Law Commons^™

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.

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.

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 …

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

Law Faculty Publications

No abstract provided.

Dissing Congress , Ruth Colker, James J. Brudney

Faculty Scholarship

This article adopts a novel separation of powers framework to analyze the Rehnquist Court's recent decisions under the Commerce Clause and Section Five of the Fourteenth Amendment. We demonstrate in historical terms how the Court's methods for assessing the constitutional adequacy of federal laws have changed dramatically since the mid-1990s, and we argue that these new methods are undermining the proper role of Congress and producing a significant shift in the balance of power between the Branches. We identify two distinct methodologies employed by the Rehnquist Court that have resulted in growing disrespect for Congress - the "crystal ball" and …

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

Law Faculty Research Publications

No abstract provided.

Nationalized Political Discourse, Robert F. Nagel

Publications

No abstract provided.

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 political …

The Undersea World Of Foreign Relations Federalism, Edward T. Swaine

GW Law Faculty Publications & Other Works

Uncertainty surrounds the field of foreign relations federalism. The Supreme Court has left lower courts to decide significant issues with little guidance, the Constitution provides little direct instruction, and the tension between national and state authority creates policy arguments on both sides based on uncertain conceptions on injury to these interests. Scholars should seize the opportunity to explore new functions and values for states in today’s globalized world.

The Role Of Law In The Functioning Of Federal Systems, George A. Bermann

Faculty Scholarship

Federal systems are about the distribution of legal and political power, but law is not only one of the currencies of federalism, it is also one of federalism's most important supports; this chapter considers the role that law plays in establishing and enforcing the system by which both legal and political power are distributed within the USA and the EU. Bermann explores the various ways in which the courts can, and choose to, enforce the principles of federalism beyond the classical ‘political’ and ‘procedural’ safeguards provided by the institutional structures themselves and the constraints on the deliberative process. He describes …

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

Publications

No abstract provided.

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 qualifies as …

Toward Political Safeguards Of Self-Determination, Gregory P. Magarian

Scholarship@WashULaw

The theorists of the political safeguards of federalism (primarily Herbert Wechsler, Jesse Choper, and Larry Kramer) contend that various features of the American political system are sufficient to protect the values of federalism, obviating the need for federalist judicial review. These theorists have identified constitutional features of the system (i.e., equal representation in the Senate) and extolled subconstitutional features (notably the strength of the major political parties) as guarantors of state prerogatives against the federal government. They have not, however, developed a substantial account of the reasons why state prerogatives need or deserve protection and how those reasons bear on …

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 the …

Party As A 'Political Safeguard Of Federalism': Martin Van Buren And The Constitutional Theory Of Party Politics, Gerald F. 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 and …

Federalism, Preclearance, And The Rehnquist Court, Ellen D. Katz

Articles

Lopez v. Monterey County is an odd decision. Justice O'Connor's majority opinion easily upholds the constitutionality of a broad construction of section 5 of the Voting Rights Act (VRA) in language reminiscent of the Warren Court. Acknowledging the "substantial 'federalism costs" resulting from the VRA's "federal intrusion into sensitive areas of state and local policymaking," Lopez recognizes that the Reconstruction Amendments "contemplate" this encroachment into realms "traditionally reserved to the States." Justice O'Connor affirms as constitutionally permissible the infringement that the section 5 preclearance process "by its nature" effects on state sovereignty, and applies section 5 broadly, holding the statute …

'Appropriate' Means-Ends Constraints On Section 5 Powers, Evan H. Caminker

Articles

With the narrowing of Congress' Article I power to regulate interstate commerce and to authorize private suits against states, Section Five of the Fourteenth Amendment provides Congress with an increasingly important alternative source of power to regulate and police state conduct. However, in City of Boerne v. Flores and subsequent cases, the Supreme Court has tightened the doctrinal test for prophylactic legislation based on Section Five. The Court has clarified Section Five's legitimate ends by holding that Congress may enforce Fourteenth Amendment rights only as they are defined by the federal judiciary, and the Court has constrained Section Five's permissible …