Law Commons^™

The "Bounds" Of Moore: Pluralism And State Judicial Review, Leah M. Litman, Katherine Shaw

Articles

In Moore v. Harper, the Supreme Court rejected a maximalist version of the “independent state legislature theory” (ISLT), invoking state judicial practices both before and after the Constitution was ratified. This piece uses Moore’s method to examine another variation on the ISLT, one pushed most recently by Justice Brett Kavanaugh and before him by Chief Justice William Rehnquist. The Rehnquist-Kavanaugh version of the ISLT would empower federal courts to review state officers’ interpretation of state laws regarding federal elections. But the logic of Moore is fatal to that potential version of the ISLT. The Rehnquist-Kavanaugh version of the ISLT contemplates …

Shareholder Primacy Versus Shareholder Accountability, William Wilson Bratton

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When corporations inflict injuries in the course of business, shareholders wielding environmental, social, and governance ("ESG") principles can, and now sometimes do, intervene to correct the matter. In the emerging fact pattern, corporate social accountability expands out of its historic collectivized frame to become an internal subject matter-a corporate governance topic. As a result, shareholder accountability surfaces as a policy question for the first time. The Big Three index fund managers, BlackRock, Vanguard, and State Street, responded to the accountability question with ESG activism. In so doing, they defected against corporate legal theory's central tenet, shareholder primacy. Shareholder primacy builds …

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 …

Textualism, Judicial Supremacy, And The Independent State Legislature Theory, Leah M. Litman, Katherine A. Shaw

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This piece offers an extended critique of one aspect of the so-called "independent state legislature" theory. That theory, in brief, holds that the federal Constitution gives state legislatures, and withholds from any other state entity, the power to regulate federal elections. Proponents ground their theory in two provisions of the federal Constitution: Article I's Elections Clause, which provides that "[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof," and Article H's Presidential Electors Clause, which provides that "[e]ach State shall appoint, in such Manner as the Legislature …

Reframing Article I, Section 8, Richard Primus

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Constitutional lawyers usually think of the Constitution's enumeration of congressional powers as a device for limiting the federal government's legislative jurisdiction. And there's something to that. But considered from the point of view of the Constitution's drafters, it makes more sense to think of the enumeration of congressional powers as primarily a device for empowering Congress, not limiting it. The Framers wanted both to empower and to limit the general government, and the Constitution's enumeration of congressional powers makes more sense as a means of empowerment than as a means of limitation. The major exception--that is, the one significant way …

Neglecting Nationalism, Gil Seinfeld

Articles

Federalism is a system of government that calls for the division of power between a central authority and member states. It is designed to secure benefits that flow from centralization and from devolution, as well as benefits that accrue from a simultaneous commitment to both. A student of modern American federalism, however, might have a very different impression, for significant swaths of the case law and scholarly commentary on the subject neglect the centralizing, nationalist side of the federal balance. This claim may come as a surprise, since it is obviously the case that our national government has become immensely …

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

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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 …

Fundamental Rights, Federal States, And Sovereignty: Some Random Remarks, Donald H. Regan

Articles

I am not an EU lawyer. The days are long gone when I could know a substantial fraction of EU law just by knowing about the free movement of goods. I get a fleeting glimpse of where the EU is going every year at the Jean Monnet Seminar in Dubrovnik, but no more than a glimpse. Still, when the editors invited me to write this Editorial Note, I could not refuse. Looking for inspiration, I read or reread all the previous twelve Notes. This was an enjoyable and informative exercise in itself, but only a few of the essays suggested …

Federalism And The End Of Obamacare, Nicholas Bagley

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Federalism has become a watchword in the acrimonious debate over a possible replacement for the Affordable Care Act (ACA). Missing from that debate, however, is a theoretically grounded and empirically informed understanding of how best to allocate power between the federal government and the states. For health reform, the conventional arguments in favor of a national solution have little resonance: federal intervention will not avoid a race to the bottom, prevent externalities, or protect minority groups from state discrimination. Instead, federal action is necessary to overcome the states’ fiscal limitations: their inability to deficit-spend and the constraints that federal law …

The Political Process Argument For Overruling Quill, Edward A. Zelinsky

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Should the U.S. Supreme Court overrule Quill Corporation v. North Dakota? In Quill, the Court held that, under the dormant Commerce Clause of the U.S. Constitution, the states cannot impose the obligation to collect sales taxes on out-of-state vendors which lack physical presence in the taxing state. As internet commerce has grown, Quill’s physical presence test has severely hampered the states’ ability to enforce their sales taxes.

Much of the Supreme Court’s case law suggests that, under the banner of stare decisis, the Court should not overturn Quill. This case law indicates that it is Congress’s …

Erie Step Zero, Alexander A. Reinert

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Courts and commentators have assumed that the Erie doctrine, while originating in diversity cases, applies in all cases whatever the basis for federal jurisdiction. Thus, when a federal court asserts jurisdiction over pendent state law claims through the exercise of supplemental jurisdiction in a federal question case, courts regularly apply the Erie doctrine to resolve conflict between federal and state law. This Article shows why this common wisdom is wrong.

To understand why, it is necessary to return to Erie’s goals, elaborated over time by the U.S. Supreme Court. Erie and its progeny are steeped in diversity-driven policy concerns: concerns …

Positive Education Federalism: The Promise Of Equality After The Every Student Succeeds Act, Christian Sundquist

Articles

This Article examines the nature of the federal role in public education following the recent passage of the Every Student Succeeds Act in December 2015 (“ESSA”). Public education was largely unregulated for much of our Nation’s history, with the federal government deferring to states’ traditional “police powers” despite the de jure entrenchment of racial and class-based inequalities. A nascent policy of education federalism finally took root following the Brown v. Board decision and the enactment of the Elementary and Secondary School Act (“ESEA”) with the explicit purpose of eradicating such educational inequality.

This timely Article argues that current federal education …

Land Use Federalism's False Choice, Michael C. Pollack

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Debates about land use federalism — like those about federalism more broadly — often focus on whether policies and priorities ought to be set at the national or local level. But such categorical judgments about national intervention are inadequate because they obscure the diversity of mechanisms by which nationalization can and does occur. This Article draws attention to the importance of this underappreciated legislative design choice and develops a framework within which to evaluate it. This Article observes that nationalization can take the form of rules that either displace local decisionmaking or channel it, and that those rules can be …

Taking Care Of Federal Law, Leah Litman

Articles

Article II of the Constitution vests the “executive power” in the President and directs the President to “take Care that the Laws be faithfully executed.” But do these provisions mean that only the President may execute federal law? Two lines of Supreme Court precedent suggest conflicting answers to that question. In several prominent separation-of-powers cases, the Court has suggested that only the President may execute federal law: “The Constitution requires that a President chosen by the entire Nation oversee the execution of the laws.” Therefore, the Court has reasoned, Congress may not create private rights of action that allow nonexecutive …

Reflections On Comity In The Law Of American Federalism, Gil Seinfeld

Articles

Comity is a nebulous concept familiar to us from the law of international relations. Roughly speaking, it describes a set of reciprocal norms among nations that call for one state to recognize, and sometimes defer to, the laws, judgments, or interests of another. Comity also features prominently in the law of American federalism, but in that context, it operates within limits that have received almost no attention from scholarly commentators. Specifically, although courts routinely describe duties that run from one state to another, or from the federal government to the states, as exercises in comity, they almost never rely on …

The Struggle To Bury Pre-Existing Condition Consideration, Sallie Thieme Sanford Sanfords@Uw.Edu

Articles

As of January 1, 2014, applicants for comprehensive health insurance do not face questions about their health history. The ACA prohibits health insurers from considering an individual’s health history in determining whether to sell that person a comprehensive health insurance policy, the policy’s price, or its coverage terms. Pre-existing condition (PEC) consideration is, in this crucial context, dead. Few will mourn its passing. This legislative milestone marks a significant step towards the goal of a healthier population. While celebrating this achievement, however, in this article I argue that we ought to recall the context of PEC consideration, its practical application, …

The Limits Of Enumeration, Richard A. Primus

Articles

According to a well-known principle of constitutional interpretation here identified as the “internal-limits canon,” the powers of Congress must always be construed as authorizing less legislation than a general police power would. This Article argues that the internallimits canon is unsound. Whether the powers of Congress would in practice authorize any legislation that a police power would authorize is a matter of contingency: it depends on the relationship between the powers and the social world at a given time. There is no reason why, at a given time, the powers cannot turn out to authorize any legislation that a police …

The Creeping Federalization Of Wealth-Transfer Law, Lawrence W. Waggoner

Articles

This article appears in a symposium issue published by the Vanderbilt Law Review on The Role of Federal Law in Private Wealth Transfer. Federal authorities have little experience in making law that governs wealth transfers, because that function is traditionally within the province of state law. Although state wealth-transfer law has undergone significant modernization over the last few decades, all three branches of the federal government—legislative, judicial, and executive—have increasingly gone their own way. Lack of experience and, in many cases, lack of knowledge on the part of federal authorities have not dissuaded them from undermining well-considered state law. The …

The Bond Court's Institutional Truce, Monica Hakimi

Articles

As many readers are aware, Bond v. United States is a quirky case. The federal government prosecuted under the implementing legislation for the Chemical Weapons Convention (CWC) a betrayed wife who used chemical agents to try to harm her husband’s lover. The wife argued that, as applied to her, the implementing legislation violated the Tenth Amendment. She thus raised difficult questions about the scope of the treaty power and of Congress’s authority to implement treaties through the Necessary and Proper Clause. The Bond Court avoided those questions with a clear statement rule: “we can insist on a clear indication that …

Viva Conditional Federal Spending!, Samuel R. Bagenstos

Articles

From the rise of the New Deal through the constitutional litigation over the Affordable Care Act (ACA), conditional federal spending has been a major target for those who have sought to limit the scope of federal power. There are a couple of reasons for this. First, as the Supreme Court narrowed Congress's power to regulate private primary conduct and state conduct in the last twenty years,' conditional spending looked like the way Congress might be able to circumvent the limitations imposed by the Court's decisions. Thus, members of Congress quickly sought to blunt the impact of the Court's decision to …

The Jurisprudence Of Union, Gil Seinfeld

Articles

The primary goal of this Article is to demonstrate that the interest in national unity does important, independent work in the law of vertical federalism. We have long been accustomed to treating union as a constitutionally operative value in cases involving the duties states owe one another (i.e. horizontal federalism cases), but in cases involving the relationship between the federal government and the states, the interest in union is routinely ignored. This Article shows that, across a wide range of cases relating to the allocation of power between the federal government and the states, the states are constrained by a …

Rebellious State Crimmigration Enforcement And The Foreign Affairs Power, Mary Fan

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The propriety of a new breed of state laws interfering in immigration enforcement is pending before the Supreme Court and the lower courts. These laws typically incorporate federal standards related to the criminalization of immigration ("crimmigration'), but diverge aggressively from federal enforcement policy. Enacting states argue that the legislation is merely a species of "cooperative federalism" that does not trespass upon the federal power over foreign affairs, foreign commerce, and nationality rules since the laws mirror federal standards. This Article challenges the formalist mirror theory assumptions behind the new laws and argues that inconsistent state crimmigration enforcement policy and resulting …

Doma And The Happy Family: A Lesson In Irony, Rhonda Wasserman

Articles

In enacting the Defense of Marriage Act, Congress chose to protect heterosexual marriage because of its “deep and abiding interest in encouraging responsible procreation and child-rearing. Simply put, government has an interest in marriage because it has an interest in children.” Ironically, DOMA may harm, rather than protect, the interests of some children – i.e., the children of gay and lesbian couples.

Both state and federal law reflect the belief that children are better off being raised by two parents in an intact family. This belief is reflected in the marital presumption of paternity, which presumes that a married woman’s …

Implementing The Standby Letter For Credit Convention With The Law Of Wyoming, James J. White

Articles

For the first time in American practice, we propose to implement a convention by a federal adoption of law previously enacted by the states – from Wyoming to New York – to implement the Convention on Independent Guarantees and Standby Letters of Credit (“Convention”).1

Treaties And The Separation Of Powers In The United States: A Reassessment After Medellin V. Texas, Ronald A. Brand

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This article considers Chief Justice Roberts' majority opinion in the case of Medellin v. Texas. Like much of the commentary on this case, the article considers the international law implications of the opinion and its consideration of the doctrine of self-executing treaties. The primary focus here, however, consistent with the symposium in which this paper was presented, is on the opinion's implications for the separation of powers and for federalism. While the opinion's discussion of international law and treaty implementation can be considered dicta, the separation of powers and federalism portions may be seen as more directly necessary to …

A Presumption Against Agency Preemption, Nina A. Mendelson

Articles

Federal agencies are increasingly taking aim at state law, even though state law is not expressly targeted by the statutes the agencies administer. Starting in 2001, the Office of the Comptroller of the Currency (OCC) issued several notices saying that state laws would apply to national bank operating subsidiaries (incorporated under state law) to the same extent as those laws applied to the parent national bank. In 2003, the OCC specifically mentioned state consumer protection laws and took the position that the state laws were preempted and did not apply to mortgage lenders owned by national banks. In December 2006, …

The California Greenhouse Gas Waiver Decision And Agency Interpretation: A Response To Galle And Seidenfeld, Nina A. Mendelson

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Professors Brian Galle and Mark Seidenfeld add some important strands to the debate on agency preemption, particularly in their detailed documentation of the potential advantages agencies may possess in deliberating on preemption compared with Congress and the courts. As they note, the quality of agency deliberation matters to two different debates. First, should an agency interpretation of statutory language to preempt state law receive Chevron deference in the courts, as other agency interpretations may, or should some lesser form of deference be given? Second, should a general statutory authorization to an agency to administer a program and to issue rules …

Adapting To Administrative Law's Erie Doctrine, Kathryn A. Watts

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This Article looks to the federalism context and draws on the federal courts' experience adapting to the Court's landmark decision in Erie Railroad Company v. Tompkins. Much like Brand X, the Court's Erie decision, which commanded federal courts to apply state law in all cases not governed by positive federal law, significantly reduced the lawmaking power of the federal courts by putting the federal courts in the position of interpreting law that they cannot definitively construe. Although Erie seemed simple enough to adhere to when state law provided a clear answer, Erie posed a serious dilemma when federal courts …

Federalism And The Commerce Clause: A Comparative Perspective, Reuven S. Avi-Yonah

Articles

The U.S. Supreme Court has on numerous occasions addressed the constitutionality of state taxes under the U.S. Constitution (most often under the Commerce Clause, but sometimes under the Equal Protection and Due Process Clauses). In general, the Supreme Court has granted wide leeway to the states to adopt any tax system they wish, only striking down the most egregious cases of discrimination against out-of-state residents. Thus, for example, the Court has generally refused to intervene against state tax competition to attract business into the state. It has twice upheld a method of calculating how much income of a multinational enterprise …

Innovation Held Hostage: Has Federal Intervention Stifled Efforts To Reform The Child Welfare System?, Vivek Sankaran

Articles

The past thirty years have been marked by an increased federalization of child welfare law, which, like other areas of family law, traditionally remained within the sole purview of state legislatures. Despite increased oversight by the federal government, outcomes for foster children remain unacceptably poor The number of children in foster care has more than doubled over the past twenty-five years and reports of suspected maltreatment have skyrocketed. Children continue to stay too long in care and have too many placements. Case workers assigned to work with families and attorneys representing parents and children are overwhelmed and rarely provide meaningful …