Law Commons^™

Before Competition: Origins Of The Internal Affairs Doctrine, Frederick Tung

Faculty Scholarship

To the modern corporate scholar and lawyer, the internal affairs doctrine seems in the natural order ofthings. Corporate law is state law. Each corporation is formed under the law of its chosen state ofincorporation. To ensure consistency and predictability, that law must govern the corporation's internalaffairs. Yet the origin of such a doctrine is puzzling. Respecting the firm's choice of corporate law, thedoctrine forces state legislatures into competition to attract incorporations. But how did legislatures come to concede their traditional territorial regulatory authority, and instead agree to compete? This Article solves this puzzle, offering the first account of the doctrine's …

Cooperative Federalism And Healthcare Reform: The Medicare Part D 'Clawback' Example, Elizabeth Weeks Leonard

Scholarly Works

This symposium article recounts recent litigation by several states over a provision of the Medicare Modernization Act Part D prescription drug benefit: The clawback, which requires states to pay the a potentially substantial portion of new federal program. I then examine the unique federalism implications of the clawback for ongoing state and federal health reform initiatives.

In spring 2006, several states petitioned the United States Supreme Court for original jurisdiction to hear a challenge to one provision of the new Medicare Part D prescription drug law. The federal government, while taking over prescription drug coverage for dually eligible beneficiaries, required …

Our Federalism Changes Course: The Supreme Court Limits State Sovereign Immunity In Bankruptcy Actions, Benjamin C. Hassebrock

Missouri Law Review

Although sovereign immunity jurisprudence is not the most highly publicized topic of debate in the mainstream media, it has recently become a major source of contention on the Supreme Court. The flurry of sovereign immunity litigation that has reached the high court in the last decade has yielded mostly 5-4 decisions that have expanded the state's ability to assert immunity as a defense. Given this trend, few could have predicted the outcome of the court's decision in Central Virginia Community College v. Katz. In Katz, the 5-4 decision broke the other direction, and the court held that states had waived …

Federalism Doctrines And Abortion Cases: A Response To Professor Fallon, Anthony J. Bellia

Journal Articles

This Essay is a response to Professor Richard Fallon's article, If Roe Were Overruled: Abortion and the Constitution in a Post-Roe World. In that article, Professor Fallon argues that if the Supreme Court were to overrule Roe v. Wade, courts might well remain in the abortion-umpiring business. This Essay proposes a refinement on that analysis. It argues that in a post-Roe world courts would not necessarily subject questions involving abortion to the same kind of constitutional analysis in which the Court has engaged in Roe and its progeny, that is, balancing a state's interest in protecting life against a pregnant …

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

Articles by Maurer Faculty

This article considers recent trends in federalism, with particular attention to natural resource law's statutory savings clauses. It begins with a case study of elk management in Jackson Hole, Wyoming. The elk controversy shows how a statutory savings clause can provide a state with traction to advance its interests, and demonstrates how the political winds of change can shift the balance of state-federal relations. The article then focuses on the common statutory savings clauses and their roles in circumscribing federal agency authority and establishing a basis for cooperation between federal and state governments. We analyze the interpretive approaches the judiciary …

Federalism And The Commerce Clause: A Comparative Perspective, Reuven S. Avi-Yonah

Articles

The U.S. Supreme Court has on numerous occasions addressed the constitutionality of state taxes under the U.S. Constitution (most often under the Commerce Clause, but sometimes under the Equal Protection and Due Process Clauses). In general, the Supreme Court has granted wide leeway to the states to adopt any tax system they wish, only striking down the most egregious cases of discrimination against out-of-state residents. Thus, for example, the Court has generally refused to intervene against state tax competition to attract business into the state. It has twice upheld a method of calculating how much income of a multinational enterprise …

Innovation Held Hostage: Has Federal Intervention Stifled Efforts To Reform The Child Welfare System?, Vivek Sankaran

Articles

The past thirty years have been marked by an increased federalization of child welfare law, which, like other areas of family law, traditionally remained within the sole purview of state legislatures. Despite increased oversight by the federal government, outcomes for foster children remain unacceptably poor The number of children in foster care has more than doubled over the past twenty-five years and reports of suspected maltreatment have skyrocketed. Children continue to stay too long in care and have too many placements. Case workers assigned to work with families and attorneys representing parents and children are overwhelmed and rarely provide meaningful …

The Origins Of Article Iii "Arising Under" Jurisdiction, Anthony J. Bellia

Journal Articles

Article III of the Constitution provides that the judicial Power of the United States extends to all cases arising under the Constitution, laws, and treaties of the United States. What the phrase arising under imports in Article III has long confounded courts and scholars. This Article examines the historical origins of Article III arising under jurisdiction. First, it describes English legal principles that governed the jurisdiction of courts of general and limited jurisdiction--principles that animated early American jurisprudence regarding the scope of arising under jurisdiction. Second, it explains how participants in the framing and ratification of the Constitution understood arising …

The Domestic Response To Global Climate Change: What Role For Federal, State, And Litigation Initiatives?, Alice Kaswan

Alice Kaswan

Although the United States is not a party to the Kyoto Protocol, a multitude of alternative domestic approaches to combat climate change have emerged at all levels of government. The article takes as given that climate change is a serious environmental problem that requires a legal response. Building on conference presentations at a USF symposium in March 2007, this article evaluates the most significant existing federal and state measures, including federal voluntary measures, California's vehicle emissions standards and global warming legislation, and the Regional Greenhouse Gas Initiative. The article also addresses three litigation initiatives: Massachusetts v. EPA, Friends of the …

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

Alexa Koenig

Federalism and the State Recognition of Native American Tribes provides an overview of the legal status of state-recognized Native American tribes—tribes that have been recognized by their respective states, but not the federal government. In the article, the authors discuss how state recognition functions within our federalist system and why state recognition has become increasingly important for states and tribes. The authors also categorize the various recognition schemes utilized by states into state law, administrative, legislative and executive recognition processes. Further, the authors provide a summary of the tribes recognized by each state and each state’s regulatory approach to tribal-state …

A Localist's Case For Decentralizing Immigration Policy, Matthew J. Parlow

Matthew Parlow