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Full-Text Articles in Law
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, …
When Can A State Sue The United States?, Tara Leigh Grove
When Can A State Sue The United States?, Tara Leigh Grove
Faculty Publications
State suits against the federal government are on the rise. From Massachusetts’ challenge to federal environmental policy, to Oregon’s confrontation over physician-assisted suicide, to Texas’s suit over the Obama administration’s immigration program, States increasingly go to court to express their disagreement with federal policy. This Article offers a new theory of state standing that seeks to explain when a State may sue the United States. I argue that States have broad standing to sue the federal government to protect state law. Accordingly, a State may challenge federal statutes or regulations that preempt, or otherwise undermine the continued enforceability of, state …
Distinctive Identity Claims In Federal Systems: Judicial Policing Of Subnational Variance, Antoni Abat I Ninet, James A. Gardner
Distinctive Identity Claims In Federal Systems: Judicial Policing Of Subnational Variance, Antoni Abat I Ninet, James A. Gardner
Journal Articles
It is characteristic of federal states that the scope of subnational power and autonomy are subjects of frequent dispute, and that disagreements over the reach of national and subnational power may be contested in a wide and diverse array of settings. Subnational units determined to challenge nationally-imposed limits on their power typically have at their disposal many tools with which to press against formal boundaries. Federal systems, moreover, frequently display a surprising degree of tolerance for subnational obstruction, disobedience, and other behaviors intended to expand subnational authority and influence, even over national objection. This tolerance, however, has limits. In this …
Rluipa And The Limits Of Religious Institutionalism, Zachary A. Bray
Rluipa And The Limits Of Religious Institutionalism, Zachary A. Bray
Law Faculty Scholarly Articles
What special protections, if any, should religious organizations receive from local land use controls? The Religious Land Use and Institutionalized Persons Act (“RLUIPA”)—a deeply flawed statute—has been a magnet for controversy since its passage in 2000. Yet until recently, RLUIPA has played little role in debates about “religious institutionalism,” a set of ideas that suggest religious institutions play a distinctive role in developing the framework for religious liberty and that they deserve comparably distinctive deference and protection. This is starting to change: RLUIPA’s magnetic affinity for controversy has begun to connect conflicts over religious land use with larger debates about …
Dynamic Incorporation Of Federal Law, Jim Rossi
Dynamic Incorporation Of Federal Law, Jim Rossi
Vanderbilt Law School Faculty Publications
This Article provides a comprehensive analysis of state constitutional limits on legislative incorporation of dynamic federal law, as occurs when a state legislature incorporates future federal tax, environmental or health laws. Many state judicial decisions draw on the nondelegation doctrine to endorse an ex ante prohibition on state legislative incorporation of dynamic federal law. However, the analysis in this Article shows how bedrock principles related to separation of powers under state constitutions, such as protecting transparency, reinforcing accountability, and protecting against arbitrariness in lawmaking, are not consistent with this approach. Instead, this Article highlights two practices that can make dynamic …
The New Elections Clause, Michael T. Morley