Law Commons^™

Technology Convergence And Federalism: Who Should Decide The Future Of Telecommunications Regulation?, Daniel A. Lyons

University of Michigan Journal of Law Reform

This Article critically examines the division of regulatory jurisdiction over telecommunications issues between the federal government and the states. Currently, the line between federal and state jurisdiction varies depending on the service at issue. This compartmentalization might have made sense fifteen years ago, but the advent of technology convergence has largely rendered this model obsolete. Yesterday's telephone and cable companies now compete head-to-head to offer consumers the vaunted "triple play" of voice, video, and internet services. But these telecommunications companies are finding it increasingly difficult to fit new operations into arcane, rigid regulatory compartments. Moreover, services that consumers view as …

The Posse Comitatus Act And Disaster Response, Michael Greenberger, Arianne Spaccarelli

Michael Greenberger

The federal government’s failure to quickly send active duty troops and other military assets to Louisiana in the wake of Hurricane Katrina primarily stems from its narrow interpretation of the Posse Comitatus Act (PCA), which generally bars the use of federal troops for domestic law enforcement. As this chapter explains, the complete breakdown of law and order during a catastrophic emergency such as Hurricane Katrina allows the president to unilaterally deploy federal troops. This authority to deploy federal troops in response to certain natural disasters, in accordance with the PCA and the Constitution, is found in the Insurrection Act, Stafford …

Rhetorical Federalism: The Value Of State-Based Dissent To Federal Health Reform, Elizabeth Weeks Leonard

Scholarly Works

This Article makes the affirmative case for the widespread trend of state resistance to the recently enacted, comprehensive federal health reform law, the Patient Protection and Affordable Care Act of 2010, or ACA. A significant number of states have engaged in various forms of objection to the new federal laws, including filing lawsuits against the federal government, enacting laws providing that ACA will not apply to residents of the state, and refusing to cooperate with implementing the new laws. This Article identifies reasons why those actions should not be disregarded simply as Tea Party antics or election-year gamesmanship but instead …

An Offensive Weapon?: An Empirical Analysis Of The 'Sword' Of State Sovereign Immunity In State-Owned Patents, Tejas N. Narechania

Tejas N. Narechania

Completing Ely's Representation Reinforcing Theory Of Judicial Review By Accounting For The Constitutional Values Of State Citizenship, Shane Pennington

Shane Pennington

John Hart Ely famously proposed a representation reinforcing theory of judicial review. Ely said that the Constitution embodies certain procedural principles that make the ideal of American representative democracy possible. Thus, where courts find that the political process has broken down, putting that republican goal out of reach, they must step in and exercise judicial review to correct for the procedural breakdown and to reinforce the representational principles the Constitution embodies.

Whether Ely’s theory is constructed on a foundation of sand or stone depends—to a large extent—on the rigor of his conception of “American representative democracy,” which he gleans largely …

Section 8: Federalism, Institute Of Bill Of Rights Law At The William & Mary Law School

Supreme Court Preview

No abstract provided.

Just Another Kid With A Gun? United States V. Michael R.: Reviewing The Youth Handgun Safety Act Under The United States V. Lopez Commerce Clause Analysis, Steven Rosenberg

Golden Gate University Law Review

The Lopez decision prompted many defendants, charged under a wide variety of federal statutes, to attack those statutes as unconstitutional under the new "commercial activity" test. The United States Court of Appeals for the Ninth Circuit addressed one such challenge in United States v. Michael R. Section II of this note discusses Michael R.'s facts and procedural history. Section III outlines the history of Commerce Clause jurisprudence, with an emphasis on the recent change in the Supreme Court's review of Congress' use of the commerce power under Lopez. In addition, Section III details the legislative history of the Youth Handgun …

The Posse Comitatus Act And Disaster Response, Michael Greenberger, Arianne Spaccarelli

Michael Greenberger

The federal government’s failure to quickly send active duty troops and other military assets to Louisiana in the wake of Hurricane Katrina primarily stems from its narrow interpretation of the Posse Comitatus Act (PCA), which generally bars the use of federal troops for domestic law enforcement. As this chapter explains, the complete breakdown of law and order during a catastrophic emergency such as Hurricane Katrina allows the president to unilaterally deploy federal troops. This authority to deploy federal troops in response to certain natural disasters, in accordance with the PCA and the Constitution, is found in the Insurrection Act, Stafford …

Reconsidering Federalism And The Farm: Toward Including Local, State, And Regional Voices In America’S Food Syste, Margaret Sova Mccabe

Margaret Sova McCabe

The American food system has pressing problems that affect us all. Our food system's structure contributes to public health problems including obesity, food safety, and environmental degradation. This relationship between the food system and pubic health necessitates understanding the federal government's role in the food system. Federalism contributes to alienating people from food production and consumption. This essay argues that to address public health problems successfully, we must question the federal government's pervasive role in the food system and institute greater state and local roles. The essay reviews the rise of federalism in agriculture. It then examines three recent developments …

Rhetorical Federalism: The Role Of State Resistance In Health Care Decisionmaking, Elizabeth Leonard

Elizabeth A. Weeks

This Article makes the affirmative case for the widespread trend of state resistance to the recently enacted, comprehensive federal health reform law, the Patient Protection and Affordable Care Act of 2010, or ACA. A significant number of states have engaged in various forms of objection to the new federal laws, including filing lawsuits against the federal government and enacting state laws providing that ACA will not apply to residents of the state. This Article identifies reasons why those actions should not be disregarded simply as Tea Party antics or election-year gamesmanship but instead should be considered valuable to the health …

The United States Are But One Country: A Short History Of Grammar And Liberty, Charles R. Gardner

Charles Gardner

This legal essay traces the conversion of “the United States” from a plural to a singular noun in United States Supreme Court decisions, in presidential proclamations and inaugural addresses, in diplomatic correspondence and in public discourse. It did not happen with a bang at the end of the Civil War, but with a whimper at the beginning of the twentieth century.

Today, at the beginning of the twenty-first, the singularity of humanity, for which that conflagration was allegedly fought, still eludes us. It is that latter singularity that inspires and organizes this essay.

Not until the digital age was it …

The Adam Walsh Act And The Failed Promise Of Administrative Federalism, Wayne A. Logan

Scholarly Publications

For advocates of federalism, these are uncertain times. With hope of meaningful judicial federalism having largely receded, and Congress persisting in its penchant for intrusions on state authority, of late several scholars have championed the capacity of executive agencies to enforce and preserve federalism interests. This paper tests this position, providing the first empirically based critical analysis of administrative federalism, focusing on the recently enacted Adam Walsh Act, intended by Congress to redesign states’ sex offender registration and community notification laws. The paper casts significant doubt on the accepted empirical assumptions of administrative federalism, adding to the limited evidence amassed …

Presidents, Preemption, And The States, Michele E. Gilman

All Faculty Scholarship

Early in his administration, President Obama issued a memorandum about preemption that ordered federal agencies to fully consider state interests before preempting state laws. The Obama memorandum was a rebuke to the Bush Administration, which had regularly inserted preemption provisions into federal regulations in areas affecting health, consumer safety, and the environment. As a result of preemption, state laws could not be more protective than federal standards, and corporations were spared state tort lawsuits and state regulatory regimes. Preemption not only tends to pit corporate interests against the public welfare, but it can also undermine federalism. There is currently a …

Limiting Unlimited Government Through Constitutional Points Of Order, Justin T. Sigman

Justin T Sigman

This article identifies a salient feature of the recent health care debate that has been overlooked by the academy, historians and advocates of federalism: on December 23, 2009, for the first time in its history, the United States Senate directly debated and voted on the meaning of the Tenth Amendment. Equally unprecedented is the manner in which this came about: points of order, including constitutional points of order, had previously been a form of procedural objection to a bill or amendment; allowing a point of order that a bill or amendment violates a substantive provision of the Constitution is analogous …

The Moral Limits Of Jurisdiction, Beau James Brock, Harold Leggett

Beau James Brock

As the states and the public face new rules on emissions under the Clean Air Act, the authors find that environmental policy devoid of economic feasibility equals ethical bankruptcy by policymakers to the detriment of all citizens and their economic liberty

Dynamic Federalism And Patent Law Reform, Xuan-Thao Nguyen

Indiana Law Journal

Patent law is federal law, and the normative approach to patent reform has been top down, looking to Congress and the Supreme Court for changes to the broken and complex patent system. The normative approach thus far has not yielded satisfactory results. This Article challenges the static approach to patent reform and embraces the dynamic-federalism approach that patent reform can be an overlapping of both national and local efforts. Patent reform at the local level is essential as locales can serve as laboratories for changes, vertically compete with national government to reform certain areas of the patent system, and become …

Piedmont Environmental Council V. Federal Energy Regulatory Commission, Christopher Brown

South Carolina Law Review

No abstract provided.

Federalism, Finality And Foreign Judgments: Examining The Ali's Proposed Federal Foreign Judgments Statute, Robert L. Mcfarland

Robert L. McFarland

The force and effect of foreign civil judgments in U.S. courts is a question of historic significance and growing importance. Presently, the question is governed by state common law. The U.S. is not party to any treaty regarding the extraterritorial force of civil judgment and recent efforts to secure bilateral and multilateral agreements on the issue have failed. The American Law Institute recently adopted a model federal statute regarding the question. The ALI’s asserts that its federal statute, if adopted, would entice foreign nations back to bargaining table and increase U.S. leverage in those negotiations.

This article examines the ALI’s …

The Supreme Court's Assault On Litigation: Why (And How) It Could Be Good For Health Law, Abigail R. Moncrieff

Abigail R. Moncrieff

In recent years, the Supreme Court has narrowed or eliminated private rights of action in many legal regimes, much to the chagrin of the legal academy. That trend, although certainly not limited to health law, has had a significant impact on the field; the Court’s decisions have eliminated the private enforcement mechanism for at least three important healthcare regimes: Medicaid, employer-sponsored insurance, and medical devices. In a similar trend outside the courts, state legislatures have capped noneconomic and punitive damages for medical malpractice litigation, weakening the tort system’s deterrent capacity in those states. This Article points out that the trend …

Strategies Of Containment: Status Regimes And The American Constitution, Bruce E. Boyden

Bruce E. Boyden

The American constitution was born flawed: it failed to provide a mechanism for resolving entrenched differences in the social status regimes between states. This Article argues that part of the purpose of the Privileges or Immunities Clause of the Fourteenth Amendment was to correct that flaw. The Privileges or Immunities Clause was the culmination of a long antebellum debate over whether southern states had to respect the rights of northern black citizens as they travelled. The Clause achieves this goal by requiring states in certain circumstances to respect the status determinations of other states when the citizens of those other …

Urbanization, Water Quality, And The Regulated Landscape, David R. Owen

David R Owen

Watershed scientists frequently describe urbanization as a primary cause of water quality degradation, and recent studies conclude that even in lightly-developed watersheds, urbanization often precludes attainment of water quality standards. This article considers legal responses to this pervasive problem. It explains why traditional legal measures have been ineffective, and it evaluates several recent innovations piloted in the northeastern United States and potentially applicable across the nation. It concludes that the innovations, while raising some new problems, represent a promising shift, and it discuss additional reforms and research needed to better reconcile legal water quality standards and traditional land development patterns.

The Vote From Beyond The Grave, Krysta R. Edwards

William & Mary Law Review

No abstract provided.

The Tax Injunction Act And Federal Jurisdiction: Reasoning From The Underlying Goals Of Federalism And Comity, David Fautsch

Michigan Law Review

States routinely contest federal jurisdiction when a state tax is challenged in federal district court on federal constitutional grounds. States argue that the Tax Injunction Act, 28 U.S.C. § 1341 (2006), bars jurisdiction and, even if the Tax Injunction Act does not apply, the principals of federalism and comity require abstention. The United States Supreme Court has not squarely addressed the scope of federalism and comity in relation to the Tax Injunction Act, and federal courts of appeal are split. In the Fourth and Tenth Circuits, federalism and comity require federal district courts to abstain even where the Tax Injunction …

Statewide Capital Punishment: The Case For Eliminating Counties' Role In The Death Penalty, Adam M. Gershowitz

Vanderbilt Law Review

The State of Texas is known as the capital of capital punishment.' But is that reputation deserved? In a way, yes. Texas sends more people to death row than any other state, and it executes them far faster. However, in another way, it is incorrect to suggest that "the State" of Texas is a prolific user of capital punishment. Death penalty cases are prosecuted by counties, not the state, and a majority of Texas's counties have never imposed the death penalty. In fact, only a handful of Texas's 254 counties regularly seek the death penalty. Many other states have a …

Original Habeas Redux, Lee B. Kovarsky

Lee Kovarsky

In "Original Habeas Redux," I map the modern dimensions of the Supreme Court’s most exotic jurisdiction—the original habeas writ. The Court has not issued such relief since 1925 and, until recently, had not ordered a case transferred pursuant to that authority in over fifty years. In August 2009, by transferring a capital prisoner’s original habeas petition to a federal district court rather than dismissing it outright, In re Davis abruptly thrust this obscure power back into mainstream legal debate over both the death penalty and the Supreme Court’s appellate jurisdiction. Scrambling to understand how the authority has evolved since its …

Federalism And Concurrent Jurisdiction In Global Markets: Why A Combination Of National And State Antitrust Enforcement Is A Model For Effective Economic Regulation, Katherine M. Jones

Katherine M. Jones

The focus of the article is on the proper role of U.S. state governments in regulating international business. The specific issue analyzed is the desirability of having state attorneys general enforce federal antitrust laws in global markets concurrently with federal antitrust regulators. Congress granted state officials this power in 1976. In 2009, however, a large proportion of the world’s commerce is now conducted in international, rather than national markets. This development has led Judge Richard A. Posner and others to advocate that the states be stripped of their statutory power to enforce federal antitrust laws on behalf of their residents …

Grizzly Bears, Gray Wolves And Federalism, Oh My! The Role Of The Endangered Species Act In De Facto Ecosystem-Based Management In The Greater Glacier Region Of Northwest Montana

Timothy P Duane

This Article, which examines both current and historic grizzly bear (Ursus arctos) and gray wolf (Canis lupus) recovery and habitat conservation efforts in the Greater Glacier Region of northwestern Montana, reviews and evaluates the aggregated effects of local, state, federal and tribal regulatory actors on the eco-regional success of grizzly and wolf recovery and habitat conservation and the role the Endangered Species Act has played in these efforts. While regulatory actors operate in close proximity to each other in and around Glacier National Park, clear jurisdictional boundaries limit the scope of their respective state, federal and tribal authority over the …

The Legal Profession Behind Bars: A Balanced Approach To Reforming The Bar Exam And Multijurisdictional Legal Practice, Stephanie A. Nadler

Stephanie A Nadler

At one time there may have been sound reasons for confining a lawyer’s skills and practice to a particular state. But in today’s legal market, that practice is antiquated. This paper will argue that the current state-centered system of legal practice in the United States operates inefficiently, and, due in part to the evolving transnational legal environment, the system requires reform at the national level. While one may expect to find that a particular state competes for applicants to take the bar exam or for attorneys to practice in that state, such competition does not exist. In fact, the current …

Access To Courts And Preemption Of State Remedies In Collective Action Perspective, Robert L. Glicksman, Richard E. Levy

Robert L. Glicksman

Preemption of common law remedies for individual injuries such as harm to health raises fundamental questions about the proper allocation of authority between the federal and state governments and about the role of courts in interpreting statutes and providing remedies for those who suffer injuries. Developing a workable framework for analyzing what we call “remedial preemption” issues can help to ensure an appropriate accommodation of the federal and state interests at stake and promote consistent application of preemption doctrine to state judicial remedies.

This article applies a “collective action” framework for preemption analysis to the issue of remedial preemption. Our …

Charters, Compacts And Tea Parties: The Decline And Resurrection Of A Delegation View Of The Constitution, Edward A. Fallone

Edward A Fallone

This article seeks to address a gap in constitutional law scholarship: the absence of a systematic examination of the manner in which the contractual nature of the Constitution illuminates the original understanding of the text. By closely examining the historical evidence, I argue that the interpretation of the Constitution has been influenced by dueling conceptions of contractual origin. One view treats the Constitution as a charter that delegates limited and defined authority to the federal government. The second view treats the Constitution as a compact the terms of which reflect a bargain between the federal government and a discrete body …