as constitutionally benign. This Essay explores the origins of the Constitution's choice of the "courts" as the repository of appointment power. The decision was made against the backdrop …


Undermining Congressional Overrides: The Hydra Problem In Statutory Interpretation, Deborah Widiss Jan 2012

Undermining Congressional Overrides: The Hydra Problem In Statutory Interpretation, Deborah Widiss

Articles by Maurer Faculty

Statutory overrides — that is, amendments to supersede a judicial interpretation of a statute — are the primary mechanism by which Congress signals disagreement with court interpretations; they are essential to protect the separation of powers and the promise of legislative supremacy. But in Gross v. FBL Financial Services, the Supreme Court held that Congress’s override of a judicial interpretation of Title VII did not control the interpretation of identical language in the Age Discrimination in Employment Act, and further that Congress’s “neglecting” to amend the ADEA when it amended Title VII was a clear signal that Congress intended the …


Legal Process In A Box, Or What Class Action Waivers Teach Us About Law-Making, Rhonda Wasserman Jan 2012

Legal Process In A Box, Or What Class Action Waivers Teach Us About Law-Making, Rhonda Wasserman

Articles

The Supreme Court’s decision in AT&T Mobility v. Concepcion advanced an agenda found in neither the text nor the legislative history of the Federal Arbitration Act. Concepcion provoked a maelstrom of reactions not only from the press and the academy, but also from Congress, federal agencies and lower courts, as they struggled to interpret, apply, reverse, or cabin the Court’s blockbuster decision. These reactions raise a host of provocative questions about the relationships among the branches of government and between the Supreme Court and the lower courts. Among other questions, Concepcion and its aftermath force us to grapple with the …