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Articles 1 - 14 of 14
Full-Text Articles in Law
Negotiating Environmental Federalism: Dynamic Federalism As A Strategy For Good Governance, Erin Ryan
Negotiating Environmental Federalism: Dynamic Federalism As A Strategy For Good Governance, Erin Ryan
Scholarly Publications
This symposium piece distills a few important points from my previous research about the need for negotiated governance and the options for accomplishing it—including Negotiating Federalism (https://ssrn.com/abstract=1583132), which identified the pervasive use of intergovernmental bargaining as a tool for dealing with jurisdictional uncertainty; FEDERALISM AND THE TUG OF WAR WITHIN (https://ssrn.com/abstract=1991612), which folded the concept of negotiated governance into a general theory of Balanced Federalism, exploring how contrasting federalism values are managed by various means of consultation, competition, and collaboration; and Environmental Federalism’s Tug of War Within, (https://ssrn.com/abstract=2532687), the closing chapter to an environmental federalism book, in which I applied …
Multilevel Environmental Governance In The United States, Erin Ryan
Multilevel Environmental Governance In The United States, Erin Ryan
Scholarly Publications
This short essay, solicited by the ENVIRONMENTAL SCIENTIST journal, distills the lessons of American experimentation with environmental federalism and multilevel governance for use by other nations (drawing from Environmental Federalism’s Tug of War Within, in THE LAW AND POLICY OF ENVIRONMENTAL FEDERALISM: A COMPARATIVE ANALYSIS (Kalyani Robbins, ed., 2015). Multilevel environmental governance disputes reflect increasing pressure on all levels of government to meet the challenges of regulation in an increasingly interconnected world. In the United States (US), debate over the responsibilities of different levels of government are framed within our system of constitutional federalism, which divides sovereign power between the …
Negotiating Federalism And The Structural Constitution: Navigating The Separation Of Powers Both Vertically And Horizontally (A Response To Aziz Huq), Erin Ryan
Erin Ryan
This essay explores the emerging literature on the negotiation of structural constitutional governance, to which Professor Aziz Huq has made an important contribution in The Negotiated Structural Constitution, 114 Colum. L. Rev. 1595 (2014). In the piece, Professor Huq reviews the negotiation of constitutional entitlements and challenges the conventional wisdom about the limits of political bargaining as a means of allocating authority among the three branches of government. He argues that constitutional ambiguities in the horizontal allocation of power are sometimes best resolved through legislative-executive negotiation, just as uncertain grants of constitutional authority are already negotiated between state and federal …
Environmental Federalism's Tug Of War Within, Erin Ryan
Environmental Federalism's Tug Of War Within, Erin Ryan
Erin Ryan
Anyone paying attention has noticed that many of the most controversial issues in American governance—health care reform, marriage rights, immigration, drug law, and others—involve questions of federalism. The intensity of these disputes reflects inexorable pressure on all levels of government to meet the increasingly complicated challenges of governance in an ever more interconnected world, where the answers to jurisdictional questions are less and less obvious. Yet even as federalism dilemmas continue to erupt all from all corners, environmental law remains at the forefront of controversy, and it is likely to do so for some time. From mining to nuclear waste …
Negotiating Federalism And The Structural Constitution: Navigating The Separation Of Powers Both Vertically And Horizontally, Erin Ryan
Scholarly Publications
This essay explores the emerging literature on the negotiation of structural constitutional governance, to which Professor Aziz Huq has made an important contribution in The Negotiated Structural Constitution, 114 Colum. L. Rev. 1595 (2014). In the piece, Professor Huq reviews the negotiation of constitutional entitlements and challenges the conventional wisdom about the limits of political bargaining as a means of allocating authority among the three branches of government. He argues that constitutional ambiguities in the horizontal allocation of power are sometimes best resolved through legislative-executive negotiation, just as uncertain grants of constitutional authority are already negotiated between state and federal …
Environmental Federalism’S Tug Of War Within, Erin Ryan
Environmental Federalism’S Tug Of War Within, Erin Ryan
Scholarly Publications
The intensity of federalism disputes reflects inexorable pressure on all levels of government to meet the increasingly complicated challenges of governance in an ever more interconnected world. Yet even as federalism dilemmas continue to erupt all from all corners, environmental law remains at the forefront of controversy. This chapter argues that environmental law is uniquely prone to federalism discord because it inevitably confronts the core question with which federalism grapples — who gets to decide? — in contexts where state and federal claims to power are simultaneously at their strongest. Environmental problems tend to match the need to regulate the …
The Spending Power And Environmental Law After Sebelius, Erin Ryan
The Spending Power And Environmental Law After Sebelius, Erin Ryan
Erin Ryan
This article analyzes the Supreme Court’s new spending power doctrine and its impact on state-federal bargaining in programs of cooperative federalism, using the laboratory of environmental law. (It expands on the legal analysis in an Issue Brief originally published by the American Constitution Society on Oct. 1, 2013.) After the Supreme Court ruled in the highly charged Affordable Care Act case of 2012, National Federation of Independent Business vs. Sebelius, the political arena erupted in debate over the implications for the health reform initiative and, more generally, the reach of federal law. Analysts fixated on the decision’s dueling Commerce Clause …
The Spending Power And Environmental Law After Sebelius, Erin Ryan
The Spending Power And Environmental Law After Sebelius, Erin Ryan
Scholarly Publications
This article analyzes the Supreme Court’s new spending power doctrine and its impact on state-federal bargaining in programs of cooperative federalism, using the laboratory of environmental law. (It expands on the legal analysis in an Issue Brief originally published by the American Constitution Society on Oct. 1, 2013.) After the Supreme Court ruled in the highly charged Affordable Care Act case of 2012, National Federation of Independent Business vs. Sebelius, the political arena erupted in debate over the implications for the health reform initiative and, more generally, the reach of federal law. Analysts fixated on the decision’s dueling Commerce Clause …
The Once And Future Challenges Of American Federalism: The Tug Of War Within, Erin Ryan
The Once And Future Challenges Of American Federalism: The Tug Of War Within, Erin Ryan
Erin Ryan
This essay is drawn from a lecture for the “Ways of Federalism” conference (University of the Basque Country, October 19, 2011) and a new book, "Federalism and the Tug of War Within" (Oxford, 2012) (http://www.oup.com/us/catalog/general/subject/Law/ConstitutionalLaw/?view=usa&ci=9780199737987), which explores how constitutional interpreters struggle to reconcile the core tensions within American federalism. The essay reviews the current challenges of the American federal system through the theoretical lens developed in the book, focusing on the role of state-federal bargaining within the U.S. federal system. It appears as a chapter in a book of selected conference proceedings, The Ways of Federalism in Western Countries and …
Environmental Law After Sebelius: Will The Court’S New Spending Power Limits Affect Environmental State-Federal Partnerships?, Erin Ryan
Scholarly Publications
This issue brief, invited by the American Constitution Society, analyzes the regulatory impacts of the new spending power doctrine in the Supreme Court’s 2012 health reform decision, National Federation of Independent Business v. Sebelius. In Sebelius, a plurality of the Supreme Court held that portions of the Affordable Care Act exceeded federal authority under the Spending Clause. With that holding, Sebelius became the first Supreme Court decision since the New Deal to limit an act of Congress on spending power grounds, rounding out the “New Federalism” limits on federal power first initiated by the Rehnquist Court in the 1990s. The …
Federalism And The Tug Of War Within, Erin Ryan
Federalism And The Tug Of War Within, Erin Ryan
Erin Ryan
This book explores how constitutional interpreters struggle to reconcile the competing values that undergird American federalism, with real consequences for governance that requires local and national collaboration. Drawing examples from the response to Hurricane Katrina, climate governance, health reform, nuclear waste, and other problems that implicate both state and federal authority, it shows how federalism theory can inhibit effective multijurisdictional governance by failing to navigate the tensions within federalism itself. The book argues that American federalism is best understood through the “tug of war” between the good-governance principles that dual sovereignty fosters—including checks and balances, accountable governance, local autonomy, and …
Federalism And The Tug Of War Within: Introduction, Erin Ryan
Federalism And The Tug Of War Within: Introduction, Erin Ryan
Scholarly Publications
"Federalism and the Tug of War Within" explores how constitutional interpreters struggle to reconcile the competing values that undergird American federalism, with real consequences for governance that requires local and national collaboration. Drawing examples from the response to Hurricane Katrina, climate governance, health reform, nuclear waste, and other problems that implicate both state and federal authority, it shows how federalism theory can inhibit effective multijurisdictional governance by failing to navigate the tensions within federalism itself. The book argues that American federalism is best understood through the “tug of war” between the good-governance principles that dual sovereignty fosters — including checks …
Federalism At The Cathedral: Property Rules, Liability Rules, And Inalienability Rules In Tenth Amendment Infrastructure, Erin Ryan
University of Colorado Law Review
This Article explores the consequences for good governance of poorly constructed legal infrastructure in the Tenth Amendment context, and recommends a simple jurisprudential fix: exchanging a property rule for the inalienability remedy rule that the Supreme Court used to protect the anticommandeering entitlement in New York v. United States. Grounded in a values-based theory of American federalism, it shows how the New York inalienability rule unnecessarily removes tools for resolving interjurisdictional quagmiresexemplified by the radioactive waste capacity problem at the heart of the New York litigation-by prohibiting novel forms of state-federal bargaining. In New York, the Court held that Congress …
Federalism At The 'Cathedral': Property Rules, Liability Rules, And Inalienability Rules In Tenth Amendment Infrastructure, Erin Ryan
Scholarly Publications
As the climate crisis, war in the Middle East, and the price of oil focus American determination to move beyond fossil fuels, nuclear power has resurfaced as a possible alternative. But heady plans for energy reform may be stalled by an unlikely policy deadlock stemming from a structural technicality in an aging Supreme Court decision: New York v. United States, which set forth the Tenth Amendment anti-commandeering rule in 1992. The same dry technicality has also threatened the effective management of storm water pollution, contributed to the failed response to Hurricane Katrina, and poses ongoing regulatory obstacles in such critical …