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2019

Federalism

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Full-Text Articles in Law

Federalism: Necessary Legal Foundation For The Central Middle Eastern States, Issa Al-Aweel Oct 2019

Federalism: Necessary Legal Foundation For The Central Middle Eastern States, Issa Al-Aweel

Pace International Law Review

The Central Middle East—comprising of Syria, Israel, Palestine, Lebanon, and Jordan—is in need of a legal foundation defined by a constitutional umbrella that governs it as a whole. This is a proposed broad structure of such legal foundation that serves regional legal and economic needs and includes recognition of human rights.

The need for such restructuring is evident from the persistence of regional conflict and instability. Conflict and instability have been constants in the region in general and certainly in the listed five states. The issues include political instability, terrorism, continuous threats of fundamentalism, and pervasive disregard to human life …


The Federalism Challenges Of Protecting Medical Privacy In Workers' Compensation, Ani B. Satz Oct 2019

The Federalism Challenges Of Protecting Medical Privacy In Workers' Compensation, Ani B. Satz

Indiana Law Journal

Under current law, injured workers face a Hobson’s choice: They may file for workers’ compensation or maintain their medical privacy. The reason for this is that § 164.512(l) of the Health Insurance Portability and Accountability Act’s Privacy Rule (HPR) is widely misinterpreted by courts and legislatures as a wholesale waiver of privacy protections for injured workers. Section 164.512(l) excludes workers’ compensation from federal privacy protections that may frustrate the efficient administration of workers’ compensation claims. As the history and intent behind the HPR indicate, § 164.512(l) is premised on the assumption that states will protect workers’ privacy by creating and …


'Great Variety Of Relevant Conditions, Political, Social And Economic': The Constitutionality Of Congressional Deadlines On Amendment Proposals Under Article V, Danaya C. Wright Oct 2019

'Great Variety Of Relevant Conditions, Political, Social And Economic': The Constitutionality Of Congressional Deadlines On Amendment Proposals Under Article V, Danaya C. Wright

UF Law Faculty Publications

Within a year or two, the thirty-eighth state is likely to ratify the Equal Rights Amendment (ERA), setting up an unprecedented constitutional challenge. The ERA was proposed with a seven-year deadline in the resolving clause, establishing the mode of ratification. That was a shift from earlier precedents in which a deadline had been placed in the text of the amendment proposal itself. Article V is annoyingly silent on the issue of congressional deadlines in amendment proposals, and the Supreme Court has never addressed the issue of a deadline that could void an otherwise properly ratified amendment. The practice of placing …


Even Some International Law Is Local: Implementation Of Treaties Through Subnational Mechanisms, Charlotte Ku, William H. Henning, David P. Stewart, Paul F. Diehl Oct 2019

Even Some International Law Is Local: Implementation Of Treaties Through Subnational Mechanisms, Charlotte Ku, William H. Henning, David P. Stewart, Paul F. Diehl

Faculty Scholarship

Multilateral treaties today rarely touch on subjects where there is no domestic law in the United States, In the U.S. federal system, this domestic law may not be national law, but law of the constituent States of the United States. However, in light of the U.S. Constitution Article VI, treaties in their domestic application unavoidably federalize the subjects they address. The most sensitive issues arise when a treaty focuses on matters primarily or exclusively dealt with in the United States at the State or local level. Although U.S. practice allows for some flexibility to accommodate State/local interests, the federal government …


The Majoritarian Rehnquist Court?, Neal Devins Sep 2019

The Majoritarian Rehnquist Court?, Neal Devins

Neal E. Devins

No abstract provided.


The Judicial Safeguards Of Federalism, Neal Devins Sep 2019

The Judicial Safeguards Of Federalism, Neal Devins

Neal E. Devins

No abstract provided.


The Federalism-Rights Nexus: Explaining Why Senate Democrats Tolerate Rehnquist Court Decision Making But Not The Rehnquist Court, Neal Devins Sep 2019

The Federalism-Rights Nexus: Explaining Why Senate Democrats Tolerate Rehnquist Court Decision Making But Not The Rehnquist Court, Neal Devins

Neal E. Devins

No abstract provided.


Same-Sex Marriage And The New Judicial Federalism: Why State Courts Should Not Consider Out-Of-State Backlash, Neal Devins Sep 2019

Same-Sex Marriage And The New Judicial Federalism: Why State Courts Should Not Consider Out-Of-State Backlash, Neal Devins

Neal E. Devins

No abstract provided.


When Can A State Sue The United States?, Tara Leigh Grove Sep 2019

When Can A State Sue The United States?, Tara Leigh Grove

Tara L. Grove

State suits against the federal government are on the rise. From Massachusetts’ challenge to federal environmental policy, to Oregon’s confrontation over physician-assisted suicide, to Texas’s suit over the Obama administration’s immigration program, States increasingly go to court to express their disagreement with federal policy. This Article offers a new theory of state standing that seeks to explain when a State may sue the United States. I argue that States have broad standing to sue the federal government to protect state law. Accordingly, a State may challenge federal statutes or regulations that preempt, or otherwise undermine the continued enforceability of, state …


Choice Of Law, The Constitution And Lochner, James Y. Stern Sep 2019

Choice Of Law, The Constitution And Lochner, James Y. Stern

James Y. Stern

No abstract provided.


Harmonious Federalism In Support Of National Energy Goals – Increased Wind Renewable Energy, Ronald H. Rosenberg Sep 2019

Harmonious Federalism In Support Of National Energy Goals – Increased Wind Renewable Energy, Ronald H. Rosenberg

Ronald H. Rosenberg

American energy policy has slowly begun to change the mix in the sources of supply of electricity to residences, industry, and businesses. Renewable sources of electricity have been promoted as future contributors of large portions of the nation's electricity consumption. Wind power has been identified as a potentially substantial future electricity source contributing up to 20% of American demand 2030. To achieve these optimistic goals, there must be: (1) cost-effective, reliable energy technology; (2) sufficient investment capital to finance new construction; and (3) the existence of supportive governmental policies at all levels government. This article discusses the importance of inter-governmental …


The Emperor’S New Clothes: The Variety Of Stakeholders In Climate Change Regulation Assuming The Mantle Of Federal And International Authority, Linda A. Malone Sep 2019

The Emperor’S New Clothes: The Variety Of Stakeholders In Climate Change Regulation Assuming The Mantle Of Federal And International Authority, Linda A. Malone

Linda A. Malone

In June 2017, President Donald Trump announced the United States would be withdrawing from the Paris Climate Accord. President Trump believes the United States should be more focused on its economic wellbeing than on environmental concerns. Since being elected, President Trump has, with the help of the Environmental Protection Agency, been rolling back, or attempting to roll back, major climate change regulations. However, this Article points out that due to factors such as international law, the United States Constitution, and the Administrative Procedure Act, one cannotjust simply withdraw from an international agreement, such as the Paris Accord, or take back …


An Organizational Account Of State Standing, Katherine Mims Crocker Sep 2019

An Organizational Account Of State Standing, Katherine Mims Crocker

Katherine Mims Crocker

Again and again in regard to recent high-profile disputes, the legal community has tied itself in knots over questions about when state plaintiffs should have standing to sue in federal court, especially in cases where they seek to sue federal-government defendants. Lawsuits challenging everything from the Bush administration’s environmental policies to the Obama administration’s immigration actions to the Trump administration’s travel bans have become mired in tricky and technical questions about whether state plaintiffs belonged in federal court.

Should state standing cause so much controversy and confusion? This Essay argues that state plaintiffs are far more like at least one …


Qualified Immunity And Constitutional Structure, Katherine Mims Crocker Sep 2019

Qualified Immunity And Constitutional Structure, Katherine Mims Crocker

Katherine Mims Crocker

A range of scholars has subjected qualified immunity to a wave of criticism— and for good reasons. But the Supreme Court continues to apply the doctrine in ever more aggressive ways. By advancing two claims, this Article seeks to make some sense of this conflict and to suggest some thoughts toward a resolution.

First, while the Court has offered and scholars have rejected several rationales for the doctrine, layering in an account grounded in structural constitutional concerns provides a historically richer and analytically thicker understanding of the current qualified-immunity regime. For suits against federal officials, qualified immunity acts as a …


How State Supreme Courts Take Consequences Into Account: Toward A State-Centered Understanding Of State Constitutionalism, Neal Devins Sep 2019

How State Supreme Courts Take Consequences Into Account: Toward A State-Centered Understanding Of State Constitutionalism, Neal Devins

Neal E. Devins

No abstract provided.


How Congress Paved The Way For The Rehnquist Court's Federalism Revival: Lessons From The Federal Partial Birth Abortion Ban, Neal Devins Sep 2019

How Congress Paved The Way For The Rehnquist Court's Federalism Revival: Lessons From The Federal Partial Birth Abortion Ban, Neal Devins

Neal E. Devins

No abstract provided.


Religious V. Secular Ideologies And Sex Education: A Response To Professors Cahn And Carbone, Vivian E. Hamilton Sep 2019

Religious V. Secular Ideologies And Sex Education: A Response To Professors Cahn And Carbone, Vivian E. Hamilton

Vivian E. Hamilton

No abstract provided.


The Twin Aims Of Erie, Michael S. Green Sep 2019

The Twin Aims Of Erie, Michael S. Green

Michael S. Green

We all remember the twin aims of the Erie rule from first-year civil procedure. A federal court sitting in diversity must use forum state law if it is necessary to avoid 'forum shopping" and the "inequitable administration of the laws." This Article offers a reading of the twin aims and a systematic analysis of their proper role in federal and state court. I argue that the twin aims apply in diversity cases not because they protect state interests, but because they serve the federal purposes standing behind the diversity statute. So understood, they are about separation of powers, not federalism. …


Vertical Power, Michael S. Green Sep 2019

Vertical Power, Michael S. Green

Michael S. Green

Many legal scholars and federal judges - including Justices Ginsburg and Scalia - have implicitly assumed that a state can extend its procedural law solely to federal courts within its borders. To date, however, no one has identified this assumption, much less defended it. Drawing upon an example discussed by Chief Justice Marshall in Wayman v. Southard, 23 U.S. (10 Wheat.) 1 (1825), 1 argue that such vertical power does not exist. Not only do states lack a legitimate interest in extending their law vertically, a state's assertion of vertical power would improperly discriminate against federal courts. If state law …


Erie's International Effect, Michael S. Green Sep 2019

Erie's International Effect, Michael S. Green

Michael S. Green

To what extent does the Erie doctrine apply in an international context? In his article When Erie Goes International, Professor Childress argues that a federal court choosing between state law and the law of a foreign nation should often (or perhaps always) ignore Klaxon Co. v. Stentor Electric Manufacturing Co. and use federal choice of law rules rather than the rules of the state where the federal court is located.

In this Essay, I have three points to make in response. The first is that Childress’s article, even if successful, leaves the bulk of the Erie doctrine unchanged in …


Erie, Swift, And Legal Positivism, Michael S. Green Sep 2019

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

Michael S. Green

No abstract provided.


Constitutional Avoidance And The Roberts Court, Neal Devins Sep 2019

Constitutional Avoidance And The Roberts Court, Neal Devins

Neal E. Devins

No abstract provided.


The Unconscionability Game: Strategic Judging And The Development Of Federal Arbitration Law, Aaron-Andrew P. Bruhl Sep 2019

The Unconscionability Game: Strategic Judging And The Development Of Federal Arbitration Law, Aaron-Andrew P. Bruhl

Aaron-Andrew P. Bruhl

This Article uses recent developments in the enforcement of arbitration agreements to illustrate one way in which strategic dynamics can drive doctrinal change. In a fairly short period of time, arbitration has grown from a method of resolving disputes between sophisticated business entities into a phenomenon that pervades the contemporary economy. The United States Supreme Court has encouraged this transformation through expansive interpretations of the Federal Arbitration Act. But not all courts have embraced arbitration so fervently, and therefore case law in this area is marked by tension and conflict. The thesis of this Article is that we can better …


Deciding When To Decide: How Appellate Procedure Distributes The Costs Of Legal Change, Aaron-Andrew P. Bruhl Sep 2019

Deciding When To Decide: How Appellate Procedure Distributes The Costs Of Legal Change, Aaron-Andrew P. Bruhl

Aaron-Andrew P. Bruhl

Legal change is a fact of life, and the need to deal with it has spawned a number of complicated bodies of doctrine. Some aspects of the problem of legal change have been studied extensively, such as doctrines concerning the retroactivity of new law and the question whether inferior courts can anticipatorily overrule a moribund superior court precedent. How such questions are answered affects the size and the distribution of the costs of legal change. Less appreciated is the way that heretofore almost invisible matters of appellate procedure and case handling also allocate the costs of legal transitions. In particular, …


Introduction, Ezra Rosser Sep 2019

Introduction, Ezra Rosser

Contributions to Books

This is the introduction to Holes in the Safety Net: Federalism and Poverty (Ezra Rosser ed., Cambridge University Press, 2019). The table of contents for the book, with links to the other chapters, can be found below: Introduction (this document) Ezra Rosser Part I: Welfare and Federalism Ch. 1 Federalism, Entitlement, and Punishment across the US Social Welfare State Wendy Bach Ch. 2 Laboratories of Suffering: Toward Democratic Welfare Governance Monica Bell, Andrea Taverna, Dhruv Aggarwal, and Isra Syed Ch. 3 The Difference in Being Poor in Red States versus Blue States Michele Gilman Part II: States, Federalism, and Antipoverty …


When Torts Met Civil Procedure: A Curricular Coupling, Laura G. Dooley, Brigham A. Fordham, Ann E. Woodley Aug 2019

When Torts Met Civil Procedure: A Curricular Coupling, Laura G. Dooley, Brigham A. Fordham, Ann E. Woodley

Laura Dooley

Law students must become adept at understanding how various bodies of law interact-supporting, balancing, and even conflicting with each other. This article describes an attempt to achieve these goals by merging two canonical first-year courses, civil procedure and torts, into an integrated class titled ‘Introduction to Civil Litigation’. Our most pressing motivation was concern that students who study civil procedure and torts in isolation develop a skewed, unrealistic view of how law works in the real world. By combining these courses, we hoped to teach students early in their careers to approach problems more like practicing lawyers, who must deal …


The Constitution's Forgotten Cover Letter: An Essay On The New Federalism And The Original Understanding, Daniel A. Farber Aug 2019

The Constitution's Forgotten Cover Letter: An Essay On The New Federalism And The Original Understanding, Daniel A. Farber

Daniel A Farber

At the end of the summer of 1787, the Philadelphia Convention issued two documents. One was the Constitution itself. The other document, now almost forgotten even by constitutional historians, was an official letter to Congress, signed by George Washington on behalf of the Convention. Congress responded with a resolution that the Constitution and "letter accompanying the same" be sent to the state legislatures for submission to conventions in each state.

The Washington letter lacks the detail and depth of some other evidence of original intent. Being a cover letter, it was designed only to introduce the accompanying document rather than …


Conservation, Regionality, And The Farm Bill, Jess R. Phelps Aug 2019

Conservation, Regionality, And The Farm Bill, Jess R. Phelps

Maine Law Review

Over the past several Farm Bills, there has been a somewhat subtle shift in program design to better incorporate regional perspectives/localized areas of conservation concern into national conservation program delivery. The purpose of this Article is to specifically explore the various roles that regional considerations play in existing Farm Bill conservation programs and also consider whether further developments in this direction could result in more flexible program delivery, more effective partnerships, and ultimately, better conservation outcomes. To this end, section II will provide an overview of the history of the Farm Bill, from its origins to the emergence of a …


The Relevance Of The Constitution In Today's Society, Matthew Reiber Aug 2019

The Relevance Of The Constitution In Today's Society, Matthew Reiber

Boise State University Theses and Dissertations

How relevant is the Constitution in today’s society? This is the document that guides the three branches of government in day to day operation, demonstrating that what the Constitution means to the people of the United States is essential in gauging how relevant people think our government is. In this experiment, I surveyed 348 different college students on Boise State campus with a list of different questions to first find out their general knowledge of our Constitution, then their opinion of it. Students were randomly assigned to receive a text about a Supreme Court case that involves interpreting the Constitution …


The Commerce Clause, The Preposition, And The Rational Basis Test, James M. Mcgoldrick Jr. Jun 2019

The Commerce Clause, The Preposition, And The Rational Basis Test, James M. Mcgoldrick Jr.

University of Massachusetts Law Review

In Gonzales v. Raich, the United States Supreme Court upheld the application of the federal Controlled Substances Act to bar the use of state-grown marijuana for instate personal medical use. In so doing, the Court ratified the expansion of Congress’ commerce power beyond any known limits. It abandoned the “substantial effects” test that it had used since 1937 and applied the “rational basis” test. This Article traces the historical development of Congress’ enumerated powers from the earliest cases, emphasizing the expansive view of commerce power found in Gibbons v. Ogden. From that strong beginning for the commerce power, the …