Law Commons^™

Fragmented Oversight Of Nonprofits In The United States: Does It Work? Can It Work?, Lloyd Hitoshi Mayer

Lloyd Hitoshi Mayer

Federalism, Mandates And Individual Liberty, John T. Valauri

John T. Valauri

FEDERALISM, MANDATES AND INDIVIDUAL LIBERTY ABSTRACT This article presents the missing federalism and individual liberty portion of Chief Justice Roberts’ health care case opinion. It illuminates and reinforces the commerce power and limited and enumerated powers arguments he makes there just as the Tenth Amendment and the doctrine of federalism more generally illuminate and reinforce the commerce power and the doctrine of limited and enumerated powers in constitutional law and doctrine. It also answers and explains the claims made by the Chief Justice’s critics on and off the bench that his opinion and similar arguments made by like-thinking lower court …

Full Faith And Conflict Of Law: The Peculiar Legacy Of Legal Federalism, Sheldon D. Pollack

Sheldon D Pollack

The new constitution crafted by the delegates to the Constitutional Convention of 1787 was a major improvement over its predecessor (the ill-fated Articles of Confederation), especially in concentrating greater political authority at the center of the confederation, it imposed a flawed constitutional structure on the new regime based on the same untenable proposition that undermined the national government of the Confederacy—namely, that it was possible to preserve the states as separate “sovereign” political organizations within the political union. In adopting a federal constitutional structure for the new republic (as opposed to a “consolidated” or “unitary” government), the Founders institutionalized a …

Standing” On Formality: Hollingsworth V. Perry And The Efficacy Of Direct Democracy In The United States, Matthew A. Melone

Matthew A. Melone

No abstract provided.

Equilibrium, Adam Lamparello

Adam Lamparello

No abstract provided.

Something To Lex Loci Celebrationis: Federal Marriage Benefits Following United States V. Windsor, Meg Penrose

Meg Penrose

This article provides one of the first substantive treatments of United States v. Windsor, the Supreme Court's recent same-sex marriage case. The article's thesis proposes lex loci celebrationis (the place of marriage) as the proper method for determining marriage for federal law purposes. Failure to adopt lex loci celebrationis may violate the Fifth Amendment equal protection guarantee or the constitutional right to travel. Further, adoption of the lex loci celebrationis standard furthers marital stability and predictability.

Conflicting Federal And State Medical Marijuana Policies: A Threat To Cooperative Federalism, Todd Grabarsky

Todd Grabarsky

The legal status of medical marijuana in the United States is something of a paradox. On one hand, federal government has placed a ban on the drug with no exceptions. On the other hand, over one-third of the states have that legalizes the cultivation, distribution, and consumption of the drug for medical purposes. As such, the usage of medical marijuana is an activity that is at the same time proscribed (by the federal government) and encouraged (by state governments through their systems of regulation and taxation). This Article seeks to shed light on this unprecedented nebulous zone of legality in …

Deciding Who Decides: Searching For A Deference Standard When Agencies Preempt State Law, John R. Ablan

John R Ablan

When a federal agency determines that the statute that it administers or regulations it has promulgated preempt state law, how much deference must a federal court give to that determination? In Wyeth v. Levine, the Supreme Court expressly declined to decide what standard of deference courts should apply when an agency makes a preemption determination pursuant to a specific congressional delegation to do so. Under this circumstance, this Article counsels against applying any single deference standard to an agency’s entire determination. Instead, it observes that preemption determinations are a complex inquiry involving questions of federal law, state law, and …

Greater And Lesser Powers, Samuel Levin

Samuel Levin

During much of the twentieth century it was relatively stylish for lawyers, judges and justices to argue that an exercise of power was permissible because "the greater power [to do something else] necessarily includes the lesser power [to do this]." Unfortunately, sloppy and unprincipled uses that merely reflected the intuitions of those who invoked it has largely discredited the argument, although it still makes some relevant appearances.

This paper argues that there is a principled way to apply the argument: by looking to the relative harms caused by each exercise of power. However, any notion of "necessarily includes" needs to …

Frayed Seams In The "Patchwork Quilt" Of American Federalism: An Empirical Analysis Of Invasive Plant Species Regulation, A. Bryan Endres, James S.N. Mccubbins, Lauren D. Quinn, Jacob N. Barney

A. Bryan Endres

Increased demand for biomass feedstocks to meet renewable energy mandates will require development of newer, bigger and better plant resources. Ideal biomass traits–fast growth and ability to outcompete local vegetation, prolific seed production, adaptability to a variety of soil and climatic conditions, and resistance to pests and diseases–also typify invasive flora. Next-generation biofuel feedstocks may be more productive and profitable at the individual farm level, but also may pose a greater risk of becoming invasive, thereby damaging the broader ecosystem and the economy. Accordingly, the agronomist’s search for yield maximizing biofuel crops for deployment into novel agricultural production systems and …

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

Dale Thompson

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 was “unmistakably clear” that it was 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 the Affordable Care Act Case, finding strong arguments for granting significant deference to Congress’s Spending Clause authority. Careful analysis of the opinions in the Affordable Care Act Case yields not only the name for the new standard …

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

Dale Thompson

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 was “unmistakably clear” that it was 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 the Affordable Care Act Case, finding strong arguments for granting significant deference to Congress’s Spending Clause authority. Careful analysis of the opinions in the Affordable Care Act Case yields not only the name for the new standard …

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

Dale Thompson

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 was “unmistakably clear” that it was 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 the Affordable Care Act Case, finding strong arguments for granting significant deference to Congress’s Spending Clause authority. Careful analysis of the opinions in the Affordable Care Act Case yields not only the name for the new standard …

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

Dale Thompson

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 was “unmistakably clear” that it was 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 the Affordable Care Act Case, finding strong arguments for granting significant deference to Congress’s Spending Clause authority. Careful analysis of the opinions in the Affordable Care Act Case yields not only the name for the new standard …

Strategy And Tactics In Nfib V. Sebelius, Tonja Jacobi

Tonja Jacobi

This Article provides an in depth examination of the strategic judicial maneuvering witnessed in the Supreme Court’s healthcare decision. Through that lens, it is possible to gain a detailed understanding of the doctrinal groundwork that Chief Justice Roberts was laying for future conservative revolutions in the Commerce Clause Power, the Necessary and Proper Clause, and the Taxing and Spending Power. The reason Roberts was able to dramatically read down Congress’s main avenues of regulatory power was not despite the liberal outcome of the case, but because of it. Roberts’s strategic sacrifice in NFIB v. Sebelius suggests an obvious analogy to …

Textualism And Obstacle Preemption, John D. Ohlendorf

John D Ohlendorf

Commentators, both on the bench and in the academy, have perceived an inconsistency between the Supreme Court’s trend, in recent decades, towards an increasingly formalist approach to statutory interpretation and the Court’s continued willingness to find state laws preempted as “obstacles to the accomplishment and execution of the full purposes and objectives of Congress,” — so-called “obstacle preemption.” This Article argues that by giving the meaning contextually implied in a statutory text ordinary, operative legal force, we can justify most of the current scope of obstacle preemption based solely on theoretical moves textualism already is committed to making.

The Article …

State Constitutional Prohibitions On Special Laws, Justin R. Long

Justin R Long

Since the nineteenth century, most states have had constitutional clauses prohibiting “special laws.” These clauses were ratified to protect the people of each state from domination by narrow economic elites, who would use their economic power to win grants of privilege from the state legislatures. To fight the corrupt favors garnered by private interests in this way, state constitutional drafters wrote clauses requiring their legislatures to pass only “general” laws that would apply equally to all members of the regulated class. For a brief period, these clauses were enforced in the courts—but more to protect economic elites than the democratic …

Representation Of The States Or Of The People Of The State: An Analysis Of The Seventeenth Amendment In A Federal System, Jennifer G. Rowan

Jennifer G. Rowan

There have been many changes to the election’s process through amendments to the Constitution. However, there is one that has altered the intention of the founding fathers dramatically. The Seventeenth Amendment overturned an election process established to further the interest of the States in a federal republic in favor of the direct democracy election that was originally established only for House of Representatives on the federal level. This paper seeks to explore the founders’ intents on the election of Senators and the changes to this process. Part I will explore the founding fathers’ intents and the debates surround the Constitution’s …

Expressing Faith In And Giving Credit To State Courts: The Erie Doctrine And Interjurisdictional Preclusion, Jonathan S. Ross

Jonathan S Ross

The Full Faith and Credit Clause and statute require federal and state courts to give the same effect to a state court’s judgment as would the state court that rendered the judgment. Thus, the provisions promote national unity and prevent litigants from resorting to other courts after incurring adverse judgments. While the full faith and credit provisions do not acknowledge exceptions, the Court has long recognized that exceptions to them exist. However, the Court has not set forth the limits of many of these exceptions. Absent Supreme Court guidance, state and federal courts have considered and applied various novel full …

Counting Heads: Does The Existence Of A National Consensus Give Rise To A Substantive-Due-Process Right To A Particular Criminal Procedure?, Carrie Leonetti

Carrie Leonetti

Anomalousness in a state’s criminal procedure(s), standing alone, is sufficient (to constitute a violation of substantive due process and that the substantive process due to a criminal defendant in a state with an anomalous criminal procedure is the process that would be provided to a similarly situated defendant in a mainstream jurisdiction. This does not mean that the fact that a majority of jurisdictions fails to afford a particular beneficial procedure to a criminal defendant means that such procedure is not guaranteed by due process. Nor is the recognition of a right by a majority of jurisdictions dispositive of whether …

Counting Heads: Does The Existence Of A National Consensus Give Rise To A Substantive-Due-Process Right To A Particular Criminal Procedure?, Carrie Leonetti

Carrie Leonetti

Anomalousness in a state’s criminal procedure(s), standing alone, is sufficient (to constitute a violation of substantive due process and that the substantive process due to a criminal defendant in a state with an anomalous criminal procedure is the process that would be provided to a similarly situated defendant in a mainstream jurisdiction. This does not mean that the fact that a majority of jurisdictions fails to afford a particular beneficial procedure to a criminal defendant means that such procedure is not guaranteed by due process. Nor is the recognition of a right by a majority of jurisdictions dispositive of whether …

Counting Heads: Does The Existence Of A National Consensus Give Rise To A Substantive-Due-Process Right To A Particular Criminal Procedure?, Carrie Leonetti

Carrie Leonetti

Anomalousness in a state’s criminal procedure(s), standing alone, is sufficient (to constitute a violation of substantive due process and that the substantive process due to a criminal defendant in a state with an anomalous criminal procedure is the process that would be provided to a similarly situated defendant in a mainstream jurisdiction. This does not mean that the fact that a majority of jurisdictions fails to afford a particular beneficial procedure to a criminal defendant means that such procedure is not guaranteed by due process. Nor is the recognition of a right by a majority of jurisdictions dispositive of whether …

Counting Heads: Does The Existence Of A National Consensus Give Rise To A Substantive-Due-Process Right To A Particular Criminal Procedure?, Carrie Leonetti

Carrie Leonetti

Anomalousness in a state’s criminal procedure(s), standing alone, is sufficient (to constitute a violation of substantive due process and that the substantive process due to a criminal defendant in a state with an anomalous criminal procedure is the process that would be provided to a similarly situated defendant in a mainstream jurisdiction. This does not mean that the fact that a majority of jurisdictions fails to afford a particular beneficial procedure to a criminal defendant means that such procedure is not guaranteed by due process. Nor is the recognition of a right by a majority of jurisdictions dispositive of whether …

Counting Heads: Does The Existence Of A National Consensus Give Rise To A Substantive-Due-Process Right To A Particular Criminal Procedure?, Carrie Leonetti

Carrie Leonetti

Anomalousness in a state’s criminal procedure(s), standing alone, is sufficient (to constitute a violation of substantive due process and that the substantive process due to a criminal defendant in a state with an anomalous criminal procedure is the process that would be provided to a similarly situated defendant in a mainstream jurisdiction. This does not mean that the fact that a majority of jurisdictions fails to afford a particular beneficial procedure to a criminal defendant means that such procedure is not guaranteed by due process. Nor is the recognition of a right by a majority of jurisdictions dispositive of whether …

Counting Heads: Does The Existence Of A National Consensus Give Rise To A Substantive-Due-Process Right To A Particular Criminal Procedure?, Carrie Leonetti

Carrie Leonetti

Anomalousness in a state’s criminal procedure(s), standing alone, is sufficient (to constitute a violation of substantive due process and that the substantive process due to a criminal defendant in a state with an anomalous criminal procedure is the process that would be provided to a similarly situated defendant in a mainstream jurisdiction. This does not mean that the fact that a majority of jurisdictions fails to afford a particular beneficial procedure to a criminal defendant means that such procedure is not guaranteed by due process. Nor is the recognition of a right by a majority of jurisdictions dispositive of whether …

Counting Heads: Does The Existence Of A National Consensus Give Rise To A Substantive-Due-Process Right To A Particular Criminal Procedure?, Carrie Leonetti

Carrie Leonetti

Anomalousness in a state’s criminal procedure(s), standing alone, is sufficient (to constitute a violation of substantive due process and that the substantive process due to a criminal defendant in a state with an anomalous criminal procedure is the process that would be provided to a similarly situated defendant in a mainstream jurisdiction. This does not mean that the fact that a majority of jurisdictions fails to afford a particular beneficial procedure to a criminal defendant means that such procedure is not guaranteed by due process. Nor is the recognition of a right by a majority of jurisdictions dispositive of whether …

Counting Heads: Does The Existence Of A National Consensus Give Rise To A Substantive-Due-Process Right To A Particular Criminal Procedure?, Carrie Leonetti

Carrie Leonetti

Anomalousness in a state’s criminal procedure(s), standing alone, is sufficient (to constitute a violation of substantive due process and that the substantive process due to a criminal defendant in a state with an anomalous criminal procedure is the process that would be provided to a similarly situated defendant in a mainstream jurisdiction. This does not mean that the fact that a majority of jurisdictions fails to afford a particular beneficial procedure to a criminal defendant means that such procedure is not guaranteed by due process. Nor is the recognition of a right by a majority of jurisdictions dispositive of whether …

The Myth Of Church-State Separation, David E. Steinberg

David E. Steinberg

The Myth Of Church-State Separation

by David E. Steinberg

Abstract

This article asserts that the church-state separation interpretation of Establishment Clause history is simply wrong. When they enacted the First Amendment, the framers were focused on the first five words of the amendment, which read: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” The Establishment Clause guaranteed that the federal government would not interfere in state regulation of religion – whatever form that state regulation took. Rather than enacting the Establishment Clause to mandate a separation of church …

Immigration Policy Through The Lens Of Optimal Federalism, Dale B. Thompson

Dale Thompson

The controversial immigration bill S.B. 1070 enacted by the Arizona legislature utilizes local police to enforce Arizona's interpretations of immigration rules. Meanwhile, the "Utah Compact" suggests that all aspects of immigration policy should be handled by the federal government, not by states or localities. In the midst of this contentious debate, this article uses an "optimal federalism" framework to examine the appropriate locus for immigration policy. It compares economies and diseconomies of scale across enactment, implementation, and enforcement institutions, in order to determine the appropriate level of government for addressing these institutional aspects of immigration policy. It concludes that due …

Immigration Policy Through The Lens Of Optimal Federalism, Dale B. Thompson

Dale Thompson

No abstract provided.