Law Commons^™

State Sovereign Immunity And The New Purposivism, Anthony J. Bellia, Bradford R. Clark

Journal Articles

Since the Constitution was first proposed, courts and commentators have debated the extent to which it alienated the States’ preexisting sovereign immunity from suit by individuals. During the ratification period, these debates focused on the language of the citizen-state diversity provisions of Article III. After the Supreme Court read these provisions to abrogate state sovereign immunity in Chisholm v. Georgia, Congress and the States adopted the Eleventh Amendment to prohibit this construction. The Court subsequently ruled that States enjoy sovereign immunity independent of the Eleventh Amendment, which neither conferred nor diminished it. In the late twentieth-century, Congress began enacting statutes …

Solidarity Federalism, Erin F. Delaney, Ruth Mason

Notre Dame Law Review

Studies of federalism, especially in the United States, have mostly centered on state autonomy and the vertical relationship between the states and the federal government. This Article approaches federalism from a different perspective, one that focuses on state solidarity. We explain how solidarity structures found in constitutional federations—including the United States—generate solidarity obligations, such as duties not to harm other states or their citizens. These duties give rise to principles, such as nondiscrimination, that are vital to federalism. Focusing on interstate relations and relations between states and citizens of other states, we argue that affirming both solidarity and autonomy as …

Equity's Atrophy, Andrew Kull

Notre Dame Law Review

Current U.S. law sees numerous decisions from which a once- predictable, traditional equitable corrective has simply disappeared. The salient cases are those in which, until recently—recent history for this purpose comprising just one or two generations of lawyers and judges—equitable intervention would have been at least highly likely: because the unmodified legal outcome diverges so plainly from equity and good conscience, and because an established equitable response was part of what everybody knew. The idea that equity in U.S. law has been losing some previous degree of vitality is so venerable that it can scarcely be debatable at this point,11 …

Getting Into Equity, Samuel L. Bray, Paul B. Miller

Notre Dame Law Review

For two centuries, common lawyers have talked about a “cause of action.” But “cause of action” is not an organizing principle for equity. This Article shows how a plaintiff gets into equity, and it explains that equity is shaped by the interplay of its remedial, procedural, and substantive law. Equity is adjectival, that is, it modifies law rather than the other way around. Its power comes from remedies, not rights. And for getting into equity, what is central is a grievance. To insist on an equitable cause of action is to work a fundamental change in how a plaintiff gets …

Federal Judicial Power And Federal Equity Without Federal Equity Powers, John Harrison

Notre Dame Law Review

This Article discusses the ways in which the federal courts do and do not have equity powers. Article III courts have the judicial power, which enables them to apply the law, primary and remedial. Applicable remedial law often includes the law of equitable remedies, so the federal courts have the power and obligation to give remedies pursuant to equitable principles. The law of equitable remedies, written and unwritten, is external to the courts, not created by them, the same way written law is external to the courts. Because the unwritten law of equitable remedies is found largely in judicial practice, …

Equity's Federalism, Kellen Funk

Notre Dame Law Review

The United States has had a dual court system since its founding. One might expect such a pronouncement to refer to the division between state and federal courts, but in the early republic the equally obvious referent would have been to the division between courts of common law and the court of chancery—the distinction, that is, between law and equity. This Essay sketches a history of how the distinction between law and equity was gradually transformed into a doctrine of federalism by the Supreme Court. Congress’s earliest legislation jealously guarded federal equity against fusion with common law at either the …

Constitutional Tolling And Preenforcement Challenges To Private Rights Of Action, Michael T. Morley

Notre Dame Law Review

A person wishing to challenge the constitutionality of a law that regulates their conduct typically may sue the government official responsible for enforcing that provision for declaratory and injunctive relief pursuant to Ex parte Young. This approach is generally unavailable, however, when a plaintiff seeks preenforcement relief against laws that are enforceable exclusively through a private right of action. In such cases, there is no government official against whom to bring a typical Young claim, and constraints such as sovereign immunity and justiciability requirements often pose insurmountable obstacles. A person subject to an apparently unconstitu-tional law that is enforced …

Standing, Equity, And Injury In Fact, Ernest A. Young

Notre Dame Law Review

This contribution to the Notre Dame Law Review’s annual Federal Courts Symposium on “The Nature of the Federal Equity Power” asks what the traditions of equity can tell us about Article III standing. I take as my point of departure the observation by Professors Sam Bray and Paul Miller, in their contribution to the Symposium, that equity does not have causes of action as such—or at least not in the same way as actions at law. This is potentially important for standing, as many academic critiques of the Supreme Court's standing jurisprudence have argued that standing should turn on …

State Rejection Of Federal Law, Thomas B. Bennett

Notre Dame Law Review

Sometimes the United States Supreme Court speaks, and states do not follow. For example, in 2003, the Arizona Supreme Court agreed to “reject” a decision of the U.S. Supreme Court, because no “sound reasons justif[ied] following” it. Similarly, in 2006, Michigan voters approved a ballot initiative that, according to the legislature that drafted it, sought “at the very least[] to ‘freeze’ the state’s . . . law to prevent” state courts from following a ruling of the U.S. Supreme Court. Surprising though this language may be, there is nothing nefarious about these cases. Cooper v. Aaron this is not. Unlike …

One Federalism And The Judicial Role: Enforcing The Limits Of Article I, Alexa R. Baltes

Notre Dame Law Review

Part I of this Note offers a brief account of the two main theories of

federalism protection: the political safeguards (or process federalism) and

judicial review. Part II then suggests a dual-safeguards approach as the single

constitutionally grounded theory, and proceeds to situate the procedural

safeguards and, importantly, judicial review, in the history, text, and structure

of the Constitution. Next, delving into the Court’s New Federalism line of

decisions, Part III analyzes the implications for these two constitutionally

grounded safeguards to deduce the proper framework for their respective

applications. It suggests that while political safeguards may be conceived in

terms …

Federalism And State Marijuana Legislation, Dean M. Nickles

Notre Dame Law Review

An increasing number of states have passed legislation legalizing medical and recreational marijuana. This Note provides a survey of the language utilized by these states in their legislation and legislative materials, searching for and highlighting those purposes and intentions of the states, which implicate, explicitly or implicitly, federalism. Through this survey of mostly primary source materials, various trends and similarities among the materials will be apparent, and this Note will provide a useful resource for those trying to understand why the states may have enacted these laws.

Demand Response And Market Power, Bruce R. Huber

Journal Articles

In her article, Bypassing Federalism and the Administrative Law of Negawatts, Sharon Jacobs educates her readers about the concept of demand response, and then describes its propagation in recent years while making the broader argument that the Federal Energy Regulatory Commission (“FERC”) — the federal government’s principal energy regulator — has engaged in a strategy of “bypassing federalism” that may entail more costs than benefits. Professor Jacobs is right to call attention to demand response and to FERC’s approach to matters of jurisdictional doubt. While I share many of her concerns about boundary lines in a federal system, I argue …

Carolene Products And Constitutional Structure, Barry Cushman

Journal Articles

Justice Harlan Fiske Stone's majority opinion in United States v. Carolene Products Co. is well-known for its statement of two principles. The first is that regulatory legislation affecting ordinary commercial transactions is to be afforded a strong presumption of constitutionality. The second principle, articulated in the famous Footnote Four, qualifies the first: such a strong presumption of constitutionality is not warranted when legislation appears on its face to violate a provision of the Bill of Rights, or restricts ordinary political processes, or is directed at discrete and insular minorities. At the time the decision was announced, however, the decision in …

Foreward: Erie's Gift, Jay Tidmarsh

Journal Articles

Sometimes described as "one of the modem cornerstones of our federalism," Erie stands at its narrowest for a simple proposition: When a federal court decides a claim whose source is state law, the court must apply the same substantive common-law rules that a state court would apply to the claim. Dictated by statute, by policy, and by the Constitution, this result seems "superbly right" to many. Indeed, Erie's narrow holding is not controversial today.

Federal Regulation Of State Court Procedures, Anthony J. Bellia

Journal Articles

May Congress regulate the procedures by which state courts adjudicate claims arising under state law? Recently, Congress not only has considered several bills that would do so, but has enacted a few of them. This Article concludes that such laws exceed Congress's constitutional authority. There are serious questions as to whether a regulation of court procedures qualifies as a regulation of interstate commerce under the Commerce Clause. Even assuming, however, that it does qualify as such, the Tenth Amendment reserves the power to regulate court procedures to the states. Members of the Founding generation used conflict-of-laws language to describe a …

Judicial Review, Local Values, And Pluralism, Richard W. Garnett

Journal Articles

At the Federalist Society's 2008 National Student Symposium, a panel of scholars was asked to consider the question, does pervasive judicial review threaten to destroy local identity by homogenizing community norms? The answer to this question is yes, pervasive judicial review certainly does threaten local identity, because such review can homogenize[e] community norms, either by dragging them into conformity with national, constitutional standards or (more controversially) by subordinating them to the reviewers' own commitments. It is important to recall, however, that while it is true that an important feature of our federalism is local variation in laws and values, it …

The Federal Common Law Of Nations, Anthony J. Bellia, Bradford R. Clark

Journal Articles

Courts and scholars have vigorously debated the proper role of customary international law in American courts: To what extent should it be considered federal common law, state law, or general law? The debate has reached something of an impasse, in part because various positions rely on, but also are in tension with, historical practice and constitutional structure. This Article describes the role that the law of nations actually has played throughout American history. In keeping with the original constitutional design, federal courts for much of that history enforced certain rules respecting other nations' perfect rights (or close analogues) under the …

The Origins Of Article Iii "Arising Under" Jurisdiction, Anthony J. Bellia

Journal Articles

Article III of the Constitution provides that the judicial Power of the United States extends to all cases arising under the Constitution, laws, and treaties of the United States. What the phrase arising under imports in Article III has long confounded courts and scholars. This Article examines the historical origins of Article III arising under jurisdiction. First, it describes English legal principles that governed the jurisdiction of courts of general and limited jurisdiction--principles that animated early American jurisprudence regarding the scope of arising under jurisdiction. Second, it explains how participants in the framing and ratification of the Constitution understood arising …

Federalism Doctrines And Abortion Cases: A Response To Professor Fallon, Anthony J. Bellia

Journal Articles

This Essay is a response to Professor Richard Fallon's article, If Roe Were Overruled: Abortion and the Constitution in a Post-Roe World. In that article, Professor Fallon argues that if the Supreme Court were to overrule Roe v. Wade, courts might well remain in the abortion-umpiring business. This Essay proposes a refinement on that analysis. It argues that in a post-Roe world courts would not necessarily subject questions involving abortion to the same kind of constitutional analysis in which the Court has engaged in Roe and its progeny, that is, balancing a state's interest in protecting life against a pregnant …

William H. Rehnquist: A Life Lived Greatly, And Well, Richard W. Garnett

Journal Articles

Chief Justice Rehnquist leaves behind a formidable and important legacy in constitutional law. His work on the Court was animated and guided by the view that We the People, through our Constitution, have authorized our federal courts, legislators, and administrators to do many things - but not everything. Because the Nation's powers are few and defined, Congress may not pursue every good idea or smart policy, nor should courts invalidate every foolish or immoral one. However, for those of us who knew, worked with, learned from, and cared about William Rehnquist, it is his unassuming manner, the care he took …

Congressional Power And State Court Jurisdiction, Anthony J. Bellia

Journal Articles

Federal laws that regulate state institutions give rise to what the Supreme Court has described as the oldest question of constitutional law. In recent years, the Court has confronted questions of congressional power to regulate state legislatures and executives, but has not directly confronted any question of congressional power to regulate state courts. Since the Founding, questions of congressional power to regulate state court jurisdiction of Article III cases have arisen - most notably, congressional power to assign jurisdiction of federal criminal cases to state courts. Today, significant questions of congressional power to regulate state court jurisdiction over non-Article III …

State Courts And The Interpretation Of Federal Statutes, Anthony J. Bellia

Journal Articles

Scholars have long debated the separation of powers question of what judicial power federal courts have under Article III of the Constitution in the enterprise of interpreting federal statutes. Specifically, scholars have debated whether, in light of Founding-era English and state court judicial practice, the judicial power of the United States should be understood as a power to interpret statutes dynamically or as faithful agents of Congress. This Article argues that the question of how courts should interpret federal statutes is one not only of separation of powers but of federalism as well. State courts have a vital and often …

Preparing The Groundwork For A Responsible Debate On Stem Cell Research And Human Cloning, O. Carter Snead

Journal Articles

The debate over both cloning and stem cell research has been intense and polarizing. It played a significant role in the recently completed presidential campaign, mentioned by both candidates on the stump, at both parties' conventions, and was even taken up directly during one of the presidential debates. The topic has been discussed and debated almost continuously by the members of the legal, scientific, medical, and public policy commentariat. I believe that it is a heartening tribute to our national polity that such a complex moral, ethical, and scientific issue has become a central focus of our political discourse. But, …

The Theology Of The Blaine Amendments, Richard W. Garnett

Journal Articles

The Supreme Court affirmed, in Zelman v. Simmons-Harris, that the Constitution permits us to experiment with school-choice programs and, in particular, with programs that include religious schools. However, the constitutions of nearly forty States contain provisions - generically called Blaine Amendments - that speak more directly and, in many cases, more restrictively, than does the First Amendment to the flow of once-public funds to religious schools. This Article is a series of reflections, prompted by the Blaine Amendments, on education, citizenship, political liberalism, and religious freedom.

First, the Article considers what might be called the federalism defense of the provisions. …

The New Federalism, The Spending Power, And Federal Criminal Law, Richard W. Garnett

Journal Articles

It is difficult in constitutional-law circles to avoid the observation that we are living through a revival of federalism. Certainly, the Rehnquist Court has brought back to the public-law table the notion that the Constitution is a charter for a government of limited and enumerated powers, one that is constrained both by that charter's text and by the structure of the government it creates. This allegedly revolutionary Court seems little inclined, however, to revise or revisit its Spending Power doctrine, and it remains settled law that Congress may disburse funds in pursuit of ends not authorized explicitly in Article I …