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Articles 1 - 3 of 3
Full-Text Articles in Law
Federalism All The Way Up: State Standing And "The New Process Federalism", Jessica Bulman-Pozen
Federalism All The Way Up: State Standing And "The New Process Federalism", Jessica Bulman-Pozen
Faculty Scholarship
This commentary considers what federalism all the way up means for Gerken’s proposed new process federalism. The state-federal integration she documents underscores why judicial policing of “conditions for federal-state bargaining” cannot be limited to state-federal relations in the traditional sense. It must extend to state challenges to the allocation and exercise of authority within the federal government. The new process federalism would therefore do well to address when states will have standing to bring such cases in federal court. After Part I describes contemporary federalism-all-the-way-up litigation, Part II suggests that Gerken’s “Federalism 3.0” complicates both traditional parens patriae and sovereignty …
Probabilistic Compliance, Alex Raskolnikov
Probabilistic Compliance, Alex Raskolnikov
Faculty Scholarship
Uncertain legal standards are pervasive but understudied. The key theoretical result showing an ambiguous relationship between legal uncertainty and optimal deterrence remains largely undeveloped, and no alternative conceptual approaches to the economic analysis of legal uncertainty have emerged. This Article offers such an alternative by shifting from the well-established and familiar optimal deterrence theory to the new and unfamiliar probabilistic compliance framework. This shift brings the analysis closer to the world of legal practice and yields new theoretical insights. Most importantly, lower uncertainty tends to lead to more compliant positions and greater private gains. In contrast, the market for legal …
The Original Theory Of Constitutionalism, David Singh Grewal, Jedediah S. Purdy
The Original Theory Of Constitutionalism, David Singh Grewal, Jedediah S. Purdy
Faculty Scholarship
The conflict between various versions of “originalism” and “living constitutionalism” has defined the landscape of constitutional theory and practice for more than a generation, and it shows no sign of abating. Although each camp has developed a variety of methodological approaches and substantive distinctions, each one also returns to a core concern: the democratic authority of constitutional review. The late Justice Scalia crystallized the originalist concern in his dissent in Obergefell v. Hodges: “It is of overwhelming importance … who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, …