Law Commons^™

Tightening The Legal ‘Net’: The Constitution’S Supremacy Clause Straddle Of The Power Divide, Steven Ferrey

Michigan Journal of Environmental & Administrative Law

This article analyzes Constitutional Supremacy Clause tensions in preempting state law that addresses climate change and the rapid warming of the Planet. Net metering laws, enacted in 80% of U.S. states, are a primary legal mechanism to control and mitigate climate warming. This article analyzes three recent federal court decisions creating a preemptive Supremacy Clause stand-off between federal and state law and presents a detailed state-by-state analysis of which those 80% of states’ laws could be preempted by legal challenge.

If state net metering laws affected only ordinary technologies, this issue would not be front and center with global warming. …

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.

Preemption And Textualism, Daniel J. Meltzer

Michigan Law Review

In the critically important area of preemption, the Supreme Court’s approach to statutory interpretation differs from the approach it follows elsewhere. Whether in politically salient matters, like challenges to Arizona’s immigration laws, or in more conventional cases, such as those in which state tort liability overlaps with federal regulation, the Court’s preemption decisions reflect a highly purposive approach to reading statutes, most notably through the application of “obstacle preemption” analysis. Recently, however, Justice Thomas has objected to the Court’s failure in preemption cases to respect its more textualist approach to issues of statutory interpretation, and he has urged that obstacle …

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 …

Rebel Without A Clause: The Irrelevance Of Article Vi To Constitutional Supremacy, Gary Lawson

Michigan Law Review First Impressions

With Stare Decisis and Constitutional Text, Jonathan Mitchell has produced what I think is the most interesting and creative textual defense (or at least partial defense) to date of the use of horizontal precedent in federal constitutional cases. Mitchell's careful analysis of the Supremacy Clause is fascinating and instructive, and he does an impeccable job of drawing out the implications of his premise that the Supremacy Clause prescribes only a very limited choice-of-law rule-a rule that does not, by its own terms, specifically elevate the Constitution above federal statutes and treaties. His innovative and intriguing framework yields four distinct conclusions …

Stare Decisis And Constitutional Text, Jonathan F. Mitchell

Michigan Law Review

Almost everyone acknowledges that stare decisis should play a significant role when the Supreme Court of the United States resolves constitutional cases. Yet the academic and judicial rationales for this practice tend to rely on naked consequentialist considerations, and make only passing efforts to square the Court's stare decisis doctrines with the language of the Constitution. This Article offers a qualified defense of constitutional stare decisis that rests exclusively on constitutional text. It aims to broaden the overlapping consensus of interpretive theories that can support a role for constitutional stare decisis, but to do this it must narrow the circumstances …

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 …

Two Masters, Carl E. Schneider

Articles

American government rests on the principle of distrust of government. Not only is power within the federal government checked and balanced. Power is divided between the federal government and the state governments. So what if a state law conflicts with a federal law? The Constitution says that the "Constitution, and the Laws of the United States ... shall be the supreme Law of the Land; ... any Thing in the ... Laws of any State to the Contrary notwithstanding." Sometimes the conflict between federal and state law is obvious and the Supremacy Clause is easily applied. But sometimes ...

The Truth About Torts: Rethinking Regulatory Preemption And Its Impact On Public Health, William Buzbee, William Funk, Thomas Mcgarity, Nina A. Mendelson, Sidney Shapiro, David Vladeck, Matthew Shudtz

Other Publications

As consumers, we assume that the automobiles, pharmaceuticals, medical devices, and other products we purchase are generally safe for their intended uses. We rely on manufacturers to design and produce safe products, and we assume that federal regulators are conscientious watchdogs of the marketplace. In most instances, our assumptions are valid and we safely go about our lives. But the regulatory system is now frayed to the point that dangerous products sometimes slip through the cracks. Vioxx, Firestone/ATX tires, and toxics-laden children’s toys have endangered and harmed millions. In these cases, society depends on the state courts as a venue …

A Presumption Against Agency Preemption, Nina A. Mendelson

Articles

Federal agencies are increasingly taking aim at state law, even though state law is not expressly targeted by the statutes the agencies administer. Starting in 2001, the Office of the Comptroller of the Currency (OCC) issued several notices saying that state laws would apply to national bank operating subsidiaries (incorporated under state law) to the same extent as those laws applied to the parent national bank. In 2003, the OCC specifically mentioned state consumer protection laws and took the position that the state laws were preempted and did not apply to mortgage lenders owned by national banks. In December 2006, …

Subdivisions, Standing And The Supremacy Clause: Can A Political Subdivision Sue Its Parent State Under Federal Law, Brian P. Keenan

Michigan Law Review

This Note argues that political subdivisions should be able to seek protection from their parent states under the Supremacy Clause when alleging a conflict between state law and any federal law, be it the Constitution, treaty, or a federal statute. Part I argues that the precedential cases like Hunter and Trenton were limited to the constitutional provisions in question and therefore did not bar all suits under the Supremacy Clause. Part II shows that the issue is one of constitutional protection of political subdivisions, rather than Article III standing, which had a completely different meaning when Hunter and Trenton were …

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 …

The "Horizontal Effect" Of Constitutional Rights, Stephen Gardbaum

Michigan Law Review

Among the most fundamental issues in constitutional law is the scope of application of individual rights provisions and, in particular, their reach into the private sphere. This issue is also currently one of the most important and hotly debated in comparative constitutional law, where it is known under the rubric of "vertical" and "horizontal effect." These alternatives refer to whether constitutional rights regulate only the conduct of governmental actors in their dealings with private individuals (vertical) or also relations between private individuals (horizontal). In recent years, the horizontal position has been adopted to varying degrees, and after systematic scholarly and …

The Irrepressible Myth Of Marbury, Michael Stokes Paulsen

Michigan Law Review

Nearly all of American constitutional law today rests on a myth. The myth, presented as standard history both in junior high civics texts and in advanced law school courses on constitutional law, runs something like this: A long, long time ago - 1803, if the storyteller is trying to be precise - in the famous case of Marbury v. Madison, the Supreme Court of the United States created the doctrine of "judicial review." Judicial review is the power of the Supreme Court to decide the meaning of the Constitution and to strike down laws that the Court finds unconstitutional. As …

Medicaid And The Unconstitutional Dimensions Of Prior Authorization, Jagan Nicholas Ranjan

Michigan Law Review

The political outcry over prescription drug costs has been one of the most vociferous in recent memory. From tales depicting renegade seniors sneaking cheap prescriptions of Vioxx out of Tijuana across the border, to the promises of reduced prices made by front-runners during the 2000 Presidential election, the calls for lower drug prices have been forceful and demanding. This war for lower-priced pharmaceuticals fought by consumers, interest groups and politicians against the pharmaceutical industry itself has recently developed yet another front. The latest battle is over Medicaid. The new victims are the poor. Presently, federal statutory provisions in the Medicaid …

No Longer Safe At Home: Preventing The Misuse Of Federal Common Law Of Foreign Relations As A Defense Tactic In Private Transnational Litigation, Lumen N. Mulligan

Michigan Law Review

In an increasingly common litigation strategy, plaintiffs in Patrickson v. Dole Food Company, laborers in the banana industries of Costa Rica, Ecuador, Guatemala and Panama, brought a classaction suit in Hawaii state court against Dole Food and other defendants. Plaintiffs brought only state law causes of action, alleging that they had been harmed by Dole Food's use of DBCP, a toxic pesticide banned from use in the United States. Dole Food removed the case to federal district court seeking the procedural advantages of a federal forum, as corporate defendants facing alien tort plaintiffs seeking redress for overseas conduct invariably do. …

The Treaty Power And American Federalism, Part Ii, Curtis A. Bradley

Michigan Law Review

In an article published in this Review two years ago, I described and critiqued what I called the "nationalist view" of the treaty power. Under this view, the national government has the constitutional power to enter into treaties, and thereby create binding national law by virtue of the Supremacy Clause, without regard to either subject matter or federalism limitations. This view is reflected in the writings of a number of prominent foreign affairs law scholars, as well as in the American Law Institute's Restatement (Third) of Foreign Relations Law of the United States. In my article, I argued that this …

Treaty-Making And The Nation: The Historical Foundations Of The Nationalist Conception Of The Treaty Power, David M. Golove

Michigan Law Review

Characteristic of the most enduring constitutional controversies is a clash between fundamental but ultimately irreconcilable principles. Unable to synthesize opposing precepts, we visit and revisit certain issues in an endless cycle. Each generation marches forward heedless, and sometimes only dimly aware, of how many times the battle has already been fought. Even the peace of exhaustion achieves only a temporary respite. The abiding controversy over the relationship between the treaty power of the national government and the legislative powers of the states is paradigmatic in this respect. Beginning as early as in the first debate over ratification of the Articles …

After "Life For Erie--A Reply, Peter Westen

Michigan Law Review

Erie, having "preoccupied the intellectually dominant group of academic lawyers rising to maturity during the 1940's and 1950's," is reported to be losing its "symbolic centrality" for the newest generation of legal scholars. Professor Redish's prompt and excited response to our essay proves one thing: there is at least one scholar in the country who, having come to legal maturity during the last decade, still remains capable of becoming impassioned about Erie RR v. Tompkins.

Continuing The Erie Debate: A Response To Westen And Lehman, Martin H. Redish

Michigan Law Review

Although the Supreme Court has not spoken in detail on the Erie doctrine since its much-discussed decision in Hanna v. Plumer in 1965, commentary on the doctrine in the literature has undergone something of a "boomlet" in the last several years. Much of it has been stimulated by the groundbreaking article by Professor John Hart Ely in 1974. The latest contribution to the area is the recent article by Professor Peter Westen and Mr. Jeffrey Lehman appearing earlier this year in this journal. Unfortunately, their article does little to advance analysis of the Erie question, and contains numerous fundamental misstatements …

Is There Life For Erie After The Death Of Diversity?, Peter Westen, Jeffrey S. Lehman

Michigan Law Review

This Article is essentially an elaboration of these three themes. Section I sets forth the fundamental principles, or "axioms," that determine whether a particular federal rule is pertinent and valid. Once these axioms are understood, it should become apparent that Erie problems, if not easy, are not uniquely difficult either; instead, they are the kinds of "ordinary" problems that are commonplace in other areas of law. Section II applies these axioms to cases in diversity to determine the validity of various kinds of federal rules of decision. Section III examines the validity of federal rules of decision in federal question …

State Control Over The Reclamation Waterhole: Reality Or Mirage, Michigan Law Review

Michigan Law Review

This Note assesses how much state law section 8 saves from preemption. Section I reviews the interplay of state and federal water law in the West. It begins with a brief description of appropriation, the system of water rights found in the Western states, outlines the Reclamation Act of 1902, and then traces the Supreme Court's evolving construction of the Act. It culminates in a discussion of California v. United States, the Court's latest gloss on section 8. Section II expands the analysis of the California decision, integrating it with traditional preemption doctrine. It shows that section 8 respects …

Henry V. Mississippi And The Adequate State Ground: Proposals For A Revised Doctrine, Terrance Sandalow

Book Chapters

More than a century ago, the then former Justice Curtis reminded the Bar that "questions of jurisdiction were questions of power as between the United States and the several States." Accordingly, any expansion of the jurisdiction of federal courts is an occasion for alarm for those to whom the slogan of "state's rights" is a substitute for analysis. Justice Curtis was aware, however, that Scylla and Charybdis were both to be avoided. Failure to extend the jurisdiction of federal courts to appropriate cases may be as great a disservice to the federal system as an undue expansion of that jurisdiction. …

The Line Between Federal And State Court Jurisdiction, Leslie A. Anderson

Michigan Law Review

From the beginning of this nation, there have been controversies involving the division of jurisdiction between federal and state courts. Often, these controversies have centered on the diversity of citizenship provision of the federal constitution. Today, however, the more poignant question is whether any division of jurisdiction between the federal and state systems retains logical bases.

Although myriad developments have relevancy with respect to this question, I have here focused upon two of the more important ones: the increasing overlap of subject matter being litigated in federal and state courts and the growing uniformity of standards to be applied in …

Legislation - Witness Immunity Act Of 1954 - Constitutional And Interpretative Problem, George S. Flint S.Ed.

Michigan Law Review

The passage in August, 1954 of a federal statute granting immunity under specified conditions to witnesses before congressional committees and in the federal courts marks a third legislative experiment designed to soften the effect of the Fifth Amendment as a limitation on the investigatory power of Congress. The first two attempts were less than successful. This comment will discuss the historical background of immunity legislation, and some possible constitutional pitfalls and problems of construction created by the statutory language.

Labor Law - State Jurisdiction Over Acts Which Are Unfair Labor Practices Under Federal Labor Legislation, Eugene Alkema S.Ed.

Michigan Law Review

Extensive federal labor legislation under the commerce clause has created a perplexing jurisdictional problem in the state courts, which are confronted increasingly with the critical issue of possible conflict with a federal preemptive area of operation. The extent to which the federal government has superseded state jurisdiction over labor matters has remained unsettled under the current case law and the legislative history of the federal acts, and the need for clarification is apparent at a time when labor cases are reaching the courts in increasing numbers. It is natural for unions to raise the issue of lack of jurisdiction in …