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Full-Text Articles in Law
The (Not So Dire) Future Of The Necessary And Proper Clause After National Federation Of Independent Business V. Sebelius, Celestine R. Mcconville
The (Not So Dire) Future Of The Necessary And Proper Clause After National Federation Of Independent Business V. Sebelius, Celestine R. Mcconville
Celestine Richards McConville
Preparing The Groundwork For A Responsible Debate On Stem Cell Research And Human Cloning, O. Carter Snead
Preparing The Groundwork For A Responsible Debate On Stem Cell Research And Human Cloning, O. Carter Snead
O. Carter Snead
The debate over both cloning and stem cell research has been intense and polarizing. It played a significant role in the recently completed presidential campaign, mentioned by both candidates on the stump, at both parties' conventions, and was even taken up directly during one of the presidential debates. The topic has been discussed and debated almost continuously by the members of the legal, scientific, medical, and public policy commentariat. I believe that it is a heartening tribute to our national polity that such a complex moral, ethical, and scientific issue has become a central focus of our political discourse. But, …
Discussion: Focus On Federalism, Erwin Chemerinsky, Jeffrey B. Morris, Martin A. Schwartz
Discussion: Focus On Federalism, Erwin Chemerinsky, Jeffrey B. Morris, Martin A. Schwartz
Martin A. Schwartz
No abstract provided.
Federal Visions Of Private Family Support, Laura A. Rosenbury
Federal Visions Of Private Family Support, Laura A. Rosenbury
Laura A. Rosenbury
This Article offers a new perspective on the relationship between family and federalism by analyzing why the government — whether state or federal — recognizes family at all. The Article examines the current balance between state and federal authority over family by reviewing the Supreme Court’s recent decisions in Astrue v. Capato, upholding the Social Security Administration’s deference to states’ intestacy laws when distributing benefits to posthumously conceived children, and United States v. Windsor, in which the Court struck down a provision of the federal Defense of Marriage Act. Although each decision affirmed the states’ primary role in defining family …
Energy Policy: A Test For Federalism, Jon L. Mills, R. D. Woodson
Energy Policy: A Test For Federalism, Jon L. Mills, R. D. Woodson
Jon L. Mills
This Article will examine the bases of state and federal power, exploring areas of both potential and existing conflict within the energy field. Situations in which either the state or federal government appears to have exclusive authority also will be scrutinized. Possible answers to problems caused by the clashing of governmental interests will be suggested, with an eye toward aiding policymakers to reach agreements which may avert such conflicts. Finally, a prognosis of the future of federalism in regard to the energy issue will be offered.
Evolving Contours Of Immigration Federalism: The Case Of Migrant Children, Elizabeth Keyes
Evolving Contours Of Immigration Federalism: The Case Of Migrant Children, Elizabeth Keyes
Elizabeth Keyes
In a unique corner of immigration law, a significant reallocation of power over immigration has been occurring with little fanfare. States play a dramatic immigration gatekeeping role in the process for providing protection to immigrant youth, like many of the Central American children who sought entry to the United States in the 2014 border “surge.” This article closely examines the history of this Special Immigrant Juvenile Status provision, enacted in 1990, which authorized a vital state role in providing access to an immigration benefit. The article traces the series of shifts in allocation of power between the federal government and …
The Emergence Of Classical American Patent Law, Herbert Hovenkamp
The Emergence Of Classical American Patent Law, Herbert Hovenkamp
Herbert Hovenkamp
The Emergence of Classical Patent Law
Abstract
One enduring historical debate concerns whether the American Constitution was intended to be "classical" -- referring to a theory of statecraft that maximizes the role of private markets and minimizes the role of government in economic affairs. The most central and powerful proposition of classical constitutionalism is that the government's role in economic development should be minimal. First, private rights in property and contract exist prior to any community needs for development. Second, if a particular project is worthwhile the market itself will make it occur. Third, when the government attempts to induce …
The Inherent Flaws In The Inherent Authority Position: Why Inviting Local Enforcement Of Immigration Laws Violates The Constitution, Immigr. & Nat'lity L. Rev., Huyen Pham
Huyen T. Pham
After 9/11, Attorney General John Ashcroft announced that state and local authorities have "inherent authority" as sovereigns to enforce federal immigration laws. This announcement, a reversal from previous legal positions taken by DOJ, sent shockwaves through the immigrant and law enforcement communities. Previously, immigration law had been treated, both by law and in practice, as the exclusive province of the federal government.
This article considers the constitutional barriers to local enforcement. Although the fascinating interplay among immigration law, national security and anti-terrorism, and federalism has been highlighted in some of the debate up to now, the federalism-related issues go beyond …
Globalization And Structure, Julian Ku, John Yoo
Whose Ox Is Being Gored? When Attitudinalism Meets Federalism, Michael C. Dorf
Whose Ox Is Being Gored? When Attitudinalism Meets Federalism, Michael C. Dorf
Michael C. Dorf
Empirical research indicates that factors such as an individual Justice's general political ideology play a substantial role in the decision of Supreme Court cases. Although this pattern holds in federalism cases, views about the proper allocation of authority between the state and federal governments - independent of whether the particular outcome in any given case is "liberal" or "conservative" - can sometimes be decisive, as demonstrated by the 2005 decision in Gonzales v. Raich, in which "conservative" Justices voted to invalidate a strict federal drug provision in light of California's legalization of medical marijuana, and "liberal" Justices voted to uphold …
Instrumental And Non-Instrumental Federalism, Michael C. Dorf
Instrumental And Non-Instrumental Federalism, Michael C. Dorf
Michael C. Dorf
No abstract provided.
The Relevance Of Federal Norms For State Separation Of Powers, Michael C. Dorf
The Relevance Of Federal Norms For State Separation Of Powers, Michael C. Dorf
Michael C. Dorf
No abstract provided.
No Federalists Here: Anti-Federalism And Nationalism On The Rehnquist Court, Michael C. Dorf
No Federalists Here: Anti-Federalism And Nationalism On The Rehnquist Court, Michael C. Dorf
Michael C. Dorf
No abstract provided.
The 2006 Winthrop And Frances Lane Lecture: The Unintended Legal And Policy Consequences Of The No Child Left Behind Act, Michael Heise
The 2006 Winthrop And Frances Lane Lecture: The Unintended Legal And Policy Consequences Of The No Child Left Behind Act, Michael Heise
Michael Heise
No abstract provided.
Federalism, First Amendment & Patents: The Fraud Fallacy, Robin C. Feldman
Federalism, First Amendment & Patents: The Fraud Fallacy, Robin C. Feldman
Robin C Feldman
Decentralizing The Amendment Power, Jonathan L. Marshfield
Decentralizing The Amendment Power, Jonathan L. Marshfield
Jonathan Marshfield
Federal And State Authority For Broadband Regulation, Tejas N. Narechania
Federal And State Authority For Broadband Regulation, Tejas N. Narechania
Tejas N. Narechania