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Full-Text Articles in Law
A General Defense Of Erie Railroad Co. V. Tompkins, Ernest A. Young
A General Defense Of Erie Railroad Co. V. Tompkins, Ernest A. Young
Faculty Scholarship
Erie Railroad Co. v. Tompkins was the most important federalism decision of the Twentieth Century. Justice Brandeis’s opinion for the Court stated unequivocally that “[e]xcept in matters governed by the Federal Constitution or by acts of Congress, the law to be applied in any case is the law of the state. . . . There is no federal general common law.” Seventy-five years later, however, Erie finds itself under siege. Critics have claimed that it is “bereft of serious intellectual or constitutional support” (Michael Greve), based on a “myth” that must be “repressed” (Craig Green), and even “the worst decision …
A Research Agenda For Uncooperative Federalists, Ernest A. Young
A Research Agenda For Uncooperative Federalists, Ernest A. Young
Faculty Scholarship
No abstract provided.
Reverse-Commandeering, Margaret Hu
Reverse-Commandeering, Margaret Hu
Faculty Scholarship
Although the anti-commandeering doctrine was developed by the Supreme Court to protect state sovereignty from federal overreach, nothing prohibits flipping the doctrine in the opposite direction to protect federal sovereignty from state overreach. Federalism preserves a balance of power between two sovereigns. Thus, the reversibility of the anti-commandeering doctrine appears inherent in the reasoning offered by the Court for the doctrine’s creation and application. In this Article, I contend that reversing the anti-commandeering doctrine is appropriate in the context of contemporary immigration federalism laws. Specifically, I explore how an unconstitutional incursion into federal sovereignty can be seen in state immigration …
Brief Of Federalism Scholars As Amici Curiae In Support Of Respondent Windsor, Ernest A. Young
Brief Of Federalism Scholars As Amici Curiae In Support Of Respondent Windsor, Ernest A. Young
Faculty Scholarship
No abstract provided.
Dissent, Diversity, And Democracy: Heather Gerken And The Contingent Imperative Of Minority Rule, Guy-Uriel Charles
Dissent, Diversity, And Democracy: Heather Gerken And The Contingent Imperative Of Minority Rule, Guy-Uriel Charles
Faculty Scholarship
No abstract provided.
In Praise Of Judge Fletcher-And Of General Standing Principles, Ernest A. Young
In Praise Of Judge Fletcher-And Of General Standing Principles, Ernest A. Young
Faculty Scholarship
No abstract provided.
Federalism, Liberty, And Equality In United States V. Windsor, Ernest A. Young, Erin C. Blondel
Federalism, Liberty, And Equality In United States V. Windsor, Ernest A. Young, Erin C. Blondel
Faculty Scholarship
This essay argues that federalism played a profoundly important role in the Supreme Court's decision in United States v. Windsor, which struck down the federal Defense of Marriage Act. Arguments to the contrary have failed to appreciate how Justice Kennedy's opinion employed federalism not as a freestanding argument but as an essential component of his rights analysis. Far from being a "muddle," as many have claimed, Justice Kennedy's analysis offered one of the most sophisticated examples to date of the interconnections between federalism, liberty, and equality.
Exhuming The “Diversity Explanation” Of The Eleventh Amendment, Thomas D. Rowe Jr.
Exhuming The “Diversity Explanation” Of The Eleventh Amendment, Thomas D. Rowe Jr.
Faculty Scholarship
This essay, in a symposium honoring the scholarship of Ninth Circuit Judge William A. Fletcher, explores the “diversity explanation” of the Eleventh Amendment that he had advanced in articles while he was a UC-Berkeley law professor. That explanation, contrary to existing Supreme Court doctrine that heavily constitutionalizes state sovereign immunity from suits by private parties and foreign countries, would view the Eleventh Amendment as having solely to do with federal courts’ constitutional jurisdiction and nothing to do with states’ sovereign immunity. The essay notes the cleanness of interpretation provided by the diversity explanation, in contrast with the convoluted nature of …