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Articles 31 - 44 of 44
Full-Text Articles in Law
Uncooperative Environmental Federalism 2.0, Jonathan H. Adler
Uncooperative Environmental Federalism 2.0, Jonathan H. Adler
Faculty Publications
Has the Trump Administration made good on its pledges to reinvigorate cooperative federalism and constrain environmental regulatory overreach by the federal government? Perhaps less than one would think. This paper, prepared for the Hastings Law Journal symposium, “Revolution of Evolution? Administrative Law in the Age of Trump,” provides a critical assessment of the Trump Administration’s approach to environmental federalism. Despite the Administration’s embrace of “cooperative federalism” rhetoric, environmental policy reforms have not consistently embodied a principled approach to environmental federalism in which the state and federal governments are each encouraged to focus resources on areas of comparative advantage.
Does The Attorney General Have A Duty To Defend Her Legislature’S Statutes? A Comment On The Reference Re Genetic Non-Discrimination Act, Andrew Martin
Articles, Book Chapters, & Popular Press
The Reference Re Genetic Non-Discrimination Act was unusual because the Attorney General for Canada argued that federal legislation was unconstitutional. In this comment, I explore the implications of this choice for the role of the Attorney General and her relationship with Parliament. I argue that the Attorney General has a duty not to defend legislation, including legislation that began as a private member’s bill, that she reasonably believes to be unconstitutional – and that if Parliament wants to defend such legislation, it should do so itself instead of relying on the Attorney General. If Parliament does not do so, the …
Beholding Law: Amadeo On The Argentine Constitution, Christina D. Ponsa-Kraus, Erin F. Delaney
Beholding Law: Amadeo On The Argentine Constitution, Christina D. Ponsa-Kraus, Erin F. Delaney
Faculty Scholarship
This essay introduces an online edition of Santos P. Amadeo’s Argentine Constitutional Law to be published by the Academia Puertorriqueña de Jurisprudencia y Legislación. Tracing the book to its origins in a paper Amadeo wrote for a seminar in comparative constitutional law at Columbia Law School in the 1930s, we discuss the intellectual context that gave rise to the book and assess its author’s methodological choices. We then examine one particular substantive choice: Whereas the paper specifically draws attention to the importance of understanding every form of political subdivision in a federalist system – identifying Argentina’s as the provinces, the …
Eighty Years Of Federalism Forbearance: Rationing, Resignation, And The Rule Of Law, Gil Seinfeld
Eighty Years Of Federalism Forbearance: Rationing, Resignation, And The Rule Of Law, Gil Seinfeld
Reviews
Andrew Coan’s book, Rationing the Constitution, offers a novel account of the forces that drive Supreme Court decisions across a wide array of highly controversial, vitally important areas of law. The project is ambitious. It endeavors to improve our understanding of forces that constrain the form and, ultimately, the substance of our constitutional law along each of its major axes: federalism, the separation of powers, and individual rights. I think it succeeds. The book’s central claim—that familiar (but underexplored) institutional constraints and background norms sharply limit the range of choices available to the Court when it is called upon to …
The Superfluous Fifteenth Amendment?, Travis Crum
The Superfluous Fifteenth Amendment?, Travis Crum
Scholarship@WashULaw
This Article starts a conversation about reorienting voting rights doctrine toward the Fifteenth Amendment. In advancing this claim, I explore an unappreciated debate—the “Article V debate”—in the Fortieth Congress about whether nationwide black suffrage could and should be achieved through a statute, a constitutional amendment, or both. As the first significant post-ratification discussion of the Fourteenth Amendment, the Article V debate provides valuable insights about the original public understandings of the Fourteenth and Fifteenth Amendments and the distinction between civil and political rights.
The Article V debate reveals that the Radical Republicans’ initial proposal for nationwide black suffrage included both …
Federalism Complicates The Response To The Covid-19 Health And Economic Crisis: What Can Be Done?, Nicole Huberfeld, Sarah Gordon, David K. Jones
Federalism Complicates The Response To The Covid-19 Health And Economic Crisis: What Can Be Done?, Nicole Huberfeld, Sarah Gordon, David K. Jones
Faculty Scholarship
Federalism has complicated the US response to the novel coronavirus. States’ actions to address the pandemic have varied widely, and federal and state officials have provided conflicting messages. This fragmented approach has cost time and lives. Federalism will shape the long-term health and economic impacts of COVID-19, including plans for the future, for at least two reasons: First, federalism exacerbates inequities, as some states have a history of underinvesting in social programs, especially in certain communities. Second, many of the states with the deepest needs are poorly equipped to respond to emergencies due to low taxes and distrust of government, …
Commandeering, Preemption, And Vehicle Emissions Regulation Post-Murphy V. Ncaa, Amelia Raether
Commandeering, Preemption, And Vehicle Emissions Regulation Post-Murphy V. Ncaa, Amelia Raether
Northwestern University Law Review
The Clean Air Act is often heralded as a paragon of cooperative federalism. The Act’s approach to vehicle emissions regulation in particular prescribes a unique partnership between the federal government and the state of California: while all states are bound by federally mandated vehicle emissions requirements, California may set more stringent standards in recognition of its historic role on the leading edge of environmental protection. However, in August 2018, the Environmental Protection Agency proposed not only to roll back the national emissions regulations, but also to revoke California’s ability to set more stringent standards, which include limits on greenhouse gas …
Our Federalism On Drugs, Jonathan Adler
Our Federalism On Drugs, Jonathan Adler
Faculty Publications
Over the past decade, voters and legislatures have moved to legalize the possession of marijuana under state law. Some have limited these reforms to the medicinal use of marijuana, while others have not. Despite these reforms marijuana remains illegal under federal law. Although the Justice Department has not sought to preempt or displace state-level reforms, the federal prohibition casts a long shadow across state-level legalization efforts. This federal-state conflict presents multiple important and challenging policy questions that often get overlooked in policy debates over whether to legalize marijuana for medical or recreational purposes. Yet in a “compound republic” like the …
The Race To The Middle, William Magnuson
The Race To The Middle, William Magnuson
Faculty Scholarship
How does federalism affect the quality of law? It is one of the fundamental questions of our constitutional system. Scholars of federalism generally fall into one of two camps on the question. One camp argues that regulatory competition between states leads to a “race to the bottom,” in which states adopt progressively worse laws in order to pander to powerful constituencies. The other camp, conversely, argues that regulatory competition leads to a “race to the top,” incentivizing states to adopt progressively better laws in the search for more desirable outcomes for their constituencies. Despite their apparent differences, however, both the …
Dual Allegiance: Federal And State Treason Prosecutions, The Treason Clause, And The Fourteenth Amendment, Alexander Gouzoules
Dual Allegiance: Federal And State Treason Prosecutions, The Treason Clause, And The Fourteenth Amendment, Alexander Gouzoules
Faculty Publications
The Treason Clause creates an individual right at a criminal trial that could have logically been placed within the Fifth Amendment rather than Article III: “No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.” It has effectively prevented expansive uses of the charge at the federal level. But states may also charge citizens with treason against state governments, and many such prosecutions have played important roles in American history.
This article reviews the parallel histories of state and federal treason prosecutions. It then analyzes …
The Law And Policy Of Child Maltreatment, Frank Vandervort
The Law And Policy Of Child Maltreatment, Frank Vandervort
Book Chapters
Each year in the United States some four million children are reported to child protective services and hundreds of thousands of children are confirmed victims of maltreatment. This chapter provides a brief overview of the civil and criminal law’s response to child abuse and neglect. It summarizes the major federal statutes that provide funding to the states to support both civil and criminal law responses to maltreatment. It discusses the division of responsible for responding to child maltreatment between the federal and state governments (federalism). It also provides a summary of the constitutional framework for handling both civil and criminal …
The Implications Of Federalism For The Regulation Of Federal Government Lawyers, Andrew Flavelle Martin
The Implications Of Federalism For The Regulation Of Federal Government Lawyers, Andrew Flavelle Martin
Dalhousie Law Journal
The implications of Canadian federalism for the regulation of lawyers for the federal government are largely overlooked in the literature and case law. This article argues that employees of the federal government can practice law without being licensed by the corresponding provincial law society (or any law society). However, if they happen to be licensed by a law society, they can be disciplined by that law society—unless and until Parliament adopts legislation immunizing them from law society discipline. The article also considers the possibility that Parliament could create a separate bar for federal government lawyers. It concludes that some form …
Is Medicare For All The Answer? Assessing The Health Reform Gestalt As The Aca Turns 10, Nicole Huberfeld
Is Medicare For All The Answer? Assessing The Health Reform Gestalt As The Aca Turns 10, Nicole Huberfeld
Faculty Scholarship
As presidential candidates debate health reform, the expression “Medicare for All” (“M4A”) is on repeat, yet few appear to understand precisely what Medicare is or what M4A would mean. Even more striking is that Americans are vigorously debating health reform when the ACA – President Obama’s signature legislation and a health reform effort on a scale not seen in decades – turns 10 on March 23.
The ACA pioneered universal coverage, but it also ratcheted up health care complexity by building new scaffolding around an old foundation. This fragmented landscape has been exacerbated by a crazy quilt of implementation crafted …
Cooperative Federalism And Sijs, Shani M. King, Nicole Silvestri Hall
Cooperative Federalism And Sijs, Shani M. King, Nicole Silvestri Hall
UF Law Faculty Publications
Recognizing the plight of young immigrants who have suffered abuse, neglect, or abandonment, and cannot be reunited with a parent, Congress has accorded those who qualify Special Immigrant Juvenile Status (SIJS). SIJS has created an expedited path for them to permanent residency and, ultimately, citizenship. The statutory scheme Congress crafted is unusual in that it requires each applicant to obtain a state court order finding that they meet the requirements for SIJS before the United States Citizenship and Immigration Service decides whether to confer that status on them. The implementation of this scheme has been fraught with difficulty, representing for …