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Articles 1 - 21 of 21
Full-Text Articles in Law
Negotiating Federalism And The Structural Constitution: Navigating The Separation Of Powers Both Vertically And Horizontally (A Response To Aziz Huq), Erin Ryan
Erin Ryan
This essay explores the emerging literature on the negotiation of structural constitutional governance, to which Professor Aziz Huq has made an important contribution in The Negotiated Structural Constitution, 114 Colum. L. Rev. 1595 (2014). In the piece, Professor Huq reviews the negotiation of constitutional entitlements and challenges the conventional wisdom about the limits of political bargaining as a means of allocating authority among the three branches of government. He argues that constitutional ambiguities in the horizontal allocation of power are sometimes best resolved through legislative-executive negotiation, just as uncertain grants of constitutional authority are already negotiated between state and federal …
Environmental Federalism's Tug Of War Within, Erin Ryan
Environmental Federalism's Tug Of War Within, Erin Ryan
Erin Ryan
Anyone paying attention has noticed that many of the most controversial issues in American governance—health care reform, marriage rights, immigration, drug law, and others—involve questions of federalism. The intensity of these disputes reflects inexorable pressure on all levels of government to meet the increasingly complicated challenges of governance in an ever more interconnected world, where the answers to jurisdictional questions are less and less obvious. Yet even as federalism dilemmas continue to erupt all from all corners, environmental law remains at the forefront of controversy, and it is likely to do so for some time. From mining to nuclear waste …
The Public Trust Doctrine, Private Water Allocation, And Mono Lake: The Historic Saga Of National Audubon Society V. Superior Ct., Erin Ryan
Erin Ryan
This article tells the epic tale of the fall and rise of Mono Lake—the strange and beautiful Dead Sea of California—which fostered some of the most important environmental law developments of the last century, and which has become a platform for some of the most potentially important developments in the new century. It shares the backstory and legacy of the California Supreme Court’s famous decision in National Audubon Society v. Superior Court, 658 P.2d 709 (Cal. 1983), known more widely as “the Mono Lake case.” Inspired by innovative legal scholarship and advocacy, the decision spawned a quiet legal revolution in …
The Spending Power And Environmental Law After Sebelius, Erin Ryan
The Spending Power And Environmental Law After Sebelius, Erin Ryan
Erin Ryan
This article analyzes the Supreme Court’s new spending power doctrine and its impact on state-federal bargaining in programs of cooperative federalism, using the laboratory of environmental law. (It expands on the legal analysis in an Issue Brief originally published by the American Constitution Society on Oct. 1, 2013.) After the Supreme Court ruled in the highly charged Affordable Care Act case of 2012, National Federation of Independent Business vs. Sebelius, the political arena erupted in debate over the implications for the health reform initiative and, more generally, the reach of federal law. Analysts fixated on the decision’s dueling Commerce Clause …
The Great American Gun Violence Lottery, Erin Ryan
The Great American Gun Violence Lottery, Erin Ryan
Erin Ryan
Reflecting on the one-year anniversary of the Sandy Hook elementary school shooting, this very short essay compares the experience of gun violence in America to the dystopian game of chance in Shirley Jackson’s classic American short story, “The Lottery.” With references to the role of Constitutional law, media consumption, and cultural change, it urges an available, common-sense middle ground on gun policy. The essay was first published by the American Constitution Society (Dec. 17, 2013) and later appeared in the Huffington Post (Dec. 20, 2013).
Why Equal Protection Trumps Federalism In The Same-Sex Marriage Cases, Erin Ryan
Why Equal Protection Trumps Federalism In The Same-Sex Marriage Cases, Erin Ryan
Erin Ryan
Federalism is once again at the forefront of the Supreme Court’s most contentious cases this Term. The cases attracting most attention are the two same-sex marriage cases that were argued in March. Facing intense public sentiment on both sides of the issue and the difficult questions they raise about the boundary between state and federal authority, some justices openly questioned whether to just defer to the political process. And while this is often a wise prudential approach in review of contested federalism-sensitive policymaking, it’s exactly the wrong course of action when the matter under review is an individual right. This …
The Once And Future Challenges Of American Federalism: The Tug Of War Within, Erin Ryan
The Once And Future Challenges Of American Federalism: The Tug Of War Within, Erin Ryan
Erin Ryan
This essay is drawn from a lecture for the “Ways of Federalism” conference (University of the Basque Country, October 19, 2011) and a new book, "Federalism and the Tug of War Within" (Oxford, 2012) (http://www.oup.com/us/catalog/general/subject/Law/ConstitutionalLaw/?view=usa&ci=9780199737987), which explores how constitutional interpreters struggle to reconcile the core tensions within American federalism. The essay reviews the current challenges of the American federal system through the theoretical lens developed in the book, focusing on the role of state-federal bargaining within the U.S. federal system. It appears as a chapter in a book of selected conference proceedings, The Ways of Federalism in Western Countries and …
Obamacare And Federalism's Tug Of War Within, Erin Ryan
Obamacare And Federalism's Tug Of War Within, Erin Ryan
Erin Ryan
This month, the Supreme Court will decide what some believe will be among the most important cases in the history of the institution. In the “Obamacare” cases, the Court considers whether the Affordable Care Act (“ACA”) exceeds the boundaries of federal authority under the various provisions of the Constitution that establish the relationship between local and national governance. Its response will determine the fate of Congress’s efforts to grapple with the nation’s health care crisis, and perhaps other legislative responses to wicked regulatory problems like climate governance or education policy. Whichever way the gavel falls, the decisions will likely impact …
Spending Power Bargaining After Sebelius, Erin Ryan
Spending Power Bargaining After Sebelius, Erin Ryan
Erin Ryan
In the wake of the Supreme Court’s Affordable Care Act (ACA) decision, it’s easy to get lost in debate over the Chief Justice’s stated theory of the commerce power, or what precedential effect it will have under the Marks doctrine (given that his only supporters wrote in dissent). Still, the practical implications for existing governance is likely to be small, at least in the foreseeable future. After all, much of the debate over the individual mandate focused on how unprecedented it was: despite months of trying, nobody produced a satisfying example of this particular Congressional tool used in previous health, …
Federalism And The Tug Of War Within, Erin Ryan
Federalism And The Tug Of War Within, Erin Ryan
Erin Ryan
This book explores how constitutional interpreters struggle to reconcile the competing values that undergird American federalism, with real consequences for governance that requires local and national collaboration. Drawing examples from the response to Hurricane Katrina, climate governance, health reform, nuclear waste, and other problems that implicate both state and federal authority, it shows how federalism theory can inhibit effective multijurisdictional governance by failing to navigate the tensions within federalism itself. The book argues that American federalism is best understood through the “tug of war” between the good-governance principles that dual sovereignty fosters—including checks and balances, accountable governance, local autonomy, and …
In Tribute To Judge James R. Browning: The Center Of His Circle, Erin Ryan
In Tribute To Judge James R. Browning: The Center Of His Circle, Erin Ryan
Erin Ryan
This very short essay appeared in an issue of the Montana Law Review honoring the legacy of James R. Browning, Chief Judge Emeritus of the U.S. Court of Appeals for the Ninth Circuit. It contains rememberances of Judge Browning as a person and a jurist, emphasizing the ways he wielded the judicial power as a tool for realizing justice by advancing human dignity.
Beyond I-Got-Mine-Jack Health Care, Erin Ryan
Beyond I-Got-Mine-Jack Health Care, Erin Ryan
Erin Ryan
This op-ed urges those who warn that health care reform will lead to rationing not to forsake the victims of the rationing we already have, with a personal story.
Breaking Ground On The New Green Deal, Erin Ryan
Breaking Ground On The New Green Deal, Erin Ryan
Erin Ryan
This op-ed urges reluctant members of Congress to act on stimulus proposals to invest in a renewable energy economy.
How The New Federalism Failed Katrina Victims, Erin Ryan
How The New Federalism Failed Katrina Victims, Erin Ryan
Erin Ryan
This book chapter explores the Katrina response effort to illustrate the governmental decision-making that operates in the shadow of the interpretive model of federalism in use by courts and policymakers. In the American federal system, citizens are of both the United States and the individual states in which they reside, and subject to the respective laws of each. The Constitution enumerates those powers under which the federal government is authorized to make law, and the states may regulate in any area not preempted by legitimate federal law. Yet the fact that Americans are citizens of two separate sovereigns does not …
Federalism At The Cathedral: Property Rules, Liability Rules, And Inalienability Rules In Tenth Amendment Infrastructure, Erin Ryan
Erin Ryan
As climate change, war in the Middle East, and the price of oil focus American determination to move beyond fossil fuels, nuclear power has resurfaced as a possible alternative. But energy reform efforts may be stalled by an unlikely policy deadlock stemming from a structural technicality in an aging Supreme Court decision: New York v. United States, which set forth the Tenth Amendment anti-commandeering rule and ushered in the New Federalism era in 1992. This dry technicality also poses ongoing regulatory obstacles in such critical interjurisdictional contexts as stormwater management, climate regulation, and disaster response. Such is the enormous power …
A Swing State Voter’S Epiphany, Erin Ryan
A Swing State Voter’S Epiphany, Erin Ryan
Erin Ryan
This op-ed forecasts redemption for the fractured American electorate based on deep election-day kindnesses in politically divided southeastern Virginia.
Federalism And The Tug Of War Within: Seeking Checks And Balance In The Interjurisdictional Gray Area, Erin Ryan
Erin Ryan
Federalism and the Tug of War Within explores tensions that arise among the underlying values of federalism when state or federal actors regulate within the “interjurisdictional gray area” that implicates both local and national concerns. Drawing examples from the failed response to Hurricane Katrina and other interjurisdictional problems to illustrate this conflict, the Article demonstrates how the trajectory set by the New Federalism’s “strict-separationist” model of dual sovereignty inhibits effective governance in these contexts. In addition to the anti-tyranny, pro-accountability, and localism-protective values of federalism, the Article identifies a problem-solving value inherent in the capacity requirement of American federalism’s subsidiarity …
Building The Emotionally Learned Negotiator, Erin Ryan
Building The Emotionally Learned Negotiator, Erin Ryan
Erin Ryan
This essay reviews three recent books on the significance of emotion in negotiation and dispute resolution (Fisher & Shapiro: BEYOND REASON: USING EMOTIONS AS YOU NEGOTIATE; Peter Ladd: MEDIATION, CONCILIATION AND EMOTION: A PRACTITIONER’S GUIDE FOR UNDERSTANDING EMOTIONS IN DISPUTE RESOLUTION; and Lacey Smith: GET IT! STREET-SMART NEGOTIATION AT WORK: HOW EMOTIONS GET YOU WHAT YOU WANT), situating each work within a theory of practice for emotionally learned negotiators. After discussing the how the appearance of emotional sterility became synonymous with “professionalism” (and the toll this has taken on professional interaction), the piece sets forth a functional theory of emotion …
New Orleans, The Chesapeake, And The Future Of Environmental Assessment: Overcoming The Natural Resources Law Of Unintended Consequences, Erin Ryan
Erin Ryan
This piece tells the tale of two disappearing wetlands—those surrounding Louisiana's Gulf Coast and those fringing the Chesapeake Bay—each providing new insight into the old quandary of unintended consequences that lies at the center of natural resource management. Louisiana's losses follow three hundred years of natural resource engineering to accomplish effective flood control along the Mississippi River, while the Chesapeake losses follow implementation of among the most meticulous wetlands-protection programs of its time. And yet, New Orleans suffered a catastrophic flood, and Chesapeake wetlands continue to disappear. How could this happen? Call it the “Natural Resources Law of Unintended Consequences.” …
Public Trust & Distrust: Theoretical Implications Of The Public Trust Doctrine For Natural Resource Management, Erin Ryan
Erin Ryan
This essay reviews the theoretical underpinnings of the public trust doctrine, received at common law and constitutionalized in many states, and explores its contentious reception by green legal theorists. Since Professor Joseph Sax's revival of the ancient common law doctrine as a vehicle for environmental advocacy in the early 1970s, it has been hailed by many environmentalists as the most powerful tool available for protecting natural resource commons. At the same time, however, it has been attacked by others who argue that use of the property rights-based doctrine reifies an ownership approach to natural resources and obstructs the development of …
Adr, The Judiciary, & Justice: Coming To Terms With The Alternatives, Erin Ryan
Adr, The Judiciary, & Justice: Coming To Terms With The Alternatives, Erin Ryan
Erin Ryan
[This student note is the closing chapter of the Harvard Law Review “Developments in the Law” issue for the year 2000, devoted to developments in civil litigation.] Any discussion of recent developments in civil litigation must address the virtual revolution that has taken place regarding alternative dispute resolution (ADR). Attorneys have witnessed a steady growth in their clients' recourse to ADR in place of lawsuits, and ADR is increasingly incorporated into the litigation process by the judiciary itself—in the form of court-annexed arbitration, mediation, summary jury trials, early neutral evaluation, and judicial settlement conferences. “Alternative” models of dispute resolution have …