Law Commons^™

Safeguarding Fundamental Rights: Judicial Incursion Into Legislative Authority, Alexander Tsesis

Alexander Tsesis

The Supreme Court recently limited Congress’s ability to pass civil rights statutes for the protection of fundamental rights. Decisions striking sections of the Violence Against Women Act and the Americans with Disabilities Act focused on states’ sovereign immunity. These holdings inadequately analyzed how the Reconstruction Amendments altered federalism by making the federal government primarily responsible for protecting civil rights. The Supreme Court also overlooked principles of liberty and equality lying at the foundation of American governance. The Court’s restrictions on legislative authority to identify fundamental rights and to safeguard them runs counter to the central credo of American governance that …

States Rights? What States’ Rights?: Implying Limitations On The Federal Government From The Overall Design., Calvin H. Johnson

Calvin H. Johnson

States Rights? What States’ Rights? Implying Limitations on the Federal Government from the Overall Design.

Calvin H. Johnson, University of Texas

Abstract.

In recent years, the Supreme Court has been finding restrictions on the federal government in favor of the states on the basis of the overall design of the Constitution, but not resting on any specific text. The historical Constitution, however, overall was a nationalizing weapon directed against the states, written to empower an imbecilic and impotent confederation-level government, and to end the supremacy of the states. If one is going use the grand design of the historical Constitution …

What's Wrong With Judicial Supremacy? What's Right About Judicial Review?, Robert Lipkin

Robert Justin Lipkin

Skepticism concerning the legitimacy of judicial review typically occurs without distinguishing between judicial review and judicial supremacy. The former gives the Court a say in evaluating the constitutionality of legislation and other government conduct. The latter gives the Court the final say over these matters. This Article defends the Court's role in judicial review but rejects the practice of judicial supremacy. The Article first critically examines some of the more important attempts to justify judicial supremacy and finds them wanting. It then explains why judicial review, as the practice of applying American political philosophical concepts such as federalism, the separation …

Authorizing Subnational Constitutions In Transitional Federal States: South Africa, Democracy, And The Kwazulu- Natal Constitution, Jonathan Marshfield

Jonathan Marshfield

A Slapp In The Face: Why Principles Of Federalism Suggest That Federal District Courts Should Stop Turning The Other Cheek, Lisa Litwiller

Lisa Litwiller

This article examines the nexus between state and federal law where SLAPP and Anti-SLAPP statutory schemes are litigated by a federal district court sitting in diversity. In particular, this article will explore the standard the federal court should apply when an Anti-SLAPP early motion to dismiss is brought by SLAPP defendant and the plaintiff challenges dismissal on the basis of the Federal Rules of Civil Procedure pursuant to the regime established by the Supreme Court in Hannah v. Plumer.

Cafa's Impact On Litigation As A Public Good, Elizabeth Chamblee Burch

Elizabeth Chamblee Burch

Class actions regulate when government fails. Perhaps this use as an ex post remedy when ex ante regulation founders explains the fervor and rhetoric surrounding Rule 23’s political life. In truth, the class action does more than aggregate; it augments government policing and generates external societal benefits. These societal benefits – “externalities” – are the spillover effects from facilitating small claims litigation. In federalizing class actions through the Class Action Fairness Act (CAFA), Congress, in some ways, impeded class action practice, thereby negating its positive externalities and inhibiting backdoor regulation. This Article critically considers those effects on the common good. …

Progressive Policy-Making On The Local Level: Rethinking Traditional Notions Of Federalism, Matthew J. Parlow

Matthew Parlow

A Slapp In The Face: Why Principles Of Federalism Suggest That Federal District Courts Should Stop Turning The Other Cheek, Lisa Litwiller

Lisa Litwiller

This article examines the nexus between state and federal law where SLAPP and Anti-SLAPP statutory schemes are litigated by a federal district court sitting in diversity. In particular, this article will explore the standard the federal court should apply when an Anti-SLAPP early motion to dismiss is brought by SLAPP defendant and the plaintiff challenges dismissal on the basis of the Federal Rules of Civil Procedure pursuant to the regime established by the Supreme Court in Hannah v. Plumer.