Law Commons^™

The Relevance Of Federal Norms For State Separation Of Powers, Michael C. Dorf

Cornell Law Faculty Publications

No abstract provided.

The Impact Of Nsmia On Small Issuers, Rutheford B. Campbell Jr.

Law Faculty Scholarly Articles

Small businesses may account for 40% of the business activities in this country, but capital formation rules always have discriminated against small businesses and imposed rules that make it unreasonably difficult for small companies to exploit external sources of capital. NSMIA, through its broad statutory delegation to the SEC of the right to expand the preemption of state blue sky laws, provides a unique opportunity for the Commission to deliver much-needed and much-deserved help to small issuers engaged in capital formation and to finally break the hegemonic hold states have over the rules governing capital formation by small businesses. Society …

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. …

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

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 …

The Globalizing State: A Future-Oriented Perspective On The Public/Private Distinction, Federalism, And Democracy, Alfred C. Aman

Articles by Maurer Faculty

No abstract provided.

Tribal-State Affairs: American States As 'Disclaiming' Sovereigns, David E. Wilkins

Jepson School of Leadership Studies articles, book chapters and other publications

The history of tribal-state political relations has been contentious from the beginning of the republic. As a result of these tensions, the relationship of tribal nations and the federal government was federalized when the U.S. Constitution was ratified in 1788. Thus, a number of states, especially in the West, were required in their organic acts and constitutions to forever disclaim jurisdiction over Indian property and persons. This article analyzes these disclaimer clauses, explains the factors that have enabled the states to assume some jurisdictional presence in Indian Country, examines the key issues in which disclaimers continue to carry significant weight, …

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

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

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, …