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Full-Text Articles in Law
How The Dissent Becomes The Majority: Using Federalism To Transform Coalitions In The U.S. Supreme Court, Vanessa Baird, Tonja Jacobi
How The Dissent Becomes The Majority: Using Federalism To Transform Coalitions In The U.S. Supreme Court, Vanessa Baird, Tonja Jacobi
Duke Law Journal
No abstract provided.
Free Speech Federalism, Adam Winkler
Free Speech Federalism, Adam Winkler
Michigan Law Review
For decades, constitutional doctrine has held that the Constitution's guarantee of freedom of speech applies equally to laws adopted by the federal, state, and local governments. Nevertheless, the identity of the government actor behind a law may be a significant, if unrecognized, factor in free speech cases. This Article reports the results of a comprehensive study of core free speech cases decided by the federal courts over a 14-year period. The study finds that speech-restrictive laws adopted by the federal government are far more likely to be upheld than similar laws adopted by state and local governments. Courts applying strict …
Beyond The Employee Free Choice Act: Unleashing The States In Labor-Management Relations Policy, Henry H. Drummonds
Beyond The Employee Free Choice Act: Unleashing The States In Labor-Management Relations Policy, Henry H. Drummonds
Cornell Journal of Law and Public Policy
No abstract provided.
Federalism, Forum Shopping, And The Foreign Injury Paradox, Elizabeth T. Lear
Federalism, Forum Shopping, And The Foreign Injury Paradox, Elizabeth T. Lear
William & Mary Law Review
This Article explores the contours of state regulatory power in the foreign injury context. The Supreme Court has long declined to question forum choice in domestic cases, apparently concluding that any other response would be inconsistent with our federalism. But move the injury offshore and the judicial deference to state regulatory supremacy evaporates. Federal judges subject forum choice in transnational tort actions to exacting scrutiny, routinely dismissing such claims on forum non conveniens grounds with no examination of the state interests at stake. This Article first considers whether the offshore nature of a foreign injury diminishes or even extinguishes traditional …
Contingent Constitutionalism: State And Local Criminal Laws And The Applicability Of Federal Constitutional Rights, Wayne A. Logan
Contingent Constitutionalism: State And Local Criminal Laws And The Applicability Of Federal Constitutional Rights, Wayne A. Logan
William & Mary Law Review
Americans have long been bound by a shared sense of constitutional commonality, and the Supreme Court has repeatedly condemned the notion that federal constitutional rights should be allowed to depend on distinct state and local legal norms. In reality, however, federal rights do indeed vary, and they do so as a result of their contingent relationship to the diversity of state and local laws on which they rely. Focusing on criminal procedure rights in particular, this Article examines the benefits and detriments of constitutional contingency, and casts in new light many enduring understandings of American constitutionalism, including the effects of …
Refuge From A Jurisprudence Of Doubt: Hohfeldian Analysis Of Constitutional Law, Allen Thomas O'Rourke
Refuge From A Jurisprudence Of Doubt: Hohfeldian Analysis Of Constitutional Law, Allen Thomas O'Rourke
South Carolina Law Review
No abstract provided.
Who Should Regulate? Federalism And Conflict In Regulation Of Green Buildings, Shari Shapiro
Who Should Regulate? Federalism And Conflict In Regulation Of Green Buildings, Shari Shapiro
William & Mary Environmental Law and Policy Review
No abstract provided.
Federalism Accountability: “Agency-Forcing” Measures, Catherine M. Sharkey
Federalism Accountability: “Agency-Forcing” Measures, Catherine M. Sharkey
Duke Law Journal
This Article takes as its starting point the "agency reference model" for judicial preemption decisions, adopting the foundational premise that courts should take advantage of what federal agencies, which are uniquely positioned to evaluate the impact of state regulation and common law liability upon federal regulatory schemes, have to offer. The Article's main focus is on the federalism dimension of the debate: Congress's and federal agencies' respective ability to serve as loci of meaningful debate with state governmental entities about the impact of federal regulatory schemes on state regulatory interests. Notwithstanding the dismal track record of federal agencies, which seems …
Persistent Nonviolent Conflict With No Reconciliation: The Flemish And Walloons In Belgium, Robert Mnookin, Alain Verbeke
Persistent Nonviolent Conflict With No Reconciliation: The Flemish And Walloons In Belgium, Robert Mnookin, Alain Verbeke
Law and Contemporary Problems
Mnookin and Verbeke describe the nonviolent but very serious conflict in Belgium between the Flemish (Dutch) of the North and the Walloons (French) of the South. The Flemish economy is more prosperous than the Walloon economy, and the Flemish constitute a majority of the Belgian population. Nevertheless, the Walloons enjoy a financial subsidy from the Flemish and share equally in the political power of the nation due to antimajoritarian restrictions built into the government structure. Even though significant and persistent, this conflict remains nonviolent due to several factors, including largely separate geography, language and social structure; a low-stakes conflict; relatively …
Sharing Governance: Family Law In Congress And The States, Ann Laquer Estin
Sharing Governance: Family Law In Congress And The States, Ann Laquer Estin
Cornell Journal of Law and Public Policy
No abstract provided.
Energy Efficiency And Federalism, Ann E. Carlson
Energy Efficiency And Federalism, Ann E. Carlson
San Diego Journal of Climate & Energy Law
Everyone loves energy efficiency. Among an array of carbon-reducing strategies, energy efficiency surely ranks as the least controversial. Indeed increasing energy efficiency is frequently lauded as having "net negative costs"-to use the terminology of the Intergovernmental Panel on Climate Change-meaning that the benefits outweigh the costs, even excluding benefits from avoided climate change.
Yet the U.S. system for regulating appliances, which account for a huge percentage of the nation's carbon emissions, is a mess. Since the federal government began regulating appliance efficiency in the 1970s, the process has been characterized by frequent delays and foot-dragging, followed by lawsuits and legislative …
Climate Adaptation And Federalism: Mapping The Issues, Daniel F. Farber
Climate Adaptation And Federalism: Mapping The Issues, Daniel F. Farber
San Diego Journal of Climate & Energy Law
There is a vigorous debate about the appropriate roles of the state and federal governments in reducing greenhouse gases and mitigating climate change. ...
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This Article is a first step in mapping this new terrain. Part I provides a short introduction to climate adaptation. The United States will face significant climate impacts in the next few decades, and governmental responses will be required. Part II discusses the role of the federal government in setting adaptation standards, while Part III analyzes the appropriateness of state versus federal funding for adaptation. States are likely to play the leading role in funding …
Federalism, Policy Learning, And Local Innovation In Public Health: The Case Of The Supervised Injection Facility, Scott Burris, Evan D. Anderson, Leo Beletsky, Corey S. Davis
Federalism, Policy Learning, And Local Innovation In Public Health: The Case Of The Supervised Injection Facility, Scott Burris, Evan D. Anderson, Leo Beletsky, Corey S. Davis
Saint Louis University Law Journal
No abstract provided.
Constitutional Interpretation And Judicial Review: A Case Of The Tail Wagging The Dog, Michael Halley
Constitutional Interpretation And Judicial Review: A Case Of The Tail Wagging The Dog, Michael Halley
Michigan Law Review First Impressions
A response to John F. Manning, Federalism and the Generality Problem in Constitutional Interpretation, 122 Harv. L. Rev. 2003 (2009). Professor John Manning's analysis of the Supreme Court's recent federalism decisions works as a platform to further the cause of textualism. His argument fails to persuade, however, because the textualism he says the Court should embrace in federalism cases is antithetical to the atextual nature of the Court's jurisdiction to adjudicate the constitutionality of legislation. Manning prefaces his work by telling readers that his analysis is not an end in itself. His aim, rather, is to "use the methodology" the …