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Full-Text Articles in Law
Suspect Spheres, Not Enumerated Powers: A Guide For Leaving The Lamppost, Richard Primus, Roderick M. Hills Jr.
Suspect Spheres, Not Enumerated Powers: A Guide For Leaving The Lamppost, Richard Primus, Roderick M. Hills Jr.
Michigan Law Review
Despite longstanding orthodoxy, the Constitution’s enumeration of congressional powers does virtually nothing to limit federal lawmaking. That’s not because of some bizarrely persistent judicial failure to read the Constitution correctly. It’s because the enumeration of congressional powers is not a well-designed technology for limiting federal legislation. Rather than trying to make the enumeration do work that it will not do, decisionmakers should find better ways of thinking about what lawmaking should be done locally rather than nationally. This Article suggests such a rubric, one that asks not whether Congress has permission to do a certain thing but whether a certain …
Congress And The Reconstruction Of Foreign Affairs Federalism, Ryan Baasch, Saikrishna Bangalore Prakash
Congress And The Reconstruction Of Foreign Affairs Federalism, Ryan Baasch, Saikrishna Bangalore Prakash
Michigan Law Review
Though the Constitution conspicuously bars some state involvement in foreign affairs, the states clearly retain some authority in foreign affairs. Correctly supposing that state participation may unnecessarily complicate or embarrass our nation’s foreign relations, the Supreme Court has embraced aggressive preemption doctrines that sporadically oust the states from discrete areas in foreign affairs. These doctrines are unprincipled, supply little guidance, and generate capricious results. Fortunately, there is a better way. While the Constitution permits the states a limited and continuing role, it never goes so far as guaranteeing them any foreign affairs authority. Furthermore, the Constitution authorizes Congress to enact …
Preemption And Choice-Of-Law Coordination, Erin O'Hara O'Connor, Larry E. Ribstein
Preemption And Choice-Of-Law Coordination, Erin O'Hara O'Connor, Larry E. Ribstein
Michigan Law Review
The doctrine treating federal preemption of state law has been plagued by uncertainty and confusion. Part of the problem is that courts purport to interpret congressional intent when often Congress has never considered the particular preemption question at issue. This Article suggests that courts deciding preemption cases should take seriously a commonly articulated rationale for the federalization of law: the need to coordinate applicable legal standards in order to facilitate a national market or to otherwise provide clear guidance to parties regarding the laws that apply to their conduct. In situations where federal law can serve a coordinating function but …
Inside Agency Preemption, Catherine M. Sharkey
Inside Agency Preemption, Catherine M. Sharkey
Michigan Law Review
A subtle shift has taken place in the mechanics of preemption, the doctrine that determines when federal law displaces state law. In the past, Congress was the leading actor, and courts and commentators focused almost exclusively on the precise wording of its statutory directives as a clue to its intent to displace state law. Federal agencies were, if not ignored, certainly no more than supporting players. But the twenty-first century has witnessed a role reversal. Federal agencies now play the dominant role in statutory interpretation. The U.S. Supreme Court has recognized the ascendancy of federal agencies in preemption disputes-an ascendancy …
Katrina, Federalism, And Military Law Enforcement: A New Exception To The Posse Comitatus Act, Sean Mcgrane
Katrina, Federalism, And Military Law Enforcement: A New Exception To The Posse Comitatus Act, Sean Mcgrane
Michigan Law Review
In the days following Hurricane Katrina, as lawlessness and violence spread throughout New Orleans, the White House considered invoking the Insurrection Act so that members of the U.S. military could legally perform law enforcement functions inside the flooded city. This Note contends that the White House's decision not to invoke the Act was substantially driven by federalism concerns-in particular, concerns about intruding on Louisiana's sovereignty. But, this Note further contends, in focusing so heavily on these state sovereignty concerns, the White House largely ignored the other side of the 'federalism coin "-namely, enabling the federal government to act where national …
The Second Amendment: Structure, History, And Constitutional Change, David Yassky
The Second Amendment: Structure, History, And Constitutional Change, David Yassky
Michigan Law Review
A fierce debate about the Second Amendment has been percolating in academia for two decades, and has now bubbled through to the courts. The question at the heart of this debate is whether the Amendment restricts the government's ability to regulate the private possession of firearms. Since at least 1939 - when the Supreme Court decided United States v. Miller, its only decision squarely addressing the scope of the right to "keep and bear Arms" - the answer to that question has been an unqualified "no." Courts have brushed aside Second Amendment challenges to gun control legislation, reading the Amendment …
Dissecting The State: The Use Of Federal Law To Free State And Local Officials From State Legislatures' Control, Roderick M. Hills Jr.
Dissecting The State: The Use Of Federal Law To Free State And Local Officials From State Legislatures' Control, Roderick M. Hills Jr.
Michigan Law Review
In discussions about American federalism, it is common to speak of a "state government" as if it were a black box, an individual speaking with a single voice. State governments are, of course, no such thing. Rather, a "state" actually incorporates a bundle of different subdivisions, branches, and agencies controlled by politicians who often compete with each other for electoral success and governmental power. In particular, these institutions compete with each other for the power to control federal funds and implement federal programs. This article explores one aspect of this intrastate competition - the extent to which federal law can …
Allocating The Burden Of Proof To Effectuate The Preservation And Federalism Goals Of The Coastal Zone Management Act, Martin J. Lalonde
Allocating The Burden Of Proof To Effectuate The Preservation And Federalism Goals Of The Coastal Zone Management Act, Martin J. Lalonde
Michigan Law Review
Primarily due to policy considerations, this Note argues that courts should allocate to the federal agency proposing an activity that may affect the coastal zone the burden of proving consistency with a state CMP. This allocation effectuates Congress's intent to vest states with primary control to preserve the coastal zone. Part I provides a general background of the Act's consistency requirement for federally conducted activities. Part II examines the various factors that courts traditionally consider when allocating burdens of proof in litigation. Part III evaluates these factors as applied to the consistency issue under the CZMA. Part IV concludes that …
An Economic And Political Look At Federalism In Taxation, Daniel Shaviro
An Economic And Political Look At Federalism In Taxation, Daniel Shaviro
Michigan Law Review
Part I of this article examines the reasons for preferring locationally neutral taxes and explains the basic tension between locational neutrality and state and local autonomy in taxation. Part II examines the federal judicial check on state and local taxation, which often relies on a principle barring discrimination against outsiders or interstate commerce. Part III explores the need for a broad federal judicial check by examining state and local governments' reasons for imposing (or avoiding) locationally distortive taxes, the countervailing benefits of allowing such governments broad autonomy in taxation, and Congress' willingness to strike down locationally distortive taxes under its …
Principles, Politics, And Constitutional Law, Mark Tushnet
Principles, Politics, And Constitutional Law, Mark Tushnet
Michigan Law Review
The contrast in Senator Thurmond's performance in hearings concerning Judge Bork, whose nomination he supported, and Justice Marshall, whose nomination he opposed, suggests the apparently cynical view that one's position on the proper scope of senatorial inquiry during a nomination depends upon one's position on the merits of the nomination. Much has been written, usually provoked by controversial nominations, about the proper scope of senatorial inquiry. The press of immediate controversy, however, diverts attention from more fundamental issues about the nature of constitutional government, to which I devote this essay.
The Second Death Of Federalism, William W. Van Alstyne
The Second Death Of Federalism, William W. Van Alstyne
Michigan Law Review
In 1976, in National League of Cities v. Usery, the Supreme Court distinguished acts of Congress regulating commercial relations from acts of Congress commanding the terms of state services. Last Term, in Garcia v. San Antonio Metropolitan Transit Authority, the Court abandoned the distinction and held that it was principally for Congress to determine federalism questions. In this Comment, Professor Van Alstyne criticizes the Court on both counts.
Federalism And Company Law, Richard M. Buxbaum
Federalism And Company Law, Richard M. Buxbaum
Michigan Law Review
It would be a simplifying and historically dubious reduction to equate state interest in corporation law with interventionist or regulatory policies and federal interest with liberal or facilitative ones. So long as a federal legal system presupposes the continuing involvement of two governments with the same subject, however, it is only the subordinate polity's interest in intervention or regulation that makes for interesting reading. State facilitative policies in an era of national facilitative policies raise no questions, and a state's continuing adherence to laissez faire policies when the national government turns interventionist typically creates no conflict. It is only the …
After "Life For Erie--A Reply, Peter Westen
After "Life For Erie--A Reply, Peter Westen
Michigan Law Review
Erie, having "preoccupied the intellectually dominant group of academic lawyers rising to maturity during the 1940's and 1950's," is reported to be losing its "symbolic centrality" for the newest generation of legal scholars. Professor Redish's prompt and excited response to our essay proves one thing: there is at least one scholar in the country who, having come to legal maturity during the last decade, still remains capable of becoming impassioned about Erie RR v. Tompkins.
Continuing The Erie Debate: A Response To Westen And Lehman, Martin H. Redish
Continuing The Erie Debate: A Response To Westen And Lehman, Martin H. Redish
Michigan Law Review
Although the Supreme Court has not spoken in detail on the Erie doctrine since its much-discussed decision in Hanna v. Plumer in 1965, commentary on the doctrine in the literature has undergone something of a "boomlet" in the last several years. Much of it has been stimulated by the groundbreaking article by Professor John Hart Ely in 1974. The latest contribution to the area is the recent article by Professor Peter Westen and Mr. Jeffrey Lehman appearing earlier this year in this journal. Unfortunately, their article does little to advance analysis of the Erie question, and contains numerous fundamental misstatements …
Is There Life For Erie After The Death Of Diversity?, Peter Westen, Jeffrey S. Lehman
Is There Life For Erie After The Death Of Diversity?, Peter Westen, Jeffrey S. Lehman
Michigan Law Review
This Article is essentially an elaboration of these three themes. Section I sets forth the fundamental principles, or "axioms," that determine whether a particular federal rule is pertinent and valid. Once these axioms are understood, it should become apparent that Erie problems, if not easy, are not uniquely difficult either; instead, they are the kinds of "ordinary" problems that are commonplace in other areas of law. Section II applies these axioms to cases in diversity to determine the validity of various kinds of federal rules of decision. Section III examines the validity of federal rules of decision in federal question …
The Constitutions Of West Germany And The United States: A Comparative Study, Paul G. Kauper
The Constitutions Of West Germany And The United States: A Comparative Study, Paul G. Kauper
Michigan Law Review
The purpose of this article is to present a descriptive overall picture of the fundamental features of the system established by the Basic Law and at the same time point up significant comparisons and contrasts by reference to the Constitution. Eleven years have now elapsed since the Basic Law went into effect, and significant decisions of the Federal Constitutional Court (Bundesverfassungsgericht ) noted at the appropriate points, serve to illuminate the working of the system established by it.
Labor Law - Labor - Management Relations Act - Further Comments On Federalism, Robert B. Olsen S.Ed.
Labor Law - Labor - Management Relations Act - Further Comments On Federalism, Robert B. Olsen S.Ed.
Michigan Law Review
Until a decade ago, the nation's lawyers paid little attention to the status of federal-state relations in the regulation of labor disputes. Today there hardly appears a volume of a legal journal that does not contain the product of new efforts to bring order out of the chaos that prevails in this area. A number of writers have apparently given up the task of reconciling statutory provisions with case law and case law with sound federal policy, and have resorted to the simpler, yet challenging, method of proposing amendments to existing federal statutes. Worthy as these efforts may be in …