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Full-Text Articles in Law

The Third Death Of Federalism, A. Christopher Bryant Jan 2007

The Third Death Of Federalism, A. Christopher Bryant

Faculty Articles and Other Publications

Federal drug laws proved a stumbling block to the Rehnquist Court's attempted federalism revival. In its final year, the Court's fragile federalism coalition splintered in a pair of cases arising under the Controlled Substances Act ("CSA"). Missing from the emerging legal literature concerning those two decisions is any substantive discussion of the Supreme Court's much earlier, ill-fated efforts to preserve both judicial enforcement of the enumerated powers doctrine and federal narcotics laws. This article fills that gap.

Ninety-odd years ago the Court arrived at the same jurisprudential juncture it now confronts. In the early decades of the twentieth century, the …


Overcoming The Obstacles Of Garrett: An As Applied Saving Construction For The Ada's Title Ii, S. Elizabeth Malloy, Timothy J. Cahill Jan 2004

Overcoming The Obstacles Of Garrett: An As Applied Saving Construction For The Ada's Title Ii, S. Elizabeth Malloy, Timothy J. Cahill

Faculty Articles and Other Publications

Recent Supreme Court cases regarding Congress's abrogation authority have seriously impaired Congress's ability to demonstrate a valid exercise of its Section 5 power under the Fourteenth Amendment to subject nonconsenting states to suit for money damages in federal court. During its 2003 term, the Supreme Court has again granted certiorari to a case involving the proper scope of Congress's section 5 power, Lane v. Tennessee. Lane involves a suit for money damages under Title II of the ADA based on the alleged failure of the State of Tennessee to make its courthouses accessible. Many commentators suggest that the Supreme Court …


Whose Federalism, S. Elizabeth Malloy Jan 1998

Whose Federalism, S. Elizabeth Malloy

Faculty Articles and Other Publications

This Article examines briefly the Seminole Tribe and City of Boerne decisions. Part II then focuses on the ADA and the reasons why Congress made it applicable to government conduct as well as private conduct. Finally, Part III examines the argument, based on the new federalism, that the ADA should not apply to state entities. It does not appear that the Court's new federalism has had a liberty-enhancing effect for some of the most vulnerable persons in our society. The Court's revitalized federalism jurisprudence has led to questions about the continuing validity of many of our civil rights statutes as …