Law Commons^™

Lessons Of The Plague Years, Barry Sullivan

Faculty Publications & Other Works

The COVID-19 pandemic has challenged governments of every description across the globe, and it surely would have tested the mettle of any American administration. But the pandemic appeared in the United States at a particularly inopportune time. January 2020 marked the beginning of a presidential election year in a deeply polarized country. President Donald Trump was a controversial figure, beginning the fourth year of a highly idiosyncratic administration. He was both a candidate for re-election and the subject of an ongoing impeachment proceeding. In these circumstances, the pandemic quickly became politicized. President Trump's response to the COVID-19 pandemic has often …

The Democracy Principle In State Constitutions, Jessica Bulman-Pozen, Miriam Seifter

Faculty Scholarship

In recent years, antidemocratic behavior has rippled across the nation. Lame-duck state legislatures have stripped popularly elected governors of their powers; extreme partisan gerrymanders have warped representative institutions; state officials have nullified popularly adopted initiatives. The federal constitution offers few resources to address these problems, and ballot-box solutions cannot work when antidemocratic actions undermine elections themselves. Commentators increasingly decry the rule of the many by the few.

This Article argues that a vital response has been neglected. State constitutions embody a deep commitment to democracy. Unlike the federal constitution, they were drafted – and have been repeatedly rewritten and amended …

Law School News: 'Unmatched Opportunities' 12-16-2020, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

Law School News: Mike Andrews '97 Nominated To U.S. Court Of Federal Claims 12-15-2020, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

Rwu Law News: The Newsletter Of Roger Williams University School Of Law 12-2020, Barry Bridges, Michael M. Bowden, Nicole Dyszlewski, Louisa Fredey

Life of the Law School (1993- )

No abstract provided.

Standing For Nothing, Robert Mikos

Vanderbilt Law School Faculty Publications

A growing number of courts and commentators have suggested that states have Article III standing to protect state law. Proponents of such "protective" standing argue that states must be given access to federal court whenever their laws are threatened. Absent such access, they claim, many state laws might prove toothless, thereby undermining the value of the states in our federal system. Furthermore, proponents insist that this form of special solicitude is very limited-that it opens the doors to the federal courthouses a crack but does not swing them wide open. This Essay, however, contests both of these claims, and thus, …

Constitutional Challenges And Regulatory Opportunities For State Climate Policy Innovation, Felix Mormann

Articles

This Article explores constitutional limits and regulatory openings for innovative state policies to mitigate climate change by promoting climate-friendly, renewable energy. In the absence of a comprehensive federal policy approach to climate change and clean energy, more and more states are stepping in to fill the policy void. Already, nearly thirty states have adopted renewable portfolio standards that create markets for solar, wind, and other clean electricity. To help populate these markets, a few pioneering states have recently started using feed-in tariffs that offer eligible generators above-market rates for their clean, renewable power.

But renewable portfolio standards, feed-in tariffs, and …

Whether Sovereign Immunity Is A Defense For States In Bankruptcy Cases, Melanie Lee

Bankruptcy Research Library

(Excerpt)

Sovereign immunity, generally, prohibits suit against a sovereign without the sovereign’s consent. The defense of sovereign immunity may not be asserted by any state, or arm of the state, in any bankruptcy proceeding. The prohibition of asserting sovereign immunity in a bankruptcy case has been common practice, almost continuously, since the states agreed to such a waiver in the Constitutional Convention. Moreover, this waiver of sovereign immunity, has since been codified in Section 106 of title 11 of the United States Code (the “Bankruptcy Code”). As a result, a state involved in a bankruptcy case will typically be treated …

Reflections On Comity In The Law Of American Federalism, Gil Seinfeld

Articles

Comity is a nebulous concept familiar to us from the law of international relations. Roughly speaking, it describes a set of reciprocal norms among nations that call for one state to recognize, and sometimes defer to, the laws, judgments, or interests of another. Comity also features prominently in the law of American federalism, but in that context, it operates within limits that have received almost no attention from scholarly commentators. Specifically, although courts routinely describe duties that run from one state to another, or from the federal government to the states, as exercises in comity, they almost never rely on …

Fifty States, Fifty Attorneys General, And Fifty Approaches To The Duty To Defend, Neal Devins, Saikrishna B. Prakash

Faculty Publications

Whether a state attorney general has a duty to defend the validity of state law is a complicated question, one that cannot be decided by reference either to the oath state officers must take to support the federal Constitution or the supremacy of federal law. Instead, whether a state attorney general must defend state law turns on her own state’s laws. Each state has its own constitution, statutes, bar rules, and traditions, and not surprisingly, the duties of attorneys general vary across the states. To simplify somewhat, we believe that there are three types of duties. One set of attorneys …

Eaja Fees For Reasons-And-Bases Remands: The Perspective Of A Veterans' Lawyer, David E. Boelzner

Faculty Publications

No abstract provided.

Professional Rights Speech, Timothy Zick

Faculty Publications

Some regulations of professional-client communications raise important, but sofar largely overlooked, constitutional concerns. Three recent examples of professional speech regulation-restrictions on physician inquiries regarding firearms, "reparative" therapy bans, and compelled abortion disclosures-highlight an important intersection between professional speech and constitutional rights. In each of the three examples, state regulations implicate a non-expressive constitutional right--the right to bear arms, equality, and abortion. States are actively, sometimes even aggressively, using their licensing authority to limit and structure conversations between professionals and their clients regarding constitutional rights. The author contends that government regulation of "professional rights speech" should be subjected to heightened First …

The Rites Of Dissent: Notes On Nationalist Federalism, Jessica Bulman-Pozen

Faculty Scholarship

Responding to Heather K. Gerken’s Childress Lecture, Federalism and Nationalism: Time for a Détente?

In this response, I consider how the nationalist school of federalism reconceptualizes nationalism, and not only federalism. Taking as my starting point Gerken’s claim that federalism can be good for nationalism, that nationalists should “believe in giving power to the states,” I first outline two possible understandings of nationalism suggested by this claim — that “national” refers to the federal government, and that “national” refers to a unified American polity — and explain what it would mean for federalism to serve nationalism so understood. After rejecting …

Through Our Glass Darkly: Does Comparative Law Counsel The Use Of Foreign Law In U.S. Constitutional Adjudication?, Kenneth Anderson

Articles in Law Reviews & Other Academic Journals

This (35 pp.) essay appears as a contribution to a law review symposium on the work of Harvard Law School professor Mary Ann Glendon in comparative law. The essay begins by asking what comparative law as a scholarly discipline might suggest about the use of foreign (or unratified or nationally "unaccepted" international law) by US courts in US constitutional adjudication. The trend seemed to be gathering steam in US courts between the early-1990s and mid-2000s, but by the late-2000s, it appeared to be stalled as a practice, notwithstanding the intense scholarly interest throughout this period.

Practical politics within the US …

The Right To Vote Under State Constitutions, Joshua A. Douglas

Law Faculty Scholarly Articles

This Article provides the first comprehensive look at state constitutional provisions explicitly granting the right to vote. We hear that the right to vote is "fundamental," the "essence of a democratic society," and "preservative of all rights." But courts and scholars are still searching for a solution to the puzzle of how best to protect voting rights, especially because the U.S. Supreme Court has underenforced the right to vote. The answer, however, is right in front of us: state constitutions. Virtually every state constitution includes direct, explicit language granting the right to vote, as contrasted with the U.S. Constitution, which …

Judicial Retirement And Return To Practice, Mary Clark

Articles in Law Reviews & Other Academic Journals

This Article engages recent scholarly debates about U.S. Supreme Court tenure and retirement practices, specifically those concerning the merits of adopting eighteen-year term limits or mandatory retirement for Supreme Court Justices. It broadens the discussion by including all Article III judges and by addressing former Article III judges’ return to practice following resignation or retirement, which has been largely ignored in the literature to date despite what I have found to be the return-to-practice rate of over forty percent in the last two decades.

This Article advocates retaining life tenure because it promotes institutional and individual judicial independence better than …

State Extraterritorial Powers Reconsidered, Mark D. Rosen

All Faculty Scholarship

No abstract provided.

In Search Of "Laissez-Faire Constitutionalism", Matthew Lindsay

All Faculty Scholarship

This article is a response to Professor Jed Shugerman’s Economic Crisis and the Rise of Judicial Elections and Judicial Review, HARVARD LAW REVIEW (2010). Professor Shugerman argues that the widespread adoption of judicial elections in the 1850’s and the embrace by the first generation of elected judges of countermajoritarian rationales for judicial review helped to effect a transition from the active, industry-building state of the early nineteenth century to the "laissez-faire constitutionalism" of the Lochner era. This response argues that Professor Shugerman overstates the causal relationship between the elected judiciary’s robust constitutional defense of "vested rights" and the iconic, if …

Commentary: Was The Bill Of Rights Irrelevant To Nineteenth-Century State Criminal Procedure?, Carolyn B. Ramsey

Publications

No abstract provided.

Cooper's Quiet Demise (A Short Response To Professor Strauss), Frederic M. Bloom

Publications

No abstract provided.

Supreme Court Reversals: Exploring The Seventh Court, Stephen Wermiel

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Enhanced Protections For Geographical Indications Under Trips: Potential Conflicts Under The U.S. Constitutional And Statutory Regimes, David Snyder

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Slides: Forests And Grasslands, Federico Cheever

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

Presenter: Professor Federico Cheever, University of Denver Sturm College of Law

30 slides

The Future Of Mineral Development On Federal Lands In The United States, John D. Leshy

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

11 pages.

Includes bibliographical references

"Outline of presentation of John D. Leshy, Harry D. Sunderland Distinguished Professor, U.C. Hastings College of the Law, Natural Resources Law center, June 7, 2007" (pp. 3-5)

"Leshy draft 4.27.07 For Natural Resources Law Center" (pp. 6-13)

Agenda: The Future Of Natural Resources Law And Policy, University Of Colorado Boulder. Natural Resources Law Center, Rocky Mountain Mineral Law Foundation

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

The Natural Resources Law Center's 25th Anniversary Conference and Natural Resources Law Teachers 14th Biennial Institute provided an opportunity for some of the best natural resources lawyers to discuss future trends in the field. The conference focused on the larger, cross-cutting issues affecting natural resources policy. Initial discussions concerned the declining role of scientific resource management due to the increased inclusion of economic-cost benefit analysis and public participation in the decision-making process. The effectiveness of this approach was questioned particularly in the case of non-market goods such as the polar bear. Other participants promoted the importance of public participation and …

The Growing Influence Of Tort And Property Law On Natural Resources Law: Case Studies Of Coal Bed Methane Development And Geologic Carbon Sequestration, Alexandra B. Klass

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

19 pages.

"Alexandra B. Klass, Associate Professor of Law, University of Minnesota Law School"

Limited Powers In The Looking-Glass: Otiose Textualism, And An Empirical Analysis Of Other Approaches, When Activitists In Private Shopping Centers Claim State Constitutional Liberties, Richard J. Peltz-Steele

Faculty Publications

This article examines closely a narrow range of highly factually analogous cases, in which state constitutional rights are asserted despite a clear lack of entitlement to assert any federal constitutional claim. Specifically, the cases selected are those in which private persons assert a right to conduct expressive activity, including electoral activity, in private shopping centers during hours when the properties are held open to the general public. These cases may be referred to colloquially as “the mall cases.” Selected here are only those which were decided after the federal question became clear. The Article first inquires into the role of …

Exploring The Myths About The Ninth Circuit, Stephen Wermiel

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Courts Over Constitutions Revisited: Unwritten Constitutionalism In The States, Thomas B. Mcaffee, Nathan N. Frost, Rachel Beth Klein-Levine

Scholarly Works

A good deal of modern debate in constitutional law has concerned the appropriate methods for construing constitutional rights. But the focus on “individual rights” has sometimes prompted us to pay too little attention to the “right” deemed most fundamental by those who brought us the state and federal constitutions: the right of the people collectively to make determinations about how they should be governed. The author demonstrates that the key to understanding the development of the power of judicial review, both by the United States Supreme Court and by the highest courts of the states, is to perceive courts as …

Thayerian Deference To Congress And Supreme Court Supermajority Rules: Lessons From The Past (Symposium: Congressional Power In The Shadow Of The Rehnquist Court: Strategies For The Future), Evan H. Caminker

Articles

Over the past eight years, the Supreme Court has been unusually aggressive in its exercise ofjudicial review over federal statutes challenged on federalism grounds. Eleven times the Court has invalidated provisions in federal statutes after determining that Congress exceeded the scope of its limited regulatory authority. In ten of the eleven cases, the vote was 5-4 with the identical five-Justice conservative majority (Chief Justice Rehnquist and Justices O'Connor, Scalia, Kennedy, and Thomas) controlling the decision.