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Full-Text Articles in Law

Environmental Enforcement And The Limits Of Cooperative Federalism: Will Courts Allow Citizen Suits To Pick Up The Slack, Will Reisinger, Trent A. Dougherty, Nolan Moser Jan 2010

Environmental Enforcement And The Limits Of Cooperative Federalism: Will Courts Allow Citizen Suits To Pick Up The Slack, Will Reisinger, Trent A. Dougherty, Nolan Moser

Duke Environmental Law & Policy Forum

No abstract provided.


International Idealism Meets Domestic-Criminal-Procedure Realism, Stephanos Bibas, William W. Burke-White Jan 2010

International Idealism Meets Domestic-Criminal-Procedure Realism, Stephanos Bibas, William W. Burke-White

Duke Law Journal

Though international criminal justice has flourished over the last two decades, scholars have neglected institutional design and procedure questions. International-criminal-procedure scholarship has developed in isolation from its domestic counterpart but could learn much realism from it. Given its current focus on atrocities like genocide, international criminal law's main purpose should be not only to inflict retribution but also to restore wounded communities by bringing the truth to light. The international justice system needs more ideological balance, stable career paths, and civil-service expertise. It should also draw on the American experience of federalism to cultivate cooperation with national authorities and select …


How The Dissent Becomes The Majority: Using Federalism To Transform Coalitions In The U.S. Supreme Court, Vanessa Baird, Tonja Jacobi Nov 2009

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.


Federalism Accountability: “Agency-Forcing” Measures, Catherine M. Sharkey May 2009

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 Apr 2009

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 …


Spending Clause Litigation In The Roberts Court, Samuel R. Bagenstos Dec 2008

Spending Clause Litigation In The Roberts Court, Samuel R. Bagenstos

Duke Law Journal

Throughout the Rehnquist Court's so-called federalism revolution, as the Court cut back on federal power tinder Article I and the Civil War Amendments, many commentators asserted that the spending power was next to go on the chopping block. But in the last years of the Rehnquist Court, a majority of Justices seemed to abandon the federalism revolution, and in the end, the Rehnquist Court never got around to limiting Congress's power tinder the Spending Clause. This Article contends that it is wrong to expect the Roberts Court to be so charitable about Congress's exercise of the spending power. But the …


Administrative Law As The New Federalism, Gillian E. Metzger May 2008

Administrative Law As The New Federalism, Gillian E. Metzger

Duke Law Journal

Despite the recognized impact that the national administrative state has had on the federal system, the relationship between federalism and administrative law remains strangely inchoate and unanalyzed. Recent Supreme Court case law suggests that the Court is increasingly focused on this relationship and is using administrative law to address federalism concerns even as it refuses to curb Congress's regulatory authority on constitutional grounds. This Article explores how administrative law may be becoming the new federalism and assesses how well-adapted administrative law is to performing this role. It argues that administrative law has important federalism-reinforcing features and represents a critical approach …


Administrative Law’S Federalism: Preemption, Delegation, And Agencies At The Edge Of Federal Power, Brian Galle, Mark Seidenfeld May 2008

Administrative Law’S Federalism: Preemption, Delegation, And Agencies At The Edge Of Federal Power, Brian Galle, Mark Seidenfeld

Duke Law Journal

This Article critiques the practice of limiting federal agency authority in the name of federalism. Existing limits bind agencies even more tightly than Congress. For instance, although Congress can regulate to the limits of its commerce power with a sufficiently clear statement of its intent to do so, absent clear congressional authorization an agency cannot, no matter how clear the language of the agency's regulation. Similarly, although Congress can preempt state law, albeit only when its intent to do so is clear, some commentators have read it line of Supreme Court decisions to hold that agencies cannot, except upon Congress's …


Tennis With The Net Down: Administrative Federalism Without Congress, Stuart Minor Benjamin, Ernest A. Young May 2008

Tennis With The Net Down: Administrative Federalism Without Congress, Stuart Minor Benjamin, Ernest A. Young

Duke Law Journal

No abstract provided.


International Delegations And The Values Of Federalism, Neil S. Siegel Jan 2008

International Delegations And The Values Of Federalism, Neil S. Siegel

Law and Contemporary Problems

Siegel argues that the relationship between an international delegation and the values thought to be promoted by a federal structure of government depends upon what would happen in the absence of the international delegation. Focusing on the effect of international delegation on US subnational states, Siegel explains that when the delegation replaces regulation by the federal government that would have displaced state choices anyway, then the effect on federalism values depends on the relative inclinations of the federal government and the international body to decentralize.


Criminal Justice Collapse: The Constitution After Hurricane Katrina, Brandon L. Garrett, Tania Tetlow Oct 2006

Criminal Justice Collapse: The Constitution After Hurricane Katrina, Brandon L. Garrett, Tania Tetlow

Duke Law Journal

The New Orleans criminal justice system collapsed after Hurricane Katrina, resulting in a constitutional crisis. Eight thousand people, mostly indigent and charged with misdemeanors such as public drunkenness or failure to pay traffic tickets, languished indefinitely in state prisons. The court system shut its doors, the police department fell into disarray, few prosecutors remained, and a handful of public defenders could not meet with, much less represent, the thousands detained. This dire situation persisted for many months, long after the system should have been able to recover. We present a narrative of the collapse of the New Orleans area criminal …


The Virtue Of Vagueness: A Defense Of South Dakota V. Dole, Reeve T. Bull Oct 2006

The Virtue Of Vagueness: A Defense Of South Dakota V. Dole, Reeve T. Bull

Duke Law Journal

No abstract provided.


Federalizing The First Responders To Acts Of Terrorism Via The Militia Clauses, Brian C. Brook Feb 2005

Federalizing The First Responders To Acts Of Terrorism Via The Militia Clauses, Brian C. Brook

Duke Law Journal

No abstract provided.


The Baker Doctrine And The New Federalism: Developing Independent Constitutional Principles Under The Alaska Constitution, Thomas V. Van Flein Dec 2004

The Baker Doctrine And The New Federalism: Developing Independent Constitutional Principles Under The Alaska Constitution, Thomas V. Van Flein

Alaska Law Review

No abstract provided.


Speech And Strife, Robert L. Tsai Jul 2004

Speech And Strife, Robert L. Tsai

Law and Contemporary Problems

Tsai examines the ways in which the US Supreme Court uses language to signal its authority. One technique of the Court is to frequently use the image of institutional conflict within its rulings.


The Majoritarian Rehnquist Court?, Neal Devins Jul 2004

The Majoritarian Rehnquist Court?, Neal Devins

Law and Contemporary Problems

Devins examines the reasons behind the tendency of the US Supreme Court under William Rehnquist to strike down federal laws. Majoritarian forces, including the use of the Court as a check against Congress, have led to the invalidation of many federal statutes.


Correcting Federalism Mistakes In Statutory Interpretation: The Supreme Court And The Federal Arbitration Act, David S. Schwartz Apr 2004

Correcting Federalism Mistakes In Statutory Interpretation: The Supreme Court And The Federal Arbitration Act, David S. Schwartz

Law and Contemporary Problems

The current judicial treatment of the Federal Arbitration Act is an embarrassment to a Supreme Court whose majority is supposed to be leading a federalism revival, if not a federalism revolution. In 1984, in Southland Corp. v. Keating, the Court held that the FAA is substantive federal law that preempts state laws regulating arbitration agreements. The Court thereby transformed a quaint, 60-year-old procedural statute into "a permanent, unauthorized eviction of state-court power to adjudicate a potentially large class of disputes," as well as an eviction of state lawmaking power over the traditional state domain of contract law. Even worse, Southland …


Nationwide, State Law Class Actions And The Beauty Of Federalism, Jesse Tiko Smallwood Dec 2003

Nationwide, State Law Class Actions And The Beauty Of Federalism, Jesse Tiko Smallwood

Duke Law Journal

No abstract provided.


Nothing But Net: Renewable Energy And The Environment Midamerican Legal Fictions, And Supremacy Doctrine, Steven Ferrey Oct 2003

Nothing But Net: Renewable Energy And The Environment Midamerican Legal Fictions, And Supremacy Doctrine, Steven Ferrey

Duke Environmental Law & Policy Forum

No abstract provided.


Federalism In The Taft Court Era: Can It Be “Revived”?, Robert Post Mar 2002

Federalism In The Taft Court Era: Can It Be “Revived”?, Robert Post

Duke Law Journal

This Article analyzes the Supreme Court's view of federalism during the decade of the 1920s. It offers a detailed discussion of four jurisprudential areas: congressional power, dormant Commerce Clause doctrine, intergovernmental tax immunity, and judicial centralization through the enforcement of federal common law and constitutional rights. The resurgent federalism of the contemporary Court is typically characterized as "reviving" pre-New Deal principles. This Article concludes, however, that any such revival is highly implausible. It offers four reasons for this conclusion. First, the pre-New Deal Court conceived federalism in terms of the ideal of dual sovereignty, which imagined that the federal government …


Presidential Review As Constitutional Restoration, John O. Mcginnis Dec 2001

Presidential Review As Constitutional Restoration, John O. Mcginnis

Duke Law Journal

No abstract provided.


How The Spending Clause Can Solve The Dilemma Of State Sovereign Immunity From Intellectual Property Suits, Jennifer Cotner Nov 2001

How The Spending Clause Can Solve The Dilemma Of State Sovereign Immunity From Intellectual Property Suits, Jennifer Cotner

Duke Law Journal

No abstract provided.


Causes Of The Recent Turn In Constitutional Interpretation, Christopher H. Schroeder Oct 2001

Causes Of The Recent Turn In Constitutional Interpretation, Christopher H. Schroeder

Duke Law Journal

No abstract provided.


A Localist Critique Of The New Federalism, David J. Barron Oct 2001

A Localist Critique Of The New Federalism, David J. Barron

Duke Law Journal

No abstract provided.


Tripping On The Threshold: Federal Courts’ Failure To Observe Controlling State Law Under The Federal Arbitration Act, Charles Davant Iv Oct 2001

Tripping On The Threshold: Federal Courts’ Failure To Observe Controlling State Law Under The Federal Arbitration Act, Charles Davant Iv

Duke Law Journal

No abstract provided.


Narratives Of Federalism: Of Continuities And Comparative Constitutional Experience, Vicki C. Jackson Oct 2001

Narratives Of Federalism: Of Continuities And Comparative Constitutional Experience, Vicki C. Jackson

Duke Law Journal

No abstract provided.


Taking What They Give Us: Explaining The Court’S Federalism Offensive, Keith E. Whittington Oct 2001

Taking What They Give Us: Explaining The Court’S Federalism Offensive, Keith E. Whittington

Duke Law Journal

No abstract provided.


Federalism And The Double Standard Of Judicial Review, Lynn A. Baker, Ernest A. Young Oct 2001

Federalism And The Double Standard Of Judicial Review, Lynn A. Baker, Ernest A. Young

Duke Law Journal

From 1937 to 1995, federalism was part of a “Constitution in exile.” Except for the brief interlude of the National League of Cities doctrine2—which, like Napoleon’s ill-fated return from Elba, met with crushing defeat3—the post–New Deal Supreme Court has been almost completely unwilling to enforce constitutional limits on national power vis-à-vis the states. The reason, by all accounts, has much to do with federalism’s historic link to other aspects of our expatriate constitution—e.g., economic substantive due process, legislative nondelegation— which were banished for their collusion against the New Deal.


Toward A Pragmatic Understanding Of Status-Consciousness: The Case Of Deregulated Education, Tomiko Brown-Nagin Dec 2000

Toward A Pragmatic Understanding Of Status-Consciousness: The Case Of Deregulated Education, Tomiko Brown-Nagin

Duke Law Journal

This Article discusses the relationship between federal equal protection doctrine and the states' experiment with deregulated education-in particular, charter schools whose student bodies are identifiable on the basis of status. I argue that the states' experiment with deregulated education and the Supreme Court's understanding of the limitations imposed by the federal Equal Protection Clause on status-conscious state action are substantially in conflict, though not inevitably so. Reconciling state policy and federal constitutional law requires, first, that state legislatures draft laws that are consistent with the Court's skepticism of explicitly status-conscious state action, and its ambivalence toward state action that addresses …


The Amended Gun-Free School Zones Act: Doubt As To Its Constitutionality Remains, Seth J. Safra Nov 2000

The Amended Gun-Free School Zones Act: Doubt As To Its Constitutionality Remains, Seth J. Safra

Duke Law Journal

No abstract provided.