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2012

Federalism

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Articles 1 - 30 of 99

Full-Text Articles in Law

Antitrust And The 'Filed Rate' Doctrine: Deregulation And State Action, Herbert J. Hovenkamp Dec 2012

Antitrust And The 'Filed Rate' Doctrine: Deregulation And State Action, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

In its Keogh decision the Supreme Court held that although the Interstate Commerce Act did not exempt railroads from antitrust liability, a private plaintiff may not recover treble damages based on an allegedly monopolistic tariff rate filed with a federal agency. Keogh very likely grew out of Justice Brandeis's own zeal for regulation and his concern for the protection of small business — in this case, mainly shippers whom he felt were protected from discrimination by filed rates. The Supreme Court's Square D decision later conceded that Keogh may have been “unwise as a matter of policy,” but reaffirmed ...


Comparative Antitrust Federalism: Review Of Cengiz, Antitrust Federalism In The Eu And The Us, Herbert J. Hovenkamp Dec 2012

Comparative Antitrust Federalism: Review Of Cengiz, Antitrust Federalism In The Eu And The Us, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

This brief essay reviews Firat Cengiz’s book Antitrust Federalism in the EU and the US (2012), which compares the role of federalism in the competition law of the European Union and the United States. Both of these systems are “federal,” of course, because both have individual nation-states (Europe) or states (US) with their own individual competition provisions, but also an overarching competition law that applies to the entire group. This requires a certain amount of cooperation with respect to both territorial reach and substantive coverage.

Cengiz distinguishes among “markets,” “hierarchies,” and “networks” as forms of federalism. Markets are the ...


The Educational Autonomy Of Perfectionist Religious Groups In A Liberal State, Mark D. Rosen Dec 2012

The Educational Autonomy Of Perfectionist Religious Groups In A Liberal State, Mark D. Rosen

All Faculty Scholarship

This Article draws upon, but reworks, John Rawls’ framework from Political Liberalism to determine the degree of educational autonomy that illiberal perfectionist religious groups ought to enjoy in a liberal state. I start by arguing that Rawls mistakenly concludes that political liberalism flatly cannot accommodate Perfectionists, and that his misstep is attributable to two errors: (1) Rawls utilizes an overly restrictive “political conception of the person” in determining who participates in the original position, and (2) Rawls overlooks the possibility of a “federalist” basic political structure that can afford significant political autonomy to different groups within a single country. With ...


The Transformation Of Immigration Federalism, Jennifer M. Chacón Dec 2012

The Transformation Of Immigration Federalism, Jennifer M. Chacón

William & Mary Bill of Rights Journal

No abstract provided.


Foreword, Antonin Scalia Nov 2012

Foreword, Antonin Scalia

Pepperdine Law Review

No abstract provided.


Escaping The Sporhase Maze: Protecting State Waters Within The Commerce Clause, Mark S. Davis, Michael Pappas Nov 2012

Escaping The Sporhase Maze: Protecting State Waters Within The Commerce Clause, Mark S. Davis, Michael Pappas

Michael Pappas

Eastern states, though they have enjoyed a history of relatively abundant water, increasingly face the need to conserve water, particularly to protect water-dependent ecosystems. At the same time, growing water demands, climate change, and an emerging water-oriented economy have intensified pressure for interstate water transfers. Thus, even traditionally wet states are seeking to protect or secure their water supplies. However, restrictions on water sales and exports risk running afoul of the Dormant Commerce Clause. This Article offers guidance for states, partciularly eastern states concerned with maintaining and improving water-dependent ecosystems, in seeking to restrict water exports while staying within the ...


The Tipping Point Of Federalism, Amy L. Stein Nov 2012

The Tipping Point Of Federalism, Amy L. Stein

UF Law Faculty Publications

As the Supreme Court has noted, “it is difficult to conceive of a more basic element of interstate commerce than electric energy, a product that is used in virtually every home and every commercial or manufacturing facility. No state relies solely on its own resources in this respect.” And yet, the resources used to generate this electricity (e.g., coal, natural gas, or renewables) are determined largely by state and local authorities through their exclusive authority to determine whether to approve construction of a new electricity generation facility. As the nation finds itself faced with important decisions that directly implicate ...


Antitrust’S State Action Doctrine And The Ordinary Powers Of Corporations, Herbert J. Hovenkamp Oct 2012

Antitrust’S State Action Doctrine And The Ordinary Powers Of Corporations, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

The Supreme Court has now agreed to review the Eleventh Circuit's decision in Phoebe-Putney, which held that a state statute permitting a hospital authority to acquire hospitals implicitly authorized such acquisitions when they were anticompetitive – in this particular case very likely facilitating a merger to monopoly. Under antitrust law’s “state action” doctrine a state may in fact authorize such an acquisition, provided that it “clearly articulates” its desire to approve an action that would otherwise constitute an antitrust violation and also “actively supervises” any private conduct that might fall under the state’s regulatory scheme.

“Authorization” in the ...


Effectuating Principles Of Federalism: Reevaulating The Federal Spending Power As The Great Tenth Amendment Loophole, Ryan C. Squire Oct 2012

Effectuating Principles Of Federalism: Reevaulating The Federal Spending Power As The Great Tenth Amendment Loophole, Ryan C. Squire

Pepperdine Law Review

No abstract provided.


Printz V. United States: The Revival Of Constitutional Federalism, Lang Jin Oct 2012

Printz V. United States: The Revival Of Constitutional Federalism, Lang Jin

Pepperdine Law Review

No abstract provided.


Federalism And Preemption In October Term 1999, Jonathan D. Varat Oct 2012

Federalism And Preemption In October Term 1999, Jonathan D. Varat

Pepperdine Law Review

No abstract provided.


Disentangling Symmetries: Speech, Association, Parenthood, Laurence H. Tribe Oct 2012

Disentangling Symmetries: Speech, Association, Parenthood, Laurence H. Tribe

Pepperdine Law Review

No abstract provided.


Substance And Method In The Year 2000, Akhil Reed Amar Oct 2012

Substance And Method In The Year 2000, Akhil Reed Amar

Pepperdine Law Review

No abstract provided.


Rediscovering A Principled Commerce Power , Douglas W. Kmiec Oct 2012

Rediscovering A Principled Commerce Power , Douglas W. Kmiec

Pepperdine Law Review

No abstract provided.


The Supreme Court's Most Extraordinary Term - Introduction, Douglas W. Kmiec Oct 2012

The Supreme Court's Most Extraordinary Term - Introduction, Douglas W. Kmiec

Pepperdine Law Review

No abstract provided.


The Supremacy Clause As Structural Safeguard Of Federalism: State Judges And International Law In The Post-Erie Era, Sam F. Halabi Oct 2012

The Supremacy Clause As Structural Safeguard Of Federalism: State Judges And International Law In The Post-Erie Era, Sam F. Halabi

Faculty Publications

Against a backdrop of state constitutional and legislative initiatives aimed at limiting judicial use of international law, this Article argues that state judges have, by and large, interpreted treaties and customary international law so as to narrow their effect on state law-making prerogatives. Where state judges have used international law more liberally, they have done so to give effect to state executive and legislative objectives. Not only does this thesis suggest that the trend among state legislatures to limit state judges' use of international law is self-defeating, it also gives substance to a relatively unexplored structural safeguard of federalism: state ...


Health Insurance And Federalism-In-Fact, Radha A. Pathak, Brendan S. Maher Oct 2012

Health Insurance And Federalism-In-Fact, Radha A. Pathak, Brendan S. Maher

Faculty Scholarship

The constitutional legitimacy of the Patient Protection and Affordable Care Act (“ACA”) received substantial attention. Less examined has been the legislation’s sub-constitutional effect on the regulatory power that states can and might exercise. Regarding a state's ability to promulgate "sickness rules," (those legal rules pertaining to the conditions or treatment an insurance policy covers) and "non-sickness" rules (those legal rules pertaining to insurance other than sickness rules), we scrutinize the ACA itself and contrast it with the other most significant statute governing private health insurance, the Employee Retirement Income Security Act of 1974 (“ERISA”). The authors would like ...


Erie, Swift, And Legal Positivism, Michael S. Green Sep 2012

Erie, Swift, And Legal Positivism, Michael S. Green

Popular Media

No abstract provided.


Greater And Lesser Powers, Samuel Levin Sep 2012

Greater And Lesser Powers, Samuel Levin

Samuel Levin

During much of the twentieth century it was relatively stylish for lawyers, judges and justices to argue that an exercise of power was permissible because "the greater power [to do something else] necessarily includes the lesser power [to do this]." Unfortunately, sloppy and unprincipled uses that merely reflected the intuitions of those who invoked it has largely discredited the argument, although it still makes some relevant appearances.

This paper argues that there is a principled way to apply the argument: by looking to the relative harms caused by each exercise of power. However, any notion of "necessarily includes" needs to ...


Frayed Seams In The "Patchwork Quilt" Of American Federalism: An Empirical Analysis Of Invasive Plant Species Regulation, A. Bryan Endres, James S.N. Mccubbins, Lauren D. Quinn, Jacob N. Barney Sep 2012

Frayed Seams In The "Patchwork Quilt" Of American Federalism: An Empirical Analysis Of Invasive Plant Species Regulation, A. Bryan Endres, James S.N. Mccubbins, Lauren D. Quinn, Jacob N. Barney

A. Bryan Endres

Increased demand for biomass feedstocks to meet renewable energy mandates will require development of newer, bigger and better plant resources. Ideal biomass traits–fast growth and ability to outcompete local vegetation, prolific seed production, adaptability to a variety of soil and climatic conditions, and resistance to pests and diseases–also typify invasive flora. Next-generation biofuel feedstocks may be more productive and profitable at the individual farm level, but also may pose a greater risk of becoming invasive, thereby damaging the broader ecosystem and the economy. Accordingly, the agronomist’s search for yield maximizing biofuel crops for deployment into novel agricultural ...


“Unmistakably Clear” Coercion: Finding A Balance Between Judicial Review Of The Spending Power And Optimal Federalism, Dale B. Thompson Sep 2012

“Unmistakably Clear” Coercion: Finding A Balance Between Judicial Review Of The Spending Power And Optimal Federalism, Dale B. Thompson

Dale Thompson

This article proposes a new tier of scrutiny, “unmistakably clear,” for conducting judicial review of congressional authority under the Spending Clause. Under this standard, a condition would be unconstitutional only if it was “unmistakably clear” that it was coercive. In order to develop this proposal, this article traces the debate over the spending power from the Federalist Papers up through the decision in the Affordable Care Act Case, finding strong arguments for granting significant deference to Congress’s Spending Clause authority. Careful analysis of the opinions in the Affordable Care Act Case yields not only the name for the new ...


“Unmistakably Clear” Coercion: Finding A Balance Between Judicial Review Of The Spending Power And Optimal Federalism, Dale B. Thompson Aug 2012

“Unmistakably Clear” Coercion: Finding A Balance Between Judicial Review Of The Spending Power And Optimal Federalism, Dale B. Thompson

Dale Thompson

This article proposes a new tier of scrutiny, “unmistakably clear,” for conducting judicial review of congressional authority under the Spending Clause. Under this standard, a condition would be unconstitutional only if it was “unmistakably clear” that it was coercive. In order to develop this proposal, this article traces the debate over the spending power from the Federalist Papers up through the decision in the Affordable Care Act Case, finding strong arguments for granting significant deference to Congress’s Spending Clause authority. Careful analysis of the opinions in the Affordable Care Act Case yields not only the name for the new ...


“Unmistakably Clear” Coercion: Finding A Balance Between Judicial Review Of The Spending Power And Optimal Federalism, Dale B. Thompson Aug 2012

“Unmistakably Clear” Coercion: Finding A Balance Between Judicial Review Of The Spending Power And Optimal Federalism, Dale B. Thompson

Dale Thompson

This article proposes a new tier of scrutiny, “unmistakably clear,” for conducting judicial review of congressional authority under the Spending Clause. Under this standard, a condition would be unconstitutional only if it was “unmistakably clear” that it was coercive. In order to develop this proposal, this article traces the debate over the spending power from the Federalist Papers up through the decision in the Affordable Care Act Case, finding strong arguments for granting significant deference to Congress’s Spending Clause authority. Careful analysis of the opinions in the Affordable Care Act Case yields not only the name for the new ...


“Unmistakably Clear” Coercion: Finding A Balance Between Judicial Review Of The Spending Power And Optimal Federalism, Dale B. Thompson Aug 2012

“Unmistakably Clear” Coercion: Finding A Balance Between Judicial Review Of The Spending Power And Optimal Federalism, Dale B. Thompson

Dale Thompson

This article proposes a new tier of scrutiny, “unmistakably clear,” for conducting judicial review of congressional authority under the Spending Clause. Under this standard, a condition would be unconstitutional only if it was “unmistakably clear” that it was coercive. In order to develop this proposal, this article traces the debate over the spending power from the Federalist Papers up through the decision in the Affordable Care Act Case, finding strong arguments for granting significant deference to Congress’s Spending Clause authority. Careful analysis of the opinions in the Affordable Care Act Case yields not only the name for the new ...


Strategy And Tactics In Nfib V. Sebelius, Tonja Jacobi Aug 2012

Strategy And Tactics In Nfib V. Sebelius, Tonja Jacobi

Tonja Jacobi

This Article provides an in depth examination of the strategic judicial maneuvering witnessed in the Supreme Court’s healthcare decision. Through that lens, it is possible to gain a detailed understanding of the doctrinal groundwork that Chief Justice Roberts was laying for future conservative revolutions in the Commerce Clause Power, the Necessary and Proper Clause, and the Taxing and Spending Power. The reason Roberts was able to dramatically read down Congress’s main avenues of regulatory power was not despite the liberal outcome of the case, but because of it. Roberts’s strategic sacrifice in NFIB v. Sebelius suggests an ...


Textualism And Obstacle Preemption, John D. Ohlendorf Aug 2012

Textualism And Obstacle Preemption, John D. Ohlendorf

John D Ohlendorf

Commentators, both on the bench and in the academy, have perceived an inconsistency between the Supreme Court’s trend, in recent decades, towards an increasingly formalist approach to statutory interpretation and the Court’s continued willingness to find state laws preempted as “obstacles to the accomplishment and execution of the full purposes and objectives of Congress,” — so-called “obstacle preemption.” This Article argues that by giving the meaning contextually implied in a statutory text ordinary, operative legal force, we can justify most of the current scope of obstacle preemption based solely on theoretical moves textualism already is committed to making.

The ...


State Constitutional Prohibitions On Special Laws, Justin R. Long Aug 2012

State Constitutional Prohibitions On Special Laws, Justin R. Long

Justin R Long

Since the nineteenth century, most states have had constitutional clauses prohibiting “special laws.” These clauses were ratified to protect the people of each state from domination by narrow economic elites, who would use their economic power to win grants of privilege from the state legislatures. To fight the corrupt favors garnered by private interests in this way, state constitutional drafters wrote clauses requiring their legislatures to pass only “general” laws that would apply equally to all members of the regulated class. For a brief period, these clauses were enforced in the courts—but more to protect economic elites than the ...


The Lawlessness Of Sebelius, Gregory Magarian Aug 2012

The Lawlessness Of Sebelius, Gregory Magarian

Gregory P. Magarian

After the U.S. Supreme Court in National Federation of Independent Business v. Sebelius held nearly all of the Patient Protection and Affordable Care Act constitutional, praise rained down on Chief Justice John Roberts. The Chief Justice’s lead opinion broke with his usual conservative allies on the Court by upholding the Act’s individual mandate as a valid enactment under the Taxing Clause. Numerous commentators have lauded the Chief Justice for his courage and pragmatism. In this essay, Professor Magarian challenges the heroic narrative surrounding the Chief Justice’s opinion. He contends that the opinion is, in two senses ...


The Health Care Cases And The New Meaning Of Commandeering, Bradley Joondeph Aug 2012

The Health Care Cases And The New Meaning Of Commandeering, Bradley Joondeph

Bradley W. Joondeph

The Supreme Court’s decision in the Health Care Cases to sustain the central provisions of the Affordable Care Act (or ACA) was hugely important in several ways. Most commentators have focused on the Court’s upholding of the ACA’s minimum coverage provision. But the Court’s Medicaid holding—that the ACA coerced (and thus commandeered) the states by making their preexisting Medicaid funds contingent on the states’ expanding their programs—may actually be more significant as a matter of constitutional law.

The basic thesis of this article is that, in finding the ACA’s Medicaid expansion provisions coercive ...


Congress, Federal Courts, And Domestic Relations Exceptionalism, Mark Strasser Aug 2012

Congress, Federal Courts, And Domestic Relations Exceptionalism, Mark Strasser

Mark Strasser

Family law is often cited as a paradigmatic example of state law, and the Supreme Court has often trumpeted the “domestic relations exception” as a justification for preventing federal involvement in family matters. Yet, it is of course true that a variety of federal programs affect the family, so it is important to figure out which areas are reserved for the states and which are not. Further, the federal courts have heard a variety of cases involving family matters, so it is not as if the courts never have jurisdiction to hear such cases. The tests for determining when the ...