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Full-Text Articles in Law
Federalization’S Folly, Stephen F. Smith
Federalization’S Folly, Stephen F. Smith
San Diego Law Review
Overcriminalization and overpunishment are the two key features of federal criminal law today, yet the “federalization” of criminal law has accomplished precious little in terms of public safety. The failed drug war proves as much: federal prosecutors have filled the nation’s prisons with low-level drug dealers and drug users serving long sentences, but drugs remain widely available at greater purity and lower prices throughout the land—and drug overdoses are at record highs. Instead of focusing on areas of federal comparative advantage, such as terrorism, international drug trafficking, and organized crime, federal prosecutors waste scarce resources “playing district attorney”—that is to …
National Geographics: Toward A “Federalism Function” Of American Tort Law, Riaz Tejani
National Geographics: Toward A “Federalism Function” Of American Tort Law, Riaz Tejani
San Diego Law Review
This Article will situate the federalism function among existing scholarly frameworks and assess the “contoured” approach to federal and state power balancing across the existing subject matter of torts. Part II will assess conflicting characterizations of tort law as on one hand “private” and on the other “public” law. Part III will define and explain competing functions of tort law with an eye to whether federalism fits the common criteria of these coexisting objectives, goals, purposes, and methods for adjudication. In Part IV, the Article will explore historical and contemporary roles of federalism to understand why this process becomes so …
“Unmistakably Clear” Coercion: Finding A Balance Between Judicial Review Of The Spending Power And Optimal Federalism, Dale B. Thompson
“Unmistakably Clear” Coercion: Finding A Balance Between Judicial Review Of The Spending Power And Optimal Federalism, Dale B. Thompson
San Diego Law Review
This Article proposes a new tier of scrutiny, “unmistakably clear,” for conducting judicial review of congressional authority under the Spending Clause. Under this standard, a condition would be unconstitutional only if it is unmistakably clear that it is coercive. In order to develop this proposal, this Article traces the debate over the spending power from the Federalist Papers up through the decision in National Federation of Independent Business v. Sebelius, finding strong arguments for granting significant deference to Congress’s Spending Clause authority. Careful analysis of the opinions in the case yields not only the name for the new standard of …
Level Up: Employing The Commerce Clause To Federalize The Sale Of Goods, Jennifer Camero
Level Up: Employing The Commerce Clause To Federalize The Sale Of Goods, Jennifer Camero
San Diego Law Review
This Article argues that rather than wait until the defects become insurmountable, we should act now to address the defects in the law of sales and enact a federal sales act to supplant Article 2 using congressional power under the Commerce Clause. Part II details the defects of Article 2 that are in need of repair, which include creating inconsistent results across the states, failing to adapt to changing trends in our modern commercial environment, and utilizing a private drafting process that fails to balance the competing interests of businesses and consumers. Part II then demonstrates that the current uniform …
Our Federalism: The United States And The Regulation Of Lawyers, Michael J. Churgin
Our Federalism: The United States And The Regulation Of Lawyers, Michael J. Churgin
San Diego Law Review
Dedication to the works of Prof. Fred Zacharias.
Energy Efficiency And Federalism, Ann E. Carlson
Energy Efficiency And Federalism, Ann E. Carlson
San Diego Journal of Climate & Energy Law
Everyone loves energy efficiency. Among an array of carbon-reducing strategies, energy efficiency surely ranks as the least controversial. Indeed increasing energy efficiency is frequently lauded as having "net negative costs"-to use the terminology of the Intergovernmental Panel on Climate Change-meaning that the benefits outweigh the costs, even excluding benefits from avoided climate change.
Yet the U.S. system for regulating appliances, which account for a huge percentage of the nation's carbon emissions, is a mess. Since the federal government began regulating appliance efficiency in the 1970s, the process has been characterized by frequent delays and foot-dragging, followed by lawsuits and legislative …
Climate Adaptation And Federalism: Mapping The Issues, Daniel F. Farber
Climate Adaptation And Federalism: Mapping The Issues, Daniel F. Farber
San Diego Journal of Climate & Energy Law
There is a vigorous debate about the appropriate roles of the state and federal governments in reducing greenhouse gases and mitigating climate change. ...
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This Article is a first step in mapping this new terrain. Part I provides a short introduction to climate adaptation. The United States will face significant climate impacts in the next few decades, and governmental responses will be required. Part II discusses the role of the federal government in setting adaptation standards, while Part III analyzes the appropriateness of state versus federal funding for adaptation. States are likely to play the leading role in funding …
Circumventing The Supremacy Clause? Understanding The Constitutional Implications Of The United States' Treatment Of Treaty Obligations Through An Analysis Of The New York Convention, Amber A. Ward
San Diego International Law Journal
The United States participation in treaties and other international agreements is becoming more necessary and an increasingly prevalent occurrence as a result of globalization. The rapid pace of technological innovation and more effective means of transportation have caused our world to shrink, making countries even more interconnected. The corresponding explosion of international business and commercial transactions has resulted in high levels of risk and uncertainty due to a complex mix of laws, monetary factors, politics and cultures that vary across countries. For global players, it has become essential to have international agreements that can mitigate the risks inherent in international …
Democracy Within Federalism: An Attempt To Reestablish Middle Ground, Alexander Hanebeck
Democracy Within Federalism: An Attempt To Reestablish Middle Ground, Alexander Hanebeck
San Diego Law Review
the conflict between the two levels of government, state and federal, is a very old one. The main battleground of this debate, however, has been over states' rights and the protection of individual rights by federal courts. As John Hart Ely observed, this is not where federalism hangs in the balance. He correctly points out what is becoming obvious in recent Supreme Court decisions. For the existence of states as independent entities, it is more important where legislative competence lies. 3 This Article is concerned with the groundwork for a debate over the distribution of legislative competence, because it attempts …
The Economics Of Federalism And The Proper Scope Of The Federal Commerce Power, Jacques Leboeuf
The Economics Of Federalism And The Proper Scope Of The Federal Commerce Power, Jacques Leboeuf
San Diego Law Review
The study of the economics of federalism has emerged as a distinct field. While the insights of that study have been applied in understanding the logic behind the dormant commerce clause, they have not been used in analyzing the affirmative scope of the federal commerce power. The author suggests that the economics of federalism can provide both a justification for and a limitation upon the federal commerce power. Specifically, he suggests that the federal government ought to be able to regulate only those areas of commerce where state regulation would be inefficient due to externalities. Furthermore, he argues, this conception …