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2005

Federalism

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Articles 1 - 30 of 49

Full-Text Articles in Law

"So Long As Our System Shall Exist": Myth, History, And The New Federalism, Paul D. Moreno Dec 2005

"So Long As Our System Shall Exist": Myth, History, And The New Federalism, Paul D. Moreno

William & Mary Bill of Rights Journal

This article provides the broad historical context necessary to understand contemporary developments in federalism doctrine. It shows that dual federalism has a long and varied history and that federalism is a content-neutral principle to which both sides in major political contests have appealed. It seeks to show that the predominant perspective on federalism today - that it is an inherently conservative principle - is the result of historical misperception. This article reinterprets the history of American federalism in light of recent historical scholarship concerning various periods: principally the country's founding; slavery, the Civil War, and Reconstruction; the late nineteenth-century social question ...


Horizontal Federalism In An Age Of Criminal Justice Interconnectedness, Wayne A. Logan Dec 2005

Horizontal Federalism In An Age Of Criminal Justice Interconnectedness, Wayne A. Logan

Scholarly Publications

Despite their status as independent sovereigns, states increasingly exhibit a willingness to interact when it comes to crime control matters. This Article examines the two foremost examples of this phenomenon: criminal recidivist enhancement laws and sex offender registration laws. Both types of laws have been around for decades and have evolved to accommodate ex-offenders, who, consistent with constitutional freedom of movement, can (and often do) change state residences. This effort at accommodation, however, puts states in the unusual position of having to interpret and apply the criminal laws and outcomes of their fellow sovereigns. As the Article makes clear, recidivist ...


Federalism And Antitrust Reform, Herbert J. Hovenkamp Oct 2005

Federalism And Antitrust Reform, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

Currently the Antitrust Modernization Commission is considering numerous proposals for adjusting the relationship between federal antitrust authority and state regulation. This essay examines two areas that have produced a significant amount of state-federal conflict: state regulation of insurance and the state action immunity for general state regulation. It argues that no principle of efficiency, regulatory theory, or federalism justifies the McCarran-Ferguson Act, which creates an antitrust immunity for state regulation of insurance. What few benefits the Act confers could be fully realized by an appropriate interpretation of the state action doctrine. Second, the current formulation of the antitrust state action ...


Counterrevolution? -- National Criminal Law After Raich, George D. Brown Oct 2005

Counterrevolution? -- National Criminal Law After Raich, George D. Brown

Boston College Law School Faculty Papers

This article provides an in-depth analysis of the Supreme Court’s recent decision in Gonzales v. Raich. The Court rejected by a margin of 6-3 a Ninth Circuit holding that the federal Controlled Substances Act would probably be found unconstitutional as applied to intrastate users of marijuana who were in conformity with California’s Compassionate Use Act. Although the majority, and Justice Scalia concurring, found the case to present a relatively straightforward problem in the application of Commerce Clause doctrine, the three dissenters (Justice O’Connor, joined by Chief Justice Rehnquist, and Justice Thomas) sounded sharp notes decrying a betrayal ...


The Supreme Court And The Federalist Papers: Is There Less Here Than Meets The Eye?, Melvyn R. Durchslag Oct 2005

The Supreme Court And The Federalist Papers: Is There Less Here Than Meets The Eye?, Melvyn R. Durchslag

William & Mary Bill of Rights Journal

No abstract provided.


Federalism, The Commerce Clause, And The Constitutionality Of The Unborn Victims Of Violence Act Of 2004, Ryan R. Wilmering Oct 2005

Federalism, The Commerce Clause, And The Constitutionality Of The Unborn Victims Of Violence Act Of 2004, Ryan R. Wilmering

Indiana Law Journal

No abstract provided.


Symbiotic Federalism And The Structure Of Corporate Law, Marcel Kahan, Edward Rock Oct 2005

Symbiotic Federalism And The Structure Of Corporate Law, Marcel Kahan, Edward Rock

Vanderbilt Law Review

Enron. Worldcom. Adelphia. Global Crossing. Tyco. Corporate scandals have made the front pages. Congress has gotten in the act. Members have held numerous hearings, given speeches, and, ultimately, passed the Sarbanes-Oxley Act. The Securities and Exchange Commission ("SEC") has been busy writing regulations and leaning on the stock exchanges to modify their listing requirements, all in order to restore "investor confidence." Federal prosecutors have indicted executives of Enron, Worldcom, and Adelphia and their minions in the auditing and investment banking industries. State officials have also been active. Several states have passed statutes that resemble or go beyond the strictures of ...


Towards A Basal Tenth Amendment: A Riposte To National Bank Preemption Of State Consumer Protection Laws, Keith R. Fisher Sep 2005

Towards A Basal Tenth Amendment: A Riposte To National Bank Preemption Of State Consumer Protection Laws, Keith R. Fisher

ExpressO

Recent regulations promulgated by the Office of the Comptroller of the Currency assert a sweeping authority to preempt a broad array of state laws, including consumer protection laws, applicable not only to national banks but to their state-chartered operating subsidiaries. These regulations threaten to disrupt state efforts to combat predatory lending and other abusive practices and to interfere with a state’s sovereign authority over corporations chartered under its laws. Yet federal courts faced with challenges to these initiatives have failed to devote any substantial analysis to claims based on the Tenth Amendment. The problem with such claims is the ...


Section 5: Federalism, Institute Of Bill Of Rights Law At The William & Mary Law School Sep 2005

Section 5: Federalism, Institute Of Bill Of Rights Law At The William & Mary Law School

Supreme Court Preview

No abstract provided.


The Constitutional Right Not To Cooperate? Local Sovereignty And The Federal Immigration Power, Huyen Pham Sep 2005

The Constitutional Right Not To Cooperate? Local Sovereignty And The Federal Immigration Power, Huyen Pham

ExpressO

May the federal government require local governments to cooperate with the enforcement of immigration law or other federal scheme? Or may local governments constitutionally refuse to provide that cooperation?

I use immigration law enforcement as a case study to argue that the current legal framework, which allows the federal government to mandate local cooperation, ignores the significant federalism harms that federal cooperation laws impose. And these federalism harms are not simply limited to the immigration field. In other areas where federal and local governments disagree (e.g., medical marijuana, stem cell research, and physician-assisted suicide), there is similar potential for ...


U.S. Supreme Court Tort Reform: Limiting State Power To Articulate And Develop Its Own Tort Law–Defamation, Preemption, And Punitive Damages, Thomas C. Galligan Aug 2005

U.S. Supreme Court Tort Reform: Limiting State Power To Articulate And Develop Its Own Tort Law–Defamation, Preemption, And Punitive Damages, Thomas C. Galligan

ExpressO

U.S. Supreme Court Tort Reform: Limiting State Power to Articulate and Develop Its Own Tort Law–Defamation, Preemption, and Punitive Damages analyzes and critiques the three primary areas in which the U.S. Supreme Court has found federal constitutional limits on a state’s power to articulate, develop, and apply its common law of torts. It is the first piece to consider all three areas together as an emerging body of jurisprudence which Professor Galligan calls U.S. Supreme Court tort reform. After setting forth a modest model of adjudication, the article applies that model to each of the ...


The Constitutional Limits To Court-Stripping, Michael J. Gerhardt Jul 2005

The Constitutional Limits To Court-Stripping, Michael J. Gerhardt

Faculty Publications

This Article is part of a colloquy between Professor Michael J. Gerhardt and Professor Martin Redish about the constitutionality of court-stripping measures. Court-stripping measures are laws restricting federal court jurisdiction over particular subject matters. In particular, the authors discuss the constitutionality of the Marriage Protection Act of 2004. Professor Gerhardt argues that the Act is unconstitutional and threatens to destroy the principles of separation of powers, federalism and due process. It prevents Supreme Court review of Congressional action and hinders the uniformity and finality of constitutional law. Furthermore, the Act violates the equal protection component of the Fifth Amendment Due ...


From "Federalization" To "Mixed Governance" In Corporate Law: A Defense Of Sarbanes-Oxley, Robert B. Ahdieh Jul 2005

From "Federalization" To "Mixed Governance" In Corporate Law: A Defense Of Sarbanes-Oxley, Robert B. Ahdieh

Faculty Scholarship

Since the very moment of its adoption, the Sarbanes-Oxley Act of 2002 has been subject to a litany of critiques, many of them seemingly well-placed. The almost universal condemnation of the Act for its asserted 'federalization' of corporate law, by contrast, deserves short shrift. Though widely invoked - and blithely accepted - dissection of this argument against the legislation shows it to rely either on flawed assumptions or on normative preferences not ordinarily acknowledged (or perhaps even accepted) by those who criticize Sarbanes-Oxley for its federalization of state corporate law.

Once we appreciate as much, we can begin by replacing the misleading ...


Fourth Amendment Federalism? The Court's Vacillating Mistrust And Trust Of State Search And Seizure Laws, Kathryn R. Urbonya Jul 2005

Fourth Amendment Federalism? The Court's Vacillating Mistrust And Trust Of State Search And Seizure Laws, Kathryn R. Urbonya

Faculty Publications

No abstract provided.


Lochner: Another Time, Another Place Symposium: Lochner Centennial Conference, Larry Yackle Jun 2005

Lochner: Another Time, Another Place Symposium: Lochner Centennial Conference, Larry Yackle

Faculty Scholarship

Professor Lynn Baker's contribution to this symposium' extends her longterm project both to defend and to critique the Supreme Court's decisions on the scope of congressional power.2 I find this work valuable and not a little provocative. If Baker's account of the decisions thus far is even partly right, the Court is poised to assume decision-making responsibility that has long been ceded to Congress. If her proposals for the future are adopted, we are in for a cataclysmic constitutional event that rivals the convulsive period when the nation confronted the judicial arrogation of authority associated (rightly ...


Toward A New Federalism In State Civil Justice: Developing A Uniform Code Of State Civil Procedure Through A Collaborative Rule-Making Process, Glenn S. Koppel May 2005

Toward A New Federalism In State Civil Justice: Developing A Uniform Code Of State Civil Procedure Through A Collaborative Rule-Making Process, Glenn S. Koppel

Vanderbilt Law Review

There is a sense of "deja vu" to the vision of a uniform body of state procedural law applicable in every state court throughout the nation. "Swift v. Tysons'" dream of a nationally uniform body of state substantive common law that mirrored an evolving body of uniform federal common law never materialized because state courts refused to defer to federal common law, which was applied only in federal court. Swift itself was overturned in 1938 by the Supreme Court's ruling in "Erie Railroad v. Tompkins" that federal courts must defer to the substantive lawmaking authority of state courts. But ...


The Case For Federal Anti-Gerrymandering Legislation, Brian O'Neill Apr 2005

The Case For Federal Anti-Gerrymandering Legislation, Brian O'Neill

University of Michigan Journal of Law Reform

Partisan gerrymandering is a political tradition the United States can no longer afford. Due in part to the effects of partisan gerrymandering, very few congressional elections are meaningfully competitive. This Note argues that partisan gerrymandering damages both the quality of American democracy and the federal system of the United States. This Note concludes that the important federal interests at stake warrant action by Congress to halt partisan gerrymandering. The Note further concludes that any action by Congress should incorporate the principles of federalism by resisting the temptation to micromanage and Congress should instead require state commissions to draft the boundaries ...


Treaty Solutions From The Land Down Under: Reconciling American Federalism And International Law, Cyril R. Emery Mar 2005

Treaty Solutions From The Land Down Under: Reconciling American Federalism And International Law, Cyril R. Emery

ExpressO

No abstract provided.


The Transatlantic Constitution: Colonial Legal Culture And The Empire (Excerpt), Mary Sarah Bilder Mar 2005

The Transatlantic Constitution: Colonial Legal Culture And The Empire (Excerpt), Mary Sarah Bilder

Boston College Law School Faculty Papers

Departing from traditional approaches to colonial legal history, Mary Sarah Bilder argues that American law and legal culture developed within the framework of an evolving, unwritten transatlantic constitution that lawyers, legislators, and litigants on both sides of the Atlantic understood. The central tenet of this constitution--that colonial laws and customs could not be repugnant to the laws of England but could diverge for local circumstances--shaped the legal development of the colonial world. Focusing on practices rather than doctrines, Bilder describes how the pragmatic and flexible conversation about this constitution shaped colonial law: the development of the legal profession; the place ...


Making Federalism Doctrine: Fidelity, Institutional Competence, And Compensating Adjustments, Ernest A. Young Mar 2005

Making Federalism Doctrine: Fidelity, Institutional Competence, And Compensating Adjustments, Ernest A. Young

William & Mary Law Review

No abstract provided.


Bridging The Enforcement Gap In Constitutional Law: A Critique Of The Supreme Court's Theory That Self-Restraint Promotes Federalism, Robert J. Pushaw Jr. Feb 2005

Bridging The Enforcement Gap In Constitutional Law: A Critique Of The Supreme Court's Theory That Self-Restraint Promotes Federalism, Robert J. Pushaw Jr.

William & Mary Law Review

No abstract provided.


Whose Constitution Is It? Why Federalism And Constitutional Positivism Don't Mix, James A. Gardner Feb 2005

Whose Constitution Is It? Why Federalism And Constitutional Positivism Don't Mix, James A. Gardner

William & Mary Law Review

No abstract provided.


Interjurisdictional Enforcement Of Rights In A Post-Erie World, Robert A. Schapiro Feb 2005

Interjurisdictional Enforcement Of Rights In A Post-Erie World, Robert A. Schapiro

William & Mary Law Review

No abstract provided.


Federalizing The First Responders To Acts Of Terrorism Via The Militia Clauses, Brian C. Brook Feb 2005

Federalizing The First Responders To Acts Of Terrorism Via The Militia Clauses, Brian C. Brook

Duke Law Journal

No abstract provided.


Cool Federalism And The Life-Cycle Of Moral Progress, Lawrence G. Sager Feb 2005

Cool Federalism And The Life-Cycle Of Moral Progress, Lawrence G. Sager

William & Mary Law Review

No abstract provided.


Whose Constitution Is It? Why Federalism And Constitutional Positivism Don't Mix, James A. Gardner Feb 2005

Whose Constitution Is It? Why Federalism And Constitutional Positivism Don't Mix, James A. Gardner

Journal Articles

It is frequently argued that state constitutions ought to be interpreted using a methodology of constitutional positivism, a familiar and commonplace theory of interpretational legitimacy that requires courts to treat a constitution as an authoritative expression of the will of the people who made it. I argue, contrary to this view, that orthodox constitutional positivism is not a viable interpretational methodology for subnational constitutions in a federal system. Although constitutional positivism makes sense for national constitutions, which furnish the paradigm case, subnational constitutions pose important problems for the political theory upon which constitutional positivism relies. According to that theory, the ...


The Wisdom We Have Lost: Sentencing Information And Its Uses, Marc L. Miller, Ronald F. Wright Jan 2005

The Wisdom We Have Lost: Sentencing Information And Its Uses, Marc L. Miller, Ronald F. Wright

Ronald F. Wright

Both federal and state experience in sentencing over the last three decades suggest that sentencing data and knowledge most often lead to wisdom when they are collected with particular uses and users in mind. Ironically, greater reliance on data and expertise can democratize the making and testing of sentencing policy. When data are collected and published with many different users in mind, a variety of participants in the sentencing process can join the Commission as creators of sentencing wisdom, including Congress, state legislatures, state sentencing commissions, sentencing judges, and scholars.

Under the Sentencing Reform Act of 1984, Congress envisioned federal ...


What Hath Raich Wrought? Five Takes, Brannon P. Denning, Glenn H. Reynolds Jan 2005

What Hath Raich Wrought? Five Takes, Brannon P. Denning, Glenn H. Reynolds

Brannon P. Denning

Written for a paper symposium on Gonzales v. Raich, 545 U.S. 1 (2005), we describe the effects of the decision on what had seemed a renewed interest on the part of the Court to limit federal power.


Sarbanes-Oxley, Corporate Federalism, And The Declining Significance Of Federal Reforms On State Director Independence Standards, Lisa M. Fairfax Jan 2005

Sarbanes-Oxley, Corporate Federalism, And The Declining Significance Of Federal Reforms On State Director Independence Standards, Lisa M. Fairfax

Faculty Scholarship

Commentators have argued that the Sarbanes-Oxley Act of 2002 (“Sarbanes-Oxley” or the “Act”) raises federalism concerns because it regulates the internal affairs of a corporation, including the composition of, and qualifications for, corporate boards, in a manner traditionally reserved to states. This Article responds to those claims, arguing that the Act reflects a relatively minimal intrusion into state law, particularly with regard to issues of director independence. This Article further argues that the Act’s failure to disturb state law on these issues may impede its ability to tighten director independence standards and by extension may undermine its ability to ...


The Federal Marriage Amendment: To Protect The Sanctity Of Marriage Or Destroy Constitutional Democracy?, Joan Schaffner Jan 2005

The Federal Marriage Amendment: To Protect The Sanctity Of Marriage Or Destroy Constitutional Democracy?, Joan Schaffner

American University Law Review

No abstract provided.