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Articles 1 - 30 of 38
Full-Text Articles in Law
Immigration Policing And Federalism Through The Lens Of Technology, Surveillance, And Privacy, Anil Kalhan
Immigration Policing And Federalism Through The Lens Of Technology, Surveillance, And Privacy, Anil Kalhan
Anil Kalhan
With the deployment of technology, federal programs to enlist state and local police assistance with immigration enforcement are undergoing a sea change. For example, even as it forcefully has urged invalidation of Arizona’s S.B. 1070 and similar state laws, the Obama administration has presided over the largest expansion of state and local immigration policing in U.S. history with its implementation of the “Secure Communities” program, which integrates immigration and criminal history database systems in order to automatically ascertain the immigration status of every individual who is arrested and booked by state and local police nationwide. By 2012, over one fifth …
Trademark Law's Faux Federalism, Mark Mckenna
Trademark Law's Faux Federalism, Mark Mckenna
Mark P. McKenna
Federal and state trademark laws regulate concurrently: The Lanham Act does not preempt state law, and in fact many states have statutorily and/or judicially developed trademark or unfair competition laws of their own. This state of affairs, which is now well-accepted even if it has not always been uncontroversial, distinguishes trademark law from patent and copyright law, since federal patent and copyright statutes preempt state law much more broadly. The Patent Act entirely preempts state law with respect to non-secret inventions and the 1976 Copyright Act preempts state copyright law with respect to all works fixed in a tangible medium …
The Theology Of The Blaine Amendments, Richard W. Garnett
The Theology Of The Blaine Amendments, Richard W. Garnett
Richard W Garnett
The Supreme Court affirmed, in Zelman v. Simmons-Harris, that the Constitution permits us to experiment with school-choice programs and, in particular, with programs that include religious schools. However, the constitutions of nearly forty States contain provisions - generically called Blaine Amendments - that speak more directly and, in many cases, more restrictively, than does the First Amendment to the flow of once-public funds to religious schools. This Article is a series of reflections, prompted by the Blaine Amendments, on education, citizenship, political liberalism, and religious freedom. First, the Article considers what might be called the federalism defense of the provisions. …
The New Federalism, The Spending Power, And Federal Criminal Law, Richard W. Garnett
The New Federalism, The Spending Power, And Federal Criminal Law, Richard W. Garnett
Richard W Garnett
It is difficult in constitutional-law circles to avoid the observation that we are living through a revival of federalism. Certainly, the Rehnquist Court has brought back to the public-law table the notion that the Constitution is a charter for a government of limited and enumerated powers, one that is constrained both by that charter's text and by the structure of the government it creates. This allegedly revolutionary Court seems little inclined, however, to revise or revisit its Spending Power doctrine, and it remains settled law that Congress may disburse funds in pursuit of ends not authorized explicitly in Article I …
Judicial Review, Local Values, And Pluralism, Richard W. Garnett
Judicial Review, Local Values, And Pluralism, Richard W. Garnett
Richard W Garnett
At the Federalist Society's 2008 National Student Symposium, a panel of scholars was asked to consider the question, does pervasive judicial review threaten to destroy local identity by homogenizing community norms? The answer to this question is yes, pervasive judicial review certainly does threaten local identity, because such review can homogenize[e] community norms, either by dragging them into conformity with national, constitutional standards or (more controversially) by subordinating them to the reviewers' own commitments. It is important to recall, however, that while it is true that an important feature of our federalism is local variation in laws and values, it …
Federalism Doctrines And Abortion Cases: A Response To Professor Fallon, Anthony J. Bellia
Federalism Doctrines And Abortion Cases: A Response To Professor Fallon, Anthony J. Bellia
Anthony J. Bellia
This Essay is a response to Professor Richard Fallon's article, If Roe Were Overruled: Abortion and the Constitution in a Post-Roe World. In that article, Professor Fallon argues that if the Supreme Court were to overrule Roe v. Wade, courts might well remain in the abortion-umpiring business. This Essay proposes a refinement on that analysis. It argues that in a post-Roe world courts would not necessarily subject questions involving abortion to the same kind of constitutional analysis in which the Court has engaged in Roe and its progeny, that is, balancing a state's interest in protecting life against a pregnant …
General Law In Federal Court, Anthony J. Bellia Jr., Bradford R. Clark
General Law In Federal Court, Anthony J. Bellia Jr., Bradford R. Clark
Anthony J. Bellia
No abstract provided.
The Federal Common Law Of Nations, Anthony J. Bellia, Bradford R. Clark
The Federal Common Law Of Nations, Anthony J. Bellia, Bradford R. Clark
Anthony J. Bellia
Courts and scholars have vigorously debated the proper role of customary international law in American courts: To what extent should it be considered federal common law, state law, or general law? The debate has reached something of an impasse, in part because various positions rely on, but also are in tension with, historical practice and constitutional structure. This Article describes the role that the law of nations actually has played throughout American history. In keeping with the original constitutional design, federal courts for much of that history enforced certain rules respecting other nations' perfect rights (or close analogues) under the …
State Courts And The Interpretation Of Federal Statutes, Anthony J. Bellia
State Courts And The Interpretation Of Federal Statutes, Anthony J. Bellia
Anthony J. Bellia
Scholars have long debated the separation of powers question of what judicial power federal courts have under Article III of the Constitution in the enterprise of interpreting federal statutes. Specifically, scholars have debated whether, in light of Founding-era English and state court judicial practice, the judicial power of the United States should be understood as a power to interpret statutes dynamically or as faithful agents of Congress. This Article argues that the question of how courts should interpret federal statutes is one not only of separation of powers but of federalism as well. State courts have a vital and often …
Federal Regulation Of State Court Procedures, Anthony J. Bellia
Federal Regulation Of State Court Procedures, Anthony J. Bellia
Anthony J. Bellia
May Congress regulate the procedures by which state courts adjudicate claims arising under state law? Recently, Congress not only has considered several bills that would do so, but has enacted a few of them. This Article concludes that such laws exceed Congress's constitutional authority. There are serious questions as to whether a regulation of court procedures qualifies as a regulation of interstate commerce under the Commerce Clause. Even assuming, however, that it does qualify as such, the Tenth Amendment reserves the power to regulate court procedures to the states. Members of the Founding generation used conflict-of-laws language to describe a …
The Origins Of Article Iii "Arising Under" Jurisdiction, Anthony J. Bellia
The Origins Of Article Iii "Arising Under" Jurisdiction, Anthony J. Bellia
Anthony J. Bellia
Article III of the Constitution provides that the judicial Power of the United States extends to all cases arising under the Constitution, laws, and treaties of the United States. What the phrase arising under imports in Article III has long confounded courts and scholars. This Article examines the historical origins of Article III arising under jurisdiction. First, it describes English legal principles that governed the jurisdiction of courts of general and limited jurisdiction--principles that animated early American jurisprudence regarding the scope of arising under jurisdiction. Second, it explains how participants in the framing and ratification of the Constitution understood arising …
Equilibrium, Adam Lamparello
"Standing" In The Shadow Of Erie: Federalism In The Balance In Hollingsworth V. Perry, Glenn Koppel
"Standing" In The Shadow Of Erie: Federalism In The Balance In Hollingsworth V. Perry, Glenn Koppel
Glenn Koppel
Abstract “Standing” in the Shadow of Erie: Federalism in the Balance in Hollingsworth v. Perry In Hollingsworth v. Perry, one of the two same-sex marriage cases decided by the Supreme Court in 2013, the Court declined to address the constitutionality of California’s Proposition 8, finding that the initiative proponents lacked standing to appeal the district court’s judgment declaring the proposition unconstitutional and enjoining its enforcement. Since the State’s Governor and Attorney General declined to appeal, the proponents sought to assert the State’s particularized interest in the proposition’s validity. State law, as interpreted by the California Supreme Court, grants authority to …
The Scope Of National Power Vis-A-Vis The States: The Dispensability Of Judicial Review, Jesse H. Choper
The Scope Of National Power Vis-A-Vis The States: The Dispensability Of Judicial Review, Jesse H. Choper
Jesse H Choper
No abstract provided.
Something To Lex Loci Celebrationis: Federal Marriage Benefits Following United States V. Windsor, Meg Penrose
Something To Lex Loci Celebrationis: Federal Marriage Benefits Following United States V. Windsor, Meg Penrose
Meg Penrose
This article provides one of the first substantive treatments of United States v. Windsor, the Supreme Court's recent same-sex marriage case. The article's thesis proposes lex loci celebrationis (the place of marriage) as the proper method for determining marriage for federal law purposes. Failure to adopt lex loci celebrationis may violate the Fifth Amendment equal protection guarantee or the constitutional right to travel. Further, adoption of the lex loci celebrationis standard furthers marital stability and predictability.
Something To Lex Loci Celebrationis: Federal Marriage Benefits Following United States V. Windsor, Mary Margaret Meg Penrose
Something To Lex Loci Celebrationis: Federal Marriage Benefits Following United States V. Windsor, Mary Margaret Meg Penrose
Meg Penrose
Something To Lex Loci Celebrationis: Federal Marriage Benefits Following United States V. Windsor, Meg Penrose
Something To Lex Loci Celebrationis: Federal Marriage Benefits Following United States V. Windsor, Meg Penrose
Meg Penrose
This article provides one of the first substantive treatments of United States v. Windsor, the Supreme Court's recent same-sex marriage case. The article's thesis proposes lex loci celebrationis (the place of marriage) as the proper method for determining marriage for federal law purposes. Failure to adopt lex loci celebrationis may violate the Fifth Amendment equal protection guarantee or the constitutional right to travel. Further, adoption of the lex loci celebrationis standard furthers marital stability and predictability.
Tocqueville’S Slow And Steady Democratic Order In Light Of Us V. Windsor: Same Sex Marriage, And The Dilemma Of Majority Tyranny, Federalism, And Equality Of Conditions, Harry M. Hipler
Harry M Hipler
Tocqueville is a reliable interpreter of contemporary American life. His ideas written in the 1830s still resonate today. Tocqueville’s democratic order in Democracy in America (DA) is a dynamic process of socialization and democratization that balances liberty, authority, and equality of the individual in the community in order to obtain social and political justice. The USSC in US v. Windsor ruled that Section 3 of DOMA violated the doctrine of federalism and state sanctioned same-sex marriage. The decision followed Tocqueville’s gradual and progressive development of social and political justice that is crucial to a sustainable democratic order. In my research …
Discussion: A Focus On Federalism, Jeffrey B. Morris
Discussion: A Focus On Federalism, Jeffrey B. Morris
Jeffrey B. Morris
No abstract provided.
The Quiet Revolution And Federalism: Into The Future, Patricia E. Salkin
The Quiet Revolution And Federalism: Into The Future, Patricia E. Salkin
Patricia E. Salkin
This Article offers an examination of the federal role in land use planning and regulation set in the context of varying theories of federalism by presenting a historical and modern overview of the increasing federal influence in local land use planning and regulation, specifically highlighting how federal statutes and programs impact local municipal decision making in the area of land use planning. Part II provides a brief introduction into theories of federalism and their application to local land use regulation in the United States. Part III provides a brief overview of federal legislation in the United States which affected local …
Engaging Deliberative Democracy At The Grassroots: Prioritizing The Effects Of The Fiscal Crisis In New York At The Local Government Level, Patricia E. Salkin, Charles Gottlieb
Engaging Deliberative Democracy At The Grassroots: Prioritizing The Effects Of The Fiscal Crisis In New York At The Local Government Level, Patricia E. Salkin, Charles Gottlieb
Patricia E. Salkin
Part I of this Article discusses many of the factors contributing to the fiscal crisis at the local level in New York including historic decreases in federal and state revenue sharing, the imposition of a new property tax cap, the failure of New York to address meaningfully the subject of unfunded mandates on local governments, and the dependency of some local jurisdictions on the timely adoption of a state budget. Part II discusses concepts of deliberative democracy and how local residents might be engaged to become partners with local officials in making difficult fiscal decisions that impact all community residents. …
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 …
Constitutional Limitations On Land Use Controls, Environmental Regulations And Governmental Exactions, 2013 Edition, Garrett Power
Constitutional Limitations On Land Use Controls, Environmental Regulations And Governmental Exactions, 2013 Edition, Garrett Power
Garrett Power
This electronic book is published in a searchable PDF format as a part of the E-scholarship Repository of the University of Maryland Francis King Carey School of Law. It is an “open content” casebook intended for classroom use in courses in Constitutional Law, Land Use Control, and Environmental Law and. It consists of 130 odd judicial opinions (most rendered by the U.S. Supreme Court) carefully selected from the two hundred years of American constitutional history which address the clash between public sovereignty and private property. The text considers both the personal right to liberty and the personal right in property. …
Conflicting Federal And State Medical Marijuana Policies: A Threat To Cooperative Federalism, Todd Grabarsky
Conflicting Federal And State Medical Marijuana Policies: A Threat To Cooperative Federalism, Todd Grabarsky
Todd Grabarsky
The legal status of medical marijuana in the United States is something of a paradox. On one hand, federal government has placed a ban on the drug with no exceptions. On the other hand, over one-third of the states have that legalizes the cultivation, distribution, and consumption of the drug for medical purposes. As such, the usage of medical marijuana is an activity that is at the same time proscribed (by the federal government) and encouraged (by state governments through their systems of regulation and taxation). This Article seeks to shed light on this unprecedented nebulous zone of legality in …
Deciding Who Decides: Searching For A Deference Standard When Agencies Preempt State Law, John R. Ablan
Deciding Who Decides: Searching For A Deference Standard When Agencies Preempt State Law, John R. Ablan
John R Ablan
When a federal agency determines that the statute that it administers or regulations it has promulgated preempt state law, how much deference must a federal court give to that determination? In Wyeth v. Levine, the Supreme Court expressly declined to decide what standard of deference courts should apply when an agency makes a preemption determination pursuant to a specific congressional delegation to do so. Under this circumstance, this Article counsels against applying any single deference standard to an agency’s entire determination. Instead, it observes that preemption determinations are a complex inquiry involving questions of federal law, state law, and …
The Campaign Finance Safeguards Of Federalism, Garrick B. Pursley
The Campaign Finance Safeguards Of Federalism, Garrick B. Pursley
Garrick B. Pursley
This article provides the first systematic account of the relationship between campaign finance and federalism. Federalism—a fundamental characteristic of the constitutional structure—depends for its stability on political mechanisms. States and their advocates and representatives in Congress, federal agencies, political parties, intergovernmental lobbying groups, and other political forums work together to check federal interference with state governments. Entire normative theories of federalism depend on the assumption that this system of political safeguards is working effectively in the background. But the federalism and constitutional theory literatures lack a rigorous account of the effects of dramatic political change on pro-federalism political dynamics. Building …
Religions As Sovereigns: Why Religion Is "Special", Elizabeth A. Clark
Religions As Sovereigns: Why Religion Is "Special", Elizabeth A. Clark
Elizabeth A. Clark
Clinton, Ginsburg, And Centrist Federalism, Russell A. Miller
Clinton, Ginsburg, And Centrist Federalism, Russell A. Miller
Russell A. Miller
This Article examines Justice Ginsburg's overlooked federalism jurisprudence and concludes that it almost perfectly complements President Bill Clinton's New Democratic centrism, especially his pro-state federalism agenda. The Article concludes that their nuanced, "centrist" approach to federalism has two characteristics. First,t hey value the states 'governing autonomy and show respect for the state agents that realize that autonomy. Second, they credit the states as intersubjective actors engaged in the pursuit of their interests, albeit in political processes usually carried out at the federal level.
Bankruptcy Federalism: A Doctrine Askew , Margaret Howard
Bankruptcy Federalism: A Doctrine Askew , Margaret Howard
Margaret Howard
No abstract provided.
Why Justice Kennedy's Opinion In Windsor Short-Changed Same-Sex Couples, Adam Lamparello
Why Justice Kennedy's Opinion In Windsor Short-Changed Same-Sex Couples, Adam Lamparello
Adam Lamparello
Supreme Court Justice Anthony Kennedy’s decision in United States v. Windsor—invalidating the Defense of Marriage Act—made the same mistake as his decision in Lawrence v. Texas: it relied upon abstract notions of ‘liberty’ rather than the text-based guarantee of equality. Same-sex couples deserve more. They are entitled to equal treatment under the United States Constitution. Bans on same-sex marriage cannot be supported by a rational state interest, and instead constitute impermissible discrimination under the Fourteenth Amendment’s Equal Protection Clause. By issuing a doctrinally muddled decision that included discussions of federalism, liberty, due process, and equal protection, Justice Kennedy missed an …