Law Commons^™

Taking Care Of Federal Law, Leah Litman

Articles

Article II of the Constitution vests the “executive power” in the President and directs the President to “take Care that the Laws be faithfully executed.” But do these provisions mean that only the President may execute federal law? Two lines of Supreme Court precedent suggest conflicting answers to that question. In several prominent separation-of-powers cases, the Court has suggested that only the President may execute federal law: “The Constitution requires that a President chosen by the entire Nation oversee the execution of the laws.” Therefore, the Court has reasoned, Congress may not create private rights of action that allow nonexecutive …

Clean Energy Federalism, Felix Mormann

Faculty Scholarship

Legal scholarship tends to approach the law and policy of clean energy from an environmental law perspective. As hydraulic fracturing, renewable energy integration, nuclear reactor (re)licensing, transport biofuel mandates, and other energy issues have pushed to the forefront of the environmental law debate, clean energy law has begun to emancipate itself. The emerging literature on clean energy federalism is a symptom of this emancipation. This Article adds to that literature by offering two case studies, a novel model for policy integration, and theoretical insights to elucidate the relationship between environmental federalism and clean energy federalism.

Renewable portfolio standards and feed-in …

Response To Heather Gerken's Federalism And Nationalism: Time For A Détente?, Erin Ryan

Scholarly Publications

No abstract provided.

Demand Response And Market Power, Bruce R. Huber

Journal Articles

In her article, Bypassing Federalism and the Administrative Law of Negawatts, Sharon Jacobs educates her readers about the concept of demand response, and then describes its propagation in recent years while making the broader argument that the Federal Energy Regulatory Commission (“FERC”) — the federal government’s principal energy regulator — has engaged in a strategy of “bypassing federalism” that may entail more costs than benefits. Professor Jacobs is right to call attention to demand response and to FERC’s approach to matters of jurisdictional doubt. While I share many of her concerns about boundary lines in a federal system, I argue …

The Civil Rights Act Of 1964 And 'Legislating Morality': On Conscience, Prejudice, And Whether 'Stateways' Can Change 'Folkways', Linda C. Mcclain

Faculty Scholarship

Influential studies, from the 1940s and 1950s, of the problem of prejudice and how to remedy it challenged the famous assertion of nineteenth-century sociologist William Graham Sumner that “stateways don’t change folkways,” and its modern counterparts, “you cannot legislate against prejudice” or “you cannot legislate morality.” Social scientists countered that, although people might initially protest, they would welcome a federal antidiscrimination law that aligned with conscience and closed the gap between American ideals and prejudice, creating new “folkways.” Using examples from the contexts of public accommodations, education, and employment, this Article examines similar arguments made about conscience and “legislating morality” …

Negotiating Federalism And The Structural Constitutionn: Navigating The Separation Of Powers Both Vertically And Horizontally, Erin Ryan

Scholarly Publications

No abstract provided.

An Empirical Perspective On Medicaid As Social Insurance, Nicole Huberfeld, Jessica L. Roberts

Law Faculty Scholarly Articles

This Essay begins to explore how Medicaid, after the Patient Protection and Affordable Care Act, metamorphoses from exclusion and limitations in access and benefits to a form of social insurance that implicates theories of social justice. The social justice aspect of universality provides an important lens for understanding these numbers, both in terms of the states that are expanding and the states that are opting out. States that refuse to expand their Medicaid programs are denying millions of Americans the benefit of a precious legal entitlement. It is essential that the states understand the power—and the potential—of this evolving social …

Rediscovering Capture: Antitrust Federalism And The North Carolina Dental Case, Herbert J. Hovenkamp

All Faculty Scholarship

This brief essay analyzes the Supreme Court's 2015 decision in the North Carolina Dental case, assessing its implications for federalism. The decision promises to re-open old divisions that had once made the antitrust "state action" doctrine a controversial lightning rod for debate about state economic sovereignty.

One provocative issue that neither the majority nor the dissenters considered is indicated by the fact that nearly all the cartel customers in the Dental case were located within the state. By contrast, the cartel in Parker v. Brown, which the dissent held up as the correct exemplar of the doctrine, benefited California growers …

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 …

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 …

Back To Class: Lessons From The Roberts Court Class Action Jurisprudence, Bernadette Bollas Genetin

Con Law Center Articles and Publications

This symposium issue on The Class Action After a Decade of Roberts Court Decisions provides perspectives on how the class action has fared under persistent Supreme Court scrutiny. Over the past ten years, the Roberts Court has repeatedly returned to questions concerning class action litigation...This ten-year retrospective on the Roberts Court’s class action decisions provides a timely opportunity to reflect on the Supreme Court’s institutional role in construing the Federal Rules and in creating class action policy through decisions construing Rule 23...The contributors to this symposium focus on the Roberts Court class action decisions as a whole; the Roberts Court’s …

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 …

Negotiating Federalism And The Structural Constitution: Navigating The Separation Of Powers Both Vertically And Horizontally, Erin Ryan

Scholarly Publications

This essay explores the emerging literature on the negotiation of structural constitutional governance, to which Professor Aziz Huq has made an important contribution in The Negotiated Structural Constitution, 114 Colum. L. Rev. 1595 (2014). In the piece, Professor Huq reviews the negotiation of constitutional entitlements and challenges the conventional wisdom about the limits of political bargaining as a means of allocating authority among the three branches of government. He argues that constitutional ambiguities in the horizontal allocation of power are sometimes best resolved through legislative-executive negotiation, just as uncertain grants of constitutional authority are already negotiated between state and federal …

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 …

“When Mercy Seasons Justice”: Interstate Recognition Of Ex-Offender Rights, Wayne A. Logan

Scholarly Publications

To the great relief of many, states are now rethinking their draconian criminal justice policies of the past several decades. In addition to shrinking prison and jail populations, reforms are underway to expand opportunities for relief from the collateral consequences of conviction, such as the loss of the right to vote, serve as a juror, or work in certain occupations, which can impede the ability of ex-offenders to successfully reintegrate into society. In coming years, as states seek to reduce their high recidivism rates, such relief efforts will likely continue to grow in number; as they do, we should expect …

Response To Heather Gerken's 'Federalism And Nationalism: Time For A Détente?', Erin Ryan

Scholarly Publications

This essay is a transcription of remarks made at the 2014 Childress Lecture at St. Louis University Law School, honoring Heather Gerken’s federalism scholarship. The essay, invited by Professor Gerken, responds to her lead symposium piece on the synthesis of federalism and nationalism ideals in federalism theory. It reflects on her contributions to the discourse as both a scholar and a mentor, praising her work as a leading component of an emerging consensus among federalism theorists that the old frameworks for thinking about interjurisdictional governance require revisiting. This new literature recognizes that the federal system depends as much on interjurisdictional …

Toward A Fundamental Right To Evade Law? Protecting The Rule Of Unequal Racial And Economic Power In Shelby County And State Farm, Martha T. Mccluskey

Journal Articles

To rationalize its ruling on voting rights, Shelby County, Alabama v. Holder develops a constitutional vision of passivity in the face of institutionalized power to violate the law. This essay compares Shelby County to State Farm Mutual Automobile v. Campbell, a 2003 Supreme Court ruling involving a different subject area, state punitive damage awards. In both, the Court asserts newly articulated judicial power to override other branches, not to protect human rights, but rather to expand institutionalized immunity from those rights. On the surface, the Court’s rejection of state sovereignty in State Farm (protecting multistate corporations from high punitive damages) …

Good-Bye Significant Contacts: General Personal Jurisdiction After Daimler Ag V. Bauman, Judy Cornett, Michael Hoffheimer

College of Law Faculty Scholarship

This article shows that the Supreme Court's opinion in Daimler AG v. Bauman (2014) marks a significant departure from settled practice. It argues that the decision's restriction of general jurisdiction will prevent reasonable access to courts in some cases, eroding the power of state courts for the sake of achieving policy goals that are more appropriate for the political branches.

Fracking, Federalism, And Private Governance, Amanda Leiter

Articles in Law Reviews & Other Academic Journals

The United States is in the midst of a natural gas boom, made possible by advances in drilling and extraction technologies. There is considerable disagreement about the relative benefits and costs of the boom, but one thing is certain: it has caught governments flat-footed. The federal government has done little more than commission a study of some associated public health and environmental risks. States have moved faster to address natural gas risks, but with little consistency or transparency.

Numerous private organizations are beginning to fill the resulting governance gaps with information-gathering and standards-setting efforts. This Paper documents these efforts and …

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 …

Marijuana Localism, Robert A. Mikos

Vanderbilt Law School Faculty Publications

The states have wrested control of marijuana policy from the federal government, but they risk losing some of their newfound power to another player: local governments. Hundreds of local communities are now seeking to establish their own marijuana policies, from legalization to prohibition and a variety of idiosyncratic regulatory schemes in between. These local efforts raise one of the most important and unresolved questions surrounding marijuana law and policy: What authority, if any, should states give local governments to regulate marijuana? This Article provides some guidance on this question. It starts by identifying two competing considerations that help determine whether …

Under Containment: Preempting State Ebola Quarantine Regulations, Eang L. Ngov

Faculty Scholarship

No abstract provided.

Disaggregated Classes, Benjamin P. Edwards

Faculty Scholarship

No abstract provided.

State Labs Of Federalism And Law Enforcement 'Drone' Use, Chris Jenks

Faculty Journal Articles and Book Chapters

This article reviews and assesses current state legislation regulating law enforcement use of unmanned aerial systems (UAS). The legislation runs the gamut of permissive to restrictive and even utilizes different terms for the same object of regulation, UAS. These laws are the confused and at times even contradictory extension of societal views about UAS. The article reviews the U.S. Supreme Court’s manned aircraft trilogy of cases, California v. Ciraolo, Florida v. Riley, and Dow Chemical v. U.S. and two significant technology based decisions, Kyllo v. U.S. and U.S. v. Jones, and applies them to current state efforts to regulate law …

Will Uncooperative Federalism Survive Nfib?, Abigail R. Moncrieff, Jonathan Dinerstein

Law Faculty Articles and Essays

In the end, the Supreme Court's federalism jurisprudence seems to run contrary to its stated goals. The New Federalism era, up to and including NFIB, creates an incentive for the national government to flex its own muscles more, not less. Maybe that result will be good for voters' clarity and for uniformity of national policy, but it is not good for uncooperative federalism or for states' autonomy—the values that the Supreme Court seems to be trying to protect.

The Roberts Court And Penumbral Federalism, Edward Cantu

Faculty Works

For several decades the Court has invoked “state dignity” to animate federalism reasoning in isolated doctrinal contexts. Recent Roberts Court decisions suggest that a focus on state dignity, prestige, status, and similar ethereal concepts — which derive from a “penumbral” reading of the Tenth Amendment — represent the budding of a different doctrinal approach to federalism generally. This article terms this new approach “penumbral federalism,” an approach less concerned with delineating state from federal regulatory turf, and more concerned with maintaining the states as viable competitors for the respect and loyalty of the citizenry.

After fleshing out what “penumbral federalism” …

The Promise And Peril Of The Anti-Commandeering Rule In The Homeland Security Era: Immigrant Sanctuary As An Illustrative Case, Trevor George Gardner

Scholarship@WashULaw

Despite the broad powers wielded by the federal government in security administration, the Supreme Court’s holding in Printz v. United States serves as a substantial check against federal overreach. Hand wringing by legal scholars over the Court’s reasoning in Printz and the rigid rules against commandeering attached to this reasoning have obscured the fact that the case now stands as a bulwark against the expansion of federal authority over state, county, and local police. Given the holding in Printz, ICE cannot require the active participation of subnational police in immigration enforcement and must instead—despite its previous assertions to the contrary—solicit …

The Clean Power Plan: Issues To Watch, Robert L. Glicksman, Emily Hammond, Alice Kaswan, William Buzbzee, Kirsten H. Engel, David M. Driesen, Victor Byers Flatt, Alexandra B. Klass, Thomas Owen Mcgarity, Melissa Powers, Joseph P. Tomain

GW Law Faculty Publications & Other Works

Although the Clean Air Act is an imperfect tool for addressing the nation’s greenhouse gas emissions, it is the only available federal mechanism for directly addressing power plant carbon emissions. The Obama Administration’s Clean Power Plan, published in final form in August 2015, tackles the challenge. This paper from the Center for Progressive Reform (CPR) compiles 13 separately authored essays from 11 CPR Member Scholars, each addressing a different topic related to the Clean Power Plan, and each representing the expertise and views of its individual author(s). Published in July 2015, just before the release of the final rule, the …

The Separation-Of-Powers And The Least Dangerous Branch, Edward Cantu

Faculty Works

A snapshot of controversies currently surrounding the President highlights a sobering, even if acceptable, reality: we live in an age of extremely amplified president power. From the executive use of military force with little or no congressional approval, to the use of executive orders to effectively make federal policy without congressional involvement, virtually all of these controversies have a common source: the Court’s relegation of enforcement of the separation-of-powers to the political process.

This Article provides an account of this relegation. It argues that all of the Court’s separation-of-powers decisions — even those seeming to strictly enforce the boundaries of …

The Struggle To Bury Pre-Existing Condition Consideration, Sallie Thieme Sanford Sanfords@Uw.Edu

Articles

As of January 1, 2014, applicants for comprehensive health insurance do not face questions about their health history. The ACA prohibits health insurers from considering an individual’s health history in determining whether to sell that person a comprehensive health insurance policy, the policy’s price, or its coverage terms. Pre-existing condition (PEC) consideration is, in this crucial context, dead. Few will mourn its passing. This legislative milestone marks a significant step towards the goal of a healthier population. While celebrating this achievement, however, in this article I argue that we ought to recall the context of PEC consideration, its practical application, …