Open Access. Powered by Scholars. Published by Universities.®
Articles 1 - 27 of 27
Full-Text Articles in Law
International Idealism Meets Domestic-Criminal-Procedure Realism, Stephanos Bibas, William W. Burke-White
International Idealism Meets Domestic-Criminal-Procedure Realism, Stephanos Bibas, William W. Burke-White
Duke Law Journal
Though international criminal justice has flourished over the last two decades, scholars have neglected institutional design and procedure questions. International-criminal-procedure scholarship has developed in isolation from its domestic counterpart but could learn much realism from it. Given its current focus on atrocities like genocide, international criminal law's main purpose should be not only to inflict retribution but also to restore wounded communities by bringing the truth to light. The international justice system needs more ideological balance, stable career paths, and civil-service expertise. It should also draw on the American experience of federalism to cultivate cooperation with national authorities and select …
How The Dissent Becomes The Majority: Using Federalism To Transform Coalitions In The U.S. Supreme Court, Vanessa Baird, Tonja Jacobi
How The Dissent Becomes The Majority: Using Federalism To Transform Coalitions In The U.S. Supreme Court, Vanessa Baird, Tonja Jacobi
Duke Law Journal
No abstract provided.
Federalism Accountability: “Agency-Forcing” Measures, Catherine M. Sharkey
Federalism Accountability: “Agency-Forcing” Measures, Catherine M. Sharkey
Duke Law Journal
This Article takes as its starting point the "agency reference model" for judicial preemption decisions, adopting the foundational premise that courts should take advantage of what federal agencies, which are uniquely positioned to evaluate the impact of state regulation and common law liability upon federal regulatory schemes, have to offer. The Article's main focus is on the federalism dimension of the debate: Congress's and federal agencies' respective ability to serve as loci of meaningful debate with state governmental entities about the impact of federal regulatory schemes on state regulatory interests. Notwithstanding the dismal track record of federal agencies, which seems …
Spending Clause Litigation In The Roberts Court, Samuel R. Bagenstos
Spending Clause Litigation In The Roberts Court, Samuel R. Bagenstos
Duke Law Journal
Throughout the Rehnquist Court's so-called federalism revolution, as the Court cut back on federal power tinder Article I and the Civil War Amendments, many commentators asserted that the spending power was next to go on the chopping block. But in the last years of the Rehnquist Court, a majority of Justices seemed to abandon the federalism revolution, and in the end, the Rehnquist Court never got around to limiting Congress's power tinder the Spending Clause. This Article contends that it is wrong to expect the Roberts Court to be so charitable about Congress's exercise of the spending power. But the …
Administrative Law As The New Federalism, Gillian E. Metzger
Administrative Law As The New Federalism, Gillian E. Metzger
Duke Law Journal
Despite the recognized impact that the national administrative state has had on the federal system, the relationship between federalism and administrative law remains strangely inchoate and unanalyzed. Recent Supreme Court case law suggests that the Court is increasingly focused on this relationship and is using administrative law to address federalism concerns even as it refuses to curb Congress's regulatory authority on constitutional grounds. This Article explores how administrative law may be becoming the new federalism and assesses how well-adapted administrative law is to performing this role. It argues that administrative law has important federalism-reinforcing features and represents a critical approach …
Administrative Law’S Federalism: Preemption, Delegation, And Agencies At The Edge Of Federal Power, Brian Galle, Mark Seidenfeld
Administrative Law’S Federalism: Preemption, Delegation, And Agencies At The Edge Of Federal Power, Brian Galle, Mark Seidenfeld
Duke Law Journal
This Article critiques the practice of limiting federal agency authority in the name of federalism. Existing limits bind agencies even more tightly than Congress. For instance, although Congress can regulate to the limits of its commerce power with a sufficiently clear statement of its intent to do so, absent clear congressional authorization an agency cannot, no matter how clear the language of the agency's regulation. Similarly, although Congress can preempt state law, albeit only when its intent to do so is clear, some commentators have read it line of Supreme Court decisions to hold that agencies cannot, except upon Congress's …
Tennis With The Net Down: Administrative Federalism Without Congress, Stuart Minor Benjamin, Ernest A. Young
Tennis With The Net Down: Administrative Federalism Without Congress, Stuart Minor Benjamin, Ernest A. Young
Duke Law Journal
No abstract provided.
Criminal Justice Collapse: The Constitution After Hurricane Katrina, Brandon L. Garrett, Tania Tetlow
Criminal Justice Collapse: The Constitution After Hurricane Katrina, Brandon L. Garrett, Tania Tetlow
Duke Law Journal
The New Orleans criminal justice system collapsed after Hurricane Katrina, resulting in a constitutional crisis. Eight thousand people, mostly indigent and charged with misdemeanors such as public drunkenness or failure to pay traffic tickets, languished indefinitely in state prisons. The court system shut its doors, the police department fell into disarray, few prosecutors remained, and a handful of public defenders could not meet with, much less represent, the thousands detained. This dire situation persisted for many months, long after the system should have been able to recover. We present a narrative of the collapse of the New Orleans area criminal …
The Virtue Of Vagueness: A Defense Of South Dakota V. Dole, Reeve T. Bull
The Virtue Of Vagueness: A Defense Of South Dakota V. Dole, Reeve T. Bull
Duke Law Journal
No abstract provided.
Federalizing The First Responders To Acts Of Terrorism Via The Militia Clauses, Brian C. Brook
Federalizing The First Responders To Acts Of Terrorism Via The Militia Clauses, Brian C. Brook
Duke Law Journal
No abstract provided.
Nationwide, State Law Class Actions And The Beauty Of Federalism, Jesse Tiko Smallwood
Nationwide, State Law Class Actions And The Beauty Of Federalism, Jesse Tiko Smallwood
Duke Law Journal
No abstract provided.
Federalism In The Taft Court Era: Can It Be “Revived”?, Robert Post
Federalism In The Taft Court Era: Can It Be “Revived”?, Robert Post
Duke Law Journal
This Article analyzes the Supreme Court's view of federalism during the decade of the 1920s. It offers a detailed discussion of four jurisprudential areas: congressional power, dormant Commerce Clause doctrine, intergovernmental tax immunity, and judicial centralization through the enforcement of federal common law and constitutional rights. The resurgent federalism of the contemporary Court is typically characterized as "reviving" pre-New Deal principles. This Article concludes, however, that any such revival is highly implausible. It offers four reasons for this conclusion. First, the pre-New Deal Court conceived federalism in terms of the ideal of dual sovereignty, which imagined that the federal government …
Presidential Review As Constitutional Restoration, John O. Mcginnis
Presidential Review As Constitutional Restoration, John O. Mcginnis
Duke Law Journal
No abstract provided.
How The Spending Clause Can Solve The Dilemma Of State Sovereign Immunity From Intellectual Property Suits, Jennifer Cotner
How The Spending Clause Can Solve The Dilemma Of State Sovereign Immunity From Intellectual Property Suits, Jennifer Cotner
Duke Law Journal
No abstract provided.
Causes Of The Recent Turn In Constitutional Interpretation, Christopher H. Schroeder
Causes Of The Recent Turn In Constitutional Interpretation, Christopher H. Schroeder
Duke Law Journal
No abstract provided.
A Localist Critique Of The New Federalism, David J. Barron
A Localist Critique Of The New Federalism, David J. Barron
Duke Law Journal
No abstract provided.
Tripping On The Threshold: Federal Courts’ Failure To Observe Controlling State Law Under The Federal Arbitration Act, Charles Davant Iv
Tripping On The Threshold: Federal Courts’ Failure To Observe Controlling State Law Under The Federal Arbitration Act, Charles Davant Iv
Duke Law Journal
No abstract provided.
Narratives Of Federalism: Of Continuities And Comparative Constitutional Experience, Vicki C. Jackson
Narratives Of Federalism: Of Continuities And Comparative Constitutional Experience, Vicki C. Jackson
Duke Law Journal
No abstract provided.
Taking What They Give Us: Explaining The Court’S Federalism Offensive, Keith E. Whittington
Taking What They Give Us: Explaining The Court’S Federalism Offensive, Keith E. Whittington
Duke Law Journal
No abstract provided.
Federalism And The Double Standard Of Judicial Review, Lynn A. Baker, Ernest A. Young
Federalism And The Double Standard Of Judicial Review, Lynn A. Baker, Ernest A. Young
Duke Law Journal
From 1937 to 1995, federalism was part of a “Constitution in exile.” Except for the brief interlude of the National League of Cities doctrine2—which, like Napoleon’s ill-fated return from Elba, met with crushing defeat3—the post–New Deal Supreme Court has been almost completely unwilling to enforce constitutional limits on national power vis-à-vis the states. The reason, by all accounts, has much to do with federalism’s historic link to other aspects of our expatriate constitution—e.g., economic substantive due process, legislative nondelegation— which were banished for their collusion against the New Deal.
Toward A Pragmatic Understanding Of Status-Consciousness: The Case Of Deregulated Education, Tomiko Brown-Nagin
Toward A Pragmatic Understanding Of Status-Consciousness: The Case Of Deregulated Education, Tomiko Brown-Nagin
Duke Law Journal
This Article discusses the relationship between federal equal protection doctrine and the states' experiment with deregulated education-in particular, charter schools whose student bodies are identifiable on the basis of status. I argue that the states' experiment with deregulated education and the Supreme Court's understanding of the limitations imposed by the federal Equal Protection Clause on status-conscious state action are substantially in conflict, though not inevitably so. Reconciling state policy and federal constitutional law requires, first, that state legislatures draft laws that are consistent with the Court's skepticism of explicitly status-conscious state action, and its ambivalence toward state action that addresses …
The Amended Gun-Free School Zones Act: Doubt As To Its Constitutionality Remains, Seth J. Safra
The Amended Gun-Free School Zones Act: Doubt As To Its Constitutionality Remains, Seth J. Safra
Duke Law Journal
No abstract provided.
Negotiating Federalism: State Bargaining And The Dormant Treaty Power, Edward T. Swaine
Negotiating Federalism: State Bargaining And The Dormant Treaty Power, Edward T. Swaine
Duke Law Journal
The orthodox view that states have no role in U. S. foreign relations is not only inconsistent with their place in the modern global economy, but the constitutional basis for a "dormant" bar on state participation-that is, absent a controlling federal statute or treaty-is obscure. Revisionist scholarship and recent Supreme Court case law suggest that Congress alone should decide when the states must stay out of foreign relations. In this Article, Professor Swaine argues that both the orthodox and revisionist views neglect an alternative basis for a judicial role-the Treaty Clause, enforced through the dormant treaty power. The text, structure, …
Variations On A Theory Of Normative Federalism: A Supreme Court Dialogue, Ann Althouse
Variations On A Theory Of Normative Federalism: A Supreme Court Dialogue, Ann Althouse
Duke Law Journal
No abstract provided.
The Locus Of Sovereignty: Judicial Review, Legislative Supremacy, And Federalism In The Constitutional Traditions Of Canada And The United States, Calvin R. Massey
The Locus Of Sovereignty: Judicial Review, Legislative Supremacy, And Federalism In The Constitutional Traditions Of Canada And The United States, Calvin R. Massey
Duke Law Journal
No abstract provided.
Federalism, Congress, The States And The Tenth Amendment: Adrift In The Cellophane Sea, William Van Alstyne
Federalism, Congress, The States And The Tenth Amendment: Adrift In The Cellophane Sea, William Van Alstyne
Duke Law Journal
Like Gaul, this essay is divided into three parts. The first two parts are adapted from a public address delivered at the Association of the Bar of the City of New York, as part of its Bicentennial series, in 1987. The third part was added later, originally as an Addendum Note. The general subject was introduced by the moderator, Mr. Robert MacCrate, President of the American Bar Association, who put the following question: "Where does the federalism of the Constitution stand today?" Professor Martha Field of the Harvard Law School presented a paper in first response. This paper then followed, …
The Dormant Commerce Clause And The Constitutional Balance Of Federalism, Martin H. Redish, Shane V. Nugent
The Dormant Commerce Clause And The Constitutional Balance Of Federalism, Martin H. Redish, Shane V. Nugent
Duke Law Journal
Through the passage of time, the dormant commerce clause doctrine has acquired a patina of legitimacy; the doctrine frequently is used by the judiciary to overturn state regulation of commerce. Professor Martin Redish and Shane Nugent argue that time alone cannot legitimize such actions by the courts, and that the Constitution provides no textual basis for the exercise of this authority. Moreover, they contend that the doctrine actually undermines the carefully structured federal balance embodied in the text. They further argue that nontextual rationales are flawed, and that jurisprudence based on the text of the Constitution can deal adequately with …