Law Commons^™

In States We "Trust": Self-Settled Trusts, Public Policy, And Interstate Federalism, Brendan Duffy

Northwestern University Law Review

Over the last twenty years, domestic asset protection trusts have risen in popularity as a means of estate planning and asset protection. A domestic asset protection trust is an irrevocable trust formed under state law which enables an independent trustee to allocate money to a class of

persons, which includes the settlor.

Since Alaska first enacted domestic asset protection legislation in 1997, fifteen states have followed its lead. The case law over the last twenty years addressing these trust mechanisms has, however, been surprisingly sparse. A Washington bankruptcy court decision, In re Huber, altered this drought, but caused more confusion …

Federalism And State Marijuana Legislation, Dean M. Nickles

Notre Dame Law Review

An increasing number of states have passed legislation legalizing medical and recreational marijuana. This Note provides a survey of the language utilized by these states in their legislation and legislative materials, searching for and highlighting those purposes and intentions of the states, which implicate, explicitly or implicitly, federalism. Through this survey of mostly primary source materials, various trends and similarities among the materials will be apparent, and this Note will provide a useful resource for those trying to understand why the states may have enacted these laws.

Abortion, Informed Consent, And Regulatory Spillover, Katherine A. Shaw, Alex Stein

Indiana Law Journal

The constitutional law of abortion stands on the untenable assumption that any state’s abortion regulations impact citizens of that state alone. On this understand-ing, the state’s boundaries demarcate the terrain on which women’s right to abortion clashes with state power to regulate that right.

This Article uncovers a previously unnoticed horizontal dimension of abortion regulation: the medical-malpractice penalties imposed upon doctors for failing to inform patients about abortion risks; the states’ power to define those risks, along with doctors’ informed-consent obligations and penalties; and, critically, the possi-bility that such standards might cross state lines. Planned Parenthood v. Casey and other …

North Carolina State Board Of Dental Examiners V. Ftc: Aligning Antitrust Law With Commerce Clause Jurisprudence Through A Natural Shift Of State-Federal Balance Of Power, Marie Forney

Indiana Law Journal

The Supreme Court’s holding in North Carolina State Board of Dental Examiners v. FTC (NC Dental)1 in February 2015 demonstrates a natural shift in the balance of power from the states to the national government. As the country’s interstate and international economy has become more integrated, federal authority has likewise expanded.2 And although the federalism dichotomy has undergone periodic back-and-forth “swings” since the nation’s founding, the end result has been a net increase in federal power. NC Dental exemplifies this trend toward increasing national au-thority through the organic development of interstate commerce.

Black-Box Immigration Federalism, David S. Rubenstein

Michigan Law Review

In Immigration Outside the Law, Hiroshi Motomura confronts the three hardest questions in immigration today: what to do about our undocumented population, who should decide, and by what legal process. Motomura’s treatment is characteristically visionary, analytically rich, and eminently fair to competing views. The book’s intellectual arc begins with its title: “Immigration Outside the Law.” As the narrative unfolds, however, Motomura explains that undocumented immigrants are “Americans in waiting,” with moral and legal claims to societal integration.

The Reaffirmation Of Federalism As A Viable Limitation Upon The Commerce Power, Randy R. Koenders

Akron Law Review

"Throughout its history, the constitutional basis of the FLSA has remained anchored in the Commerce Clause. However, despite the legitimacy of that purpose, the FLSA has been the subject of constant attacks since its inception, the most fervent of which has been the challenge to its constitutionality on state sovereignty grounds.

"Two recent United States Supreme Court cases construing the constitutionality of the FLSA and its amendments reflect not only the changing judicial posture toward extension of the Act to matters of state concern, but also the differing attitudes toward extension of the Commerce Clause itself."

Tribal Disruption And Federalism, Matthew L.M. Fletcher

Montana Law Review

No abstract provided.

Federal Visions Of Private Family Support, Laura A. Rosenbury

Vanderbilt Law Review

The individual states have long played a primary role in defining the legal family in the United States, with states often determining who does and does not enjoy the legal status of spouse, parent, and child. Two recent U.S. Supreme Court cases, Astrue v. Capatol and United States v. Windsor,2 acknowledged and affirmed the diverse definitions of family that flow from this federalist approach. Yet these cases do not solidify the states' place in defining family for purposes of marriage, parentage, divorce, and death. Instead, they foreshadow an increasingly federal conception of family status-a conception that values private family support …

Retained By The People: Federalism, The Ultimate Sovereign, And Natural Limits On Government Power, Stephanie Hall Barclay

William & Mary Bill of Rights Journal

Brewing tensions between state governments and the federal government have reached a boiling point unmatched since the civil rights debates of the 1960s. In light of the rapid expansion of federal power combined with colliding views on various policies, the call for states’ rights has increasingly become a rallying cry for lawmakers that has gained traction with groups on varying points along the political spectrum, as well as a frequent theory employed by the Supreme Court. While the system of federalism created by the Constitution certainly has its unique benefits, and while it is true that the federal government was …

The Political Safeguards Of Horizontal Federalism, Heather K. Gerken, Ari Holtzblatt

Michigan Law Review

For decades, we have debated whether “political safeguards” preserve healthy relations between the states and the federal government and thus reduce or eliminate the need for judges to referee state–federal tussles. No one has made such an argument about relations among the states, however, and the few scholars to have considered the question insist that such safeguards don’t exist. This Article takes the opposite view and lays down the intellectual foundations for the political safeguards of horizontal federalism. If you want to know what unites the burgeoning work on horizontal federalism and illuminates the hidden logic of its doctrine, you …

The Failure And Future Of Lake Okeechobee Water Releases: A Quasi-Governmental Solution, Jacquelyn A. Thomas

Florida State University Law Review

No abstract provided.

“Standing” In The Shadow Of Erie: Federalism In The Balance In Hollingsworth V. Perry, Glenn S. Koppel

Pace Law Review

This Article provides an insight into the Court’s divergent views on the federal standing issue in Hollingsworth by viewing the Justices’ conflicting positions through the lens of the Court’s Erie jurisprudence, which, at its core, focuses on calibrating the proper judicial balance of power in a given case between conflicting federal and state interests in determining vertical choice-of-law issues. Hollingsworth is uniquely positioned at the intersection of federal standing principles and Erie doctrine, confronting the Court with competing balance of power concerns inherent in our federal system. Standing, as a requirement for the limited exercise of federal judicial power under …

Taking States (And Metaphysics) Seriously, Sanford Levinson

Michigan Law Review

Sotirios A. Barber has written many incisive and important books, in addition to coediting an especially interesting casebook on constitutional law and interpretation. He is also a political theorist. An important part of his overall approach to constitutional theory is his philosophical commitment to “moral realism.” He believes in the metaphysical reality of moral and political truths, the most important of which, for any constitutional theorist, involve the meanings of justice and the common good. He not only believes in the ontological reality of such truths — that is, that these truths are more than mere human conventions or social …

Interactive Antitrust Federalism: Antitrust Enforcement In Tennessee Then And Now, Clark L. Hildabrand

Transactions: The Tennessee Journal of Business Law

In light of the recent debates surrounding the proper relationship between federal and state antitrust enforcement, this Paper explores the early years of state antitrust enforcement to see how the Sherman Act impacted state antitrust law. Since Tennessee was the location of the first federal case brought under the Sherman Act and has been involved in recent indirect purchaser action against Microsoft Corporation, this Paper particularly focuses on the development of antitrust law within Tennessee. Before the Sherman Act, Tennessee antitrust enforcement was limited to the narrow confines of common law restraint of trade, but the implementation of the Sherman …

Preemption And Choice-Of-Law Coordination, Erin O'Hara O'Connor, Larry E. Ribstein

Michigan Law Review

The doctrine treating federal preemption of state law has been plagued by uncertainty and confusion. Part of the problem is that courts purport to interpret congressional intent when often Congress has never considered the particular preemption question at issue. This Article suggests that courts deciding preemption cases should take seriously a commonly articulated rationale for the federalization of law: the need to coordinate applicable legal standards in order to facilitate a national market or to otherwise provide clear guidance to parties regarding the laws that apply to their conduct. In situations where federal law can serve a coordinating function but …

Equal Employment Opportunity Commission V. Wyoming: Appomattox Courthouse Revisited , Richard M. Stephens

Pepperdine Law Review

A highly divided Court again addressed the relatively new doctrine in constitutional law: state exemption from federal regulations due to the concept of federalism. Although the Court applied the tests from National League of Cities v. Usury and its progeny, the Court reached a different result which, without expressly overruling that controversial case, severely limited National League of Cities to its facts. The hope of modern states' rights advocates proved to be short lived.

Dormancy Versus Innovation: A Next Generation Dormant Commerce Clause, Sam Kalen

Oklahoma Law Review

No abstract provided.

Printz V. United States: The Revival Of Constitutional Federalism, Lang Jin

Pepperdine Law Review

No abstract provided.

Federalism And Preemption In October Term 1999, Jonathan D. Varat

Pepperdine Law Review

No abstract provided.

Substance And Method In The Year 2000, Akhil Reed Amar

Pepperdine Law Review

No abstract provided.

Rediscovering A Principled Commerce Power , Douglas W. Kmiec

Pepperdine Law Review

No abstract provided.

The Rhetoric Hits The Road: State Challenges To The Affordable Care Act Implementation, Elizabeth Weeks Leonard

University of Richmond Law Review

No abstract provided.

Inside Agency Preemption, Catherine M. Sharkey

Michigan Law Review

A subtle shift has taken place in the mechanics of preemption, the doctrine that determines when federal law displaces state law. In the past, Congress was the leading actor, and courts and commentators focused almost exclusively on the precise wording of its statutory directives as a clue to its intent to displace state law. Federal agencies were, if not ignored, certainly no more than supporting players. But the twenty-first century has witnessed a role reversal. Federal agencies now play the dominant role in statutory interpretation. The U.S. Supreme Court has recognized the ascendancy of federal agencies in preemption disputes-an ascendancy …

Assessing The State Of The State Constitutionalism, Jim Rossi

Michigan Law Review

Robert Williams's The Law of American State Constitutions is an impressive career accomplishment for one of the leading academic lawyers writing on state constitutions. Given the need for a comprehensive, treatise-like treatment of state constitutions that transcends individual jurisdictions, Williams's book will almost certainly become the go-to treatise for the next generation of state constitutional law practitioners and scholars. The U.S. Constitution has a grip on how the American legal mind approaches issues in American constitutionalism, but an important recurring theme in Williams's work (as well as that of others) is how state constitutions present unique interpretive challenges. More than …

Federalism And Criminal Law: What The Feds Can Learn From The States, Rachel E. Barkow

Michigan Law Review

Criminal law enforcement in the United States is multijurisdictional. Local, state, and federal prosecutors all possess the power to bring criminal charges. An enduring question of criminal law is how authority should be allocated among these levels of government. In trying to gain traction on the question of when crime should be handled at the federal level and when it should be left to local authorities, courts and scholars have taken a range of approaches. Oddly, one place that commentators have not looked for guidance on how to handle the issue of law enforcement allocation is within the states themselves. …

The Overlooked Significance Of Arizona's New Immigration Law, Rick Su

Michigan Law Review First Impressions

Immigration has once again become the subject of widespread interest and public debate. This renewed interest, however, was not the result of Harry Reid's vow that the Senate will tackle comprehensive immigration reform sometime this year. Nor was it prompted by new policy initiatives with respect to immigration enforcement being implemented by the Department of Homeland Security. Rather, it has been the result of legislative action taken in one state-Arizona. Arizona's move to regulate immigration has predictably raised questions about the proper role of a state with respect to an area dominated by federal legislation. Yet the discussion thus far …

Free Speech Federalism, Adam Winkler

Michigan Law Review

For decades, constitutional doctrine has held that the Constitution's guarantee of freedom of speech applies equally to laws adopted by the federal, state, and local governments. Nevertheless, the identity of the government actor behind a law may be a significant, if unrecognized, factor in free speech cases. This Article reports the results of a comprehensive study of core free speech cases decided by the federal courts over a 14-year period. The study finds that speech-restrictive laws adopted by the federal government are far more likely to be upheld than similar laws adopted by state and local governments. Courts applying strict …

Federal Fairness To State Taxpayers: Irrationality, Unfunded Mandates, And The "Salt" Deduction, Brian Galle

Michigan Law Review

By sheer dollars alone, the largest impact of the Alternative Minimum Tax is to deny many taxpayers the deduction for the taxes they paid to their state and local governments under § 164 of the Internal Revenue Code. This Article provides a fine-grained analysis of the overall fairness of the state-andlocal- tax deduction--and, by implication, the fairness of its partial repeal through the Alternative Minimum Tax. I offer for the first time a close examination of how newly understood limits on taxpayer mobility and rationality might affect individuals' choices of bundles of local taxes and localgovernment services, which in turn …

Energy Efficiency And Federalism, Ann E. Carlson

Michigan Law Review First Impressions

The U.S. system for regulating appliances—which account for a huge percentage of the nation’s carbon emissions—is a mess. Since the federal government began regulating appliance efficiency in the 1970s, the process has been characterized by frequent delays and foot-dragging, followed by lawsuits and legislative overhauls. Amidst the turmoil, a number of states have attempted to assert leadership in setting appliance standards but have often faced federal roadblocks in doing so.

A Choice That Leaves No Choice: Unconstitutional Coercion Under Real Id, Michael J. Allen

Seattle University Law Review

No abstract provided.