Law Commons^™

Reflections On Bush V. Gore: The Role Of The United States Supreme Court, David Boies

Florida A & M University Law Review

No abstract provided.

Federalism, Peter H. Schuck

Case Western Reserve Journal of International Law

No abstract provided.

From Cooperative To Inoperative Federalism: The Perverse Mutation Of Environmental Law And Policy, Robert L. Glicksman

Robert L. Glicksman

Beginning in 1970, Congress adopted a series of statutes to protect public health and the environment that represented an experiment in cooperative federalism. The operative principle of cooperative federalism is that the federal government establishes a policy - such as protection of public health and the environment and sustainable natural resource use - and then enlists the aid of the states, through a combination of carrots and sticks, in pursuing that policy. The result is a system in which both levels of government work together to achieve a common goal. If the process works well, the synergism of related federal …

James Madison’S Celebrated Report Of 1800: The Transformation Of The Tenth Amendment, Kurt T. Lash

Law Faculty Publications

It has become commonplace to describe the Rehnquist Court as having staged a "Federalism Revolution." Although the current status of the Revolution is in dispute, historical treatment of the Supreme Court's jurisprudence under Chief Justice Rehnquist no doubt will emphasize a resurgence of federalism and limited construction of federal power. Cases like Gregory v. Ashcroft, New York v. United States, United States v. Lopez, Printz v. United States, Alden v. Maine, and United States v. Morrison all share a common rule of interpretation: Narrow construction of federal power to interfere with matters believed best left under state control. The textual …

Katrina And The Rhetoric Of Federalism, Christina E. Wells

Faculty Publications

The public's desire to assign blame for government's inadequate response to Hurricane Katrina has largely focused on the federal government's slow and seemingly inept response to the storm. In their own defense, federal officials cast federalism--the system that divides power among federal, state, and local governments--as the main culprit underlying their inadequate response to hurricane victims. Had power and authority not been split among three different units of government, the argument goes, the federal government might have been able to act more quickly to save lives and prevent suffering. In effect, federal authorities claim to have been hamstrung by a …

A Digital Age Communications Act Paradigm For Federal-State Relations, Kyle D. Dixon, Philip J. Weiser

Publications

This article captures the effort of the Digital Age Communications Act (DACA) to craft a new framework for the federal-state relationship in implementing a next generation telecommunications regulatory regime. In particular, it sets forth a DACA model that would implement a "rule of law" regulatory paradigm for an era of technological dynamism. This era requires, as the article explains, a coherent federal framework that circumscribes the role of state and local authorities so as to advance sound competition policy goals. The sole exception to this policy is the recognition that a basic local service rate retains both political and practical …

Liberty From On High: The Growing Reliance On A Centralized Judiciary To Protect Individual Liberty, Patrick M. Garry

Kentucky Law Journal

No abstract provided.

Introduction: A Tale Of (At Least) Two Federalisms, Denise C. Morgan

NYLS Law Review

No abstract provided.

The Future Of Federalism? Pierce County V. Guillen As A Case Study, Lynn A. Baker

NYLS Law Review

No abstract provided.

Reconceptualizing Federalism, Erwin Chemerinsky

NYLS Law Review

No abstract provided.

Evolving Understandings Of American Federalism: Some Shifting Parameters, Edward A. Purcell Jr.

NYLS Law Review

No abstract provided.

Countermajoritarian Federalism, Thomas H. Lee

Fordham Law Review

No abstract provided.

Federalism As Westphalian Liberalism, Roderick M. Hills, Jr.

Fordham Law Review

No abstract provided.

William H. Rehnquist: A Life Lived Greatly, And Well, Richard W. Garnett

Journal Articles

Chief Justice Rehnquist leaves behind a formidable and important legacy in constitutional law. His work on the Court was animated and guided by the view that We the People, through our Constitution, have authorized our federal courts, legislators, and administrators to do many things - but not everything. Because the Nation's powers are few and defined, Congress may not pursue every good idea or smart policy, nor should courts invalidate every foolish or immoral one. However, for those of us who knew, worked with, learned from, and cared about William Rehnquist, it is his unassuming manner, the care he took …

Congressional Power And State Court Jurisdiction, Anthony J. Bellia

Journal Articles

Federal laws that regulate state institutions give rise to what the Supreme Court has described as the oldest question of constitutional law. In recent years, the Court has confronted questions of congressional power to regulate state legislatures and executives, but has not directly confronted any question of congressional power to regulate state courts. Since the Founding, questions of congressional power to regulate state court jurisdiction of Article III cases have arisen - most notably, congressional power to assign jurisdiction of federal criminal cases to state courts. Today, significant questions of congressional power to regulate state court jurisdiction over non-Article III …

The Puzzle Of State Constitutions, Jim Rossi

Vanderbilt Law School Faculty Publications

In a series of groundbreaking articles published over the past fifteen years, James Gardner has led the charge to make state constitutionalism a part of the constitutional law discussion more generally. His new book, Interpreting State Constitutions: A Jurisprudence of Function in a Federal System, steps beyond his study of specific issues in state constitutionalism to lay out an ambitious theory about how state constitutions should be interpreted based on their function within a federal system. Gardner's book is a significant scholarly effort to take state constitutions seriously, in a way that transcends any one jurisdiction or constitutional provision. Gardner's …

Judicial Oversight In Two Dimensions: Charting Area And Intensity In The Decisions Of Justice Stevens, Allison Marston Danner, Adam Marcus Samaha

Fordham Law Review

No abstract provided.

Fighting Federalism With Federalism: If It's Not Just A Battle Between Federalists And Nationalists, What Is It?, David J. Barron

Fordham Law Review

No abstract provided.

Justice Stevens's Theory Of Interactive Federalism, Robert A. Schapiro

Fordham Law Review

No abstract provided.

The Commerce Clause And Federal Abortion Law: Why Progressives Might Be Tempted To Embrace Federalism, Jordan Goldberg

Fordham Law Review

No abstract provided.

From States' Rights Blues To Blue States' Rights: Federalism After The Rehnquist Court, Kathleen M. Sullivan

Fordham Law Review

No abstract provided.

Cafa And Erie: Unconstitutional Consequences?, Justin D. Forlenza

Fordham Law Review

No abstract provided.

Habitat Federalism, Robert L. Fischman

Articles by Maurer Faculty

THE COMMON IMAGE OF COOPERATIVE FEDERALISM INVOLVES the Environmental Protection Agency (EPA) inducing states to adopt permit and other pollution abatement programs. States can tailor some standards, but public health benchmarks and end-of-the-pipe technologies are uniform across the nation. Inducements include both carrots, mostly in the form of federal funds and flexibility, and sticks, mostly in the form of penalties and loss of control.

This essay discusses cooperative federalism for habitat conservation. Habitat federalism focuses more on ecology than chemistry, more on cities and counties than states, and more on place-based variation than on uniform standards. It is about how …

Federalism And Faith, Ira C. Lupu, Robert W. Tuttle

GW Law Faculty Publications & Other Works

Should the U.S. constitution afford greater discretion to states than to the federal government in matters affecting religion? In recent years, a number of commentators have been asserting that the Establishment Clause should not apply to the states. Justice Thomas has embraced this view, while offering his own refinements to it. Moreover, the Supreme Court's decision in Locke v. Davey (2004) ruled that a state did not run afoul of the Free Exercise Clause when it refused to subsidize religious studies, in a context in which the Establishment Clause would have permitted the subsidy.

This paper offers a focused (re)consideration …

When Is Two A Crowd: The Impact Of Federal Action On State Environmental Regulation, Jonathan H. Adler

Faculty Publications

This article seeks to identify the ways in which federal actions can influence state regulatory choices in the context of environmental policy. The federal government may directly influence state policy choices by preempting state policies or by inducing state cooperation through the use of various incentives and penalties for state action. The federal government may indirectly, and perhaps unintentionally, influence state policy choices as well. Federal policies may encourage greater state regulation by reducing the costs of initiating regulatory action or by placing issues on state policy agendas. Federal regulation may also discourage or even "crowd-out" state-level regulatory action by …

From Cooperative To Inoperative Federalism: The Perverse Mutation Of Environmental Law And Policy, Robert L. Glicksman

GW Law Faculty Publications & Other Works

Beginning in 1970, Congress adopted a series of statutes to protect public health and the environment that represented an experiment in cooperative federalism. The operative principle of cooperative federalism is that the federal government establishes a policy - such as protection of public health and the environment and sustainable natural resource use - and then enlists the aid of the states, through a combination of carrots and sticks, in pursuing that policy. The result is a system in which both levels of government work together to achieve a common goal. If the process works well, the synergism of related federal …

Unanimously Wrong, Dale Carpenter

Faculty Journal Articles and Book Chapters

The Supreme Court was unanimously wrong in Rumsfeld v. FAIR. Though rare, it's not the first time the Court has been unanimously wrong. Its most notorious such decisions have come, like FAIR, in cases where the Court conspicuously failed even to appreciate the importance of the constitutional freedoms under attack from legislative majorities. In these cases, the Court's very rhetoric exposed its myopic vision in ways that now seem embarrassing. Does FAIR, so obviously correct to so many people right now, await the same ignominy decades away? FAIR was wrong in tone, a dismissive vox populi, adopted by a Court …

Federalism In Corporate/Securities Law: Reflections On Delaware, California, And State Regulation Of Insider Trading, Donald C. Langevoort

Georgetown Law Faculty Publications and Other Works

In this brief Essay, I offer some thoughts on both the theory and the politics underlying the federalism question. My comments will touch on some of the controversies and also look at a somewhat quieter question, the state regulation of insider trading. Over the course of the last few years, judges in California and Delaware have traveled markedly different routes on questions involving the states' role in regulating insider trading. A California court of appeal has recently expanded the reach of the state insider trading statute to cover a claim alleging misconduct in California by an executive of a Delaware …

Comparative Fiscal Federalism: What Can The U.S. Supreme Court And The European Court Of Justice Learn From Each Other's Tax Jurisprudence?, Reuven S. Avi-Yonah

Articles

In October 2005, a group of distinguished tax experts from the European Union and the United States, who had never met before, convened at the University of Michigan Law School for a conference on "Comparative Fiscal Federalism: Comparing the U.S. Supreme Court and European Court of Justice Tax Jurisprudence." The purpose of the conference was to shed comparative light on the very different approaches taken by the European Court of Justice (ECJ) and the U.S. Supreme Court to the question of fiscal federalism. The conference was sponsored by the U-M Law School, U-M's European Union Center, and Harvard Law School's …

Constitutional Thematics And The Peculiar Federal Marriage Amendment, Scott Dodson

Faculty Publications

These symposium remarks are a discussion of themes running through the Constitution, how the FMA, if adopted, might affect those themes, and why we ought to care. I first demonstrate that our Constitution is a thematic document, filled with broad, recognizable, and (mostly) coherent concepts. Separation of powers, representative democracy, federalism, individual liberty, and equality come readily to mind. I then explain that the thematic nature and the inter-coherence of these themes is critical in two ways: to identify those values held to be fundamental in our society, and to assist in the interpretation of the Constitution. The themes in …