Law Commons^™

The "Bounds" Of Moore: Pluralism And State Judicial Review, Leah M. Litman, Katherine Shaw

Articles

In Moore v. Harper, the Supreme Court rejected a maximalist version of the “independent state legislature theory” (ISLT), invoking state judicial practices both before and after the Constitution was ratified. This piece uses Moore’s method to examine another variation on the ISLT, one pushed most recently by Justice Brett Kavanaugh and before him by Chief Justice William Rehnquist. The Rehnquist-Kavanaugh version of the ISLT would empower federal courts to review state officers’ interpretation of state laws regarding federal elections. But the logic of Moore is fatal to that potential version of the ISLT. The Rehnquist-Kavanaugh version of the ISLT contemplates …

Intraparty Conflict And The Separation Of Powers, Gregory A. Elinson

College of Law Faculty Publications

Intent on reconciling constitutional theory to political reality, public law scholars have in recent decades dismissed as naïve both the logic of the Constitution’s design set forth in The Federalist and the Framers’ dismal view of political parties. They argue that contrary to the Madisonian vision competition between our two national political parties undergirds the horizontal and vertical separation of powers. But, in calling attention to the fights that take place between political parties, they underestimate the constitutional significance of the conflicts that persist within them. Reconsidering the law and theory of the separation of powers with attention to intraparty …

Shareholder Primacy Versus Shareholder Accountability, William Wilson Bratton

Articles

When corporations inflict injuries in the course of business, shareholders wielding environmental, social, and governance ("ESG") principles can, and now sometimes do, intervene to correct the matter. In the emerging fact pattern, corporate social accountability expands out of its historic collectivized frame to become an internal subject matter-a corporate governance topic. As a result, shareholder accountability surfaces as a policy question for the first time. The Big Three index fund managers, BlackRock, Vanguard, and State Street, responded to the accountability question with ESG activism. In so doing, they defected against corporate legal theory's central tenet, shareholder primacy. Shareholder primacy builds …

Congressional Testimony: Problems With The Sec's Climate Disclosure Proposal, Lawrence A. Cunningham

GW Law Faculty Publications & Other Works

This Congressional testimony, requested by the House Financial Services Committee, identifies the fatal flaws embedded in the SEC's controversial climate disclosure rule, To summarize some primary problems, the Proposal:

• disregards evidence that most individual investors buy stocks primarily to save, not to influence climate policy;
• does not address the millions of individual American investors who need the SEC’s protection as they save for education, homes, retirement, and philanthropy; and
• ignores conflicts of interest between large asset managers and their beneficiaries—ordinary Americans—who have different preferences and goals.

In addition, the Proposal mandates irrelevant and burdensome disclosures that would harm investors by: …

Fears, Faith, And Facts In Environmental Law, William W. Buzbee

Georgetown Law Faculty Publications and Other Works

Environmental law has long been shaped by both the particular nature of environmental harms and by the actors and institutions that cause such harms or can address them. This nation’s environmental statutes remain far from perfect, and a comprehensive law tailored to the challenges of climate change is still elusive. Nonetheless, America’s environmental laws provide lofty, express protective purposes and findings about reasons for their enactment. They also clearly state health and environmental goals, provide tailored criteria for action, and utilize procedures and diverse regulatory tools that reflect nuanced choices.

But the news is far from good. Despite the ambitious …

State Sovereign Immunity And The New Purposivism, Anthony J. Bellia, Bradford R. Clark

Journal Articles

Since the Constitution was first proposed, courts and commentators have debated the extent to which it alienated the States’ preexisting sovereign immunity from suit by individuals. During the ratification period, these debates focused on the language of the citizen-state diversity provisions of Article III. After the Supreme Court read these provisions to abrogate state sovereign immunity in Chisholm v. Georgia, Congress and the States adopted the Eleventh Amendment to prohibit this construction. The Court subsequently ruled that States enjoy sovereign immunity independent of the Eleventh Amendment, which neither conferred nor diminished it. In the late twentieth-century, Congress began enacting statutes …

The Lawlessness Of Sackett V. Epa, William W. Buzbee

Georgetown Law Faculty Publications and Other Works

When the Supreme Court speaks on a disputed statutory interpretation question, its words and edicts undoubtedly are the final judicial word, binding lower courts and the executive branch. Its majority opinions are the law. But the Court’s opinions can nonetheless be assessed for how well they hew to fundamental elements of respect for the rule of law. In particular, law-respecting versus law-neglecting or lawless judicial work by the Court can be assessed in the statutory interpretation, regulatory, and separation of power realms against the following key criteria, which in turn are based on some basic rule of law tenets: analysis …

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 …

Continuous Reproductive Surveillance, Michael Ulrich, Leah R. Fowler

Faculty Scholarship

The Dobbs opinion emphasizes that the state’s interest in the fetus extends to “all stages of development.” This essay briefly explores whether state legislators, agencies, and courts could use the “all stages of development” language to expand reproductive surveillance by using novel developments in consumer health technologies to augment those efforts.

Interposition: A State-Based Constitutional Tool That Might Help Preserve American Democracy, Christian G. Fritz

Faculty Scholarship

Interposition was not a claim that state sovereignty could or should displace national authority, but a claim that American federalism needed to preserve some balance between state and national authority.

http://commonplace.online/article/interposition/

Monitoring American Federalism: The Overlooked Tool Of Sounding The Alarm Interposition, Christian G. Fritz

Faculty Scholarship

One key feature of the U.S. Constitution – the concept of federalism – was unclear when it was introduced, and that lack of clarity threatened the Constitution’s ratification by those who feared the new government would undermine state sovereignty. Proponents of the new governmental framework were questioned about the underlying theory of the Constitution as well as how it would operate in practice, and their explanations produced intense and extended debate over how to monitor federalism.

http://50shadesoffederalism.com/case-studies/monitoring-american-federalism-the-overlooked-tool-of-sounding-the-alarm-interposition/#more-1574

Bibb Balancing: Regulatory Mismatches Under The Dormant Commerce Clause, Michael S. Knoll

All Faculty Scholarship

Courts and commentators have long understood dormant Commerce Clause doctrine to contain two types of cases: discrimination and undue burdens. This Article argues for a more nuanced understanding that divides undue burdens into single-state burdens—which arise from the application of a single state’s law alone—and mismatch burdens, which arise from legal diversity. Although the Supreme Court purports to apply Pike balancing in all undue-burden cases, we show that the Court’s approach in mismatch cases differs substantially. Specifically, unlike in single-state cases, balancing in mismatch cases involves an implicit and potentially problematic comparison by the Court between the challenged state’s regulation …

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 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 …

State Sequestration: Federal Policy Accelerates Carbon Storage, But Leaves Full Climate, Equity Protections To States, Gabriel Pacyniak

Faculty Scholarship

Abstract

The Intergovernmental Panel on Climate Change—the UN’s expert science panel—has repeatedly found that limiting climate change to prevent catastrophic harms will require at least some use of carbon capture and sequestration (CCS), and may entail substantial deployments of this technology. There is significant uncertainty, however, about the level of lifecycle greenhouse gas (GHG) reductions achievable in practice from varying CCS applications; some applications could even lead to net increases in emissions. In addition, a number of these applications create or maintain other harms, especially those related to fossil fuel extraction and use. For these reasons, many environmental justice advocates …

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 …

Congressional Testimony: Shareholder Proposals, Index Fund Voting And The Need For Proxy Advisor Reform, Lawrence A. Cunningham

GW Law Faculty Publications & Other Works

This Congressional testimony, requested by the House Financial Services Committee, reviews the history and current state of the federal shareholder proposal rule and how it has been seized by special interests to push agendas at odds with shareholder interests; ponders the conundrum that passive investment funds deign to actively vote shares without either knowledge or authority; and laments how proxy advisors, intended to support such passive funds, make matters worse through a lack of both accountability and incentives to promote accuracy rather than expediency. Congress should restore the legitimacy of the shareholder proposal process, revisit and/or eliminate voting by index …

Against A Uniform Law On The Income Taxation Of Trusts, Michelle S. Simon

Elisabeth Haub School of Law Faculty Publications

In many areas, uniformity of state law is both practical and desirable. The Uniform Commercial Code, for example, brought harmony to conflicting state laws regarding the sale of goods and secured transactions, smoothing the way for interstate commerce. The law of trusts and estates is another area to which the Uniform Law Commissioners have recently turned their attention. Given the multitude of conflicts in state law regarding intestacy, fiduciary powers, and remote notarization, greater consistency between the states would be welcome. One area that should be off-limits to uniform lawmaking is the state income taxation of trusts. Despite complex and …

National Federation Of Independent Business V. Sebelius, 567 U.S. 519 (2012), Elizabeth Weeks, Mary Ann Chirba, Alice A. Noble

Scholarly Works

In National Federation of Independent Business v. Sebelius, decided in 2012, twenty-six states as well as private individuals and an organization of independent businesses challenged the constitutionality of two key components of the Affordable Care Act. The Court upheld the individual mandate but converted the Medicaid eligibility expansion from mandatory to optional for states. Elizabeth Weeks’ feminist rewrite breaks down the public law-private law distinction to get beyond the traditional view of health insurance as a commercial product providing individual financial protection against risk and instead to view it as effecting a risk pool premised on cross-subsidization of the health-care …

The Contours Of Gun Industry Immunity: Separation Of Powers, Federalism, And The Second Amendment, Hillel Y. Levin, Timothy D. Lytton

Scholarly Works

In 2005, Congress passed the Protection of Lawful Commerce in Arms Act (PLCAA), granting the firearms industry sweeping immunity from civil lawsuits. However, PLCAA immunity is not absolute. This Article demonstrates that both state and federal courts have fundamentally misread PLCAA when adjudicating cases involving the scope of gun industry immunity. Properly understood, PLCAA permits lawsuits against the gun industry so long as they are based on statutory causes of action rather than common law. While broadly preempting state common law claims, PLCAA affords state legislatures autonomy in deciding how to regulate the gun industry within their borders.

Additionally, this …

Biden V. Nebraska: The New State Standing And The (Old) Purposive Major Questions Doctrine, Jed Handelsman Shugerman

Faculty Scholarship

Chief Justice Roberts’s majority opinion in Biden v. Nebraska does not sufficiently explain how Missouri has standing under established Article III doctrine, nor how the Court approaches the major questions doctrine as a method of statutory interpretation. Clarification can come from other opinions, even other cases entirely, in which Justice’s counterarguments are suggestive of the real arguments underlying the decisions.

MOHELA may have faced a concrete injury from the student debt waiver, but there was no evidence that Missouri would – and the majority had no answer for how Missouri had standing without an injury. A debate over special state …

On Fires, Floods, And Federalism, Andrew Hammond

UF Law Faculty Publications

In the United States, law condemns poor people to their fates in states. Where Americans live continues to dictate whether they can access cash, food, and medical assistance. What’s more, immigrants, territorial residents, and tribal members encounter deteriorated corners of the American welfare state. Nonetheless, despite repeated retrenchment efforts, this patchwork of programs has proven remarkably resilient. Yet, the ability of the United States to meet its people’s most basic needs now faces an unprecedented challenge: climate change. As extreme weather events like wildfires and hurricanes become more frequent and more intense, these climate-fueled disasters will displace and impoverish more …

Textualism, Judicial Supremacy, And The Independent State Legislature Theory, Leah M. Litman, Katherine A. Shaw

Articles

This piece offers an extended critique of one aspect of the so-called "independent state legislature" theory. That theory, in brief, holds that the federal Constitution gives state legislatures, and withholds from any other state entity, the power to regulate federal elections. Proponents ground their theory in two provisions of the federal Constitution: Article I's Elections Clause, which provides that "[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof," and Article H's Presidential Electors Clause, which provides that "[e]ach State shall appoint, in such Manner as the Legislature …

Pandemic Governance, Yanbai Andrea Wang, Justin Weinstein-Tull

All Faculty Scholarship

The COVID-19 pandemic created an unprecedented need for governance by a multiplicity of authorities. The nature of the pandemic—globally communicable, uncontrolled, and initially mysterious—required a coordinated response to a common problem. But the pandemic was superimposed atop our decentralized domestic and international governance structures, and the result was devastating: the United States has a death rate that is eighteenth highest in the world, and the pandemic has had dramatically unequal impacts across the country. COVID-19’s effects have been particularly destructive for communities of color, women, and intersectional populations.

This Article finds order in the chaos of the pandemic response by …

American Public Health Federalism And The Response To The Covid-19 Pandemic, Nicole Huberfeld, Sarah Gordon, David K. Jones

Faculty Scholarship

This chapter is part of an edited volume studying and comparing federalist government responses to the COVID-19 pandemic. The chapter first briefly provides an overview of the American public health emergency framework and highlights key leadership challenges that occurred at federal and state levels throughout the first year of the pandemic. Then the chapter examines decentralized responsibility in American social programs and states’ prior policy choices to understand how long-term choices affected short-term emergency response. Finally, the chapter explores long-term ramifications and solutions to the governance difficulties the pandemic has highlighted.

Thurgood Marshall Memorial Lecture Series: "A Roadmap To Educational Excellence And Equity For Rhode Island 03-03-2022, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

Regional Cooperative Federalism And The Us Electric Grid, Hannah Jacobs Wiseman

Journal Articles

The U.S. Constitution makes no direct mention of regional governing entities, yet they are an entrenched part of our federalist system. In the area of electric grid governance, the federal government enlists independent, private entities called regional transmission organizations (RTOs) to implement federal policy and achieve state energy goals. RTOs are the most prominent form of regional cooperative federalism, yet other policy spheres, such as opioid control, encompass a similar approach. This is a twist on the classic form of cooperative federalism, in which the federal government relies upon individual states to achieve federal mandates.

The regionally governed electric grid …

Frenemey Federalism, Scott P. Bloomberg

Faculty Publications

This article introduces the concept of Frenemy Federalism. The term “frenemy” is a portmanteau of “friend” and “enemy” that is defined as a person with whom one is friendly despite a fundamental dislike or rivalry. A frenemy relationship develops between the federal and state governments when the governments work together despite having conflicting objectives in an area of policy. In such situations, mutual incentives make cooperation between the governments conducive to achieving their respective goals, allowing what may otherwise be a contentious relationship to find stability. Amidst the growing body of federalism scholarship, I situate Frenemy Federalism as a point …

Renewable Energy Federalism, Danielle Stokes

Law Faculty Publications

No one seriously questions that an improved and decarbonized energy supply system is a key component of climate change mitigation, but the United States’ system of federalism complicates the siting of utility-scale renewable energy facilities. The new Biden Administration presents the United States with an opportunity to reimagine how this country regulates renewable energy siting, allowing for substantial national progress in reducing greenhouse gas emissions. Currently, primary siting authority for renewable energy projects rests with state and local governments, which generally exercise that authority through zoning and land use planning, while the federal government approves most interstate energy delivery systems. …

European Union Law In The Member State Courts: A Comparative View, Michael Wells

Scholarly Works

Both the European Union and the United States are federal systems. Both divide law-making authority between the central government and the member states. Each has a dual judicial system, consisting of member state courts and central government courts. But the EU and the U.S. approaches to federalism diverge in two important ways. First, unlike the U.S., the EU has no system of lower federal courts. Second, in the U.S., the Supreme Court may review state court rulings that turn on issues of federal law. The European Court of Justice has no power of appellate review over the Member State courts. …