Open Access. Powered by Scholars. Published by Universities.®
- Institution
-
- University of Michigan Law School (13)
- University of Colorado Law School (12)
- University of Pennsylvania Carey Law School (8)
- Georgetown University Law Center (5)
- Boston University School of Law (4)
-
- University of Georgia School of Law (4)
- William & Mary Law School (4)
- American University Washington College of Law (3)
- Notre Dame Law School (3)
- University of Pittsburgh School of Law (3)
- Columbia Law School (2)
- Cornell University Law School (2)
- Florida State University College of Law (2)
- Schulich School of Law, Dalhousie University (2)
- University of Kentucky (2)
- University of Massachusetts School of Law (2)
- University of Missouri School of Law (2)
- Maurer School of Law: Indiana University (1)
- Mitchell Hamline School of Law (1)
- St. John's University School of Law (1)
- St. Thomas University College of Law (1)
- University at Buffalo School of Law (1)
- University of Florida Levin College of Law (1)
- University of Washington School of Law (1)
- Vanderbilt University Law School (1)
- Washington and Lee University School of Law (1)
- Publication Year
- Publication
-
- Articles (16)
- Faculty Publications (9)
- All Faculty Scholarship (8)
- Faculty Scholarship (7)
- Georgetown Law Faculty Publications and Other Works (5)
-
- Publications (5)
- Journal Articles (4)
- The Future of Natural Resources Law and Policy (Summer Conference, June 6-8) (4)
- Articles in Law Reviews & Other Academic Journals (3)
- Scholarly Works (3)
- Articles, Book Chapters, & Popular Press (2)
- Cornell Law Faculty Publications (2)
- Law Faculty Scholarly Articles (2)
- Regulatory Takings and Resources: What Are the Constitutional Limits? (Summer Conference, June 13-15) (2)
- Scholarly Publications (2)
- Articles by Maurer Faculty (1)
- Faculty Articles (1)
- LLM Theses and Essays (1)
- Reviews (1)
- Scholarly Articles (1)
- The Public Lands During the Remainder of the 20th Century: Planning, Law, and Policy in the Federal Land Agencies (Summer Conference, June 8-10) (1)
- UF Law Faculty Publications (1)
- Vanderbilt Law School Faculty Publications (1)
Articles 1 - 30 of 82
Full-Text Articles in Law
The New Comity Abstention, John Harland Giammatteo
The New Comity Abstention, John Harland Giammatteo
Journal Articles
In the past ten years, lower federal courts have quietly but regularly abstained from hearing federal claims challenging state court procedures, citing concerns of comity and federalism. Federal courts have dismissed a broad range of substantive challenges tasked to them by Congress, including under the Americans with Disabilities Act, the Indian Child Welfare Act, and various constitutional provisions, involving state court eviction proceedings, foster care determinations, bail and criminal justice policies, COVID-era safety practices, and other instances where state courts determine state policy.
This paper is the first to argue that these decisions constitute a new abstention doctrine, unmoored from …
The False Promise Of Jurisdiction Stripping, Daniel Epps, Alan M. Trammell
The False Promise Of Jurisdiction Stripping, Daniel Epps, Alan M. Trammell
Scholarly Articles
Jurisdiction stripping is seen as a nuclear option. Its logic is simple: By depriving federal courts of jurisdiction over some set of cases, Congress ensures those courts cannot render bad decisions. To its proponents, it offers the ultimate check on unelected and unaccountable judges. To its critics, it poses a grave threat to the separation of powers. Both sides agree, though, that jurisdiction stripping is a powerful weapon. On this understanding, politicians, activists, and scholars throughout American history have proposed jurisdiction-stripping measures as a way for Congress to reclaim policymaking authority from the courts.
The conventional understanding is wrong. Whatever …
The New Laboratories Of Democracy, Gerald S. Dickinson
The New Laboratories Of Democracy, Gerald S. Dickinson
Articles
Nearly a century ago, Justice Louis D. Brandeis’s dissent in New State Ice Co. v. Liebman coined one of the most profound statements in American law: “It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” Justice Brandeis reminded us of our strong tradition of federalism, where the states, exercising their sovereign power, may choose to experiment with new legislation within their separate jurisdictions without the concern that such …
State Rejection Of Federal Law, Thomas B. Bennett
State Rejection Of Federal Law, Thomas B. Bennett
Faculty Publications
Sometimes the United States Supreme Court speaks, and states do not follow. For example, in 2003, the Arizona Supreme Court agreed to "reject" a decision of the U.S. Supreme Court, because no "sound reasons justif[ied] following" it. Similarly, in 2006, Michigan voters approved a ballot initiative that, according to the legislature that drafted it, sought "at the very least to freeze' the state's ... law to prevent" state courts from following a ruling of the U.S. Supreme Court. Surprising though this language may be, there is nothing nefarious about these cases. Cooper v. Aaron this is not. Unlike more notorious …
The Field Of State Civil Courts, Anna E. Carpenter, Alyx Mark, Colleen F. Shanahan, Jessica K. Steinberg
The Field Of State Civil Courts, Anna E. Carpenter, Alyx Mark, Colleen F. Shanahan, Jessica K. Steinberg
Faculty Scholarship
This symposium Issue of the Columbia Law Review marks a moment of convergence and opportunity for an emerging field of legal scholarship focused on America’s state civil trial courts. Historically, legal scholarship has treated state civil courts as, at best, a mere footnote in conversations about civil law and procedure, federalism, and judicial behavior. But the status quo is shifting. As this Issue demonstrates, legal scholars are examining our most common civil courts as sites for understanding law, legal institutions, and how people experience civil justice. This engagement is essential for inquiries into how courts shape and respond to social …
Beholding Law: Amadeo On The Argentine Constitution, Christina D. Ponsa-Kraus, Erin F. Delaney
Beholding Law: Amadeo On The Argentine Constitution, Christina D. Ponsa-Kraus, Erin F. Delaney
Faculty Scholarship
This essay introduces an online edition of Santos P. Amadeo’s Argentine Constitutional Law to be published by the Academia Puertorriqueña de Jurisprudencia y Legislación. Tracing the book to its origins in a paper Amadeo wrote for a seminar in comparative constitutional law at Columbia Law School in the 1930s, we discuss the intellectual context that gave rise to the book and assess its author’s methodological choices. We then examine one particular substantive choice: Whereas the paper specifically draws attention to the importance of understanding every form of political subdivision in a federalist system – identifying Argentina’s as the provinces, the …
Standing For Nothing, Robert Mikos
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, …
Procedural Retrenchment And The States, Zachary D. Clopton
Procedural Retrenchment And The States, Zachary D. Clopton
Cornell Law Faculty Publications
Although not always headline grabbing, the Roberts Court has been highly interested in civil procedure. According to critics, the Court has undercut access to justice and private enforcement through its decisions on pleading, class actions, summary judgment, arbitration, standing, personal jurisdiction, and international law.
While I have much sympathy for the Court's critics, the current discourse too often ignores the states. Rather than bemoaning the Roberts Court's decisions to limit court access-and despairing further developments in the age of Trump-we instead might productively focus on the options open to state courts and public enforcement. Many of the aforementioned decisions are …
The Federal Equity Power, Michael T. Morley
The Federal Equity Power, Michael T. Morley
Scholarly Publications
Throughout the first century and a half of our nation’s history, federal courts treated equity as a type of general law. They applied a uniform, freestanding body of principles derived from the English Court of Chancery to all equitable issues that came before them, regardless of whether a case arose under federal or state law. In 1945, in Guaranty Trust Co. v. York, the United States Supreme Court held that, notwithstanding the changes wrought by the Erie Doctrine, federal courts may continue to rely on these traditional principles of equity to determine the availability of equitable relief, such as injunctions, …
Courts In Federal Countries: Federalists Or Unitarists?, Hannah Steeves
Courts In Federal Countries: Federalists Or Unitarists?, Hannah Steeves
Articles, Book Chapters, & Popular Press
This book is the product of a comparative research project completed by the Forum of Federations and supported by the Government of Quebec. The Forum of Federations has the goal of linking academic research to real world practices and is supported and funded by international partners. Courts in Federal Countries: Federalists or Unitarists? contributes directly to this goal by providing a well-rounded, highly informed, comparative approach to the topic of the structural issues of federalism. This text is the first of a larger, forthcoming, seven volume series on federalism to be developed by the Forum of Federations.
Federalism, Convergence, And Divergence In Constitutional Property, Gerald S. Dickinson
Federalism, Convergence, And Divergence In Constitutional Property, Gerald S. Dickinson
Articles
Federal law exerts a gravitational force on state actors, resulting in widespread conformity to federal law and doctrine at the state level. This has been well recognized in the literature, but scholars have paid little attention to this phenomenon in the context of constitutional property. Traditionally, state takings jurisprudence—in both eminent domain and regulatory takings—has strongly gravitated towards the Supreme Court’s takings doctrine. This long history of federal-state convergence, however, was disrupted by the Court’s controversial public use decision in Kelo v. City of New London. In the wake of Kelo, states resisted the Court’s validation of the …
The Supreme Court Of Canada And Federalism: Does / Should Anyone Care Anymore?, A. Wayne Mackay
The Supreme Court Of Canada And Federalism: Does / Should Anyone Care Anymore?, A. Wayne Mackay
Articles, Book Chapters, & Popular Press
Federalism is still a relevant and vital aspect of Canadian Constitutional Law. Although a lower profile aspect than the Charter of Rights and Aboriginal rights (and in common parlance less "sexy"), the division of powers continues to an important part of the work of the Supreme Court of Canada and part of what defines us as a nation. The author argues that the Supreme Court has pursued an increasingly contextualized approach to division of powers issues - one that abandons the arid legalism of earlier days, in favour of a broad social analysis of issues based on extensive use of …
Judicial Federalism In The European Union, Michael Wells
Judicial Federalism In The European Union, Michael Wells
Scholarly Works
This article compares European Union judicial federalism with the American version. Its thesis is that the European Union’s long-term goal of political integration probably cannot be achieved without strengthening its rudimentary judicial institutions. On the one hand, the EU is a federal system in which judicial power is divided between EU courts, of which there are only three, and the well-entrenched and longstanding member state court systems. On the other hand, both the preamble and Article 1 of the Treaty of Europe state that an aim of the European Union is “creating an ever closer union among the peoples of …
Choice Of Law And Jurisdictional Policy In The Federal Courts, Tobias Barrington Wolff
Choice Of Law And Jurisdictional Policy In The Federal Courts, Tobias Barrington Wolff
All Faculty Scholarship
For seventy-five years, Klaxon v. Stentor Electric Manufacturing has provided a one-line answer to choice-of-law questions in federal diversity cases: Erie requires the federal court to employ the same law that a court of the state would select. The simplicity of the proposition likely accounts for the unqualified breadth with which federal courts now apply it. Choice of law doctrine is difficult, consensus in hard cases is elusive, and the anxiety that Erie produces over the demands of federalism tends to stifle any reexamination of core assumptions. The attraction of a simple answer is obvious. But Klaxon cannot bear the …
Patent Exhaustion And Federalism: A Historical Note, Herbert J. Hovenkamp
Patent Exhaustion And Federalism: A Historical Note, Herbert J. Hovenkamp
All Faculty Scholarship
This essay, written as a response to John F. Duffy and Richard Hynes, Statutory Domain and the Commercial Law of Intellectual Property, 102 VA. L. REV. 1 (2016), argues that the patent exhaustion (first sale) doctrine developed as a creature of federalism, intended to divide the line between the law of patents, which by that time had become exclusively federal, and the law of patented things, which were governed by the states. Late nineteenth and early twentieth century courts were explicit on the point, in decisions stretching from the 1850s well into the twentieth century.
By the second half of …
Governance Reform And The Judicial Role In Municipal Bankruptcy, Clayton P. Gillette, David A. Skeel Jr.
Governance Reform And The Judicial Role In Municipal Bankruptcy, Clayton P. Gillette, David A. Skeel Jr.
All Faculty Scholarship
Recent proceedings involving large municipalities such as Detroit, Stockton, and Vallejo illustrate both the utility and the limitations of using the Bankruptcy Code to adjust municipal debt. In this article, we contend that, to truly resolve the distress of a substantial city, municipal bankruptcy needs to do more than simply provide immediate debt relief. Debt adjustment alone does nothing to remedy the fragmented decision-making and incentives for expanding municipal budgets that underlie municipal distress. Unless bankruptcy also addresses governance dysfunction, the city may slide right back into financial crisis. Governance restructuring has long been an essential element of corporate bankruptcy. …
Federalism, Marriage, And Heather Gerken's Mad Genius, Kristin Collins
Federalism, Marriage, And Heather Gerken's Mad Genius, Kristin Collins
Faculty Scholarship
In her characteristically astute and engaging essay, Professor Heather Gerken offers a sensitive and sympathetic reading of Justice Anthony Kennedy’s majority opinion in United States v. Windsor.1 Her core claim is that Windsor—and the transformation of political and legal support for same-sex marriage in the United States—demonstrate how “federalism and rights work together to promote change” and, in particular, how federalism furthers the equality and liberty values of the Fourteenth Amendment.2 This is a natural line of argument for Gerken to develop with respect to Windsor, as she has produced an incredible body of scholarship dedicated to what …
A Jurisprudential Divide In U.S. V. Wong & U.S. V. June, Richard J. Peltz-Steele
A Jurisprudential Divide In U.S. V. Wong & U.S. V. June, Richard J. Peltz-Steele
Faculty Publications
In spring 2015, the U.S. Supreme Court decided two consolidated cases construing the Federal Tort Claims Act, U.S. v. Kwai Fun Wong and U.S. v June, Conservator. The Court majority, 5-4, per Justice Kagan, ruled in favor of the claimants and against the Government in both cases. On the face of the majority opinions, Wong and June come off as straightforward matters of statutory construction. But under the surface, the cases gave the Court a chance to wrestle with fundamental questions of statutory interpretation. The divide in Wong and June concerns the role of the courts vis-à-vis Congress — one …
Inferiority Complex: Should State Courts Follow Lower Federal Court Precedent On The Meaning Of Federal Law?, Amanda Frost
Inferiority Complex: Should State Courts Follow Lower Federal Court Precedent On The Meaning Of Federal Law?, Amanda Frost
Articles in Law Reviews & Other Academic Journals
The conventional wisdom is that state courts need not follow lower federal court precedent when interpreting federal law. Upon closer inspection, however, the question of how state courts should treat lower federal court precedent is not so clear. Although most state courts now take the conventional approach, a few contend that they are obligated to follow the lower federal courts, and two federal courts of appeals have declared that their decisions are binding on state courts. The Constitution’s text and structure send mixed messages about the relationship between state and lower federal courts, and the Supreme Court has never squarely …
Bait And Switch: Why United States V. Morrison Is Wrong About Section Five, Kermit Roosevelt Iii
Bait And Switch: Why United States V. Morrison Is Wrong About Section Five, Kermit Roosevelt Iii
All Faculty Scholarship
As the title suggests, the article examines Morrison’s creation of the rule that the Section Five power cannot be used to regulate private individuals. This is one of the most meaningful and, thus far, durable constraints that the Court has placed on federal power. It is the more surprising, then, that it turns out to be based on essentially nothing at all. The Morrison Court asserted that its rule was derived by—indeed, “controlled by”—precedent, but a closer reading of the Reconstruction-era decisions it cites shows that this is simply not the case. An independent evaluation of the rule against regulation …
Mass Litigation Governance In The Post-Class Action Era: The Problems And Promise Of Non-Removable State Actions In Multi-District Litigation, J. Maria Glover
Mass Litigation Governance In The Post-Class Action Era: The Problems And Promise Of Non-Removable State Actions In Multi-District Litigation, J. Maria Glover
Georgetown Law Faculty Publications and Other Works
Given a string of decisions restricting the use and availability of the class action device, the world of mass litigation may well be moving into a post-class action era. In this era, newer devices of aggregation—perhaps principally among them multi-district litigation (“MDL”)—increasingly will be called upon to meet the age-old mass litigation goal of achieving global peace of numerous claims arising out of a related, widespread harm. Indeed, coordination of pretrial proceedings in the MDL frequently facilitates the achievement of this peace, given the reality that cases, once consolidated in the MDL, often settle en masse.
However, one clear obstacle …
Same-Sex Marriage, Federalism, And Judicial Supremacy, Robert F. Nagel
Same-Sex Marriage, Federalism, And Judicial Supremacy, Robert F. Nagel
Publications
Justice Kennedy's opinion in United States v. Windsor is characterized by a number of strained and wavering constitutional claims. Prominent among these is the argument that the principle of federalism calls into question the congressional decision to adopt the traditional definition of marriage, which the state of New York rejected. An examination of earlier federalism cases demonstrates that Kennedy's appreciation for federalism is in fact severely limited and suggests and that his lax use of legal authority is directly if perversely related to this limited appreciation.
Federalism cases prior to Windsor show that Justice Kennedy supports state authority only when …
The Jurisprudence Of Union, Gil Seinfeld
The Jurisprudence Of Union, Gil Seinfeld
Articles
The primary goal of this Article is to demonstrate that the interest in national unity does important, independent work in the law of vertical federalism. We have long been accustomed to treating union as a constitutionally operative value in cases involving the duties states owe one another (i.e. horizontal federalism cases), but in cases involving the relationship between the federal government and the states, the interest in union is routinely ignored. This Article shows that, across a wide range of cases relating to the allocation of power between the federal government and the states, the states are constrained by a …
The Federal Circuit As A Federal Court, Paul Gugliuzza
The Federal Circuit As A Federal Court, Paul Gugliuzza
Faculty Scholarship
The U.S. Court of Appeals for the Federal Circuit has exclusive jurisdiction over patent appeals and, as a consequence, the last word on many legal issues important to innovation policy. This Article shows how the Federal Circuit augments its already significant power by impeding other government institutions from influencing the patent system. Specifically, the Federal Circuit has shaped patent-law doctrine, along with rules of jurisdiction, procedure, and administrative law, to preserve and expand the court’s power in four interinstitutional relationships: the court’s federalism relationship with state courts, its separation of powers relationship with the executive and legislative branches, its vertical …
Valid Rule Due Process Challenges: Bond V. United States And Erie’S Constitutional Source, Kermit Roosevelt Iii
Valid Rule Due Process Challenges: Bond V. United States And Erie’S Constitutional Source, Kermit Roosevelt Iii
All Faculty Scholarship
This article begins by asking what constitutional provision is violated by the enforcement of law without a lawmaker. Taking a positivist view—i.e., that law does not exist without a lawmaker—it concludes that the problem of law without a lawmaker collapses into the problem of coercion without law. Coercion without law violates the Due Process Clause in an obvious way: it is deprivation of something “without … law.” The article then explores the existence of this form of substantive due process in American law, arguing that we find it in three somewhat surprising places: Lochner-era substantive due process; modern federalism …
The Wages Of Crying Judicial Restraint, Randy E. Barnett
The Wages Of Crying Judicial Restraint, Randy E. Barnett
Georgetown Law Faculty Publications and Other Works
Five Justices voted to affirm the proposition that the Constitution creates a government of limited and enumerated powers and that the courts will enforce those limits. To understand why this victory was possible, it is important to understand that there are not just two versions of federalism, pre‐New Deal and post‐New Deal. There is also a third version. The failure to recognize the third version goes a long way to explain why most of my academic colleagues predicted that the right would have no chance to prevail in our constitutional challenge to the individual insurance mandate.
The first version of …
Antitrust And The 'Filed Rate' Doctrine: Deregulation And State Action, Herbert J. Hovenkamp
Antitrust And The 'Filed Rate' Doctrine: Deregulation And State Action, Herbert J. Hovenkamp
All Faculty Scholarship
In its Keogh decision the Supreme Court held that although the Interstate Commerce Act did not exempt railroads from antitrust liability, a private plaintiff may not recover treble damages based on an allegedly monopolistic tariff rate filed with a federal agency. Keogh very likely grew out of Justice Brandeis's own zeal for regulation and his concern for the protection of small business — in this case, mainly shippers whom he felt were protected from discrimination by filed rates. The Supreme Court's Square D decision later conceded that Keogh may have been “unwise as a matter of policy,” but reaffirmed it …
A Crisis In Federal Habeas Law, Eve Brensike Primus
A Crisis In Federal Habeas Law, Eve Brensike Primus
Reviews
Everyone recognizes that federal habeas doctrine is a mess. Despite repeated calls for reform, federal judges continue to waste countless hours reviewing habeas petitions only to dismiss the vast majority of them on procedural grounds. Broad change is necessary, but to be effective, such change must be animated by an overarching theory that explains when federal courts should exercise habeas jurisdiction. In Habeas for the Twenty-First Century: Uses, Abuses, and the Future of the Great Writ, Professors Nancy King and Joseph Hoffmann offer such a theory. Drawing on history, current practice, and empirical data, King and Hoffmann find unifying themes …
The Rhetoric Hits The Road: State Resistance To Affordable Care Act Implementation, Elizabeth Weeks Leonard
The Rhetoric Hits The Road: State Resistance To Affordable Care Act Implementation, Elizabeth Weeks Leonard
Scholarly Works
This paper provides an update and reanalysis of my previously published article, Rhetorical Federalism: The Value of State-Based Dissent to Federal Health Reform, 93 Hofstra Law Review 111 (2010). In Rhetorical Federalism, I made an affirmative case for the widespread trend of state resistance to the then-recently enacted Patient Protection and Affordable Care Act of 2010 (ACA). Before and immediately after ACA’s enactment, a significant number of states engaged in various forms of objection to the new federal Act, including but not limited to lawsuits challenging the constitutionality of the individual insurance mandate. My article focused on five targets of …
Clarity And Clarification: Grable Federal Questions In The Eyes Of Their Beholders, Elizabeth Mccuskey
Clarity And Clarification: Grable Federal Questions In The Eyes Of Their Beholders, Elizabeth Mccuskey
Faculty Scholarship
Jurists and commentators have repeated for centuries the refrain that jurisdictional rules should be clear.' Behind this mantra is the idea that clearly designed jurisdictional rules should enable trial courts to apply the law more easily and therefore allow litigants to predict more accurately how trial courts will rule.2 The mantra's ultimate goal is efficiency-that trial courts not labor too long on jurisdiction and, most important, that litigants can accurately predict the correct forum and choose to spend their money litigating the merits of their claim, rather than where it will be heard. Jurisdictional clarity largely is devoted …