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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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
The Amended Gun-Free School Zones Act: Doubt As To Its Constitutionality Remains, Seth J. Safra
Duke Law Journal
No abstract provided.