Law Commons^™

The Unsettled Nature Of The Union, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

This article is a response to Bradford R. Clark, The Eleventh Amendment and the Nature of the Union, 123 Harv. L. Rev. 1817 (2010).

In his article, The Eleventh Amendment and the Nature of the Union, Professor Bradford Clark offeres an explanation for the puzzling text of the Eleventh Amendment, which appears to preclude federal jurisdiction over suits against a state by citizens of other states but not by its own citizens. Professor Clark argues that the Amendment's text made sense to the Founders because they did not envision any suits against the states arising under federal law. …

Why Preemption Proponents Are Wrong, Brian Wolfman

Georgetown Law Faculty Publications and Other Works

The basic idea of federal preemption is easily stated: It is a constitutionally mandated principle that demands that federal law trumps state law when the two conflict or in the rare instances when a federal law is so comprehensive that there’s no role left for state law to fill. But in practice, courts have often had difficulty applying the principle.

For plaintiff lawyers, preemption is an ever-present worry. When your client has been injured by a defective car, truck, medical device, boat, tobacco product, pesticide, or mislabeled drug, or has been victimized by a bank or other lending institution, the …

W(H)Ither Zschernig?, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

The author argues here that a declaration of victory by the critics of the dormant foreign affairs doctrine would be premature. Notwithstanding the Court's citation of Ashwander v. TVA, the actual grounds of the decision in Crosby were in no meaningful sense less "constitutional" in nature than a decision based on the dormant foreign affairs power would have been. Moreover, even though the Court said that its decision was based on a straightforward application of "settled ... implied preemption doctrine," the Court's preemption analysis was anything but ordinary. Indeed, Crosby's version of preemption analysis is subject to the …