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Full-Text Articles in Law
Constitutional Structure, Institutional Relationships And Text: Revisiting Charles Black's White Lectures, Richard C. Boldt
Constitutional Structure, Institutional Relationships And Text: Revisiting Charles Black's White Lectures, Richard C. Boldt
Faculty Scholarship
Fundamental questions about constitutional interpretation and meaning invite a close examination of the complicated origins and the subsequent elaboration of the very structure of federalism. The available records of the Proceedings in the Federal Convention make clear that the Framers entertained two approaches to delineating the powers of the central government relative to those retained by the states. The competing approaches, one reliant on a formalist enumeration of permissible powers, the other operating functionally on the basis of a broad dynamic concept of state incompetence and national interest, often are presented as mutually inconsistent narratives. In fact, these two approaches …
Is The Supreme Court Disabling The Enabling Act, Or Is Shady Grove Just Another Bad Opera?, Robert J. Condlin
Is The Supreme Court Disabling The Enabling Act, Or Is Shady Grove Just Another Bad Opera?, Robert J. Condlin
Faculty Scholarship
After seventy years of trying, the Supreme Court has yet to agree on whether the Rules Enabling Act articulates a one or two part standard for determining the validity of a Federal Rule. Is it enough that a Federal Rule regulates “practice and procedure,” or must it also not “abridge substantive rights”? The Enabling Act seems to require both, but the Court is not so sure, and the costs of its uncertainty are real. Among other things, litigants must guess whether the decision to apply a Federal Rule in a given case will depend upon predictable ritual, judicial power grab, …
The Roberts-Kennedy Court And Post-Political Democracy, Zephyr Teachout
The Roberts-Kennedy Court And Post-Political Democracy, Zephyr Teachout
Schmooze 'tickets'
This Essay explores the ideological underpinnings of the modern Supreme Court’s election law decisions, arguing that the Court does not have a strong commitment to federalism or to unfettered debate or to the mistrustful citizen. Instead, the opinions reveal a complacency about corruption and a narrow view of the role of citizens. The Essay is part of a volume on neoliberalism for Law and Contemporary Problems.
Escaping The Sporhase Maze: Protecting State Waters Within The Commerce Clause, Mark S. Davis, Michael Pappas
Escaping The Sporhase Maze: Protecting State Waters Within The Commerce Clause, Mark S. Davis, Michael Pappas
Faculty Scholarship
Eastern states, though they have enjoyed a history of relatively abundant water, increasingly face the need to conserve water, particularly to protect water-dependent ecosystems. At the same time, growing water demands, climate change, and an emerging water-oriented economy have intensified pressure for interstate water transfers. Thus, even traditionally wet states are seeking to protect or secure their water supplies. However, restrictions on water sales and exports risk running afoul of the Dormant Commerce Clause. This Article offers guidance for states, partciularly eastern states concerned with maintaining and improving water-dependent ecosystems, in seeking to restrict water exports while staying within the …
Federalism's Global Generality, Charlton C. Copeland
Federalism's Global Generality, Charlton C. Copeland
Schmooze 'tickets'
No abstract provided.
Stewart V. Mcintosh, 4 H. & J. 233 (1816), Rhett Donnelly
Stewart V. Mcintosh, 4 H. & J. 233 (1816), Rhett Donnelly
Student Articles and Papers
Stewart v. M’Intosh was argued during the time period of the Jay Treaty, the Quasi-War, the Haitian Revolution, and the War of 1812. The facts begin at the end of the 18th century and extend into the early 19th century. The arguments and ruling were based on trade restrictions between United States citizens and territories under French control. The plaintiffs focused their arguments on the specific language of the Congressional acts, which outlawed trade with French territories but did not directly mention the regions at issue, while the defendants looked at the implications of the acts and the …
Sarbanes-Oxley, Corporate Federalism, And The Declining Significance Of Federal Reforms On State Director Independence Standards, Lisa M. Fairfax
Sarbanes-Oxley, Corporate Federalism, And The Declining Significance Of Federal Reforms On State Director Independence Standards, Lisa M. Fairfax
Faculty Scholarship
Commentators have argued that the Sarbanes-Oxley Act of 2002 (“Sarbanes-Oxley” or the “Act”) raises federalism concerns because it regulates the internal affairs of a corporation, including the composition of, and qualifications for, corporate boards, in a manner traditionally reserved to states. This Article responds to those claims, arguing that the Act reflects a relatively minimal intrusion into state law, particularly with regard to issues of director independence. This Article further argues that the Act’s failure to disturb state law on these issues may impede its ability to tighten director independence standards and by extension may undermine its ability to improve …
Unfunded Environmental Mandates And The "New (New) Federalism": Devolution, Revolution, Or Reform, Rena I. Steinzor
Unfunded Environmental Mandates And The "New (New) Federalism": Devolution, Revolution, Or Reform, Rena I. Steinzor
Faculty Scholarship
No abstract provided.