Law Commons^™

Renewable Energy Federalism, Danielle Stokes

Law Faculty Publications

No one seriously questions that an improved and decarbonized energy supply system is a key component of climate change mitigation, but the United States’ system of federalism complicates the siting of utility-scale renewable energy facilities. The new Biden Administration presents the United States with an opportunity to reimagine how this country regulates renewable energy siting, allowing for substantial national progress in reducing greenhouse gas emissions. Currently, primary siting authority for renewable energy projects rests with state and local governments, which generally exercise that authority through zoning and land use planning, while the federal government approves most interstate energy delivery systems. …

Drawing Lines Of Sovereignty: State Habeas Doctrine And The Substance Of States' Rights In Confederate Conscription Cases, Withrop Rutherford

University of Richmond Law Review

No abstract provided.

A Federal Role In Education: Encouragement As A Guiding Philosophy For The Advancement Of Learning In America, Gerard Robinson

University of Richmond Law Review

No abstract provided.

The Sum Of All Delegated Power: A Response To Richard Primus, The Limits Of Enumeration, Kurt T. Lash

Law Faculty Publications

In his provocative article, The Limits of Enumeration, Richard Primus rejects what he calls the “internal-limits canon” and challenges the assumption that the powers of Congress do not add up to a general police power, such that “there are things Congress cannot do, even without reference to affirmative prohibitions like those in the Bill of Rights.” Primus does not claim that federal power actually does amount to a general police power, only that it might. His principal claim is that nothing in the theoretical nature of enumerated power requires an a priori limit on the aggregate scope of delegated authority. …

Smart Regulation And Federalism For The Smart Grid, Joel B. Eisen

Law Faculty Publications

This Article examines the “Smart Grid,” a set of concepts, technologies, and operating practices that may transform America’s electric grid as much as the Internet has done, redefining every aspect of electricity generation, distribution, and use. While the Smart Grid’s promise is great, this Article examines numerous key barriers to its development, including early stage resistance, a lack of incentives for consumers, and the adverse impacts of the federal-state tension in energy regulation. Overcoming these barriers requires both new technologies and transformative regulatory change, beginning with the development of a foundation of interoperability standards (rules of the road governing interactions …

Federalism As A Preventive Measure: Avoiding State Enforcement Of Federal Anti-Gun Legislation In 2013, Brielle Hunt

Law Student Publications

This comment will delve into the question of whether or not the Constitution allows states to refuse to comply with federal law. This analysis requires the application of a constitutional principle that reaches far beyond the scope of the Right to Bear Arms; it calls into play the vertical separation of powers and the rights belonging to state sovereigns described in the Tenth Amendment. The comment will proceed as follows. Part II will address the constitutionality of House Bill 2340, compared against other kinds of legislation and in light of case law. It will be argued that the Federal Government …

The Rhetoric Hits The Road: State Challenges To The Affordable Care Act Implementation, Elizabeth Weeks Leonard

University of Richmond Law Review

No abstract provided.

States' Rights And State Standing, Stephen I. Vladeck

University of Richmond Law Review

No abstract provided.

Federalism, Individual Rights And Judicial Engagement, Kurt T. Lash

Law Faculty Publications

Contemporary “rights talk” under the American Constitution tends to focus on individual rights or those rights that can be perfected in the case of a single individual. This would include, for example, the rights to free expression, free exercise of religion, sexual autonomy, or the right to equal treatment. Under the broad umbrella of individual-rights talk, theoretical discussions generally involve whether courts ought to recognize a particular individual right or what level of scrutiny (or engagement) ought to apply to judicially identified individual rights.

From the beginning of our history as a nation, however, the concept of legally cognizable rights …

The Inescapable Federalism Of The Ninth Amendment, Kurt T. Lash

Law Faculty Publications

Over the past two decades, the most influential work on the Ninth Amendment has been that of libertarian scholar Randy Barnett. Over a series of articles and books, Barnett has presented the Ninth as a provision originally intended to preserve individual natural rights. Recently uncovered historical evidence, however, suggests that the Ninth originally limited federal power in order to preserve the right to local self-government. I presented this evidence in two articles published by the Texas Law Review, the first dealing with the original meaning of the Ninth Amendment, and the second dealing with a heretofore lost jurisprudence of the …

On Federalism, Freedom, And The Founders' View Of Retained Rights - A Reply To Randy Barnett, Kurt T. Lash

Law Faculty Publications

In A Textual-Historical Theory of the Ninth Amendment, 60 Stanford Law Review, I explain how some of the most common theories of the Ninth Amendment either have nothing to do with the actual text of the Amendment or place the text in conflict with similar terms in the Tenth Amendment. Focusing on the actual words of the Amendment, I argue that the text of the Ninth point towards a federalist rule of construction in which the people's retained rights are necessarily left to the control of the collective people in the several states. I also explain how this reading fits …

James Madison’S Celebrated Report Of 1800: The Transformation Of The Tenth Amendment, Kurt T. Lash

Law Faculty Publications

It has become commonplace to describe the Rehnquist Court as having staged a "Federalism Revolution." Although the current status of the Revolution is in dispute, historical treatment of the Supreme Court's jurisprudence under Chief Justice Rehnquist no doubt will emphasize a resurgence of federalism and limited construction of federal power. Cases like Gregory v. Ashcroft, New York v. United States, United States v. Lopez, Printz v. United States, Alden v. Maine, and United States v. Morrison all share a common rule of interpretation: Narrow construction of federal power to interfere with matters believed best left under state control. The textual …

Unmasking Federalism, Carl W. Tobias

Law Faculty Publications

Judge John Noonan has astutely chronicled law and society over a half century. He was a professor for twenty-five years, authoring such classics as Persons and Masks of the Law, and has rendered distinguished service since 1985 on the United States Court of Appeals for the Ninth Circuit.Thus, the publication of Narrowing the Nation's Power: The Supreme Court Sides with the States ("Narrowing') would be important, even if the monograph were only a venerated scholar's reflections on his long, rich experience. This book, however, is a provocative critique that meticulously and incisively exposes the Court's new federalism and separation of …

Indigenous Peoples, American Federalism, And The Supreme Court, David E. Wilkins

Jepson School of Leadership Studies articles, book chapters and other publications

As America breathes a sigh of relief in the afterglow of the pyrotechnics associated with the first post-September 11 July 4, pondering its global status as as the leading agent in its self-­proclaimed "War on Terrorism," and its domestic situation with a "War on Federalism" raging between the Supreme Court's redefined notion of states' rights and federal authority, it seems a propitious time to ask where indigenous nations fit in this warlike atmosphere, given that the history of Indian/U.S. relations involved a fair amount of war-related activities.

The Constitutional Convention Of 1937: The Original Meaning Of The New Jurisprudential Deal, Kurt T. Lash

Law Faculty Publications

The paper traces the dramatic jurisprudential innovations of the New Deal Revolution, including the articulation of incorporation theory, the abandonment of judicial construction of state common law, and the ascension of textual originalism as the Court's method of constitutional interpretation. I argue that the New Deal Court transcended the political goals of the Roosevelt administration and attempted to restructure the nature of legitimate judicial review in a post-Lochner world. Acting, in effect, as a constitutional convention, the Court not only changed the nature of judicial review, it altered the shape of the Constitution in ways that cut across modern political …

Tribal-State Affairs: American States As 'Disclaiming' Sovereigns, David E. Wilkins

Jepson School of Leadership Studies articles, book chapters and other publications

The history of tribal-state political relations has been contentious from the beginning of the republic. As a result of these tensions, the relationship of tribal nations and the federal government was federalized when the U.S. Constitution was ratified in 1788. Thus, a number of states, especially in the West, were required in their organic acts and constitutions to forever disclaim jurisdiction over Indian property and persons. This article analyzes these disclaimer clauses, explains the factors that have enabled the states to assume some jurisdictional presence in Indian Country, examines the key issues in which disclaimers continue to carry significant weight, …

[Introduction To] American Indian Sovereignty And The U.S. Supreme Court: The Masking Of Justice, David E. Wilkins

Bookshelf

"Like the miner's canary, the Indian marks the shift from fresh air to poison gas in our political atmosphere and our treatment of Indians, even more than our treatment of other minorities, reflects the rise and fall in our democratic faith, wrote Felix S. Cohen, an early expert in Indian legal affairs.

In this book, David Wilkins charts the "fall in our democratic faith" through fifteen landmark cases in which the Supreme Court significantly curtailed Indian rights. He offers compelling evidence that Supreme Court justices selectively used precedents and facts, both historical and contemporary, to arrive at decisions that have …

The Federalism Pendulum, Ronald J. Bacigal

Law Faculty Publications

Following Franklin's example, this essay takes a protracted view of the federalization of criminal procedure. It is important to review how the federalism pendulum has swung over the years to reflect concepts of what the Constitution was meant to mean, what it has come to mean, and what it ought to mean.