Law Commons^™

Decentralizing The Nigerian Police Force: A Plausible Approach To Hinterland Securities, Amobi P. Chiamogu, Uchechukwu P. Chiamogu

Journal of African Conflicts and Peace Studies

The structure of the Nigerian police has overtime depicted a centralized composition that negate principles of power sharing in a federal system of government. The complexities and diverse nature of policing in Nigeria remains the bane to effective and virile administration and management of the organization. The office of the Commissioner of Police vis-à-vis those of State Governors spell contradictions in power configuration from both the Constitution and the Police Act. The enactment of vigilante services and neighbourhood watches by state governments are indicative of a failing security system especially at the component units of the Nigerian federation. The hinterlands …

A History Of Corporate Law Federalism In The Twentieth Century, William W. Bratton

Seattle University Law Review

This Article describes the emergence of corporate law federalism across a long twentieth century. The period begins with New Jersey’s successful initiation of charter competition in 1888 and ends with the enactment of the Sarbanes-Oxley Act in 2002. The federalism in question describes the interrelation of state and federal regulation of corporate internal affairs. This Article takes a positive approach, pursuing no normative bottom line. It makes six observations: (1) the federalism describes a division of subject matter, with internal affairs regulated by the states and securities issuance and trading regulated by the federal government; (2) the federalism is an …

Fears, Faith, And Facts In Environmental Law, William W. Buzbee

Georgetown Law Faculty Publications and Other Works

Environmental law has long been shaped by both the particular nature of environmental harms and by the actors and institutions that cause such harms or can address them. This nation’s environmental statutes remain far from perfect, and a comprehensive law tailored to the challenges of climate change is still elusive. Nonetheless, America’s environmental laws provide lofty, express protective purposes and findings about reasons for their enactment. They also clearly state health and environmental goals, provide tailored criteria for action, and utilize procedures and diverse regulatory tools that reflect nuanced choices.

But the news is far from good. Despite the ambitious …

Preference-Based Federalism, Marquan Robertson

St. Mary's Law Journal

No abstract provided.

The New Laboratories Of Democracy, Gerald S. Dickinson

Articles

Nearly a century ago, Justice Louis D. Brandeis’s dissent in New State Ice Co. v. Liebman coined one of the most profound statements in American law: “It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” Justice Brandeis reminded us of our strong tradition of federalism, where the states, exercising their sovereign power, may choose to experiment with new legislation within their separate jurisdictions without the concern that such …

Bringing History Home: Strategies For The International Repatriation Of Native American Cultural Property, Alec Johnson

Dickinson Law Review (2017-Present)

The theft of Native American cultural items has been ongoing since Europeans began to colonize the Americas. As a result, millions of Native American artifacts are now located outside the borders of the United States. Native American tribes have long sought international repatriation—the return of these cultural objects to their tribal owners. Unfortunately, many countries have been unsupportive of repatriation attempts and Native Americans seeking the return of their cultural items face nearly insurmountable barriers in foreign courts. The U.S. government has a moral imperative to assist Native American tribes in these repatriation efforts. The debate over repatriation is defined …

Enforcing Interstate Compacts In Federal Systems, Michael Osborn

Indiana Journal of Constitutional Design

The central goal of a federal system is for local government units to retain degrees of independence, specifically over matters of importance to that local unit. A logical corollary to that independence is the ability for local units to negotiate and contract with other local units on matters of importance. Therefore, it is not surprising that almost every federal system allows, either implicitly or explicitly, member states to form binding compacts with other states, the union government, or municipalities.1 Some federal democracies even allow member states to compact with foreign governments. Furthermore, almost every federal constitution includes a provision outlining …

Thurgood Marshall Memorial Lecture Series: "A Roadmap To Educational Excellence And Equity For Rhode Island 03-03-2022, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

Answering The Call: A History Of The Emergency Power Doctrine In Texas And The United States, P. Elise Mclaren

St. Mary's Law Journal

During times of emergency, national and local government may be allowed to take otherwise impermissible action in the interest of health, safety, or national security. The prerequisites and limits to this power, however, are altogether unknown. Like the crises they aim to deflect, courts’ modern emergency power doctrines range from outright denial of any power of constitutional circumvention to their flagrant use. Concededly, courts’ approval of emergency powers has provided national and local government opportunities to quickly respond to emergency without pause for constituency approval, but how can one be sure the availability of autocratic power will not be abused? …

Reconsidering Federalism And The Farm: Toward Including Local, State And Regional Voices In America's Food System, Margaret Sova Mccabe

Journal of Food Law & Policy

Why is the relationship between our food system and federalism important to American law and health? It is important simply because federal law controls the American food system. This essay considers how federal law came to structure our food system, and suggests that though food is an essential part of our national economy, the dominating role of the federal government alienates citizens from their food system. It does so by characterizing food as a primarily economic issue, rather than one that has ethical, health, and cultural components. However, state and local governments have much to offer in terms of broadening …

Illiberalism And Authoritarianism In The American States, James A. Gardner

Journal Articles

Federalism contemplates subnational variation, but in the United States the nature and significance of that variation has long been contested. In light of the recent turn, globally and nationally, toward authoritarianism, and the concurrent sharp decline in public support not merely for democracy but for the philosophical liberalism on which democracy rests, it is necessary to discard or to substantially revise prior accounts of the nature of state-to-state variation in the U.S. All such accounts implicitly presuppose a common commitment, across the political spectrum, to the core tenets of democratic liberalism, and consequently that subnational variations in policy preferences and …

Dirty Johns: Prosecuting Prostituted Women In Pennsylvania And The Need For Reform, Mckay Lewis

Dickinson Law Review (2017-Present)

Prostitution is as old as human civilization itself. Throughout history, public attitudes toward prostituted women have varied greatly. But adverse consequences of the practice—usually imposed by men purchasing sexual services—have continuously been present. Prostituted women have regularly been subject to violence, discrimination, and indifference from their clients, the general public, and even law enforcement and judicial officers.

Jurisdictions can choose to adopt one of three general approaches to prostitution regulation: (1) criminalization; (2) legalization/ decriminalization; or (3) a hybrid approach known as the Nordic Model. Criminalization regimes are regularly associated with disparate treatment between prostituted women and their clients, high …

Fugitive Slaves And Undocumented Immigrants: Testing The Boundaries Of Our Federalism, Sandra L. Rierson

University of Miami Law Review

Federalism—the dual system of sovereignty that invests both the nation as a whole and each individual state with the authority to govern the people of the United States of America—is a foundational pillar of American democracy. Throughout the nation’s history, political crises have tested the resilience of this dual system of government established by the United States Constitution. The fundamental contradiction of slavery in a nation founded on the principle that “all men are created equal” triggered the nation’s most prominent existential crisis, resulting in the Civil War. In the years leading up to that war, the federal government’s protection …

Reflections On The Effects Of Federalism On Opioid Policy, Matthew B. Lawrence

Dickinson Law Review (2017-Present)

No abstract provided.

Mhpaea & Marble Cake: Parity & The Forgotten Frame Of Federalism, Taleed El-Sabawi

Dickinson Law Review (2017-Present)

No abstract provided.

Safe Consumption Sites And The Perverse Dynamics Of Federalism In The Aftermath Of The War On Drugs, Deborah Ahrens

Dickinson Law Review (2017-Present)

In this Article, I explore the complicated regulatory and federalism issues posed by creating safe consumption sites for drug users—an effort which would regulate drugs through use of a public health paradigm. This Article details the difficulties that localities pursuing such sites and other non-criminal-law responses have faced as a result of both federal and state interference. It contrasts those difficulties with the carte blanche local and state officials typically receive from federal regulators when creatively adopting new punitive policies to combat drugs. In so doing, this Article identifies systemic asymmetries of federalism that threaten drug policy reform. While traditional …

The Opioid Litigation: The Fda Is Mia, Catherine M. Sharkey

Dickinson Law Review (2017-Present)

It is readily agreed that federal preemption of state tort law alters the balance between federal and state power. Federal preemption is a high-profile defense in almost all modern products liability cases. It is thus surprising to see how little attention has been given to federal preemption by courts and commentators in the opioid litigation. Opioid litigation provides a lens through which I explore the role of state and federal courts and the Food and Drug Administration (FDA) in striking the right balance of power. My purpose here is not to resolve the divide among the few courts that have …

Say “No” To Discrimination, “Yes” To Accommodation: Why States Should Prohibit Discrimination Of Workers Who Use Cannabis For Medical Purposes, Anne Marie Lofaso, Lakyn D. Cecil

Seattle University Law Review

This Article addresses the question of how the law should treat medical cannabis in the employment context. Using Colorado as a primary example, we argue that states such as Colorado should amend their constitutions and legislate to provide employment protections for employees who are registered medical cannabis cardholders or registered caregivers.

Part I briefly traces the legal regulation of cannabis from an unregulated medicine known as cannabis to a highly regulated illicit substance known as marijuana under the Controlled Substances Act. Our travail through this history reveals, unsurprisingly, an increasing demonization of cannabis throughout the twentieth century. That socio-legal demonization …

Collected Lectures And Talks On Corporate Law, Legal Theory, History, Finance, And Governance, William W. Bratton

Seattle University Law Review

A collection of eighteen speeches and lectures, from 2003 to 2018, discussing and expanding on the writings and theories of Adolf Berle and Gardiner Means.

Unlocking Access To Health Care: A Federalist Approach To Reforming Occupational Licensing, Gabriel Scheffler

All Faculty Scholarship

Several features of the existing occupational licensing system impede access to health care without providing appreciable protections for patients. Licensing restrictions prevent health care providers from offering services to the full extent of their competency, obstruct the adoption of telehealth, and deter foreign-trained providers from practicing in the United States. Scholars and policymakers have proposed a number of reforms to this system over the years, but these proposals have had a limited impact for political and institutional reasons.

Still, there are grounds for optimism. In recent years, the federal government has taken a range of initial steps to reform licensing …

Trapped In A Metaphor: The Limited Implications Of Federalism For Corporate Governance, Robert B. Ahdieh

Robert B. Ahdieh

Trapped in a metaphor articulated at the founding of modern corporate law, the study of corporate governance has - for some thirty years - been asking the wrong questions. Rather than a singular race among states, whether to the bottom or the top, the synthesis of William Cary and Ralph Winter’s famous exchange is better understood as two competitions, each serving distinct normative ends. Managerial competition advances the project that has motivated corporate law since Adolf Berle and Gardiner Means - effective regulation of the separation of ownership and control. State competition, by contrast, does not promote a race to …

The (Misunderstood) Genius Of American Corporate Law, Robert B. Ahdieh

Robert B. Ahdieh

In this Reply, I respond to comments by Bill Bratton, Larry Cunningham, and Todd Henderson on my recent paper - Trapped in a Metaphor: The Limited Implications of Federalism for Corporate Governance. I begin by reiterating my basic thesis - that state competition should be understood to have little consequence for corporate governance, if (as charter competition's advocates assume) capital-market-driven managerial competition is also at work. I then consider some of the thoughtful critiques of this claim, before suggesting ways in which the comments highlight just the kind of comparative institutional analysis my paper counsels. Rather than a stark choice …

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

Robert B. Ahdieh

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 …

From Federalism To Intersystemic Governance: The Changing Nature Of Modern Jurisdiction, Robert B. Ahdieh

Robert B. Ahdieh

At heart, this introductory essay aspires to encourage scholars who write in widely divergent areas, yet share a focus on the changing nature of jurisdiction, to engage one another more closely. From Jackson's study of "convergence, resistance, and engagement" among courts, Kingsbury's study of "global administrative law," and Bermann's analysis of "transatlantic regulatory cooperation," to Resnik's evaluation of "trans-local networks," Weiser's account of "cooperative federalism" in telecommunications law, and Thompson's concept of "collaborative corporate governance," a related set of questions is ultimately at stake: How ought we understand the reach of any given decision-maker's jurisdiction? What are the implications of …

Federalism And The State Police Power: Why Immigration And Customs Enforcement Must Stay Away From State Courthouses, George Bach

Faculty Scholarship

The Trump Administration’s rhetoric and increased immigration enforcement actions have raised the level of fear in immigrant communities. The increased enforcement has included having United States Immigrant and Customs Enforcement (ICE) agents appear at state and local courthouses to detain undocumented immigrants when they arrive for court. This presence has had an adverse effect on domestic violence victims who are immigrants, as they fear encountering immigrations officials at the courthouse. In El Paso, for example, agents detained a woman who was bringing a case of domestic violence against her abuser. There were claims that ICE was tipped off about the …

Sovereign Immunity And The Crisis Of Constitutional Absolutism: Interpreting The Eleventh Amendment After Alden V. Maine, Matthew Mustokoff

Maine Law Review

Toward the end of her article, The History of Mainstream Legal Thought, Elizabeth Mensch identifies federalism as a dominant theme in recent Supreme Court decisions. The Court's focus on questions of federalism, however, cannot be directly attributed to the emergence of any specific social or political issues dividing champions of strong central government from defenders of state sovereignty. Instead, the Court's scrutiny seems to have arisen from a perplexing, frustrating, and self-contradictory body of Eleventh Amendment jurisprudence and the perpetual call for judicial clarification it has produced. While the text of the Eleventh Amendment is unambiguous—its language specifically bestows immunity …

Federalism, Convergence, And Divergence In Constitutional Property, Gerald S. Dickinson

Articles

Federal law exerts a gravitational force on state actors, resulting in widespread conformity to federal law and doctrine at the state level. This has been well recognized in the literature, but scholars have paid little attention to this phenomenon in the context of constitutional property. Traditionally, state takings jurisprudence—in both eminent domain and regulatory takings—has strongly gravitated towards the Supreme Court’s takings doctrine. This long history of federal-state convergence, however, was disrupted by the Court’s controversial public use decision in Kelo v. City of New London. In the wake of Kelo, states resisted the Court’s validation of the …

The Body Politic: Federalism As Feminism In Health Reform, Elizabeth Mccuskey

Faculty Scholarship

This essay illuminates how modern health law has been mainstreaming feminism under the auspices of health equity and social determinants research. Feminism shares with public health and health policy both the empirical impulse to identify inequality and the normative value of pursing equity in treatment. Using the Affordable Care Act's federal health insurance reforms as a case study of health equity in action, the essay exposes the feminist undercurrents of health insurance reform and the impulse toward mutuality in a body politic. The essay concludes by revisiting-from a feminist perspective-scholars' arguments that equity in health insurance is essential for human …

Congressional Power To Regulate Sex Discrimination: The Effect Of The Supreme Court's "New Federalism", Calvin Massey

Maine Law Review

Congressional power to prevent and remedy sex discrimination in employment has been founded almost entirely upon the commerce power and Section 5 of the Fourteenth Amendment, which gives Congress power “to enforce, by appropriate legislation” the equal protection guarantee. The commerce power has enabled Congress to prohibit private sex discrimination in employment, and the combination of the commerce and enforcement powers has enabled Congress to prohibit such sex discrimination by public employers. From the late 1930s until the early 1990s the doctrinal architecture of these powers was relatively stable, even if statutory action to realize the promise of a nondiscriminatory …

The Failure Of Education Federalism, Kristi L. Bowman

University of Michigan Journal of Law Reform

Since the Great Recession of 2007–09, states have devoted even less money to public education and state courts have become even more hostile to structural reform litigation that has sought to challenge education funding and quality. Yet the current model of education federalism (dual federalism) leaves these matters largely to the states. As a result, state-level legislative inaction, executive acquiescence, and judicial abdication can combine to create a situation in which the quality of traditional public schools declines sharply. This is the case in Michigan, which is an unusually important state not only because the dynamics that are emerging in …