Law Commons^™

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 …

Foreword, Margaret E. Mcguinness

Missouri Law Review

Columbia, Missouri is a fitting venue at which to continue the conversation about Missouri v. Holland and explore the intersection of law-making at the international, national and sub-national levels. This symposium revisits the debate over national and local control over foreign affairs and brings together the constitutional doctrinal discussion and accounts of the globalization of regulation that consider the complexity of influences operating within and between multiple systems of law. Both the factual background of Holland (primarily a case about environmental regulation) and the doctrinal context in which it arose (a Supreme Court poised to move toward constitutional endorsement of …

Internationalism Of American Federalism: Missouri And Holland, The, Judith Resnik

Missouri Law Review

This Earl F. Nelson Lecture, given at the University of Missouri School of Law's Symposium, Return to Missouri v. Holland: Federalism and International Law, developed from and overlaps with a series of articles including Ratifying Kyoto at the Local Level: Sovereigntism, Federalism, and Translocal Organizations of Government Actors (TOGAs), 50 ARIZ. L. REV. 709 (2008) (with Joshua Civin and Joseph Frueh); Lessons in Federalism from the 1960s Class Action Rule and the 2005 Class Action Fairness Act: "The Political Safeguards'" ofAggregate Translocal Actions, 156 U. PA. L. REv. 1929 (2008); Law as Affiliation: "Foreign " Law, Democratic Federalism, and the …

Federalism And Horizontality In International Human Rights , Margaret E. Mcguinness

Missouri Law Review

The advent of the international human rights system is one of the many changes to international law since the time Missouri v. Holland was decided. As other contributions to this symposium note, one of the challenging federalism questions raised by Holland in this new era is the effect of international human rights treaties and emerging customary international human rights law on U.S. states. And just as the creation of the international human rights regime has affected domestic analysis of federalism, the international human rights system has itself adjusted to the processes of federalism. The human rights regime is largely structured …

Federalism And International Law Through The Lens Of Legal Pluralism, Paul Schiff Berman

Missouri Law Review

In this brief Essay, then, I wish to engage in a thought experiment by looking at both federalism and international law through a pluralist rather than a sovereigntist lens. First, I summarize the pluralist literature and some of its core insights and suggest that scholars interested in international law (and its relationship with domestic law) would do well to consider this literature. Second, I provide a few examples of jurisdictional redundancy operating in the transnational, international, and federalist realm and show how the existence of multiple fora can both empower voices that might otherwise be silenced and effect changes of …

What Story Got Wrong - Federalism, Localist Opportunism And International Law, Paul B. Stephan

Missouri Law Review

I first explain the theoretical underpinning of the argument against the inevitability of localist opportunism. I then illustrate the general theory with three examples where the international obligations of the United States can be met without the strong federal supervision that Story deemed necessary and that latter-day nationalists embrace. I first discuss the body of law that was the subject of Swift v. Tyson, namely the rules governing negotiable instruments. Story thought that developing a federal common law was necessary to thwart idiosyncratic, and presumably opportunistic, state decisions. Yet both before and after the overthrow of Swift v. Tyson in …

Foreign Affairs, International Law, And The New Federalism: Lessons From Coordination, Robert B. Ahdieh

Missouri Law Review

Even after the departure of two of its most prominent advocates - Chief Justice William Rehnquist and Justice Sandra Day O'Connor - the federalism revolution initiated by the Supreme Court almost twenty years ago continues its onward advance. If recent court decisions and congressional legislation are any indication, in fact, it may have reached a new beachhead in the realm of foreign affairs and international law. The emerging federalism in foreign affairs and international law is of a distinct form, however, with distinct implications for the relationship of sub-national, national, and international institutions and interests. This article draws on the …

"The Threes": Re-Imagining Supreme Court Decisionmaking, Tracey E. George, Chris Guthrie

Vanderbilt Law Review

Article III is odd. In contrast to Articles 12 and II, which specify in some detail how the legislative and executive branches are to be assembled, Article III says virtually nothing about the institutional design of the Supreme Court.

Consistent with this Constitutional silence, the Court's look, shape, and behavior have adapted to changed circumstances. For example, the Court's membership has changed substantially. Initially, six Justices sat on the Court; in time, the Court grew to ten and shrank to seven. Only in 1869 did it settle at nine. Likewise, the Court's jurisdiction has changed, first expanding, then contracting, and …

Kewanee Revisited: Returning To First Principles Of Intellectual Property Law To Determine The Issue Of Federal Preemption, Sharon K. Sandeen

Marquette Intellectual Property Law Review

In the early 1970s it was thought that states could regulate in the areas of trade secrets without interfering with federal patent policies. However, this concept was called into question in the Sixth Circuit's ruling in Kewanee Oil Co. v. Bicron. In 1974 the Supreme Court ruled that Ohio's trade secret law was not preempted by federal patent law. This article revisits the issues raised in Kewanee in light of the Supreme Court's current preemption jurisprudence, changes in patent law, copyright law, and trade secret law since that time. First, the article reviews the history and context of the Kewanee …

A Constitutional Right To Learn: The Uncertain Allure Of Making A Federal Case Out Of Education, Daniel S. Greenspahn

South Carolina Law Review

No abstract provided.

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

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

Duke Law Journal

No abstract provided.

Political Judges And Popular Justice: A Conservative Victory Or A Conservative Dilemma?, George D. Brown

William & Mary Law Review

Most of the judges in America are elected. Yet the institution of the elected judiciary is in trouble, perhaps in crisis. The pressures of campaigning, particularly raising money, have produced an intensity of electioneering that many observers see as damaging to the institution itself. In an extraordinary development, four justices of the Supreme Court recently expressed concern over possible loss of trust in state judicial systems. Yet mechanisms that states have put in place to strike a balance between the accountability values of an elected judiciary and rule of law values of unbiased adjudication are increasingly invalidated by the federal …

The Constitutional Dimension Of Immigration Federalism, Clare Huntington

Vanderbilt Law Review

In Farmers Branch, Texas, the city council enacted a measure to fine landlords who rent their premises to unauthorized migrants,' and in Arizona, the state legislature passed a law imposing stiff penalties on employers who intentionally or knowingly hire unauthorized migrants. In San Francisco, the board of supervisors passed a measure that bars law enforcement officers from inquiring into the immigration status of an individual in the course of a criminal investigation. In Alabama and Florida, state officials have entered into agreements with the federal government permitting state law enforcement officers to arrest and detain non-citizens on immigration charges. Other …

Federal Fairness To State Taxpayers: Irrationality, Unfunded Mandates, And The "Salt" Deduction, Brian Galle

Michigan Law Review

By sheer dollars alone, the largest impact of the Alternative Minimum Tax is to deny many taxpayers the deduction for the taxes they paid to their state and local governments under § 164 of the Internal Revenue Code. This Article provides a fine-grained analysis of the overall fairness of the state-andlocal- tax deduction--and, by implication, the fairness of its partial repeal through the Alternative Minimum Tax. I offer for the first time a close examination of how newly understood limits on taxpayer mobility and rationality might affect individuals' choices of bundles of local taxes and localgovernment services, which in turn …

Waivers Of Immunity In Federal Environmental Statutes Of The Twenty-First Century: Correcting A Confusing Mess, Kenneth M. Murchison

William & Mary Environmental Law and Policy Review

No abstract provided.

Energy Efficiency And Federalism, Ann E. Carlson

Michigan Law Review First Impressions

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 overhauls. Amidst the turmoil, a number of states have attempted to assert leadership in setting appliance standards but have often faced federal roadblocks in doing so.

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.

Ideological Endowment: The Staying Power Of The Electoral College And The Weaknesses Of The National Popular Vote Interstate Compact, Daniel P. Rathbun

Michigan Law Review First Impressions

The National Popular Vote (“NPV”) movement is designed to eliminate the federalist impact of the Electoral College without amending the Constitution. By fashioning an interstate compact to grant participating states’ electoral votes to the winner of the national popular vote, NPV proponents suppose they can induce states to forfeit their electoral “weights” and replace the current, federalist election process with a fully majoritarian one. But by leaving the Electoral College in place, the NPV movement is setting itself up for a double pushback: first, in the form of immediate legal resistance, and second, through states’ long-term involvement in a meaningfully …

Should Preemption Apply In A Pharmaceutical Context? An Analysis Of The Preemption Debate And What Regulatory Compliance Statutes Contribute To The Discussion, Jennifer A. Surprenant

Fordham Law Review

Should the Food and Drug Administration (FDA)’s determination that a product is safe negate a private litigant’s cause of action under state law in all circumstances, unless the FDA determines that the manufacturer withheld relevant information regarding the safety of the product? This Note concludes that such federal preemption is proper because the FDA is fully capable of making a determination regarding the adequacy of the information disclosed by a pharmaceutical manufacturer without state interference. Additionally, such interference on the state level hinders the FDA’s objectives and effective functioning. Thus, determinations about the adequacy of the information provided to the …

Keynote Address, A Community Of Reason And Rights, Harold Hongju Koh, William Michael Treanor

Fordham Law Review

No abstract provided.

Cooper V. Aaron And The Faces Of Federalism, Ashutosh Bhagwat

Saint Louis University Law Journal

No abstract provided.

A Choice That Leaves No Choice: Unconstitutional Coercion Under Real Id, Michael J. Allen

Seattle University Law Review

No abstract provided.

"Federalizing" Immigration Law: International Law As A Limitation On Congress's Power To Legislate In The Field Of Immigration, Shayana Kadidal

Fordham Law Review

No abstract provided.

Upstairs, Downstairs: Subnational Incorporation Of International Human Rights Law At The End Of An Era, Martha F. Davis

Fordham Law Review

No abstract provided.