Law Commons^™

Commerce Clause Restraints On State Tax Incentives, Walter Hellerstein

Scholarly Works

The states' provision of tax incentives designed to encourage economic development within their borders has long been a feature of the American legislative landscape. Today every state provides tax incentives as an inducement to local industrial location and expansion. Indeed, scarcely a day goes by without some state offering yet another tax incentive to spur economic development, often in an effort to attract a particular enterprise to the state.

The debate over the efficacy and wisdom of state tax and other business incentives is intense and important, as other articles in this Symposium plainly reveal. My purpose here, however, is …

Section 8: Federalism: A Court In Search Of Itself, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Taking Federalism Seriously: Lopez And The Partial-Birth Abortion Ban Act, Glenn Harlan Reynolds

Scholarly Works

In United States v. Lopez, the United States Supreme Court struck down the federal Gun Free School Zones law as not within congressional power to regulate interstate commerce. This article examines post-Lopez jurisprudence regarding the permissible scope of federal criminal law. Analyzing a wide variety of federal criminal laws challenged in post-Lopez cases (including arson, robbery, gun possession, drugs, violence against women, and abortion clinic disruption), the article shows how courts have followed or evaded Lopez. Studying the proposed federal ban on partial birth abortions, the article suggests that the ban is not a lawful exercise of Congress' interstate commerce …

Antidisestablishmentarianism: Why Rfra Really Was Unconstitutional, Jed Rubenfeld

Michigan Law Review

Two months ago, the Supreme Court struck down the Religious Freedom Restoration Act of 1993 (RFRA), handing down its most important church-state decision, and one of its most important federalism decisions, in fifty years. Through RFRA, Congress had prohibited any state actor from "substantially burden[ing] a person's exercise of religion" unless imposing that burden was the "least restrictive means" of furthering "a compelling governmental interest." RFRA was a response to Employment Division, Department of Human Resources of Oregon v. Smith, in which the Supreme Court abandoned the very same compelling interest test that RFRA mandated. Smith, overturning decades-old precedent, held …

Federalism And Investor Protection: Constitutional Restraints On Preemption Of State Remedies For Securities Fraud, Manning Gilbert Warren Iii

Law and Contemporary Problems

Warren discusses the Private Securities Litigation Reform Act and the National Securities Market Improvement Act, among other issues. Predominant federalism postulates foreclose the proposed intrusion into investors' tort remedies traditionally allowed by the states under common law.

The Fundamentality And Irrelevance Of Federalism, Edward L. Rubin

Georgia State University Law Review

No abstract provided.

Jack Rakove's Rendition Of Original Meaning, Raoul Berger

Indiana Law Journal

No abstract provided.

Formalism And Functionalism In Federalism Analysis, Erwin Chemerinsky

Georgia State University Law Review

No abstract provided.

Federalism: The Argument From Article V, Lynn A. Baker

Georgia State University Law Review

No abstract provided.

Keeping Your Eye On The Ball: The Significance Of The Revival Of Constitutional Federalism, Mark Tushnet

Georgia State University Law Review

No abstract provided.

Real Revolution, Robert F. Nagel

Georgia State University Law Review

No abstract provided.

The Commerce Clause, Federalism And Environmentalism: At Odds After Olin?, Lydia B. Hoover

William & Mary Environmental Law and Policy Review

No abstract provided.

Instrumental And Non-Instrumental Federalism, Michael C. Dorf

Cornell Law Faculty Publications

No abstract provided.

Interprovincial Sovereign Immunity Revisited, Janet Walker

Osgoode Hall Law Journal

The conventional wisdom has been that the Canadian provincial Crowns are immune from the jurisdiction of the courts of other Canadian provinces just as they are immune from the jurisdiction of foreign courts. This reflects the old views that the provinces are like foreign countries for the purposes of the conflict of laws and that court jurisdiction over the Crown is purely a creature of statute. Recent recognition of the constitutional bases for court jurisdiction and the need to reassess conflict of laws rules in light of the principles of Canadian federalism invites us to revisit interprovincial sovereign immunity, especially …

United States V. Lopez And The Child Support Recovery Act Of 1992: Why A Nice Idea Must Be Declared A Casualty Of The Struggle To Save Federalism, Andrew M. Siff

Cornell Journal of Law and Public Policy

No abstract provided.

Justices Take The 11th, Richard C. Reuben

Faculty Publications

Until not long ago, the 11th Amendment with its barrier to some citizen suits in federal courts was a largely ignored provision of the U.S. Constitution. Those days may be coming to an end, however, as the Supreme Court has resurrected the dusty old amendment in its steady, if not always consistent, march toward a new federalism or what some scholars are calling the "antifederalist revival."

The Commerce Clause Post-Lopez: It's Not Dead Yet, Nicole Huberfeld

Law Faculty Scholarly Articles

This Note focuses on two important pieces of social-policy legislation that could be affected by United States v. Lopez: the Violence against Women Act (VAWA) and the Freedom of Access to Clinic Entrances Act (FACE). Conflicts exist in the lower federal courts regarding the constitutionality of both statutes, which were enacted under the Commerce Clause. This Note seeks to resolve the dispute in favor of upholding both acts. Part I surveys the major cases in the history of the Commerce Clause as they relate to social-policy legislation, up to and including Lopez. Part II discusses the conflicting cases in the …

The Underfederalization Of Crime, A. Kimberley Dayton

Faculty Scholarship

This article contends that judicial and academic complaints about the overfederalization of crime largely have matters backwards. The image of a runaway national government increasingly taking away the enforcement of the criminal law from the States is essentially false. The available evidence indicates that the national government's share in the enforcement of criminal law has been actually diminishing for more than the last half century. The national government does have concurrent authority over a greater range of criminal activity now, including much violent street crime. But, contrary to Lopez and the conventional wisdom it embraces, this expanded authority does not …

Taking Federalism Seriously: Lopez And The Partial-Birth Abortion Ban, David B. Kopel, Glenn Harlan Reynolds

David B Kopel

In United States v. Lopez, the United States Supreme Court struck down the federal Gun Free School Zones law as not within congressional power to regulate interstate commerce. This article examines post-Lopez jurisprudence regarding the permissible scope of federal criminal law. Analyzing a wide variety of federal criminal laws challenged in post-Lopez cases (including arson, robbery, gun possession, drugs, violence against women, and abortion clinic disruption), the article shows how courts have followed or evaded Lopez. Studying the proposed federal ban on partial birth abortions, the article suggests that the ban is not a lawful exercise of Congress' interstate commerce …

Adjudication In Indian Country: The Confusing Parameters Of State, Federal, And Tribal Jurisdiction, Laurie Reynolds

William & Mary Law Review

No abstract provided.

[Introduction To] American Indian Sovereignty And The U.S. Supreme Court: The Masking Of Justice, David E. Wilkins

Bookshelf

"Like the miner's canary, the Indian marks the shift from fresh air to poison gas in our political atmosphere and our treatment of Indians, even more than our treatment of other minorities, reflects the rise and fall in our democratic faith, wrote Felix S. Cohen, an early expert in Indian legal affairs.

In this book, David Wilkins charts the "fall in our democratic faith" through fifteen landmark cases in which the Supreme Court significantly curtailed Indian rights. He offers compelling evidence that Supreme Court justices selectively used precedents and facts, both historical and contemporary, to arrive at decisions that have …

The States And International Human Rights, Peter J. Spiro

Fordham Law Review

No abstract provided.

The Little Train That Couldn't: Did The Pennsylvania Anti-Takeover Statute Fail To Protect Conrail From A Hostile Suitor?, David N. Hecht

Fordham Law Review

No abstract provided.

Ulysses At The Mast: Democracy, Federalism, And The Sirens' Song Of The Seventeenth Amendment, Jay S. Bybee

Scholarly Works

One of the most remarkable aspects of the Constitution is the manner in which it marbles together people and states. By ratifying the Constitution, the states agreed to cede a portion of their sovereignty to a new entity, the ‘United States.’ The states granted to Congress their collective powers to impose taxes, incur debt, issue coin and securities, regulate commerce among the states and with other sovereigns, and control the engines of war. The states further relinquished their rights to act as independent sovereigns and enter into treaties with foreign countries, coin money, grant titles of nobility, and wage war. …

International Jurisdiction In Products Liability Cases (Analysis Of Asahi And Post-Asahi Cases), Tsutomu Kuribayashi

LLM Theses and Essays

With the increase of foreign trade, there has also been an increase in the number of foreign manufacturers and distributors involved in product liability litigation in the United States. In many cases, the products from these foreign manufacturers and distributors reach the forum states through the stream of commerce, and are distributed to the customers by regional distributors, wholesalers, and retailers. Therefore, in many product liability cases where defective products from these foreign manufacturers and distributors cause injuries to people in the United States, those foreign companies do not have a direct relationship with the forum states. In these cases, …

The New Economics Of Jurisdictional Competition: Devolutionary Federalism In A Second-Best World, William W. Bratton, Joseph A. Mccahery

All Faculty Scholarship

No abstract provided.

Finding The Right Target, Richard C. Reuben

Faculty Publications

It is no surprise that the most significant handgun control law passed by Congress has produced a potential blockbuster case before the U.S. Supreme Court. After all, intense debate has been going on for years over the extent of the right to bear arms under

the Second Amendment. Congress took more than a decade to pass the Brady Handgun Control Act of 1993, 18 U.S.C. § 922(s), named for James Brady, the press secretary to President Reagan who was wounded in a 1981 assassination attempt. But while a pair of cases challenging the Brady Act might have been expected to …

United States V. Lopez: Theoretical Bang And Practical Whimper? An Illustrative Analysis Based On Lower Court Treatment Of The Child Support Recovery Act, Sara L. Gottovi

William & Mary Law Review

No abstract provided.

Book Review, S. Candice Hoke

Law Faculty Articles and Essays

The author reviews Federalism and Rights by Ellis Katz and G. Alan Tarr and To Make a Nation: The Rediscovery of American Federalism by Samuel H. Beer.

Taking Federalism Seriously: Lopez And The Partial-Birth Abortion Ban Act, Glenn Reynolds, David Kopel

College of Law Faculty Scholarship

In United States v. Lopez, the United States Supreme Court struck down the federal Gun Free School Zones law as not within congressional power to regulate interstate commerce. This article examines post-Lopez jurisprudence regarding the permissible scope of federal criminal law. Analyzing a wide variety of federal criminal laws challenged in post-Lopez cases (including arson, robbery, gun possession, drugs, violence against women, and abortion clinic disruption), the article shows how courts have followed or evaded Lopez. Studying the proposed federal ban on partial birth abortions, the article suggests that the ban is not a lawful exercise of Congress' interstate commerce …