Law Commons^™

Emergency Federalism: Calling On The States In Perilous Times, Adam M. Giuliano

University of Michigan Journal of Law Reform

The attacks of September 11 prompted a historic debate concerning terrorism and domestic emergency response. This ongoing dialogue has driven policy decisions touching upon both liberty and security concerns. Yet despite the enormous effort that has gone into the national response, the role of the sovereign states, and with it federalism, has received comparatively little attention. This Article explores the relevance of federalism within the context of the "War on Terror" and in the aftermath of Hurricane Katrina. Acknowledging that theories of federalism developed elsewhere are insufficient, he outlines a doctrine of 'emergency federalism.' The author argues that the Framers …

Family Law Federalism: Divorce And The Constitution, Ann Laquer Estin

William & Mary Bill of Rights Journal

American divorce law was transformed by the Supreme Court in a series of decisions beginning with Williams v. North Carolina in 1942. These constitutional full faith and credit cases resolved a long-standing federalism problem by redefining the scope of state power over marital status. With these decisions, the Court shifted from an analysis based on the competing interests of different states to an approach that highlighted the individual interests of the parties involved. This change fundamentally altered state power over the family by extending to individuals greater control of their marital status. In the process, the Court cleared a path …

Ecosystem-Based Management Of Terrestrial And Coastal Water Resources: Can Rapanos Teach Us Anything About The Future Of Integrated Water Management, Chad J. Mcguire

Chad J McGuire

State Habeas Relief For Federal Extrajudicial Detainees, Todd E. Pettys

Todd E. Pettys

I argue that the Court’s nineteenth-century rulings in Ableman v. Booth and Tarble’s Case marked a little-known but sharp break with state courts’ decades-long practice of granting habeas relief to federal extrajudicial detainees. I contend that the Court’s reasoning in those cases is unpersuasive, and that modern efforts to rationalize those cases’ outcomes fare no better. I also argue that the Suspension Clause bars Congress from stripping state courts of their power to grant habeas relief to persons being extrajudicially detained by federal authorities.

The Third Death Of Federalism, Christopher A. Bryant

Cornell Journal of Law and Public Policy

No abstract provided.

Religious V. Secular Ideologies And Sex Education: A Response To Professors Cahn And Carbone, Vivian E. Hamilton

Faculty Publications

No abstract provided.

From Federalism To Intersystemic Governance: The Changing Nature Of Modern Jurisdiction, Robert B. Ahdieh

Faculty Scholarship

At heart, this introductory essay aspires to encourage scholars who write in widely divergent areas, yet share a focus on the changing nature of jurisdiction, to engage one another more closely. From Jackson's study of "convergence, resistance, and engagement" among courts, Kingsbury's study of "global administrative law," and Bermann's analysis of "transatlantic regulatory cooperation," to Resnik's evaluation of "trans-local networks," Weiser's account of "cooperative federalism" in telecommunications law, and Thompson's concept of "collaborative corporate governance," a related set of questions is ultimately at stake: How ought we understand the reach of any given decision-maker's jurisdiction? What are the implications of …

The Minimal Role Of Federalism And State Law In Arbitration, Edward Brunet

Nevada Law Journal

No abstract provided.

Savings Clauses And Trends In Natural Resources Federalism, Robert L. Fischman, Angela M. King

William & Mary Environmental Law and Policy Review

No abstract provided.

Waivers Of Immunity In Federal Environmental Statutes Of The Twenty-First Century: Correcting A Confusing Mess, Kenneth M. Murchison

Kenneth M Murchison

This article traces the confusion that characterizes the waivers of immunity in federal environmental statutes. It summarizes the complicated story of increasingly broad statutory provisions combined with Supreme Court adherence to the rule of construction and explains how this historical development has produced different waivers that serve no coherent purpose. After describing the confusing array of current statutes, it offers concrete suggestions for legislative and judicial solution to the mess that constitutes the current law.

Saving Savings Clauses From Judicial Preemption, Sandra Zellmer

Sandi Zellmer

Savings clauses can be found in an array of federal statutes governing public health, welfare, and environmental quality. Like explicit preemption provisions, the function of a savings clause is to differentiate the boundaries of federal and state authority. Unlike preemption clauses, however, savings clauses strike the balance in favor of the states and state law remedies. Despite the existence of savings clauses, many of the Supreme Court’s recent preemption opinions have invalidated state laws that are more stringent than the federal regulatory threshold, based on a crabbed interpretation of statutory language, a myopic view of congressional purposes, or both. Even …

Fast-Food Government And Physician-Assisted Death: The Role Of Direct Democracy In Federalism, K.K. Duvivier

Sturm College of Law: Faculty Scholarship

Modern patients often enter a twilight zone of suspended animation between living and dying that did not exist a generation ago. The majority of Americans believe these terminal patients should have the right to refuse life support and to receive pain relief, even to the point of hastening death. Yet laws addressing the situation are unclear, and physician advocates, like Dr. Kevorkian of Michigan, have faced sanctions and jail time when they responded to patient requests for help to die peacefully. In its 2006 Gonzales v. Oregon decision, the U.S. Supreme Court shifted the physician-assisted death dilemma to the state-side …

The Foreign Affairs Power: Does The Constitution Matter?, D. A. Jeremy Telman

D. A. Jeremy Telman

Peter Irons’ WAR POWERS favors congressional initiative in questions of war and peace but makes a historical argument that our government has strayed from the constitutional design in the service of an imperialist foreign policy. John Yoo’s THE POWERS OF WAR AND PEACE seeks to overthrow the traditional perspective on war powers espoused by Irons in favor of executive initiative in war. Yoo also pursues a revisionist perspective on the treaty power, which favors executive initiative in treaty negotiation and interpretation but insists on congressional implementation so as to minimize the impact of international obligations on domestic law. This Essay …

Federalism And The State Recognition Of Native American Tribes: A Survey Of State-Recognized Tribes And State Recognition Processes Across The United States, Alexa Koenig, Jonathan Stein

Alexa Koenig

This article provides a national overview of the legal status of state-recognized American Indian tribes—tribes that have been recognized by their respective states, but not the federal government. Part One discusses how state recognition functions within our federalist system and why it is becoming increasingly important for states and tribes today. Part Two categorizes the various recognition schemes utilized by states into state law, administrative, legislative and executive recognition processes. Part Three provides a summary of the tribes recognized by each state, each state’s regulatory approach to tribal-state relations, and any state Indian reservations. Part Four concludes with a brief …

Federalism And The Tug Of War Within: Seeking Checks And Balance In The Interjurisdictional Gray Area, Erin Ryan

Faculty Publications

Federalism and the Tug of War Within explores tensions that arise among the underlying values of federalism when state or federal actors regulate within the "interjurisdictional gray area" that implicates both local and national concerns. Drawing examples from the failed response to Hurricane Katrina and other interjurisdictional problems to illustrate this conflict, the Article demonstrates how the trajectory set by the New Federalism's "strict-separationist" model of dual sovereignty inhibits effective governance in these contexts. In addition to the anti-tyranny, pro-accountability, and localism-protective values of federalism, the Article identifies a problem-solving value inherent in the capacity requirement of American federalism's subsidiarity …

Slides: The Future Of Oil And Gas Development On Federal Lands, Mike Chiropolos

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

Presenter: Mike Chiropolos, Lands Program Director, Western Resource Advocates

44 slides

Agenda: The Future Of Natural Resources Law And Policy, University Of Colorado Boulder. Natural Resources Law Center, Rocky Mountain Mineral Law Foundation

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

The Natural Resources Law Center's 25th Anniversary Conference and Natural Resources Law Teachers 14th Biennial Institute provided an opportunity for some of the best natural resources lawyers to discuss future trends in the field. The conference focused on the larger, cross-cutting issues affecting natural resources policy. Initial discussions concerned the declining role of scientific resource management due to the increased inclusion of economic-cost benefit analysis and public participation in the decision-making process. The effectiveness of this approach was questioned particularly in the case of non-market goods such as the polar bear. Other participants promoted the importance of public participation and …

Federalism And Natural Resources Policy [Outline], Robert L. Fischman

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

2 pages.

"Robert L. Fischman, Indiana University School of Law–Bloomington"

"Outline of Presentation"

Law Casebook Description And Table Of Contents: Constitutional Environmental And Natural Resources Law [Outline], Jim May, Robin Craig

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

6 pages.

"James May, Widener University School of Law" -- Agenda

Federalism And Accountability: State Attorneys General, Regulatory Litigation, And The New Federalism, Timothy L. Meyer

Scholarly Works

This Comment will examine how one particular state institution, state attorneys general (SAGs), has operated within a unique set of institutional and political constraints to create state-based regulation with nationwide impact in policy areas including consumer protection, antitrust, environmental regulation, and securities regulation. This state-based regulation casts doubt on one of the principle rationales advanced in the Supreme Court's anticommandeering line of cases for limiting federal power; namely, that such a move enhances electoral accountability, a concept central to our democracy. If in the absence of federal regulation a series of narrowly accountable state-based actors can create nationwide regulation in …

Holding Enemy Combatants In The Wake Of Hamdan, Ronald D. Rotunda

Ronald D. Rotunda

The article offers, inter alia, a succinct survey of the historical and jurisprudential background for the detainee cases and military commissions cases - including a number of important factual details glossed over in most reporting on the cases (e.g., Padilla has stipulated that he was an enemy spy sent to the United States; it was Hamdan's own defense counsel who had asked to exclude him from the voir dire portion of the proceedings) - as well as legal issues that may still arise.

'There It Is: Take It' Endangered Species And Water Management In The San Francisco Bay Delta, W. David Ball

Faculty Publications

This paper explores endangered species and water management in the San Francisco Bay Delta. Two endangered species, the Delta Smelt and the Winter-run Chinook Salmon, use the Bay Delta for crucial portions of their life cycle. At the same time, California's agricultural industry, as well as population centers to the South, require substantial outflows of Bay-Delta water. The paper explores the multi-jurisdictional regulation of the Bay-Delta's water, takes a hard look at the purported success of the Environmental Water Account (EWA) program, and reports on the tensions between scientists at regulatory agencies and the political appointees who oversee them. We …

Whose Ox Is Being Gored? When Attitudinalism Meets Federalism, Michael C. Dorf

Cornell Law Faculty Publications

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 …

How Congress Paved The Way For The Rehnquist Court's Federalism Revival: Lessons From The Federal Partial Birth Abortion Ban, Neal Devins

Faculty Publications

No abstract provided.

Active Sovereignty, Timothy Zick

Faculty Publications

No abstract provided.

Legal Certainty And Legal Methods: A European Alternative To American Legal Indeterminacy?, James Maxeiner

All Faculty Scholarship

Americans are resigned to a high level of legal indeterminacy. This Article shows that Europeans do not accept legal indeterminacy and instead have made legal certainty a general principle of their law. This Article uses the example of the German legal system to show how German legal methods strive to realize this general European principle. It suggests that these methods are opportunities for Americans to develop their own system to reduce legal indeterminacy and to increase legal certainty.

Federal Malpractice In Indian Country And The "Law Of The Place": A Re-Examination Of Williams V. United States Under Existing Law Of The Eastern Band Of Cherokee Indians, J. Matthew Martin

Campbell Law Review

This paper analyzes the law applicable in malpractice cases occurring within Indian Country and brought under the Federal Tort Claims Act, applying the "Law of the Place." In particular, this paper argues that the law of the Eastern Band of Cherokee Indians, including the customs and traditions of the Tribe, should have been applied by the Federal Courts in lieu of the law of North Carolina in Williams v. United States. The paper concludes by suggesting that a complete "laboratory" of Federalism should include the application of the laws of the respective Tribes where Federal medical negligence occurs.

Looking Backward: Richard Epstein Ponders The "Progressive" Peril, Michael Allan Wolf

Michigan Law Review

In the 1888 novel Looking Backward, Edward Bellamy dreamed up a twentieth century America that was a socialist utopia, a vision invoked four years later by the conservative Justice David J. Brewer as a warning against government regulation. In How Progressives Rewrote the Constitution, Richard Epstein, looking back at the twentieth century through an interpretive lens much more similar to Brewer's than Bellamy's, sees and bemoans the growth of a dominant big government of which the novelist could only dream. Epstein pulls no punches in his attack on those he deems responsible for the shift in the American …

The Telecommunications Economy And Regulation As Coevolving Complex Adaptive Systems: Implications For Federalism, Barbara A. Cherry

Federal Communications Law Journal

Satisfying the constraints for sustainable regulatory telecommunications policies is more challenging for regulatory regimes based on competition than monopoly. In an earlier paper, Johannes Bauer and I used complexity theory to improve our understanding of the requirements for sustainable telecommunications policies, showing that regulation has a diminishing capacity to achieve specifically desired outcomes and greater attention must be paid to the adaptability of policies and policymaking processes themselves. The present Article examines the implications of the complexity theory perspective for federalism. Federalism is a distinctive (patching) algorithm that confers system advantages for adaptability through diversity and coupling of policymaking jurisdictions-mechanisms …

Erie, The Class Action Fairness Act, And Some Federalism Implications Of Diversity Jurisdiction, David Marcus

William & Mary Law Review

The Class Action Fairness Act of 2005 (CAFA) expands diversity jurisdiction to allow most significant class actions based on state law to proceed in federal court. Hoping to limit the application of state law through class actions, CAFA's supporters believe that federal judges harbor a collective animosity toward the large, multistate class actions the statute targets. CAFA has no substantive component, and it does not tighten Rule 23's certification requirements. Nonetheless, if supporters are right about judicial preferences and their likely impact on certification decisions, CAFA will weaken the regulatory reach of state law.

Arguments about diversity jurisdiction and judicial …