Law Commons^™

Waivers Of Immunity In Federal Environmental Statutes Of The Twenty-First Century: Correcting A Confusing Mess, Kenneth M. Murchison

William & Mary Environmental Law and Policy Review

No abstract provided.

Family Law Federalism: Divorce And The Constitution, Ann Laquer Estin

William & Mary Bill of Rights Journal

American divorce law was transformed by the Supreme Court in a series of decisions beginning with Williams v. North Carolina in 1942. These constitutional full faith and credit cases resolved a long-standing federalism problem by redefining the scope of state power over marital status. With these decisions, the Court shifted from an analysis based on the competing interests of different states to an approach that highlighted the individual interests of the parties involved. This change fundamentally altered state power over the family by extending to individuals greater control of their marital status. In the process, the Court cleared a path …

Religious V. Secular Ideologies And Sex Education: A Response To Professors Cahn And Carbone, Vivian E. Hamilton

Faculty Publications

No abstract provided.

Savings Clauses And Trends In Natural Resources Federalism, Robert L. Fischman, Angela M. King

William & Mary Environmental Law and Policy Review

No abstract provided.

Federalism And The Tug Of War Within: Seeking Checks And Balance In The Interjurisdictional Gray Area, Erin Ryan

Faculty Publications

Federalism and the Tug of War Within explores tensions that arise among the underlying values of federalism when state or federal actors regulate within the "interjurisdictional gray area" that implicates both local and national concerns. Drawing examples from the failed response to Hurricane Katrina and other interjurisdictional problems to illustrate this conflict, the Article demonstrates how the trajectory set by the New Federalism's "strict-separationist" model of dual sovereignty inhibits effective governance in these contexts. In addition to the anti-tyranny, pro-accountability, and localism-protective values of federalism, the Article identifies a problem-solving value inherent in the capacity requirement of American federalism's subsidiarity …

How Congress Paved The Way For The Rehnquist Court's Federalism Revival: Lessons From The Federal Partial Birth Abortion Ban, Neal Devins

Faculty Publications

No abstract provided.

Active Sovereignty, Timothy Zick

Faculty Publications

No abstract provided.

Erie, The Class Action Fairness Act, And Some Federalism Implications Of Diversity Jurisdiction, David Marcus

William & Mary Law Review

The Class Action Fairness Act of 2005 (CAFA) expands diversity jurisdiction to allow most significant class actions based on state law to proceed in federal court. Hoping to limit the application of state law through class actions, CAFA's supporters believe that federal judges harbor a collective animosity toward the large, multistate class actions the statute targets. CAFA has no substantive component, and it does not tighten Rule 23's certification requirements. Nonetheless, if supporters are right about judicial preferences and their likely impact on certification decisions, CAFA will weaken the regulatory reach of state law.

Arguments about diversity jurisdiction and judicial …

Anti-Federalist Procedure, A. Benjamin Spencer

Faculty Publications

"[T]he new federal government will ... be disinclined to invade the rights of the individual States, or the prerogatives of their governments."

"[T]he Constitution of the United States ... recognizes and preserves the autonomy and independence of the States-independence in their legislative and independence in their judicial departments. . . . Any interference with either, except as [constitutionally] permitted, is an invasion of the authority of the State and, to that extent, a denial of its independence."

The understanding expressed by these opening quotes-that the national government was designed to be one of limited powers that would refrain from encroaching …

Constitutional Avoidance And The Roberts Court, Neal Devins

Faculty Publications

No abstract provided.

Devolution Of Implementing Policymaking In Network Governments, Charles H. Koch Jr.

Faculty Publications

No abstract provided.

Conflicting Commerce Clauses: How Raich And American Trucking Dishonor Their Doctrines, John W. Moorman

William & Mary Bill of Rights Journal

No abstract provided.

Federalism, Positive Law, And The Emergence Of The American Administrative State: Prohibition In The Taft Court Era, Robert Post

William & Mary Law Review

This Article offers a detailed analysis of major Taft Court decisions involving prohibition, including Olmstead v. United States, Carroll v. United States, United States v. Lanza, Lambert v. Yellowley, and Tumey v. Ohio. Prohibition, and the Eighteenth Amendment by which it was constitutionally entrenched, was the result of a social movement that fused progressive beliefs in efficiency with conservative beliefs in individual responsibility and self-control.

During the 1920s the Supreme Court was a strictly "bone-dry"institution that regularly sustained the administrative and law enforcement techniques deployed by the federal government in its losing effort to prevent the manufacture and sale of …

Jurisdiction To Adjudicate: A Revised Analysis, A. Benjamin Spencer

Faculty Publications

Personal jurisdiction doctrine as articulated by the Supreme Court is in disarray. As a constitutional doctrine whose contours remain imprecise, the law of personal jurisdiction has generated confusion, unpredictability, and extensive satellite litigation over what should be an uncomplicated preliminary issue. Many commentators have long lamented these defects, making suggestions for how the doctrine could be improved. Although many of these proposals have had much to offer, they generally have failed to articulate (or adequately justify or explain) a simple and sound approach to jurisdiction that the Supreme Court can embrace. This Article revises the law of personal jurisdiction by …

"Tucker's Rule": St. George Tucker And The Limited Construction Of Federal Power, Kurt T. Lash

William & Mary Law Review

No abstract provided.

St. George Tucker And The Limits Of States' Rights Constitutionalism: Understanding The Federal Compact In The Early Republic, David Thomas Konig

William & Mary Law Review

No abstract provided.

Constitutional Thematics And The Peculiar Federal Marriage Amendment, Scott Dodson

Faculty Publications

These symposium remarks are a discussion of themes running through the Constitution, how the FMA, if adopted, might affect those themes, and why we ought to care. I first demonstrate that our Constitution is a thematic document, filled with broad, recognizable, and (mostly) coherent concepts. Separation of powers, representative democracy, federalism, individual liberty, and equality come readily to mind. I then explain that the thematic nature and the inter-coherence of these themes is critical in two ways: to identify those values held to be fundamental in our society, and to assist in the interpretation of the Constitution. The themes in …

"So Long As Our System Shall Exist": Myth, History, And The New Federalism, Paul D. Moreno

William & Mary Bill of Rights Journal

This article provides the broad historical context necessary to understand contemporary developments in federalism doctrine. It shows that dual federalism has a long and varied history and that federalism is a content-neutral principle to which both sides in major political contests have appealed. It seeks to show that the predominant perspective on federalism today - that it is an inherently conservative principle - is the result of historical misperception. This article reinterprets the history of American federalism in light of recent historical scholarship concerning various periods: principally the country's founding; slavery, the Civil War, and Reconstruction; the late nineteenth-century social …

The Supreme Court And The Federalist Papers: Is There Less Here Than Meets The Eye?, Melvyn R. Durchslag

William & Mary Bill of Rights Journal

No abstract provided.

Section 5: Federalism, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

The Constitutional Limits To Court-Stripping, Michael J. Gerhardt

Faculty Publications

This Article is part of a colloquy between Professor Michael J. Gerhardt and Professor Martin Redish about the constitutionality of court-stripping measures. Court-stripping measures are laws restricting federal court jurisdiction over particular subject matters. In particular, the authors discuss the constitutionality of the Marriage Protection Act of 2004. Professor Gerhardt argues that the Act is unconstitutional and threatens to destroy the principles of separation of powers, federalism and due process. It prevents Supreme Court review of Congressional action and hinders the uniformity and finality of constitutional law. Furthermore, the Act violates the equal protection component of the Fifth Amendment Due …

Fourth Amendment Federalism? The Court's Vacillating Mistrust And Trust Of State Search And Seizure Laws, Kathryn R. Urbonya

Faculty Publications

No abstract provided.

Making Federalism Doctrine: Fidelity, Institutional Competence, And Compensating Adjustments, Ernest A. Young

William & Mary Law Review

No abstract provided.

Cool Federalism And The Life-Cycle Of Moral Progress, Lawrence G. Sager

William & Mary Law Review

No abstract provided.

Interjurisdictional Enforcement Of Rights In A Post-Erie World, Robert A. Schapiro

William & Mary Law Review

No abstract provided.

Whose Constitution Is It? Why Federalism And Constitutional Positivism Don't Mix, James A. Gardner

William & Mary Law Review

No abstract provided.

Bridging The Enforcement Gap In Constitutional Law: A Critique Of The Supreme Court's Theory That Self-Restraint Promotes Federalism, Robert J. Pushaw Jr.

William & Mary Law Review

No abstract provided.

Section 6: Federalism, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Statehood As The New Personhood: The Discovery Of Fundamental "States' Rights", Timothy Zick

William & Mary Law Review

No abstract provided.

The Judicial Safeguards Of Federalism, Neal Devins

Faculty Publications

No abstract provided.