Law Commons^™

Cooperative And Uncooperative Foreign Affairs Federalism, Jean Galbraith

All Faculty Scholarship

This book review argues for reorienting how we think about federalism in relation to foreign affairs. In considering state and local engagement in foreign affairs, legal scholars often focus on the opportunities and limits provided by constitutional law. Foreign Affairs Federalism: The Myth of National Exclusivity by Michael Glennon and Robert Sloane does precisely this in a thoughtful and well-crafted way. But while the backdrop constitutional principles studied by Glennon and Sloane are important, so too are other types of law that receive far less attention. International law, administrative law, particular statutory schemes, and state law can all affect how …

The Economic Foundation Of The Dormant Commerce Clause, Michael S. Knoll, Ruth Mason

All Faculty Scholarship

Last Term, a sharply divided Supreme Court decided a landmark dormant Commerce Clause case, Comptroller of the Treasury of Maryland v. Wynne. Wynne represents the Court’s first clear acknowledgement of the economic underpinnings of one of its main doctrinal tools for resolving tax discrimination cases, the internal consistency test. In deciding Wynne, the Court relied on economic analysis we provided. This Essay explains that analysis, why the majority accepted it, why the dissenters’ objections to the majority’s reasoning miss their mark, and what Wynne means for state taxation. Essential to our analysis and the Court’s decision in Wynne …

Partial Takings, Abraham Bell, Gideon Parchomovsky

All Faculty Scholarship

Partial takings allow the government to expropriate the parts of an asset it needs, leaving the owner the remainder. Both vital and common, partial takings present unique challenges to the standard rules of eminent domain. Partial takings may result in the creation of suboptimal, and even unusable, parcels. Additionally, partial takings create assessment problems that do not arise when parcels are taken as a whole. Finally, partial takings engender opportunities for inefficient strategic behavior on the part of the government after the partial taking has been carried out. Current jurisprudence fails to resolve these problems and can even exacerbate them. …

The Bylaw Puzzle In Delaware Corporate Law, David A. Skeel Jr.

All Faculty Scholarship

In less than a decade, Delaware’s legislature has overruled its courts and reshaped Delaware corporate law on two different occasions, with proxy access bylaws in 2009 and with shareholder litigation bylaws in 2015. Having two dramatic interventions in quick succession would be puzzling under any circumstances. The interventions are doubly puzzling because with proxy access, Delaware’s legislature authorized the use of bylaws or charter provisions that Delaware’s courts had banned; while with shareholder litigation, it banned bylaws or charter provisions that the courts had authorized. This Article attempts to unravel the puzzle.

I start with corporate law doctrine, and find …

Public Energy, Shelley Welton

All Faculty Scholarship

Many scholars and policy makers celebrate cities as loci for addressing climate change. In addition to being significant sources of carbon pollution, cities prove to be dynamic sites of experimentation and ambition on climate policy. However, as U.S. cities set climate change goals far above those of their federal and state counterparts, they are butting up against the limits of their existing legal authority, most notably with regard to control over energy supplies. In response, many U.S. cities are exercising their legal rights to reclaim public ownership or control over private electric utilities as a method of achieving their climate …