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Articles 1 - 15 of 15
Full-Text Articles in Law
The Treaty Power And American Federalism, Curtis A. Bradley
The Treaty Power And American Federalism, Curtis A. Bradley
Michigan Law Review
For much of this century, American foreign affairs law has assumed that there is a sharp distinction between what is foreign and what is domestic, between what is external and what is internal. This assumption underlies a dual regime of constitutional law, in which federal regulation of foreign affairs is subject to a different, and generally more relaxed, set of constitutional restraints than federal regulation of domestic affairs. In what is perhaps its most famous endorsement of this proposition, the Supreme Court stated in 1936 that "the federal power over external affairs [is] in origin and essential character different from …
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
Cornell Law Faculty Publications
No abstract provided.
The Federalism Implications Of Flores, Stephen Gardbaum
The Federalism Implications Of Flores, Stephen Gardbaum
William & Mary Law Review
No abstract provided.
Why The Congress Was Wrong And The Court Was Right - Reflections On City Of Boerne V. Flores, Ira C. Lupu
Why The Congress Was Wrong And The Court Was Right - Reflections On City Of Boerne V. Flores, Ira C. Lupu
William & Mary Law Review
No abstract provided.
The Political Economy Of Cooperative Federalism: Why State Autonomy Makes Sense And "Dual Sovereignty" Doesn't, Roderick M. Hills Jr.
The Political Economy Of Cooperative Federalism: Why State Autonomy Makes Sense And "Dual Sovereignty" Doesn't, Roderick M. Hills Jr.
Michigan Law Review
It is commonplace to observe that "dual federalism" is dead, replaced by something variously called "cooperative federalism," "intergovernmental relations," or "marble-cake federalism." According to this conventional wisdom, state and local officials do not enforce merely their own laws in their distinct policymaking sphere. Rather, as analyzed in a voluminous literature, state and local governments also cooperate with the federal government in many policymaking areas, ranging from unemployment insurance to historic preservation. These nonfederal governments help implement federal policy in a variety of ways: by submitting implementation plans to federal agencies, by promulgating regulations, and by bringing administrative actions to enforce …
Conditional Federal Spending And The States "Free Exercise" Of The Tenth Amendment, Kristian D. Whitten
Conditional Federal Spending And The States "Free Exercise" Of The Tenth Amendment, Kristian D. Whitten
Campbell Law Review
This article will examine Congress' power under the Spending Clause, and will seek to determine whether, by using its spending power, Congress can constitutionally impose a "free exercise" condition on States and local governments. Part II discusses federalism and the Court's "free exercise" clause jurisprudence. Part III addresses the substance of the proposed RLPA. Parts IV and V examine the Court's shifting posture towards the Spending Clause and federalism respectively. Part VI contrasts the broad provisions of the RLPA, with the more narrow conditions found in the Equal Access Act. Finally, Part VII concludes that enactment of the proposed RLPA …
A Matter Of Power: Structural Federalism And Separation Doctrine In The Present, Frances Howell Rudko
A Matter Of Power: Structural Federalism And Separation Doctrine In The Present, Frances Howell Rudko
Faculty Publications
Public reaction to the 1823 Supreme Court decision in Green v. Biddle prompted John Marshall’s letter to Henry Clay, who had argued the case as amicus curiae for the defendant. The letter is significant because Marshall, who had been a legislator himself, candidly expresses not only his personal dissatisfaction with the congressional assault on the 1823 decision but also the constitutional basis for his opinion. The significance of Marshall’s extrajudicial opinion becomes more apparent when it is considered in the aftermath of the recent tug-of-war between Congress and the Court which culminated in the decision in City of Boerne v. …
Voting Rights, Eric Lane
Casebooks And Constitutional Competency, David E. Engdahl
Casebooks And Constitutional Competency, David E. Engdahl
Seattle University Law Review
Today's casebooks are far better adapted for fostering constitutional competency among lawyers than were their earlier counterparts. Part 1 of this Article traces the evolution of the constitutional law casebook from James Bradley Thayer's massive compilation of raw data in the Dean Langdell tradition, to the modern style of extensively edited cases with comments and questions to help students identify, anticipate, and assess potential avenues of analysis and development. Part 2 examines some basic concepts of federalism law still afforded too little attention by casebook editors. The classic analysis of enumerated powers (including Congress's power under the necessary and proper …
The Brady Act: Shot Down By The Tenth Amendment, Patricia Rooney
The Brady Act: Shot Down By The Tenth Amendment, Patricia Rooney
Touro Law Review
No abstract provided.
Comment, The Green Aspects Of Printz: The Revival Of Federalism And Its Implications For Environmental Law, Jonathan H. Adler
Comment, The Green Aspects Of Printz: The Revival Of Federalism And Its Implications For Environmental Law, Jonathan H. Adler
Faculty Publications
This Comment reviews the Printz decision in the context of the Supreme Court's recent federalism jurisprudence and assesses its implications for environmental law. Part I provides a brief historical overview of the federal-state relationship in the environmental context and recent Supreme Court decisions on federalism. Part II discusses and evaluates the Printz decision. Part III applies the Supreme Court holdings in Printz and related federalism cases to current environmental policies and identifies federal environmental programs that are constitutionally suspect. Finally, Part IV addresses the public policy concern that limiting the federal government's power in the environmental context will inevitably weaken …
Whose Federalism, S. Elizabeth Malloy
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 …
State Discretion Under New Federal Welfare Legislation: Illusion, Reality, And A Federalism-Based Constitutional Challenge, S. Candice Hoke
State Discretion Under New Federal Welfare Legislation: Illusion, Reality, And A Federalism-Based Constitutional Challenge, S. Candice Hoke
Law Faculty Articles and Essays
This article challenges the common characterization of the 1996 welfare reforms. States do not have the ability to do “almost anything they want.” Most notably, states with more compassionate political leadership who wish to counter the national trend may seek areas of flexibility in vain. The Act's mandates and penalties will force all states into particular policies that they may not have chosen had Edelman been correct about the range of their discretionary powers.Edelman's critique typifies the standard assessment of the Act. According to the prevailing view, the Act's policies are objectionable because the federal government has capped the money …
Commandeering, The Tenth Amendment, And The Federal Requisition Power: New York V. United States Revisited, Erik M. Jensen
Commandeering, The Tenth Amendment, And The Federal Requisition Power: New York V. United States Revisited, Erik M. Jensen
Faculty Publications
The Supreme Court's recent Tenth Amendment decisions, New York v. United States and Printz v. United States, have relied on the original understanding to hold that the Congress may not compel state officials to enact or administer federal programs. We present evidence from the field of taxation that raises questions about the Court's originalist approach to the Tenth Amendment. We explain why the results in New York and Printz are superficially supported by the history of the widely discredited system of requisitions that prevailed under the Articles of Confederation: the Constitution created a system of indirect and direct taxation to …
Sovereignty By Subtraction: The Multilateral Agreement On Investment, Robert Stumberg
Sovereignty By Subtraction: The Multilateral Agreement On Investment, Robert Stumberg
Georgetown Law Faculty Publications and Other Works
The proposed Multilateral Agreement on Investment (MAl) represents a major step in the evolution of "sovereignty," which includes the power of a nation-state to govern without external controls. A panelist at the 1998 Cornell International Law journal Symposium introduced the MAl as an example of "multilateral sovereignty" to achieve commonly held goals of global economic integration. This perspective posits that the MAl is an exercise in sovereignty by subtraction, aiming to limit governing power rather than promote its joint exercise.
Its critics call the MAl a "slow motion coup d'etat," a "bill of rights for investors," a threat to sovereignty, …