Law Commons^™

The New Etiquette Of Federalism: New York, Printz And Yeskey, Matthew D. Adler, Seth F. Kreimer

Faculty Scholarship

In New York v. United States, 505 U.S. 144 (1992), the Court revived "state sovereignty" as a justiciable constitutional constraint on federal mandates, and struck down portions of the Low-Level Radioactive Waste Policy Amendments Act on the grounds that the statute impermissibly "commandeered" state governments. Printz v. United States, 117 S.Ct. 2365 (1997), confirmed the anti-commandeering principle and relied upon it to invalidate elements of another federal statute, the Brady Act. This Article analyzes and criticizes the anti-commandeering jurisprudence, as it has emerged in New York, Printz, and a case decided by the Court last Term, Pennsylvania Department of Corrections …

Whose Federalism, S. Elizabeth Malloy

Faculty Articles and Other Publications

This Article examines briefly the Seminole Tribe and City of Boerne decisions. Part II then focuses on the ADA and the reasons why Congress made it applicable to government conduct as well as private conduct. Finally, Part III examines the argument, based on the new federalism, that the ADA should not apply to state entities. It does not appear that the Court's new federalism has had a liberty-enhancing effect for some of the most vulnerable persons in our society. The Court's revitalized federalism jurisprudence has led to questions about the continuing validity of many of our civil rights statutes as …

Light On A Darkling Plain: Intercircuit Conflicts In The Perspective Of Time And Experience, Arthur D. Hellman

Articles

The time has long passed when the Supreme Court resolved every intercircuit conflict properly brought before it in a petition for certiorari. Is that a problem we should be concerned about? Three decades ago, Congress asked the Federal Judicial Center, the research arm of the federal judiciary, to conduct a study to ascertain “the number and frequency of conflicts among the judicial circuits … that remain unresolved because they are not heard by the Supreme Court.” Congress further requested that the Center determine the extent to which the unresolved conflicts are “intolerable.” The Center asked me to design and conduct …

Understanding Mahon In Historical Context, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

Despite its enormous influence on constitutional law, Pennsylvania Coal Co. v. Mahon is just such an opinion; the primary purpose of the author’s article Jam for Justice Holmes: Reassessing the Significance of Mahon is to clarify Holmes's intent by placing the opinion in historical context and in the context of Holmes's other opinions. While other scholars have also sought to place Mahon in context, his account differs in large part because of its recognition, as part of the background of Mahon, of a separate line of cases involving businesses affected with a public interest.

The author argues that at …