Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

2001

Federalism

Discipline
Institution
Publication
Publication Type

Articles 1 - 30 of 36

Full-Text Articles in Law

Presidential Review As Constitutional Restoration, John O. Mcginnis Dec 2001

Presidential Review As Constitutional Restoration, John O. Mcginnis

Duke Law Journal

No abstract provided.


The Imperial Sovereign: Sovereign Immunity & The Ada, Judith Olans Brown, Wendy E. Parmet Dec 2001

The Imperial Sovereign: Sovereign Immunity & The Ada, Judith Olans Brown, Wendy E. Parmet

University of Michigan Journal of Law Reform

Professors Brown and Parmet examine the impact of the Supreme Court's resurrection of state sovereign immunity on the rights of individuals protected by the Americans with Disabilities Act in light of the recent decision, Board of Trustees of the University of Alabama v. Garrett. Placing Garrett within the context of the Rehnquist Court's evolving reallocation of state and federal authority, they argue that the Court has relied upon a mythic and dangerous notion of sovereignty that is foreign to the Framers' understanding. Brown and Parmet go on to show that, by determining that federalism compels constraining congressional power ...


How The Spending Clause Can Solve The Dilemma Of State Sovereign Immunity From Intellectual Property Suits, Jennifer Cotner Nov 2001

How The Spending Clause Can Solve The Dilemma Of State Sovereign Immunity From Intellectual Property Suits, Jennifer Cotner

Duke Law Journal

No abstract provided.


Narratives Of Federalism: Of Continuities And Comparative Constitutional Experience, Vicki C. Jackson Oct 2001

Narratives Of Federalism: Of Continuities And Comparative Constitutional Experience, Vicki C. Jackson

Duke Law Journal

No abstract provided.


Causes Of The Recent Turn In Constitutional Interpretation, Christopher H. Schroeder Oct 2001

Causes Of The Recent Turn In Constitutional Interpretation, Christopher H. Schroeder

Duke Law Journal

No abstract provided.


Federalism And The Double Standard Of Judicial Review, Lynn A. Baker, Ernest A. Young Oct 2001

Federalism And The Double Standard Of Judicial Review, Lynn A. Baker, Ernest A. Young

Duke Law Journal

From 1937 to 1995, federalism was part of a “Constitution in exile.” Except for the brief interlude of the National League of Cities doctrine2—which, like Napoleon’s ill-fated return from Elba, met with crushing defeat3—the post–New Deal Supreme Court has been almost completely unwilling to enforce constitutional limits on national power vis-à-vis the states. The reason, by all accounts, has much to do with federalism’s historic link to other aspects of our expatriate constitution—e.g., economic substantive due process, legislative nondelegation— which were banished for their collusion against the New Deal.


Tripping On The Threshold: Federal Courts’ Failure To Observe Controlling State Law Under The Federal Arbitration Act, Charles Davant Iv Oct 2001

Tripping On The Threshold: Federal Courts’ Failure To Observe Controlling State Law Under The Federal Arbitration Act, Charles Davant Iv

Duke Law Journal

No abstract provided.


The Republican Constitution Of 1963: The Supreme Court And Federalism In Nigeria, Akin Alao Oct 2001

The Republican Constitution Of 1963: The Supreme Court And Federalism In Nigeria, Akin Alao

University of Miami International and Comparative Law Review

No abstract provided.


A Localist Critique Of The New Federalism, David J. Barron Oct 2001

A Localist Critique Of The New Federalism, David J. Barron

Duke Law Journal

No abstract provided.


Taking What They Give Us: Explaining The Court’S Federalism Offensive, Keith E. Whittington Oct 2001

Taking What They Give Us: Explaining The Court’S Federalism Offensive, Keith E. Whittington

Duke Law Journal

No abstract provided.


Creating Better Governance, Denise D. Fort Jun 2001

Creating Better Governance, Denise D. Fort

Two Decades of Water Law and Policy Reform: A Retrospective and Agenda for the Future (Summer Conference, June 13-15)

17 pages (includes illustration).

Contains 2 pages of references.


Adjudication And The Problems Of Incommensurability, Brett G. Scharffs Apr 2001

Adjudication And The Problems Of Incommensurability, Brett G. Scharffs

William & Mary Law Review

No abstract provided.


The Family Medical Leave Act: State Sovereignty And The Narrowing Of Fourteenth Amendment Protection, Stephanie C. Bovee Apr 2001

The Family Medical Leave Act: State Sovereignty And The Narrowing Of Fourteenth Amendment Protection, Stephanie C. Bovee

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.


Enforcing The Endangered Species Act Against The States, Jean O. Melious Apr 2001

Enforcing The Endangered Species Act Against The States, Jean O. Melious

William & Mary Environmental Law and Policy Review

No abstract provided.


The Failure Of Public Company Bankruptcies In Delaware And New York: Empirical Evidence Of A "Race To The Bottom", Lynn M. Lopucki, Sara D. Kalin Mar 2001

The Failure Of Public Company Bankruptcies In Delaware And New York: Empirical Evidence Of A "Race To The Bottom", Lynn M. Lopucki, Sara D. Kalin

Vanderbilt Law Review

Commentators sometimes recognize Delaware's preeminence in corporate law, but they almost invariably treat Delaware's recent popularity as a bankruptcy venue choice as raising entirely different issues. In fact, the two are integrally related. Specifically, just as the efforts of Delaware and other states to attract corporations--a process often referred to as "charter competition'-has induced Delaware to regulate corporate law in a generally efficient manner, the same forces will have a beneficial effect on Delaware's bankruptcy judges

. -Professor David Skeet'


Judging Judging: The Problem Of Second-Guessing State Judges' Interpretation Of State Law In Bush V. Gore, Harold J. Krent Feb 2001

Judging Judging: The Problem Of Second-Guessing State Judges' Interpretation Of State Law In Bush V. Gore, Harold J. Krent

All Faculty Scholarship

No abstract provided.


Judging Judging: The Problem Of Second-Guessing State Judges' Interpretation Of State Law In Bush V. Gore, Harold Krent Jan 2001

Judging Judging: The Problem Of Second-Guessing State Judges' Interpretation Of State Law In Bush V. Gore, Harold Krent

Harold J. Krent

No abstract provided.


The Constitutional Convention Of 1937: The Original Meaning Of The New Jurisprudential Deal, Kurt T. Lash Jan 2001

The Constitutional Convention Of 1937: The Original Meaning Of The New Jurisprudential Deal, Kurt T. Lash

Law Faculty Publications

The paper traces the dramatic jurisprudential innovations of the New Deal Revolution, including the articulation of incorporation theory, the abandonment of judicial construction of state common law, and the ascension of textual originalism as the Court's method of constitutional interpretation. I argue that the New Deal Court transcended the political goals of the Roosevelt administration and attempted to restructure the nature of legitimate judicial review in a post-Lochner world. Acting, in effect, as a constitutional convention, the Court not only changed the nature of judicial review, it altered the shape of the Constitution in ways that cut across modern ...


Massachusetts, Burma And The World Trade Organization: A Commentary On Blacklisting, Federalism, And Internet Advocacy In The Global Trading Era, Peter L. Fitzgerald Jan 2001

Massachusetts, Burma And The World Trade Organization: A Commentary On Blacklisting, Federalism, And Internet Advocacy In The Global Trading Era, Peter L. Fitzgerald

Cornell International Law Journal

No abstract provided.


Litigating Age And Disability Claims Against State And Local Government Employers In The New "Federalism" Era, Ivan E. Bodensteiner, Rosalie Levinson Jan 2001

Litigating Age And Disability Claims Against State And Local Government Employers In The New "Federalism" Era, Ivan E. Bodensteiner, Rosalie Levinson

Law Faculty Publications

No abstract provided.


Starbucks And The New Federalism: The Court's Answer To Globalization, Robert Knowles Jan 2001

Starbucks And The New Federalism: The Court's Answer To Globalization, Robert Knowles

Law Faculty Publications

No abstract provided.


Pressure From Abroad Against Use Of Capital Punishment In The United States, John Quigley Jan 2001

Pressure From Abroad Against Use Of Capital Punishment In The United States, John Quigley

ILSA Journal of International & Comparative Law

Foreign pressure on the United States on the capital punishment issue continues to build.


Conflating Scope Of Right With Standard Of Review: The Supreme Court's Strict Scrutiny Of Congressional Efforts To Enforce The Fourteenth Amendment, Melissa Hart Jan 2001

Conflating Scope Of Right With Standard Of Review: The Supreme Court's Strict Scrutiny Of Congressional Efforts To Enforce The Fourteenth Amendment, Melissa Hart

Articles

No abstract provided.


Nationalized Political Discourse, Robert F. Nagel Jan 2001

Nationalized Political Discourse, Robert F. Nagel

Articles

No abstract provided.


When Inclusion Leads To Exclusion: The Uncharted Terrain Of Community Participation In Economic Development, Audrey Mcfarlane Jan 2001

When Inclusion Leads To Exclusion: The Uncharted Terrain Of Community Participation In Economic Development, Audrey Mcfarlane

All Faculty Scholarship

Since the advent of federally-sponsored urban development, the federal government has sought to facilitate decentralized decision-making by local governments. These federal programs have also strongly encouraged local governments to include community participation in the development decision-making process. Participation evokes notions of democracy, egalitarianism, and inclusion and it is easy to support in principle. But participation is often less easy to support in practice because of its structural disconnect with urban development. This disconnect between principle and practice has been reflected in an ebb and flow of contrastingly strong and weak mandates for participation. This ebb and flow of federally-mandated participation ...


Understanding The "Understanding": Federalism Constraints On Human Rights Implementation, Brad R. Roth Jan 2001

Understanding The "Understanding": Federalism Constraints On Human Rights Implementation, Brad R. Roth

Law Faculty Research Publications

No abstract provided.


Sorting Out Federal And State Judicial Roles In State Insitutional Reform: Abstention's Potential Role, Charles R. Wise, Robert K. Christensen Jan 2001

Sorting Out Federal And State Judicial Roles In State Insitutional Reform: Abstention's Potential Role, Charles R. Wise, Robert K. Christensen

Fordham Urban Law Journal

The U.S. Supreme Court has given federal courts the authority to abstain from hearing certain cases and defer to state courts in some cases where constitutional or federal statutory rights have been violated. This piece attempts to clarify the abstention requirements and provide a clear rationale for the doctrine. Part I of this piece discusses the origin and development of the abstention doctrine, focusing specifically on the Burford abstention, a kind of abstention particularly salient to institutional reform cases. Part I also illustrates the inconsistencies inherent in the application of the abstention doctrine in its current form. Parts II ...


Party As A 'Political Safeguard Of Federalism': Martin Van Buren And The Constitutional Theory Of Party Politics, Gerald Leonard Jan 2001

Party As A 'Political Safeguard Of Federalism': Martin Van Buren And The Constitutional Theory Of Party Politics, Gerald Leonard

Faculty Scholarship

In the last decade or so, the Supreme Court has revitalized judicial enforcement of federalism. This development has spurred the partisans of Herbert Wechsler's "political safeguards of federalism" to begin a serious investigation of the ways in which extra-judicial politics can and does substitute for and complement the judicial role in enforcing federalism and the Constitution. Similarly, constitutional scholars have turned in increasing numbers to the question of how even judicially promulgated doctrines of constitutional law turn out to be more derivative of popular politics than vice versa. Necessarily, much of the investigation on both fronts has turned historical ...


Pennhurst, Chevron, And The Spending Power, Peter J. Smith Jan 2001

Pennhurst, Chevron, And The Spending Power, Peter J. Smith

GW Law Faculty Publications & Other Works

Under Pennhurst, a court may conclude that Congress has imposed a condition on the grant of federal funds to a state recipient only if Congress unambiguously expressed its intent to do so; under Chevron, the existence of statutory ambiguity with respect to a particular issue requires the reviewing court to defer to a reasonable agency interpretation of the ambiguous statutory language. What, then, should a court do when the terms of a federal-state grant program's condition are not fully elaborated in the statute and when the agency charged with enforcing the statute has issued regulations that purport to define ...


Dispelling The Misconceptions Raised By The Davis Dissent, Joan E. Schaffner Jan 2001

Dispelling The Misconceptions Raised By The Davis Dissent, Joan E. Schaffner

GW Law Faculty Publications & Other Works

This article argues that the Supreme Court’s majority opinion in Davis v. Monroe County Board of Education did not do enough to explicitly assuage the dissenters’ concerns and aims to do so itself. Davis permitted liability for school districts that purposely ignore instances of student-on-student sexual harassment that deprived a student of the opportunity for education. The three issues raised by the dissent were federalism, whether the conduct at issue is sexual harassment, and First Amendment concerns about the aggressor’s speech being protected. In response, I argue that the majority opinion does not violate federalism principles, the harassment ...