Law Commons^™

Brief Of Public Law Scholars As Amici Curiae In Support Of Petitioners, Chris Dove, Ernest A. Young

Faculty Scholarship

No abstract provided.

State Standing And Cooperative Federalism, Ernest A. Young

Faculty Scholarship

State lawsuits challenging federal policy generally encounter arguments that the states lack standing to sue, either under Article III’s “case or controversy” clause or under various prudential standing doctrines. These arguments have often taken novel forms—such as claims that states’ injuries are “self-inflicted” or offset by other benefits of federal policies—that have few precedents or analogs in the standing jurisprudence governing suits by private individuals. The United States has taken the position, in other words, that states should have special disabilities in filing lawsuits that would not apply to ordinary litigants. Likewise, prominent academics have argued that uniquely narrow standing …

The Depravity Of The 1930s And The Modern Administrative State, Gary S. Lawson, Steven Calabresi

Faculty Scholarship

Gillian Metzger’s 2017 Harvard Law Review foreword, entitled 1930s Redux: The Administrative State Under Siege, is a paean to the modern administrative state, with its massive subdelegations of legislative and judicial power to so-called “expert” bureaucrats, who are layered well out of reach of electoral accountability yet do not have the constitutional status of Article III judges. We disagree with this celebration of technocratic government on just about every level, but this Article focuses on two relatively narrow points.

First, responding more to implicit assumptions that pervade modern discourse than specifically to Professor Metzger’s analysis, we challenge the normally unchallenged …

Judicial Federalism In The Trenches: The Rooker-Feldman Doctrine In Action, Suzanna Sherry

Suzanna Sherry

No abstract provided.

Effects Of Senate Bill 4 On Wage-Theft: Why All Workers Are At Risk In Low-Income Occupations, Daniella Salas-Chacon

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming

The Never-Ending Assault On The Administrative State, Jack M. Beermann

Faculty Scholarship

This Article is an exploration of the twists and turns of the never-ending assault on the administrative state. Without attempting to resolve all of the separation of powers controversies that have existed since the beginning of the Republic, this Article examines and analyzes the fundamental constitutional challenges to the administrative state as well as the more peripheral constitutional difficulties involving the administrative state and the nonconstitutional legal challenges that have arisen over the decades. In my view, the legal and political arguments made in favor of major structural changes to the administrative state do not provide sufficient normative bases for …

Hearing The States, Anthony Johnstone

Pepperdine Law Review

The 2016 Presidential and Senate elections raise the possibility that a conservative, life-tenured Supreme Court will preside for years over a politically dynamic majority. This threatens to weaken the public’s already fragile confidence in the Court. By lowering the political stakes of both national elections and its own decisions, federalism may enable the Court to defuse some of the most explosive controversies it hears. Federalism offers a second-best solution, even if neither conservatives nor liberals can impose a national political agenda. However, principled federalism arguments are tricky. They are structural, more prudential than legal or empirical. Regardless of ideology, a …

Policy Considerations And Implications In United States V. Bryant, Jessica Larsen

Northwestern Journal of Law & Social Policy

No abstract provided.

Terrorism Risk Insurance: Is It Really Working?, Rebecca Demarest

Honors Projects in Mathematics

This paper investigates terrorism risk insurance in the United States as well as those programs offered in other countries throughout the world. In the United States, particular attention is devoted to the interaction of government with private insurers to maintain an effective insurance program. An analysis is performed comparing terrorism insurance before and after the attacks on the World Trade Center on September 11, 2001. The paper looks into actual terrorist events that have occurred focusing on 56 world-wide events that are associated with property losses greater than $10 million. This paper not only investigates the losses that were incurred …

Shared Goals: How The Hhs Office Of Inspector General Supports Health Care Industry Compliance Efforts, Gregory E. Demske, Geeta Taylor, James Ortmann

Mitchell Hamline Law Review

No abstract provided.

Brief Of Professor Ernest A. Young As Amicus Curiae In Support Of Plaintiff Appellant Urging Reversal, Ernest A. Young

Faculty Scholarship

No abstract provided.

Political Norms, Constitutional Conventions, And President Donald Trump, Neil S. Siegel

Faculty Scholarship

This symposium Essay argues that what is most troubling about the conduct of President Trump during and since the 2016 U.S. presidential campaign is not any potential violations of the U.S. Constitution or federal law. There likely have been some such violations, and there may be more. But what is most troubling about President Trump is his disregard of political norms that had previously constrained presidential candidates and Presidents, and his flouting of nonlegal but obligatory “constitutional conventions” that had previously guided and disciplined occupants of the White House. These norms and conventions, although not “in” the Constitution, play a …

Brief Of Professors William Baude And Stephen E. Sachs As Amici Curiae In Support Of Neither Party, William Baude, Stephen E. Sachs

Faculty Scholarship

This case presents the question whether to overrule Nevada v. Hall, 440 U.S. 410 (1979). That question requires careful attention to the legal status of sovereign immunity and to the Constitution’s effect on it, which neither Hall nor either party has quite right. The Founders did not silently constitutionalize a common-law immunity, but neither did they leave each State wholly free to hale other States before its courts. While Hall’s holding was mostly right, other statements in Hall are likely quite wrong—yet this case is a poor vehicle for reconsidering them.

Hall correctly held that States lack a constitutional immunity …

Rights-Weakening Federalism, Shitong Qiao

Faculty Scholarship

This article examines whether federalism protects land rights in China from two dimensions. I first compare national law with local institutions of eminent domain, revealing that local governments take much more land than the national government approves, frequently violating, tweaking, and challenging national law. I next examine the impact of interjurisdictional competition on the development of local land institutions, demonstrating that local governments are weakening individual land rights for the benefits of mobile capital. Overall, Chinese federalism weakens rather than strengthens individual land rights and should be called rights-weakening federalism.

This China case also has general theoretical implications. Leading property …

Erie As A Way Of Life, Ernest A. Young

Faculty Scholarship

No abstract provided.

State Public-Law Litigation In An Age Of Polarization, Margaret H. Lemos, Ernest A. Young

Faculty Scholarship

Public-law litigation by state governments plays an increasingly prominent role in American governance. Although public lawsuits by state governments designed to challenge the validity or shape the content of national policy are not new, such suits have increased in number and salience over the last few decades — especially since the tobacco litigation of the late 1990s. Under the Obama and Trump Administrations, such suits have taken on a particularly partisan cast; “red” states have challenged the Affordable Care Act and President Obama’s immigration orders, for example, and “blue” states have challenged President Trump’s travel bans and attempts to roll …

Conant V. Walters: A Misapplication Of Free Speech Rights In The Doctor-Patient Relationship, Katharine M. Mccarthy

Maine Law Review

In Conant v. Walters, the United States Court of Appeals for the Ninth Circuit addressed the application of the First Amendment's right of free speech to a federal policy that prohibited the recommendation of medical marijuana by physicians. This class action suit, brought by physicians and severely ill patients, successfully enjoined the federal government from enforcing its policy revoking the federal prescriptive licenses of physicians who recommend or approve of marijuana use by patients suffering from certain severe illnesses. The federal government's policy, issued in 1996 through a statement of Barry McCaffrey, director of the Office of National Drug Control …

Can Courts Save Us From Unconstitutional Government Conduct?, John M. Greabe

Law Faculty Scholarship

[Excerpt] "We are living in a troubled time. Across the political spectrum, there is a great deal of concern that government officials have been derelict in honoring their oaths to support and defend the Constitution."

The Future Of Environmental Law And Complexities Of Scale: Federalism Experiments With Climate Change Under The Clean Air Act, Hari M. Osofsky

Hari Osofsky

Since its inception, the Clean Air Act ("CAA") has served as an experiment in environmental governance models. As importantly, the CAA has had to be flexible in responding to our evolving understandings of environmental problems. Whether through amendments or new regulatory regimes under existing provisions, the statute has served as a key mechanism in the U.S. federal government's efforts to respond to complex environmental challenges. This Article focuses on the CAA's efforts to grapple with complexities of regulatory scale as an illustration of the new directions in environmental law that are the focus of this symposium. Air moves around over …

Thoughts On The Vitality Of Erie, John B. Corr

John (Bernie) Corr

No abstract provided.

Thoughts On The Vitality Of Erie, John B. Corr

John (Bernie) Corr

No abstract provided.

Real Discrimination?, Erwin Chemerinsky

Erwin Chemerinsky

Part I of this Essay examines Hibbs and criticizes the distinction that it draws in allowing Congress much greater authority to act under Section 5 for some types of discrimination than for others. Part II explains the Court’s error by focusing on a specific example: the authority to sue states under Title II of the Americans with Disabilities Act for discrimination against people with disabilities in government programs, services, and activities. Under the reasoning in Hibbs, Congress does not have the same authority to authorize suits against disability discrimination as it does for gender discrimination. This is fundamentally misguided, as …

What Can Europe Tell Us About The Future Of American Federalism?, Ernest A. Young

Faculty Scholarship

No abstract provided.

Slides: Flpma In Its Historical Context, John D. Leshy

FLPMA Turns 40 (October 21)

Presenter: John D. Leshy, Sunderland Distinguished Professor of Law Emeritus, U.C. Hastings College of the Law

36 slides

This session traces the history of FLPMA including, among other things, its legislative, administrative, and historical antecedents, including for example, the Public Land Law Review Commission’s 1970 report, One Third of Our Nation’s Lands. It then considers FLPMA’s unique public lands policies and requirements and how they are reflected in the BLM’s management of public lands today.

See: https://www.nps.gov/parkhistory/online_books/blm/history/contents.htm

Neither Strict Nor Nuanced: The Balanced Standard For False Claims Act Pleading In The Eleventh Circuit, C. Caitlin Giles

University of Miami Law Review

False Claims Act litigation is more hotly contested than ever before. One such controversial issue plaguing federal courts is the proper application of Federal Rule of Civil Procedure 9(b) to actions arising under the False Claims Act. The explosion of litigation under the FCA caused a circuit split to emerge on the correct standard to use when applying Rule 9(b)’s heightened pleading requirement for more particularity. Specifically, courts are split on the level of specificity required to prove that a false claim was submitted to the government. Some apply a “strict” interpretation and require pleadings to include representative samples of …

The Fair Market Value Of Public Resources, Bruce R. Huber

Bruce R Huber

This Article explores the problem of public resource sales with particular reference to natural resources managed by the federal government. Lands owned by the United States hold trillions of dollars' worth of natural resources. Federal agencies earn billions in annual revenue from resource sales, yet critics assert that billions more could be reaped if resources were sold for a fair price. Although federal law has increasingly required that agencies price resources at fair market value, this requirement is surprisingly difficult to interpret and even more dfficult to implement and enforce. This Article analyzes the various forces that bear on public …

The European Union: A Comparative Perspective, Ernest A. Young

Faculty Scholarship

This chapter, to be included in the Oxford Principles of EU Law volume, compares the federalisms of Europe and the United States. It argues that Europe can be sensibly viewed from both federal and intergovernmental perspectives, and that particular aspects of the European Union’s structure fit each model. In particular, the EU is federal—that is, integrated to a comparable degree to the U.S.—with respect to its distribution of competences and the sovereignty attributed to EU law and institutions. But it is intergovernmental—that is, it preserves a center of gravity within the individual member states—with respect to the allocation of governmental …

Our Prescriptive Judicial Power: Constitutive And Entrenchment Effects Of Historical Practice In Federal Courts Law, Ernest A. Young

Faculty Scholarship

Scholars examining the use of historical practice in constitutional adjudication have focused on a few high-profile separation-of-powers disputes, such as the recent decisions in NLRB v. Noel Canning and Zivotofsky v. Kerry. This essay argues that “big cases make bad theory” — that the focus on high-profile cases of this type distorts our understanding of how historical practice figures in constitutional adjudication more generally. I shift focus here to the more prosaic terrain of federal courts law, in which practice plays a pervasive role. That shift reveals two important insights: First, while historical practice plays an important constitutive role, structuring …

The Fair Market Value Of Public Resources, Bruce R. Huber

Journal Articles

This Article explores the problem of public resource sales with particular reference to natural resources managed by the federal government. Lands owned by the United States hold trillions of dollars' worth of natural resources. Federal agencies earn billions in annual revenue from resource sales, yet critics assert that billions more could be reaped if resources were sold for a fair price. Although federal law has increasingly required that agencies price resources at fair market value, this requirement is surprisingly difficult to interpret and even more dfficult to implement and enforce. This Article analyzes the various forces that bear on public …

Newsroom: Logan On 2015'S Record Settlements, Roger Williams University School Of Law

Life of the Law School (1993- )

Also available @ http://law.rwu.edu/story/logan-2015s-record-settlements