Law Commons^™

Structuring A Market-Oriented Federal Eco-Information Policy, Peter S. Menell

Peter Menell

No abstract provided.

Congressional Power To Regulate Sex Discrimination: The Effect Of The Supreme Court's "New Federalism", Calvin Massey

Maine Law Review

Congressional power to prevent and remedy sex discrimination in employment has been founded almost entirely upon the commerce power and Section 5 of the Fourteenth Amendment, which gives Congress power “to enforce, by appropriate legislation” the equal protection guarantee. The commerce power has enabled Congress to prohibit private sex discrimination in employment, and the combination of the commerce and enforcement powers has enabled Congress to prohibit such sex discrimination by public employers. From the late 1930s until the early 1990s the doctrinal architecture of these powers was relatively stable, even if statutory action to realize the promise of a nondiscriminatory …

Canadian Federalism In Design And Practice: The Mechanics Of A Permanently Provisional Constitution, James A. Gardner

Journal Articles

This paper examines the interaction between constitutional design and practice through a case study of Canadian federalism. Focusing on the federal architecture of the Canadian Constitution, the paper examines how subnational units in Canada actually compete with the central government, emphasizing the concrete strategies and tactics they most commonly employ to get their way in confrontations with central authority. The evidence affirms that constitutional design and structure make an important difference in the tactics and tools available to subnational units in a federal system, but that design is not fully constraining: there is considerable evidence of extraconstitutional innovation and improvisation …

Beyond The Reach Of States: The Dormant Commerce Clause, Extraterritorial State Regulation, And The Concerns Of Federalism, Peter C. Felmly

Maine Law Review

The Commerce Clause of the United States Constitution provides that “[t]he Congress shall have Power ... [t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Interpreting this explicit grant of power to Congress, the Supreme Court has long recognized the existence of an implied limitation on the power of a state to legislate in areas of interstate commerce when Congress has remained silent. Under what is referred to as the negative or “dormant” Commerce Clause, the federal courts have thus scrutinized state legislation for well over one hundred years. In the past several …

Federalism And Constitutional Criminal Law, Brenner M. Fissell

Hofstra Law Review

A vast body of constitutional law regulates the way that police investigate crimes and the way that criminal cases are handled at trial. The Supreme Court has imposed far fewer rules regarding what can be a crime in the first place, how it must be defined, and how much it can be punished. What explains this one-sided favoring of “procedure” over “substance?” This Article aims to unearth and assess the justification that the Court itself most often uses when it refuses to place constitutional limits on substantive criminal law: federalism. While the Court often invokes the concept to rationalize its …

Fundamental Rights, Federal States, And Sovereignty: Some Random Remarks, Donald H. Regan

Articles

I am not an EU lawyer. The days are long gone when I could know a substantial fraction of EU law just by knowing about the free movement of goods. I get a fleeting glimpse of where the EU is going every year at the Jean Monnet Seminar in Dubrovnik, but no more than a glimpse. Still, when the editors invited me to write this Editorial Note, I could not refuse. Looking for inspiration, I read or reread all the previous twelve Notes. This was an enjoyable and informative exercise in itself, but only a few of the essays suggested …

Police Discretion And Local Immigration Policymaking, Rick Su

Rick Su

Immigration responsibilities in the United States are formally charged to a broad range of federal agencies, from the overseas screening of the State Department to the border patrols of the Department of Homeland Security. Yet in recent years, no department seems to have received more attention than that of the local police. For some, local police departments are frustrating our nation’s immigration laws by failing to fully participate in federal enforcement efforts. For others, it is precisely their participation that is a cause for concern. In response to these competing interests, a proliferation of competing state and federal laws have …

Notes On The Multiple Facets Of Immigration Federalism, Rick Su

Rick Su

This symposium essay takes as its starting point the contestable position that some degree of immigration federalism is both constitutionally permissible and politically desirable. It suggests, however, that liberating the issue of immigration from the shadows of federal exclusivity does not necessarily tell us much about what a conceptual framework or legal jurisprudence of immigration federalism should or will actually be like. This is not solely a function of the difficulties inherent in incorporating principles of federalism into what is usually understood to be an exclusive federal field of immigration. Rather, it is also a consequence of the rifts and …

Intrastate Federalism, Rick Su

Rick Su

In debates about the role of federalism in America, much turns on the differences between states. But what about divisions within states? The site of political conflict in America is shifting: battles once marked by interstate conflict at the national level are increasingly reflected in intrastate clashes at the local. This shift has not undermined the role of federalism in American politics, as many predicted. Rather, federalism's role has evolved to encompass the growing divide within states and between localities. In other words, federalism disputes — formally structured as between the federal government and the states — are increasingly being …

Autonomy And Isomorphism: The Unfulfilled Promise Of Structural Autonomy In American State Constitutions, James A. Gardner

James Gardner

In the American system of federalism, states have almost complete freedom to adopt institutions and practices of internal self-governance that they find best-suited to the needs and preferences of their citizens. Nevertheless, states have not availed themselves of these opportunities: the structural provisions of state constitutions tend to converge strongly with one another and with the U.S. Constitution. This paper examines two important periods of such convergence: the period from 1776 through the first few decades of the nineteenth century, when states were inventing institutions of democratic governance and representation; and the period following the Supreme Court’s one person, one …

The Failure Of Education Federalism, Kristi L. Bowman

University of Michigan Journal of Law Reform

Since the Great Recession of 2007–09, states have devoted even less money to public education and state courts have become even more hostile to structural reform litigation that has sought to challenge education funding and quality. Yet the current model of education federalism (dual federalism) leaves these matters largely to the states. As a result, state-level legislative inaction, executive acquiescence, and judicial abdication can combine to create a situation in which the quality of traditional public schools declines sharply. This is the case in Michigan, which is an unusually important state not only because the dynamics that are emerging in …

Criminal Certification: Restoring Comity In The Categorical Approach, Joshua Rothenberg

University of Michigan Journal of Law Reform

Federal sentencing enhancements force federal courts to delve into the world of substantive state criminal law. Does a state assault statute require violent force or just offensive touching? Does a state burglary statute that criminalizes breaking into a car or a house require prosecutors to charge the location entered as an element? Whether a person with prior convictions convicted of violating 18 U.S.C. § 922(g) faces a minimum sentence of fifteen years and a maximum of life imprisonment rather than a maximum sentence of ten years turns upon the answers to these questions. Yet, state law often does not resolve …

Revisiting The Definition Of Particular Social Group In The Refugee Convention & Increasing The Refugee Quota As A Means Of Ameliorating The International Displaced Person's Crisis, Brienna Bagaric

South Carolina Law Review

No abstract provided.

The Future Of Environmental Law And Complexities Of Scale: Federalism Experiments With Climate Change Under The Clean Air Act, Hari M. Osofsky

Hari Osofsky

Since its inception, the Clean Air Act ("CAA") has served as an experiment in environmental governance models. As importantly, the CAA has had to be flexible in responding to our evolving understandings of environmental problems. Whether through amendments or new regulatory regimes under existing provisions, the statute has served as a key mechanism in the U.S. federal government's efforts to respond to complex environmental challenges. This Article focuses on the CAA's efforts to grapple with complexities of regulatory scale as an illustration of the new directions in environmental law that are the focus of this symposium. Air moves around over …

Pharmaceutical Federalism, Patricia J. Zettler

Indiana Law Journal

There is growing interest in states regulating pharmaceuticals in ways that challenge the U.S. Food and Drug Administration’s (FDA) federal oversight. For example, in 2013, Maine enacted a law to permit the importation of unapproved drugs, reflecting concerns that federal requirements are too restrictive, while in 2014 Massachusetts banned an FDA-approved painkiller, reflecting concerns that federal requirements are too lax. This Article provides an account of this recent state interest in regulating drugs and considers its consequences. It argues that these state regulatory efforts, and the nascent litigation about them, demonstrate that the preemptive reach of the FDA’s authority extends …

Federalism Implications Of Non-Recognition Of Licensure Reciprocity Under The Gun-Free School Zones Act, Royce De R. Barondes

Faculty Publications

The Gun-Free School Zones Act (GFSZA) criminalizes firearms possession within 1000 feet of an elementary or secondary school in a State unless the possessor "is licensed to do so by the State in which the school zone is located" (or one of a few other exceptions applies). The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has in correspondence opined licensure through reciprocity does not make one so licensed by the State.

School zones covered by the act are ubiquitous. Were the ATF's interpretation adopted, large swaths of many States' non-rural areas would be prohibited zones for non-residents who carry …

The Uneasy Case For Patent Federalism, Roger Allan Ford

Law Faculty Scholarship

Nationwide uniformity is often considered an essential feature of the patent system, necessary to fulfill that system’s disclosure and incentive purposes. In the last few years, however, more than half the states have enacted laws that seek to disrupt this uniformity by making it harder for patent holders to enforce their patents. There is an easy case to be made against giving states greater authority over the patent system: doing so would threaten to disrupt the system’s balance between innovation incentives and a robust public domain and would permit rent seeking by states that disproportionately produce or consume innovation.

There …

The Rehnquist Revolution, Erwin Chemerinsky

Erwin Chemerinsky

[Excerpt] "When historians look back at the Rehnquist Court, without a doubt they will say that its greatest changes in constitutional law were in the area of federalism. Over the past decade, and particularly over the last five years, the Supreme Court has dramatically limited the scope of Congress’ powers and has greatly expanded the protection of state Sovereign Immunity. Virtually every area of law, criminal and civil, is touched by these changes. Since I began teaching constitutional law in 1980, the most significant differences in constitutional law are a result of the Supreme Court’s revival of federalism as a …

Formalism And Functionalism In Federalism Analysis, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

Empowering States: A Rebuttal To Dr. Greve, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

Empowering States: The Need To Limit Federal Preemption, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

Discussion: Focus On Federalism, Erwin Chemerinsky, Jeffrey B. Morris, Martin A. Schwartz

Erwin Chemerinsky

No abstract provided.

Drawing Lines Of Sovereignty: State Habeas Doctrine And The Substance Of States' Rights In Confederate Conscription Cases, Withrop Rutherford

University of Richmond Law Review

No abstract provided.

Zika And The Failure To Act Under The Police Power, Jacqueline Fox

Faculty Publications

Zika is a mosquito-borne and sexually transmitted disease that is a dangerous threat to pregnant women, causing catastrophic birth defects in a large percentage of fetuses when their mothers become infected while pregnant. It raises numerous issues related to abortion, birth control, poverty, and women’s control over their procreative choices. While the United States received ample warning from January 2016 onward that it was at risk of local transmission of this virus and public health officials at all levels generally behaved properly, the state and federal legislative responses in the summer of 2016 were entirely inadequate. For example, no state …

Federalism And The End Of Obamacare, Nicholas Bagley

Articles

Federalism has become a watchword in the acrimonious debate over a possible replacement for the Affordable Care Act (ACA). Missing from that debate, however, is a theoretically grounded and empirically informed understanding of how best to allocate power between the federal government and the states. For health reform, the conventional arguments in favor of a national solution have little resonance: federal intervention will not avoid a race to the bottom, prevent externalities, or protect minority groups from state discrimination. Instead, federal action is necessary to overcome the states’ fiscal limitations: their inability to deficit-spend and the constraints that federal law …

Trump, Federalism And The Punishment Of Sanctuary Cities, John M. Greabe

Law Faculty Scholarship

[Excerpt] “Historically, liberals have tended to hold more expansive under­standings of the scope of federal power. Conservatives, on the other hand, have tended to embrace stronger theories of federalism -- the term we use to describe the reservation of government power to state and local governments under the Constitution.”

Allocating Power: Toward A New Federalism Balance For Electricity Transmission Siting, Kevin Decker

Maine Law Review

Expansion and improvement of the nation’s electricity transmission system are crucial for increasing the amount of electricity generated by renewable energy sources. Renewable energy sources, such as wind and tidal, tend to be located far from population centers, and electricity transmission lines must bridge that gap. In addition to its importance for meeting renewable energy goals, a better connected and more robust transmission system also bolsters reliability because it can draw on many generation sources in the event that a generator or segment of the transmission network fails. And transmission facilitates generator competition by making it possible to transport lower-cost …

The House Advantage: How The Professional And Amateur Sports Protection Act Undermines Concepts Of Federalism, And Severely Impacts New Jersey's Gambling-Feuled Economy, Anthony D'Alessandro

Seton Hall Circuit Review

No abstract provided.

Immigration Exceptionalism, David S. Rubenstein, Pratheepan Gulasekaram

Northwestern University Law Review

The Supreme Court’s jurisprudence is littered with special immigration doctrines that depart from mainstream constitutional norms. This Article reconciles these doctrines of “immigration exceptionalism” across constitutional dimensions. Historically, courts and commentators have considered whether immigration warrants exceptional treatment as pertains to rights, federalism, or separation of powers—as if developments in each doctrinal setting can be siloed. This Article rejects that approach, beginning with its underlying premise. Using contemporary examples, we demonstrate how the Court’s immigration doctrines dynamically interact with each other, and with politics, in ways that affect the whole system. This intervention provides a far more accurate rendering of …

Cooperative Federalism: Nevada’S Indigent Defense Crisis And The Role Of Federal Courts In Protecting The Right To Counsel In Non-Capital Cases, Randolph Fiedler, Megan Hoffman, Jonathan Kirshbaum

Nevada Law Journal Forum

In Martinez v. Ryan, the United States Supreme Court held the ineffective assistance of post-conviction counsel, or the lack of representation in a state post-conviction proceeding, provides cause to allow a federal habeas petitioner to overcome a procedural default on an ineffective assistance of trial counsel claim. This represented a radical shift in the criminal justice system. Prior to Martinez, state post-conviction proceedings—the typical mechanism for a criminal defendant to challenge the performance of his trial attorney—were not heavily scrutinized. It was understood and accepted that defendants did not have the right to counsel in these post-conviction proceedings. Whether a …