Law Commons^™

Immigration Policing And Federalism Through The Lens Of Technology, Surveillance, And Privacy, Anil Kalhan

Anil Kalhan

With the deployment of technology, federal programs to enlist state and local police assistance with immigration enforcement are undergoing a sea change. For example, even as it forcefully has urged invalidation of Arizona’s S.B. 1070 and similar state laws, the Obama administration has presided over the largest expansion of state and local immigration policing in U.S. history with its implementation of the “Secure Communities” program, which integrates immigration and criminal history database systems in order to automatically ascertain the immigration status of every individual who is arrested and booked by state and local police nationwide. By 2012, over one fifth …

Trademark Law's Faux Federalism, Mark Mckenna

Mark P. McKenna

Federal and state trademark laws regulate concurrently: The Lanham Act does not preempt state law, and in fact many states have statutorily and/or judicially developed trademark or unfair competition laws of their own. This state of affairs, which is now well-accepted even if it has not always been uncontroversial, distinguishes trademark law from patent and copyright law, since federal patent and copyright statutes preempt state law much more broadly. The Patent Act entirely preempts state law with respect to non-secret inventions and the 1976 Copyright Act preempts state copyright law with respect to all works fixed in a tangible medium …

Convention On The Rights Of Persons With Disabilities - Testimony Of Timothy L. Meyer Before The U.S. Senate Committee On Foreign Relations, Timothy L. Meyer

Presentations and Speeches

Testimony of Timothy L. Meyers before the U.S. Senate Foreign Relations Committee on November 5, 2013 concerning the Convention on the Rights of Persons with Disabilities.

The Theology Of The Blaine Amendments, Richard W. Garnett

Richard W Garnett

The Supreme Court affirmed, in Zelman v. Simmons-Harris, that the Constitution permits us to experiment with school-choice programs and, in particular, with programs that include religious schools. However, the constitutions of nearly forty States contain provisions - generically called Blaine Amendments - that speak more directly and, in many cases, more restrictively, than does the First Amendment to the flow of once-public funds to religious schools. This Article is a series of reflections, prompted by the Blaine Amendments, on education, citizenship, political liberalism, and religious freedom. First, the Article considers what might be called the federalism defense of the provisions. …

The New Federalism, The Spending Power, And Federal Criminal Law, Richard W. Garnett

Richard W Garnett

It is difficult in constitutional-law circles to avoid the observation that we are living through a revival of federalism. Certainly, the Rehnquist Court has brought back to the public-law table the notion that the Constitution is a charter for a government of limited and enumerated powers, one that is constrained both by that charter's text and by the structure of the government it creates. This allegedly revolutionary Court seems little inclined, however, to revise or revisit its Spending Power doctrine, and it remains settled law that Congress may disburse funds in pursuit of ends not authorized explicitly in Article I …

Judicial Review, Local Values, And Pluralism, Richard W. Garnett

Richard W Garnett

At the Federalist Society's 2008 National Student Symposium, a panel of scholars was asked to consider the question, does pervasive judicial review threaten to destroy local identity by homogenizing community norms? The answer to this question is yes, pervasive judicial review certainly does threaten local identity, because such review can homogenize[e] community norms, either by dragging them into conformity with national, constitutional standards or (more controversially) by subordinating them to the reviewers' own commitments. It is important to recall, however, that while it is true that an important feature of our federalism is local variation in laws and values, it …

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

Anthony J. Bellia

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 …

General Law In Federal Court, Anthony J. Bellia Jr., Bradford R. Clark

Anthony J. Bellia

No abstract provided.

The Federal Common Law Of Nations, Anthony J. Bellia, Bradford R. Clark

Anthony J. Bellia

Courts and scholars have vigorously debated the proper role of customary international law in American courts: To what extent should it be considered federal common law, state law, or general law? The debate has reached something of an impasse, in part because various positions rely on, but also are in tension with, historical practice and constitutional structure. This Article describes the role that the law of nations actually has played throughout American history. In keeping with the original constitutional design, federal courts for much of that history enforced certain rules respecting other nations' perfect rights (or close analogues) under the …

State Courts And The Interpretation Of Federal Statutes, Anthony J. Bellia

Anthony J. Bellia

Scholars have long debated the separation of powers question of what judicial power federal courts have under Article III of the Constitution in the enterprise of interpreting federal statutes. Specifically, scholars have debated whether, in light of Founding-era English and state court judicial practice, the judicial power of the United States should be understood as a power to interpret statutes dynamically or as faithful agents of Congress. This Article argues that the question of how courts should interpret federal statutes is one not only of separation of powers but of federalism as well. State courts have a vital and often …

Federal Regulation Of State Court Procedures, Anthony J. Bellia

Anthony J. Bellia

May Congress regulate the procedures by which state courts adjudicate claims arising under state law? Recently, Congress not only has considered several bills that would do so, but has enacted a few of them. This Article concludes that such laws exceed Congress's constitutional authority. There are serious questions as to whether a regulation of court procedures qualifies as a regulation of interstate commerce under the Commerce Clause. Even assuming, however, that it does qualify as such, the Tenth Amendment reserves the power to regulate court procedures to the states. Members of the Founding generation used conflict-of-laws language to describe a …

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

Anthony J. Bellia

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 …

Equilibrium, Adam Lamparello

Adam Lamparello

No abstract provided.

"Standing" In The Shadow Of Erie: Federalism In The Balance In Hollingsworth V. Perry, Glenn Koppel

Glenn Koppel

Abstract “Standing” in the Shadow of Erie: Federalism in the Balance in Hollingsworth v. Perry In Hollingsworth v. Perry, one of the two same-sex marriage cases decided by the Supreme Court in 2013, the Court declined to address the constitutionality of California’s Proposition 8, finding that the initiative proponents lacked standing to appeal the district court’s judgment declaring the proposition unconstitutional and enjoining its enforcement. Since the State’s Governor and Attorney General declined to appeal, the proponents sought to assert the State’s particularized interest in the proposition’s validity. State law, as interpreted by the California Supreme Court, grants authority to …

The Scope Of National Power Vis-A-Vis The States: The Dispensability Of Judicial Review, Jesse H. Choper

Jesse H Choper

No abstract provided.

The Applicability Of Co-Operative Federalism: Lessons Learned From The Assisted Human Reproduction Act, David A.M. Seccareccia

Electronic Thesis and Dissertation Repository

The Assisted Human Reproduction Act (AHRA) is a piece of federal legislation that was passed in 2004. The province of Quebec issued a reference question regarding the constitutionality of the federal legislation and in 2010 the Supreme Court of Canada rendered its opinion. The result was a success for the provinces because the Supreme Court’s verdict severely limited the scope of the federal legislation. In addition to clarifying the limits of the federal government’s criminal law power, the saga of the AHRA also helps illustrate the integral role the concept of co-operative federalism plays in modern Canadian inter-governmental …

Something To Lex Loci Celebrationis: Federal Marriage Benefits Following United States V. Windsor, Meg Penrose

Meg Penrose

This article provides one of the first substantive treatments of United States v. Windsor, the Supreme Court's recent same-sex marriage case. The article's thesis proposes lex loci celebrationis (the place of marriage) as the proper method for determining marriage for federal law purposes. Failure to adopt lex loci celebrationis may violate the Fifth Amendment equal protection guarantee or the constitutional right to travel. Further, adoption of the lex loci celebrationis standard furthers marital stability and predictability.

Something To Lex Loci Celebrationis: Federal Marriage Benefits Following United States V. Windsor, Mary Margaret Meg Penrose

Meg Penrose

Something To Lex Loci Celebrationis: Federal Marriage Benefits Following United States V. Windsor, Meg Penrose

Meg Penrose

This article provides one of the first substantive treatments of United States v. Windsor, the Supreme Court's recent same-sex marriage case. The article's thesis proposes lex loci celebrationis (the place of marriage) as the proper method for determining marriage for federal law purposes. Failure to adopt lex loci celebrationis may violate the Fifth Amendment equal protection guarantee or the constitutional right to travel. Further, adoption of the lex loci celebrationis standard furthers marital stability and predictability.

“Unmistakably Clear” Coercion: Finding A Balance Between Judicial Review Of The Spending Power And Optimal Federalism, Dale B. Thompson

San Diego Law Review

This Article proposes a new tier of scrutiny, “unmistakably clear,” for conducting judicial review of congressional authority under the Spending Clause. Under this standard, a condition would be unconstitutional only if it is unmistakably clear that it is coercive. In order to develop this proposal, this Article traces the debate over the spending power from the Federalist Papers up through the decision in National Federation of Independent Business v. Sebelius, finding strong arguments for granting significant deference to Congress’s Spending Clause authority. Careful analysis of the opinions in the case yields not only the name for the new standard of …

Tocqueville’S Slow And Steady Democratic Order In Light Of Us V. Windsor: Same Sex Marriage, And The Dilemma Of Majority Tyranny, Federalism, And Equality Of Conditions, Harry M. Hipler

Harry M Hipler

Tocqueville is a reliable interpreter of contemporary American life. His ideas written in the 1830s still resonate today. Tocqueville’s democratic order in Democracy in America (DA) is a dynamic process of socialization and democratization that balances liberty, authority, and equality of the individual in the community in order to obtain social and political justice. The USSC in US v. Windsor ruled that Section 3 of DOMA violated the doctrine of federalism and state sanctioned same-sex marriage. The decision followed Tocqueville’s gradual and progressive development of social and political justice that is crucial to a sustainable democratic order. In my research …

The Macondo Well Blowout: Taking The Outer Continental Shelf Lands Act Seriously, John Costonis

John J. Costonis

Choice of law issues in marine pollution events engage federal admiralty/general maritime law, federal environmental legislation and the reserved powers of the states to protect their natural resources and economic welfare. Admiralty and general maritime law enjoyed center stage throughout the first two thirds of the last century. Federal marine pollution statutes were few and weak, and state initiatives were typically deemed preempted in all but the so-called “marine but local” cases. The equilibrium began to shift in favor of state police powers and federal environmental values in the mid-1960’s in consequence of the Supreme Court’s solicitude for the former, …

Discussion: A Focus On Federalism, Jeffrey B. Morris

Jeffrey B. Morris

No abstract provided.

The Quiet Revolution And Federalism: Into The Future, Patricia E. Salkin

Patricia E. Salkin

This Article offers an examination of the federal role in land use planning and regulation set in the context of varying theories of federalism by presenting a historical and modern overview of the increasing federal influence in local land use planning and regulation, specifically highlighting how federal statutes and programs impact local municipal decision making in the area of land use planning. Part II provides a brief introduction into theories of federalism and their application to local land use regulation in the United States. Part III provides a brief overview of federal legislation in the United States which affected local …

Engaging Deliberative Democracy At The Grassroots: Prioritizing The Effects Of The Fiscal Crisis In New York At The Local Government Level, Patricia E. Salkin, Charles Gottlieb

Patricia E. Salkin

Part I of this Article discusses many of the factors contributing to the fiscal crisis at the local level in New York including historic decreases in federal and state revenue sharing, the imposition of a new property tax cap, the failure of New York to address meaningfully the subject of unfunded mandates on local governments, and the dependency of some local jurisdictions on the timely adoption of a state budget. Part II discusses concepts of deliberative democracy and how local residents might be engaged to become partners with local officials in making difficult fiscal decisions that impact all community residents. …

The Federal Circuit As A Federal Court, Paul Gugliuzza

Faculty Scholarship

The U.S. Court of Appeals for the Federal Circuit has exclusive jurisdiction over patent appeals and, as a consequence, the last word on many legal issues important to innovation policy. This Article shows how the Federal Circuit augments its already significant power by impeding other government institutions from influencing the patent system. Specifically, the Federal Circuit has shaped patent-law doctrine, along with rules of jurisdiction, procedure, and administrative law, to preserve and expand the court’s power in four interinstitutional relationships: the court’s federalism relationship with state courts, its separation of powers relationship with the executive and legislative branches, its vertical …

The Federal Circuit As A Federal Court, Paul R. Gugliuzza

William & Mary Law Review

The U.S. Court of Appeals for the Federal Circuit has exclusive jurisdiction over patent appeals and, as a consequence, the last word on many legal issues important to innovation policy. This Article shows how the Federal Circuit augments its already significant power by impeding other government institutions from influencing the patent system. Specifically, the Federal Circuit has shaped patent-law doctrine, along with rules of jurisdiction, procedure, and administrative law, to preserve and expand the court's power in four interinstitutional relationships: the court's federalism relationship with state courts, its separation of powers relationship with the executive and legislative branches, its vertical …

Foreign Affairs Federalism: A Revisionist Approach, Daniel Abebe, Aziz Z. Huq

Vanderbilt Law Review

In April 2010, the Arizona legislature enacted the Support Our Law Enforcement and Safe Neighborhoods Act. Commonly known as SB 1070, the law created a slate of new criminal offenses and arrest powers covering aliens within Arizona's borders. SB 1070 proved divisive. It inspired copycat legislation in several states, provoked sharp criticism from the legal academy, and-most relevant here- catalyzed a lawsuit by the U.S. Department of Justice seeking a preliminary injunction against the state law on the ground that it was preempted by federal law. Initially, the federal government's litigation prospects seemed dim. One term before SB 1070 reached …

When Does Sleaze Become A Crime? Redefining Honest Services Fraud After Skilling V. United States, Teresa M. Becvar

Chicago-Kent Law Review

Honest services fraud, which is defined as a scheme or artifice to deprive another of the intangible right of “honest services,” is just one tool in the federal government’s extensive arsenal used to prosecute public corruption and private corporate fraud. The Supreme Court curtailed the expansion of this versatile theory twice in the past three decades, most recently in June 2010 in Skilling v. United States. In Skilling, the Court held, inter alia, that the federal honest services statute covers only bribery and kickback schemes and not undisclosed self-dealing. Months later, members of Congress proposed the Honest Services …

Fish And Federalism: How The Asian Carp Litigation Highlights A Decifiency In The Federal Common Law Displacement Analysis, Molly M. Watters

Michigan Journal of Environmental & Administrative Law

In response to the growing threat posed by the progress of Asian carp up the Mississippi River toward the Great Lakes, and with increased frustration with the federal response to the imminent problem, in 2010, five Great Lakes states sued the Army Corps of Engineers and the Metropolitan Water Reclamation District of Greater Chicago to force a more desirable and potentially more effective strategy to prevent the Asian carp from infiltrating the Great Lakes: closing the Chicago locks. This Note examines the federal common law displacement analysis through the lens of the Asian carp litigation. Both the Federal District Court …