Law Commons^™

State Courts And The Interpretation Of Federal Statutes, Anthony J. Bellia

Journal Articles

Scholars have long debated the separation of powers question of what judicial power federal courts have under Article III of the Constitution in the enterprise of interpreting federal statutes. Specifically, scholars have debated whether, in light of Founding-era English and state court judicial practice, the judicial power of the United States should be understood as a power to interpret statutes dynamically or as faithful agents of Congress. This Article argues that the question of how courts should interpret federal statutes is one not only of separation of powers but of federalism as well. State courts have a vital and often …

Federalism And Antitrust Reform, Herbert J. Hovenkamp

All Faculty Scholarship

Currently the Antitrust Modernization Commission is considering numerous proposals for adjusting the relationship between federal antitrust authority and state regulation. This essay examines two areas that have produced a significant amount of state-federal conflict: state regulation of insurance and the state action immunity for general state regulation. It argues that no principle of efficiency, regulatory theory, or federalism justifies the McCarran-Ferguson Act, which creates an antitrust immunity for state regulation of insurance. What few benefits the Act confers could be fully realized by an appropriate interpretation of the state action doctrine. Second, the current formulation of the antitrust state action …

Whose Constitution Is It? Why Federalism And Constitutional Positivism Don't Mix, James A. Gardner

William & Mary Law Review

No abstract provided.

Re-Balancing State And Federal Power: Toward A Political Principle Of Subsidiarity In The United States, Jared Bayer

American University Law Review

No abstract provided.

Federalism And Foreign Affairs: How To Remedy Violations Of The Vienna Convention And Obey The U.S. Constitution, Too, Joshua A. Brook

University of Michigan Journal of Law Reform

This Note discusses various ways to bring the United States into better compliance with the 1963 Vienna Convention on Consular Relations The introduction to this Note discusses how violations of the Vienna Convention are currently treated in the United States. In particular, the introduction discusses the unsuccessful attempts to prevent the execution of Karl and Walter LaGrand, two German nationals sentenced to death in Arizona. The LaGrands were convicted after a violation of their rights under the Vienna Convention because they were not informed without delay of their right to consular notification and assistance. In later appeals, United States courts …

Getting Spending: How To Replace Clear Statement Rules With Clear Thinking About Conditional Grants Of Federal Funds, Brian Galle

Georgetown Law Faculty Publications and Other Works

How much federalism is too much? The answer, of course, depends on whom you ask. It is no surprise, then, that in both judicial and academic debates about the proper balance between national and local power, the fiercest arguments have been fought not over "how much?" (perhaps an impossible question in any event) but "who?" Thus, for each key aspect of national power-for example, the scope of the Commerce and Treaty powers, the Tenth and Fourteenth Amendments, and Congress's ability to subject states to suits for damages by private individuals -- there is an accompanying literature considering who best to …

Chevron And Preemption, Nina A. Mendelson

Articles

This Article takes a more functional approach to reconciling preemption doctrine with Chevron when Congress has not expressly delegated preemptive authority to an agency, an approach that considers a variety of concerns, including political accountability, institutional competence, and related concerns. The Article assumes that federalism values, such as ensuring core state regulatory authority and autonomy, are important and can be protected through political processes." It argues that although Congress's "regional structure" might hint at great sensitivity to state concerns, it actually may lead Congress to undervalue some federalism benefits that are more national in nature. Meanwhile, executive agencies generally have …

State Constitutional Rights As Resistance To National Power: Toward A Functional Theory Of State Constitutions, James A. Gardner

Journal Articles

In the American legal order, constitutional rights are conventionally understood to apply to and restrain the level of government created by the constitution in which those rights appear. Thus, individual rights in a lower-order constitution are understood to apply solely to the lower level government and to have no relevance to the actions of any higher level of government. This article challenges the conventional understanding by arguing that individual rights appearing in state constitutions can in many circumstances play a meaningful role in restraining the exercise of national power. Specifically, the identification and enforcement of state constitutional rights can serve …

New Federalism's Unanswered Question: Who Should Prosecute State And Local Officials For Political Corruption?, George D. Brown

Washington and Lee Law Review

No abstract provided.

Privacy Lost: Comparing The Attenuation Of Texas's Article 1, Section 9 And The Fourth Amendment., Kimberly S. Keller

St. Mary's Law Journal

The Fourth Amendment to the United States Constitution requires that all searches and seizures be reasonable. Article I, Section 9 of the Texas Constitution mirrors its federal counterpart, requiring reasonableness in regard to intrusive governmental action. In examining these texts, both the federal and state provisions are comprised of two independent clauses: (1) the Reasonableness Clause, which prohibits unreasonable searches and seizures; and (2) the warrant clause, which provides that warrants may issue only upon a showing of probable cause. Both the federal and Texas constitutions include explicit language regulating the government’s right to intrude on a person’s privacy. This …

The Constitutionality Of An Executive Spending Plan, Paul E. Salamanca

Law Faculty Scholarly Articles

Operation of government in the absence of appropriations has become relatively common in the United States, particularly when projected expenses exceed projected revenue, making adoption of a budget a difficult task for the legislature. This Article focuses on the budget crisis in the Commonwealth of Kentucky from 2002 through 2003. In Part I, this Article recapitulates the history of the spending plan, including the action filed in Franklin Circuit Court to affirm its constitutionality. In Part II, this Article discusses certain theoretical, historical, and legal principles that inform analysis of the plan. In Part III, it considers certain deviations and …

State Courts As Agents Of Federalism: Power And Interpretation In State Constitutional Law, James A. Gardner

Journal Articles

In the American constitutional tradition, federalism is commonly understood as a mechanism designed to institutionalize a kind of permanent struggle between state and national power. The same American constitutional tradition also holds that courts are basically passive institutions whose mission is to apply the law impartially while avoiding inherently political power struggles. These two commonplace understandings conflict on their face. The conflict may be dissolved for federal courts by conceiving their resistance to state authority as the impartial consequence of limitations on state power imposed by the U.S. Constitution. But this reconciliation is unavailable for state courts, which, by operation …

Facing The Urban Future After September 11, 2001, Richard Briffault

Faculty Scholarship

In this essay I would like to address briefly four issues of importance to local governments raised by the September 11 attack and its aftermath. These issues are the role of local governments in addressing questions of public safety and preparedness; the relations among local governments within a region in responding to terrorism; the role of the federal government in the local response to terrorism; and the implications of September 11 for the structures and functions of local government. These issues are interconnected. Certainly, an effective local response to the public safety challenge posed by terrorism will require more coordinated …

Creating Better Governance, Denise D. Fort

Two Decades of Water Law and Policy Reform: A Retrospective and Agenda for the Future (Summer Conference, June 13-15)

17 pages (includes illustration).

Contains 2 pages of references.

When Inclusion Leads To Exclusion: The Uncharted Terrain Of Community Participation In Economic Development, Audrey Mcfarlane

All Faculty Scholarship

Since the advent of federally-sponsored urban development, the federal government has sought to facilitate decentralized decision-making by local governments. These federal programs have also strongly encouraged local governments to include community participation in the development decision-making process. Participation evokes notions of democracy, egalitarianism, and inclusion and it is easy to support in principle. But participation is often less easy to support in practice because of its structural disconnect with urban development. This disconnect between principle and practice has been reflected in an ebb and flow of contrastingly strong and weak mandates for participation. This ebb and flow of federally-mandated participation …

Nationalized Political Discourse, Robert F. Nagel

Publications

No abstract provided.

Fair Labor Standards Act And Sovereign Immunity: Unlocking The Courthouse Door For Texas State Employees., Melinda Herrera

St. Mary's Law Journal

Unless Texas expressly waives its Eleventh Amendment sovereign immunity, its state employees will not have similar legal recourse and protection as those available to private employees. As in many other states, a party may not sue the State of Texas without its consent. Thus, in the absence of constitutional or statutory provisions to the contrary, a state may claim sovereign immunity against any suit brought by a private party in both federal and state court. As a result, the Eleventh Amendment effectively precludes private individuals from suing a state in both federal and state court for violating a federal statute …

The Racial Origins Of Modern Criminal Procedure, Michael J. Klarman

Michigan Law Review

The constitutional law of state criminal procedure was born between the First and Second World Wars. Prior to 1920, the Supreme Court had upset the results of the state criminal justice system in just a handful of cases, all involving race discrimination in jury selection. By 1940, however, the Court had interpreted the Due Process Clause of the Fourteenth Amendment to invalidate state criminal convictions in a wide variety of settings: mob-dominated trials, violation of the right to counsel, coerced confessions, financially-biased judges, and knowingly perjured testimony by prosecution witnesses. In addition, the Court had broadened its earlier decisions forbidding …

Judges And Federalism: A Comment On "Justice Kennedy's Vision Of Federalism", Robert F. Nagel

Publications

No abstract provided.

Supreme Court Federalism Decisions, Leon Friedman

Touro Law Review

No abstract provided.

Delaware As Demon: Twenty-Five Years After Professor Cary's Polemic, Mark J. Loewenstein

Publications

No abstract provided.

Citizen Suits Under The Resource Conservation And Recovery Act: Plotting Abstention On A Map Of Federalism, Charlotte Gibson

Michigan Law Review

In the shadow of the Supreme Court's constitutional federalism doctrines, lower federal courts have developed doctrines of common law federalism through vehicles such as abstention. In the environmental law arena, courts have employed a number of abstention theories to dismiss citizen suits brought under federal statutes. The appearance of primary jurisdiction and Burford abstention in citizen suits brought under the Resource Conservation and Recovery Act ("RCRA") exemplifies this trend. In rejecting RCRA suits, some courts have relied on primary jurisdiction, a doctrine conceived as a mechanism to allocate responsibility for limited fact-finding between courts and agencies, to dismiss RCRA citizen …

Dissecting The State: The Use Of Federal Law To Free State And Local Officials From State Legislatures' Control, Roderick M. Hills Jr.

Michigan Law Review

In discussions about American federalism, it is common to speak of a "state government" as if it were a black box, an individual speaking with a single voice. State governments are, of course, no such thing. Rather, a "state" actually incorporates a bundle of different subdivisions, branches, and agencies controlled by politicians who often compete with each other for electoral success and governmental power. In particular, these institutions compete with each other for the power to control federal funds and implement federal programs. This article explores one aspect of this intrastate competition - the extent to which federal law can …

Nineteenth-Century Orthodoxy, Richard B. Collins

Publications

No abstract provided.

Splitting The Atom Or Splitting Hairs - The Hate Crimes Prevention Act Of 1999 Note., Andrew M. Gilbert, Eric D. Marchand

St. Mary's Law Journal

Problems of bias-motivated violence plague our nation and threaten to erase the progress made during the civil rights era. Recent statistical surveys conducted by the Federal Bureau of Investigation (FBI) indicate the number of hate crimes has generally increased over the past few years. In 1996, over 11,000 individuals were victims of hate crimes—five percent more than reported the previous year. Hate crimes are not only injurious to the individual victim, but also fracture surrounding communities and create disharmony among citizens. As a result, some states implemented legislation in the 1980s to deter hate-motived crimes and a few states have …

The Political Economy Of Cooperative Federalism: Why State Autonomy Makes Sense And "Dual Sovereignty" Doesn't, Roderick M. Hills Jr.

Michigan Law Review

It is commonplace to observe that "dual federalism" is dead, replaced by something variously called "cooperative federalism," "intergovernmental relations," or "marble-cake federalism." According to this conventional wisdom, state and local officials do not enforce merely their own laws in their distinct policymaking sphere. Rather, as analyzed in a voluminous literature, state and local governments also cooperate with the federal government in many policymaking areas, ranging from unemployment insurance to historic preservation. These nonfederal governments help implement federal policy in a variety of ways: by submitting implementation plans to federal agencies, by promulgating regulations, and by bringing administrative actions to enforce …

A New Miranda For Foreign Nationals?, James A. Deeken

Vanderbilt Journal of Transnational Law

This Note will explore the conflict between federalism expressed in the U.S. Constitution and the demands that international treaties, entered into by the federal government, make on local governments. Part I will explain the current state of the issues addressed in the Note, including the Vienna Convention, and the relevant provisions relating to the arrests of foreign nationals. The Note will then examine whether, given that international treaties have been interpreted as providing rights and provisions that are only enforceable by countries, a private party, such as a foreign national, has the power to invoke the provisions in his defense …

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 …

Commerce Clause Restraints On State Tax Incentives, Walter Hellerstein

Scholarly Works

The states' provision of tax incentives designed to encourage economic development within their borders has long been a feature of the American legislative landscape. Today every state provides tax incentives as an inducement to local industrial location and expansion. Indeed, scarcely a day goes by without some state offering yet another tax incentive to spur economic development, often in an effort to attract a particular enterprise to the state.

The debate over the efficacy and wisdom of state tax and other business incentives is intense and important, as other articles in this Symposium plainly reveal. My purpose here, however, is …

The Term Limits Dissent: What Nerve, Robert F. Nagel

Publications

No abstract provided.