Law Commons^™

Energy Federalism's Aim, Jim Rossi

Vanderbilt Law School Faculty Publications

The Federal Power Act (FPA) has endured for eighty-five years, in part because it does not embrace a single regulatory approach for the energy industry. Nor does the FPA favor a single approach to federal- ism: it delegates broad authority to the Federal Energy Regulatory Commission (FERC) to regulate the wholesale sale and transmission of energy in interstate commerce, while leaving states considerable leeway to regulate not only retail rates but also power generation and distribution. The statute expanded federal authority over wholesale electric power sales, with the primary purpose of closing regulatory gaps in interstate energy markets.

For the …

Reconstructing State Republics, Francesca L. Procaccini

Vanderbilt Law School Faculty Publications

Our national political dysfunction is rooted in constitutionally dysfunctional states. States today are devolving into modern aristocracies through laws that depress popular control, entwine wealth and power, and insulate incumbents from democratic oversight and accountability. These unrepublican states corrupt the entire United States. It is for this reason that the Constitution obligates the United States to restore ailing states to their full republican strength. But how? For all its attention to process, the Constitution is silent on how the United States may exercise its sweeping Article IV power to “guarantee to every State in this Union a Republican Form of …

Federalism And The Military Power Of The United States, Robert Leider

Vanderbilt Law Review

This Article examines the original meaning of the constitutional provisions governing the raising and organization of military forces. It argues that the Framers carefully divided the military between the federal and state governments. This division provided structural checks against the misuse of military power and made it more difficult to use offensive military force. These structural checks have been compromised by the creation of the U.S. Army Reserve, the dual enlistment of National Guard officers and soldiers, and the acceptance of conscription into the national army, all of which have enhanced federal military power beyond its original constitutional limits.

This …

Standing For Nothing, Robert Mikos

Vanderbilt Law School Faculty Publications

A growing number of courts and commentators have suggested that states have Article III standing to protect state law. Proponents of such "protective" standing argue that states must be given access to federal court whenever their laws are threatened. Absent such access, they claim, many state laws might prove toothless, thereby undermining the value of the states in our federal system. Furthermore, proponents insist that this form of special solicitude is very limited-that it opens the doors to the federal courthouses a crack but does not swing them wide open. This Essay, however, contests both of these claims, and thus, …

Immigration To Blue Cities In Red States: The Battleground Between Sanctuary And Exclusion, Karla M. Mckanders

Vanderbilt Law School Faculty Publications

This commentary interrogates the concept of immigration federalism, examining the political and ideological contours of state and local sanctuary laws in the context of both state and the Trump Administration's exclusionary policies. I utilize the intrastate federalism conflicts within the State of Tennessee to highlight the political dynamics that govern the passing of state and local sanctuary laws analyzing new issues that have surfaced under the Trump Administration. In this context, the commentary argues that recent immigration federalism standoffs center around political divisions which fail to engage in principled evaluations of which level of governmentfederal, state, or local--should be the …

The Ncaa On Notice: How Utilizing Principles Of Federalism Could Relieve Antitrust Pressure, Grant Newton

Vanderbilt Journal of Entertainment & Technology Law

The National Collegiate Athletic Association (NCAA) was founded to protect athletes from injury and to provide an avenue for the pursuit of sport alongside the pursuit of education. The NCAA maintains that accomplishing each of those goals requires the preservation of amateurism through a cap on the amount of funds universities may disburse to athletes. Historically, value judgments saved the NCAA from antitrust challenges because courts found that the NCAA's rules furthered the organization's purpose. As antitrust law has developed over the past fifty years, however, courts have become increasingly determined to avoid value judgments in antitrust challenges. Thus, it …

Eli Lilly And The International Investment Law Challenge To A Neo-Federal Ip Regime, Jason Yackee, Shubha Ghosh

Vanderbilt Journal of Entertainment & Technology Law

This Article examines the implications of the Eli Lilly case-and international investment law (IIL) more generally-for the operation of an international intellectual property (IP) regime that functions along the lines of the "neo-federalist" model developed by Professors Dinwoodie and Dreyfuss. The neo-federalist model involves a world in which the international IP regime grants national political communities substantial discretion to pursue their own visions of the normatively proper balance between the rights of IP creators and of those who seek to use it. Importantly, that discretion involves the ability to alter the existing normative balance in either the direction of more …

Constrained Regulatory Exit In Energy Law, Jim Rossi

Vanderbilt Law School Faculty Publications

In recent years, the federal government’s efforts to open up competitive electricity markets have transformed how we think about the regulation of energy. In many respects, the Federal Energy Regulatory Commission’s (FERC) broad “deregulatory” efforts, which commenced in the 1990s, might appear to be a case of paradigmatic regulatory exit as defined by J.B. Ruhl and Jim Salzman. But our case study of FERC’s restructuring of wholesale electricity markets reveals some important institutional features that make exit in federalism contexts, and under federal statutory duties, a rich and difficult problem. In the context of energy, exit from one regulatory sphere …

Federalism And Federalization On The Fintech Frontier, Brian Knight

Vanderbilt Journal of Entertainment & Technology Law

The rise of financial technology (fintech) has the potential to provide better-quality financial services to more people. Although these enhanced financial services have arisen in order to meet consumer need, their regulatory status threatens that progress. Many fintech firms are regulated on a state-by-state basis even though their transactions are interstate, and they compete with firms that enjoy more consistent rules through federal preemption. This dynamic can harm efficiency, competitive equity, and political equity. This Article examines developments in marketplace lending, money transmission, and online sales of securities in an attempt to identify situations in which greater federalization of the …

Risky Business? The Trump Administration And The State-Licensed Marijuana Industry, Robert A. Mikos

Vanderbilt Law School Faculty Publications

While it is clear that the new attorney general opposes state marijuana reforms, it is less clear what he will or even could do to block those reforms or to curb the industry that has flourished under them. The popularity of reforms, limits on federal resources, and legal doctrines like the anticommandeering rule all limit the DOJ’s ability to shut down the state-licensed marijuana industry. While Jeff Sessions may never embrace reforms, he may choose to pursue other tactics, like anti-marijuana media campaigns, to curb the use of marijuana and the harms caused thereby. Only time will tell, of course, …

Making Preemption Less Palatable: State Poison Pill Legislation, Robert A. Mikos

Vanderbilt Law School Faculty Publications

Congressional preemption constitutes perhaps the single greatest threat to state power and to the values served thereby. Given the structural incentives now in place, there is little to deter Congress from preempting state law, even when the state interests Congress displaces far exceed its own. The threat of preemption has raised alarms across the political spectrum, but no one has yet devised a satisfactory way to balance state and federal interests in preemption disputes. This Article devises a novel solution: state poison pill legislation. Borrowing a page from corporate law, poison pill legislation would enable the states to make preemption …

Normalizing "Erie", Suzanna Sherry

Vanderbilt Law Review

This Article argues that the Erie doctrine should be normalized by bringing it into line with ordinary doctrines of federalism. Under ordinary federalism doctrines-such as the dormant commerce clause, implied preemption, federal preclusion law, and certain special "enclaves" of federal common law courts will displace state law to protect federal interests even when neither Congress nor the Constitution clearly articulates those interests. But under the Eric doctrine, the Supreme Court has mandated exactly the opposite approach: state law trumps federal interests unless those interests have been legislatively codified. This striking anomaly has not been noticed, in part because the voluminous …

Dynamic Incorporation Of Federal Law, Jim Rossi

Vanderbilt Law School Faculty Publications

This Article provides a comprehensive analysis of state constitutional limits on legislative incorporation of dynamic federal law, as occurs when a state legislature incorporates future federal tax, environmental or health laws. Many state judicial decisions draw on the nondelegation doctrine to endorse an ex ante prohibition on state legislative incorporation of dynamic federal law. However, the analysis in this Article shows how bedrock principles related to separation of powers under state constitutions, such as protecting transparency, reinforcing accountability, and protecting against arbitrariness in lawmaking, are not consistent with this approach. Instead, this Article highlights two practices that can make dynamic …

Federalism Anew, Sara Mayeux, Karen Tani

Vanderbilt Law School Faculty Publications

One of the most remarked-upon events of the recent past is the August 2014 death of a black teenager, Michael Brown, at the hands of a white police officer, Darren Wilson, in Ferguson, Missouri. Attention initially focused on individual actions and local circumstances, but quickly expanded to a broader set of injustices. Brown died just days before he was scheduled to start college, a significant accomplishment in his local context. His school district's graduation rate was less than 62 percent, compared to 96 percent in a wealthier district down the road, belying Missouri's constitutional commitments to public education and equal …

Ferc V. Epsa, Jim Rossi, Jon Wellinghoff

Vanderbilt Law School Faculty Publications

This Essay explores the implications of the U.S. Supreme Court's decision in FERC .v. EPSA for state regulation of customer energy resource initiatives, such as net metering policies for rooftop solar and energy storage programs. Unlike many past judicial decision that fixate on a jurisdictional "bright line," EPSA does not define a turf for state policymaking as beyond FERC's reach but instead recognizes how state policies operate adjacent to FERC's regulation of practices affecting wholesale rates. As the first Supreme Court case to explicitly recognize cooperative federalism programs in the regulation of modern energy markets under the FPA, ESPA is …

Marijuana Localism, Robert A. Mikos

Vanderbilt Law School Faculty Publications

The states have wrested control of marijuana policy from the federal government, but they risk losing some of their newfound power to another player: local governments. Hundreds of local communities are now seeking to establish their own marijuana policies, from legalization to prohibition and a variety of idiosyncratic regulatory schemes in between. These local efforts raise one of the most important and unresolved questions surrounding marijuana law and policy: What authority, if any, should states give local governments to regulate marijuana? This Article provides some guidance on this question. It starts by identifying two competing considerations that help determine whether …

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 …

Disclaimers And Federalism, Adam J. Hirsch

Vanderbilt Law Review

The beneficiary of an inheritance has the right to disclaim (i.e., decline) it, within limits ordinarily set by state law. This Article examines situations where a beneficiary's right to disclaim might instead be governed by federal law, as a matter of both existing doctrine and public policy. Issues of federalism arise with regard to disclaimers in several contexts: (1) when a disclaimer would function to defeat a federal tax lien; (2) when a disclaimer could affect a beneficiary's eligibility for Medicaid assistance; (3) when a beneficiary disclaims ERISA pension benefits; and (4) when a beneficiary executes a disclaimer prior to …

"Maladaptive" Federalism: The Structural Barriers To Coordination Of State Sustainability Initiatives, Jim Rossi

Vanderbilt Law School Faculty Publications

While the federal government has been slow to address problems such as climate change, many states have adopted innovative approaches to address the climate impact of using natural resources to produce energy, including aggressive approaches to regulating carbon emissions and renewable and clean energy standards. This Article identifies an emerging challenge that subnational regulation faces in the energy and environmental context -- what I will call maladaptive federalism -- and argues that federalism discussions need to account for its possibility. Part I highlights adaptive regulation as a form of federalism, echoing a vision for subnational regulation many federalism scholars and …

Foreign Affairs Federalism: A Revisionist Approach, Daniel Abebe, Aziz Z. Huq

Vanderbilt Law Review

In April 2010, the Arizona legislature enacted the Support Our Law Enforcement and Safe Neighborhoods Act. Commonly known as SB 1070, the law created a slate of new criminal offenses and arrest powers covering aliens within Arizona's borders. SB 1070 proved divisive. It inspired copycat legislation in several states, provoked sharp criticism from the legal academy, and-most relevant here- catalyzed a lawsuit by the U.S. Department of Justice seeking a preliminary injunction against the state law on the ground that it was preempted by federal law. Initially, the federal government's litigation prospects seemed dim. One term before SB 1070 reached …

State Enforcement Of National Policy: A Contextual Approach (With Evidence From The Securities Realm), Amanda Rose

Vanderbilt Law School Faculty Publications

This Article addresses a topic of contemporary public policy significance: the optimal allocation of law enforcement authority in our federalist system. Proponents of competitive federalism have long argued that assigning concurrent enforcement authority to states and the federal government can lead to redundant expense, policy distortion, and a loss of democratic accountability. A growing literature responds to these claims, trumpeting the benefits of concurrent state-federal enforcement - most notably the potential for state regulators to remedy under-enforcement by captured federal agencies. Both bodies of scholarship are right, but also incomplete. What is missing from this rather polarized debate is a …

Federal Preemption And Clean Energy Floors, Jim Rossi, Thomas Hutton

Vanderbilt Law School Faculty Publications

Federal policies regarding renewable and clean energy often lack clear definition, are incomplete, and are scattered across multiple statutes and agencies. Yet at the same time, recent decisions of both federal agencies and courts have attributed a preemptive effect to federal statutes that threatens to hobble innovation in renewable and clean energy policy by subnational regulators. One consequence of this approach is that most significant policies promoting clean and renewable energy are channeled toward subsidies from the federal fisc, rather than diverse policies undertaken independently by state governments or regional customers and suppliers. This Article argues that, contrary to many …

Delegating Supremacy?, David S. Rubenstein

Vanderbilt Law Review

The Supreme Court has long held that federal agencies may preempt state law in much the same way as Congress: either by issuing binding administrative rules that conflict with state law or by asserting exclusive federal control over a regulatory domain. Under this sweeping conception of the Supremacy Clause, agencies wield an extraordinary power in our federalist system. Specifically, agencies may displace the laws of all fifty states without the political and procedural safeguards inhering in the legislative process. The administrative-preemption power rests on the undertheorized doctrinal assumption that Congress may, in effect, "delegate supremacy" to agencies.

This Article challenges …

Reinventing Sovereignty?: Federalsim As A Constraint On The Voting Rights Act, Franita Tolson

Vanderbilt Law Review

The legal landscape has changed significantly since Congress passed the Voting Rights Act of 1965 ("VRA" or "the Act"). Even though Congress amended the Act in 2006, these amendments have done little to address the new obstacles faced by minority communities who seek to expand their electoral opportunities.' Some of these obstacles are political, as partisan forces have often manipulated the Act for electoral gain, but the greatest obstructions have been judicial. The Supreme Court has strongly implied that Congress might violate principles of federalism by requiring states to preclear their redistricting plans with the Department of Justice; has held …

Medical Marijuana And The Political Safeguards Of Federalism, Robert A. Mikos

Vanderbilt Law School Faculty Publications

Medical marijuana has emerged as one of the key federalism battlegrounds of the last two decades. Since 1996, sixteen states have passed new laws legalizing the drug for certain medical purposes.' All the while, the federal government has remained committed to zero-tolerance, prohibiting the possession, cultivation, and distribution of marijuana for any purpose.2 The federal government's uncompromising stance against medical marijuana seemingly exposes the states' vulnerability to the whims of the national political process, and it has inspired calls for the courts to step in and protect state experimentation from this and other instances of arguable congressional over-reaching.

Can The States Keep Secrets From The Federal Government?, Robert A. Mikos

Vanderbilt Law School Faculty Publications

States amass troves of information detailing the regulated activities of their citizens, including activities that violate federal law. Not surprisingly, the federal government is keenly interested in this information. It has ordered reluctant state officials to turn over their confidential files concerning medical marijuana, juvenile criminal history, immigration status, tax payments, and employment discrimination, among many other matters, to help enforce federal laws against private citizens. Many states have objected to these demands, citing opposition to federal policies and concerns about the costs of breaching confidences, but the lower courts have uniformly upheld the federal government’s power to commandeer information …

General Design Principles For Resilience And Adaptive Capacity In Legal Systems--With Applications To Climate Change Adaptation, J.B. Ruhl

Vanderbilt Law School Faculty Publications

No force has put more pressure on the legal system than is likely to be exerted as climate change begins to disrupt the settled expectations of humans. Demands on the legal system will be intense and long-term, but is the law up to the task? If it is, it will at least in part be because the legal system proves to be resilient and adaptive. The question this Article explores, therefore, is how to think about designing legal instruments and institutions now with confidence they will be resilient and adaptive to looming problems as massive, variable, and long-term in scale …

Statewide Capital Punishment: The Case For Eliminating Counties' Role In The Death Penalty, Adam M. Gershowitz

Vanderbilt Law Review

The State of Texas is known as the capital of capital punishment.' But is that reputation deserved? In a way, yes. Texas sends more people to death row than any other state, and it executes them far faster. However, in another way, it is incorrect to suggest that "the State" of Texas is a prolific user of capital punishment. Death penalty cases are prosecuted by counties, not the state, and a majority of Texas's counties have never imposed the death penalty. In fact, only a handful of Texas's 254 counties regularly seek the death penalty. Many other states have a …

The Multienforcer Approach To Securities Fraud Deterrence: A Critical Analysis, Amanda Rose

Vanderbilt Law School Faculty Publications

Participants in the U.S. capital markets can be sued for securities fraud by a mishmash of enforcers, including the SEC, class action plaintiffs, and state regulators. Does this multi-enforcer approach make sense from a deterrence perspective? This Article suggests that the answer is probably no. Although in theory there are conditions under which a multi-enforcer approach would promote optimal deterrence, it is unclear at best that those conditions exist in the United States. And further empirical research, while warranted, is unlikely to resolve the issue definitively. The status quo tends to persevere in the face of this sort of irreducible …

The Constitutionality Of State And Local Laws Targeting Immigrants, Karla M. Mckanders

Vanderbilt Law School Faculty Publications

This paper addresses current immigration issues across the country, specifically in Arkansas, and how lawyers can seek to achieve social justice for immigrants. There currently has been a lot of activity and discussion surrounding state and local laws targeting immigrants. Central to this discussion has been whether states and localities are constitutionally permitted to enact immigration laws and whether state and local actions upset the current immigration system and how, if at all, their actions affect documented and undocumented immigrants' rights. When states and localities pass immigration related laws, the main concern is whether federal, state or local governments are …