Law Commons^™

The Theory And Practice Of Contestatory Federalism, James A. Gardner

William & Mary Law Review

Madisonian theory holds that a federal division of power is necessary to the protection of liberty, but that federalism is a naturally unstable form of government organization that is in constant danger of collapsing into either unitarism or fragmentation. Despite its inherent instability, this condition may be permanently maintained, according to Madison, through a constitutional design that keeps the system in equipoise by institutionalizing a form of perpetual contestation between national and subnational governments. The theory, however, does not specify how that contestation actually occurs, and by what means.

This paper investigates Madison’s hypothesis by documenting the methods actually deployed …

America's War On Drugs: Applying A Supply And Demand Framework For The Opioid Epidemic Through The Lens Of Federalism, Cari Librett

Senior Theses and Projects

For the past fifty years, American drug policy has been manipulated and enforced in a way that made it possible for drug epidemics to occur and has exaggerated their negative consequences on society. The War on Drugs policy initiatives first implemented in the 1970s created a drug law enforcement structure that has criminalized addiction and made it difficult for addicts to receive treatment. The United States is currently facing it's worst drug epidemic in history due to these policies. However, unlike previous epidemics, the opioid crisis is particularly unique not only because of the unparalleled nature of the issue, but …

Dual Sovereignty Is Out, Time For Concurrent Jurisdiction To Shine, Scott Jacobson

William & Mary Environmental Law and Policy Review

No abstract provided.

Preemption And Commandeering Without Congress, Jessica Bulman-Pozen

Faculty Scholarship

In a time of polarization, states may introduce salutary pluralism into an executive-dominated regime. With partisan divisions sidelining Congress, states are at once principal implementers and principal opponents of presidential policies. As polarization makes states more central to national policymaking, however, it also poses new threats to their ability to act. This Essay cautions against recent efforts to preempt state control over state officials and to require states to follow other states’ policies, using sanctuary jurisdictions and the pending federal Concealed Carry Reciprocity Act as examples.

Calvin Massey, Gentleman Farmer, Evan Tsen Lee

The University of New Hampshire Law Review

[Excerpt] “So much of Calvin’s work was intelligible as work about freedom and independence, preventing aggregations of government power that threatened individual freedom. Calvin didn’t love federalism because he had a romanticized view of statehood, he believed in it because he thought centralized power in the federal government was a bigger threat to individual freedom than states were. In most states, a tin-pot governor and amateur hour legislators just aren’t going to be as effective at coercing beliefs as an Executive Branch that contains the U.S. Treasury, the Justice Department, the FBI, and the CIA, not to mention the Pentagon …

Positive Education Federalism: The Promise Of Equality After The Every Student Succeeds Act, Christian Sundquist

Articles

This Article examines the nature of the federal role in public education following the recent passage of the Every Student Succeeds Act in December 2015 (“ESSA”). Public education was largely unregulated for much of our Nation’s history, with the federal government deferring to states’ traditional “police powers” despite the de jure entrenchment of racial and class-based inequalities. A nascent policy of education federalism finally took root following the Brown v. Board decision and the enactment of the Elementary and Secondary School Act (“ESEA”) with the explicit purpose of eradicating such educational inequality.

This timely Article argues that current federal education …

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 …

Choice Of Law And Jurisdictional Policy In The Federal Courts, Tobias Barrington Wolff

All Faculty Scholarship

For seventy-five years, Klaxon v. Stentor Electric Manufacturing has provided a one-line answer to choice-of-law questions in federal diversity cases: Erie requires the federal court to employ the same law that a court of the state would select. The simplicity of the proposition likely accounts for the unqualified breadth with which federal courts now apply it. Choice of law doctrine is difficult, consensus in hard cases is elusive, and the anxiety that Erie produces over the demands of federalism tends to stifle any reexamination of core assumptions. The attraction of a simple answer is obvious. But Klaxon cannot bear the …

Uncontrolled Experiments From The Laboratories Of Democracy: Traditional Cash Welfare, Federalism, And Welfare Reform, Jonah B. Gelbach

All Faculty Scholarship

In this chapter I discuss the history and basic incentive effects of two key U.S. cash assistance programs aimed at families with children. Starting roughly in the 1980s, critics of the Aid to Families with Dependent Children (AFDC) program argued that the program -- designed largely to cut relatively small checks -- failed to end poverty or promote work. After years of federally provided waivers that allowed states to experiment with changes to their AFDC programs, the critics in 1996 won the outright elimination of AFDC. It was replaced by the Temporary Assistance to Needy Families (TANF) program, over which …

A Two-Step Plan For Puerto Rico, Clayton P. Gillette, David A. Skeel Jr.

All Faculty Scholarship

Few still believe that Puerto Rico is capable of meeting all of its financial obligations and continuing to provide basic services. The territory is already in default, and conditions are rapidly deteriorating. Is there a way forward? We think there is. In this short article, we outline a two-part plan for correcting Puerto Rico’s most urgent fiscal and financial problems.

The first step is to create an independent financial control board that has authority over Puerto Rico’s budgets and related issues. Notwithstanding concerns that an externally imposed financial control board (FCB) may interfere with the decision making processes of democratically …

Special Economic Zones In The United States: From Colonial Charters, To Foreign-Trade Zones, Toward Ussezs, Tom W. Bell

Tom W. Bell

Governance Reform And The Judicial Role In Municipal Bankruptcy, Clayton P. Gillette, David A. Skeel Jr.

All Faculty Scholarship

Recent proceedings involving large municipalities such as Detroit, Stockton, and Vallejo illustrate both the utility and the limitations of using the Bankruptcy Code to adjust municipal debt. In this article, we contend that, to truly resolve the distress of a substantial city, municipal bankruptcy needs to do more than simply provide immediate debt relief. Debt adjustment alone does nothing to remedy the fragmented decision-making and incentives for expanding municipal budgets that underlie municipal distress. Unless bankruptcy also addresses governance dysfunction, the city may slide right back into financial crisis. Governance restructuring has long been an essential element of corporate bankruptcy. …

The Narrowing Of Federal Power By The American Political Capital, David Fontana

William & Mary Bill of Rights Journal

This Essay--—prepared for a symposium hosted by the William & Mary Bill of Rights Journal on the future of the District of Columbia--—argues that American federal power can be better understood by considering the features of the metropolitan area that houses the most important parts of the American federal government. In other American metropolitan areas and in most capital metropolitan areas elsewhere in the world, local life features multiple and diverse industries. Washington is the metropolitan area that houses the most important parts of the American federal government, and Washington is dominated by the government and related industries. Washington is, …

Rediscovering Capture: Antitrust Federalism And The North Carolina Dental Case, Herbert J. Hovenkamp

All Faculty Scholarship

This brief essay analyzes the Supreme Court's 2015 decision in the North Carolina Dental case, assessing its implications for federalism. The decision promises to re-open old divisions that had once made the antitrust "state action" doctrine a controversial lightning rod for debate about state economic sovereignty.

One provocative issue that neither the majority nor the dissenters considered is indicated by the fact that nearly all the cartel customers in the Dental case were located within the state. By contrast, the cartel in Parker v. Brown, which the dissent held up as the correct exemplar of the doctrine, benefited California growers …

The Promise And Peril Of The Anti-Commandeering Rule In The Homeland Security Era: Immigrant Sanctuary As An Illustrative Case, Trevor George Gardner

Scholarship@WashULaw

Despite the broad powers wielded by the federal government in security administration, the Supreme Court’s holding in Printz v. United States serves as a substantial check against federal overreach. Hand wringing by legal scholars over the Court’s reasoning in Printz and the rigid rules against commandeering attached to this reasoning have obscured the fact that the case now stands as a bulwark against the expansion of federal authority over state, county, and local police. Given the holding in Printz, ICE cannot require the active participation of subnational police in immigration enforcement and must instead—despite its previous assertions to the contrary—solicit …

California's Foreign Relations, Christopher Gaarder

CMC Senior Theses

Globalization has significantly increased the number of stakeholders in transnational issues in recent decades. The typical list of the new players in global affairs often includes non-state actors like non-governmental organizations, multinational corporations, and international organizations. Sub-national governments, however, have been given relatively little attention even though they, too, have a significant interest and ability to shape the increasing flow of capital, goods, services, people, and ideas that has so profoundly influenced the global political economy in recent decades. California, arguably the most significant among sub-national governments – its economy would be seventh or eighth in the world at $2.2 …

Short-Circuiting Contract Law: The Federal Circuit's Contract Law Jurisprudence And Intellectual Property Federalism, Shubha Ghosh

Shubha Ghosh

The Federal Circuit was established in 1982 as an appellate court with limited jurisdiction over patent claims. However, the Federal Circuit has used this limited jurisdiction to expand its reach into contract law, developing a federal common law of contract. Given the growing importance of patent litigation in the past three decades, this creation of an independent body of contract law creates uncertainty in transactions involving patents. This troublesome development received attention in Stanford v Roche, a 2011 Supreme Court decision upholding the Federal Circuit's invalidation of a patent assignment to Stanford University. This Article documents the development of …

National Geographics: Toward A “Federalism Function” Of American Tort Law, Riaz Tejani

San Diego Law Review

This Article will situate the federalism function among existing scholarly frameworks and assess the “contoured” approach to federal and state power balancing across the existing subject matter of torts. Part II will assess conflicting characterizations of tort law as on one hand “private” and on the other “public” law. Part III will define and explain competing functions of tort law with an eye to whether federalism fits the common criteria of these coexisting objectives, goals, purposes, and methods for adjudication. In Part IV, the Article will explore historical and contemporary roles of federalism to understand why this process becomes so …

Partisan Federalism, Jessica Bulman-Pozen

Faculty Scholarship

Among the questions that vex the federalism literature are why states check the federal government and whether Americans identify with the states as well as the nation. This Article argues that partisanship supplies the core of an answer to both questions. Competition between today’s ideologically coherent, polarized parties leads state actors to make demands for autonomy, to enact laws rejected by the federal government, and to fight federal programs from within. States thus check the federal government by channeling partisan conflict through federalism’s institutional framework. Partisanship also recasts the longstanding debate about whether Americans identify with the states. Democratic and …

Endogenous Decentralization In Federal Environmental Policies, Howard F. Chang, Hilary Sigman, Leah G. Traub

All Faculty Scholarship

Under most federal environmental laws and some health and safety laws, states may apply for “primacy,” that is, authority to implement and enforce federal law, through a process known as “authorization.” Some observers fear that states use authorization to adopt more lax policies in a regulatory “race to the bottom.” This paper presents a simple model of the interaction between the federal and state governments in such a scheme of partial decentralization. Our model suggests that the authorization option may not only increase social welfare but also allow more stringent environmental regulations than would otherwise be feasible. Our model also …

The First Attempt At Federalizing Tort Law And Why It Failed.", Ian Drake

Department of Political Science and Law Faculty Scholarship and Creative Works

In the 1970s, the US Congress meticulously considered the possibility of creating a federal law of torts. The federal effort began almost a decade after many state supreme courts had expanded manufacturer liability for defective products. The state-level expansion caused a reaction among state and federal legislatures. The initial federal presence took the form of investigatory efforts, but those were soon followed by legislative proposals. The federal legislative proposals occurred simultaneously with some states' efforts to enact their own products liability laws. Although the states' tort laws might present variations on a theme, the possibilities for federal intervention in the …

Immigration Policing And Federalism Through The Lens Of Technology, Surveillance, And Privacy, Anil Kalhan

Anil Kalhan

With the deployment of technology, federal programs to enlist state and local police assistance with immigration enforcement are undergoing a sea change. For example, even as it forcefully has urged invalidation of Arizona’s S.B. 1070 and similar state laws, the Obama administration has presided over the largest expansion of state and local immigration policing in U.S. history with its implementation of the “Secure Communities” program, which integrates immigration and criminal history database systems in order to automatically ascertain the immigration status of every individual who is arrested and booked by state and local police nationwide. By 2012, over one fifth …

“Unmistakably Clear” Coercion: Finding A Balance Between Judicial Review Of The Spending Power And Optimal Federalism, Dale B. Thompson

San Diego Law Review

This Article proposes a new tier of scrutiny, “unmistakably clear,” for conducting judicial review of congressional authority under the Spending Clause. Under this standard, a condition would be unconstitutional only if it is unmistakably clear that it is coercive. In order to develop this proposal, this Article traces the debate over the spending power from the Federalist Papers up through the decision in National Federation of Independent Business v. Sebelius, finding strong arguments for granting significant deference to Congress’s Spending Clause authority. Careful analysis of the opinions in the case yields not only the name for the new standard of …

Antitrust And The 'Filed Rate' Doctrine: Deregulation And State Action, Herbert J. Hovenkamp

All Faculty Scholarship

In its Keogh decision the Supreme Court held that although the Interstate Commerce Act did not exempt railroads from antitrust liability, a private plaintiff may not recover treble damages based on an allegedly monopolistic tariff rate filed with a federal agency. Keogh very likely grew out of Justice Brandeis's own zeal for regulation and his concern for the protection of small business — in this case, mainly shippers whom he felt were protected from discrimination by filed rates. The Supreme Court's Square D decision later conceded that Keogh may have been “unwise as a matter of policy,” but reaffirmed it …

Comparative Antitrust Federalism: Review Of Cengiz, Antitrust Federalism In The Eu And The Us, Herbert J. Hovenkamp

All Faculty Scholarship

This brief essay reviews Firat Cengiz’s book Antitrust Federalism in the EU and the US (2012), which compares the role of federalism in the competition law of the European Union and the United States. Both of these systems are “federal,” of course, because both have individual nation-states (Europe) or states (US) with their own individual competition provisions, but also an overarching competition law that applies to the entire group. This requires a certain amount of cooperation with respect to both territorial reach and substantive coverage.

Cengiz distinguishes among “markets,” “hierarchies,” and “networks” as forms of federalism. Markets are the least …

Some Reflections On Fundamental Questions About The Original Understanding Of The Establishment Clause, Kent Greenawalt

Faculty Scholarship

This chapter begins with an analysis of Everson v. Board of Education, where it argues that the although the original intent of the Establishment Clause and the Fourteenth Amendment should be given some weight, the original intent should not be determinative. The chapter rejects the argument that the Establishment Clause was exclusively designed to prevent the federal government from interfering with state establishments. While federalism concerns may have been one such purpose, the Establishment Clause also necessarily prevented the federal government from establishing religion in the District of Columbia, on federal territories, and on federal property — including embassies …

Coastal Planning, Federal Consistency, And Climate Change: A Recent Divergence Of Federal And State Interests, Chad J. Mcguire

Chad J McGuire

Legal Consciousness And Lgbt Research: The Importance Of Law In The Everyday Lives Of Lgbt Individuals, Nancy J. Knauer

Nancy J. Knauer

The law occupies a prominent place in the everyday lives of LGBT individuals, and the continuing regulation and policing of sexuality and gender weighs heavily on many people who identify as LGBT. Despite remarkable progress in the area of LGBT civil rights, LGBT individuals in the United States still lack formal equality and are denied many of the protections that are afforded other historically disadvantaged groups. These legal disabilities represent an ongoing source of minority stress and can produce a correspondingly high degree of “legal consciousness” within the LGBT community. Given the importance of law in LGBT lives, it is …

Urbanization, Water Quality, And The Regulated Landscape, Dave Owen

Publications

Watershed scientists frequently describe urbanization as a primary cause of water quality degradation, and recent studies conclude that even in lightly-developed watersheds, urbanization often precludes attainment of water quality standards. This article considers legal responses to this pervasive problem. It explains why traditional legal measures have been ineffective, and it evaluates several recent innovations piloted in the northeastern United States and potentially applicable across the nation. Specifically, the innovations involve using impervious cover TMDLs, residual designation authority, and collective permitting. More generally, the innovations involve transferring regulatory focus from end-of-the-pipe to landscape-based controls. I conclude that the innovations, while raising …

The Economics Of Horizontal Government Cooperation (Working Paper), Matthew R. Dalsanto Ph.D.

Matthew R. DalSanto, Ph.D.

This paper analyzes the ability of intrastate and interstate cooperative agreements to either minimize or capitalize on interjurisdictional externalities. These agreements are commonly referred to as compacts or joint powers agreements (intrastate compacts). The compact mechanism allows regional governments to enter into contractual agreements with one another to coordinate policy choices and to engage in cooperative endeavors. Given the inter-jurisdictional nature of the issues that affect horizontally situated governments, this mechanism is a powerful tool to achieve welfare-enhancing outcomes for citizens.

A review of the legal case law surrounding compacts is conducted to analyze the legal properties from an economic …