Courts Commons^™

Correcting Confusion Over Commandeering, Supremacy, And Preemption: A User’S Guide To Modern Federalism, Vikram David Amar

Pepperdine Law Review

Current disputes between state/local entities and the Trump administration, some of which build on flare-ups over the past few decades, place in sharp relief the key doctrinal features of modern federalism, many of which seem to confound the Supreme and lower courts, to say nothing of political actors and legal analysts. The mistakes being made run in both directions; sometimes states are wrongly confined, and in other episodes states are given (or are seeking) more than they are constitutionally due. In this Essay, I use several case studies—some from recent weeks or months and others from recent years or decades—to …

The Federalism Canons As Ordinary Interpretation, Anthony J. Bellia Jr., Bradford R. Clark

Northwestern University Law Review

Scholars remain generally skeptical of substantive canons of statutory interpretation even as courts continue to employ such canons in important cases. Unlike semantic canons, which help judges discern the best meaning of statutory text in context, substantive canons provide tiebreakers when the text is unclear or require special clarity in order for the text to perform certain functions. Among the substantive canons, the so-called “federalism canons” have been singled out for special scrutiny. The federalism canons are a family of canons that require courts to avoid interpreting an act of Congress to divest states of certain sovereign rights or powers—including …

Joinder, Not Jurisdiction: Toward A New Theory Of Standing, Adam N. Steinman

Faculty Scholarship

This Article builds on an important development in the Supreme Court’s standing jurisprudence to propose a novel theory that would allow more meaningful access to federal courts while vindicating legitimate separation-of-powers concerns. In its recent decision in TransUnion LLC v. Ramirez, the Supreme Court endorsed a theory of standing based on Article II, writing that litigation between private parties—even when explicitly authorized by Congress—can run afoul of the executive branch’s interest in “how to prioritize and how aggressively to pursue legal actions against defendants who violate the law.” This Article II move has been justifiably criticized. But it is …

Climate Exceptionalism In Court, Zachary D. Clopton, David A. Dana

Northwestern University Law Review

Across a range of cases, fossil fuel companies, government actors, and some judges have conceded that climate change is an exceptional phenomenon, only to argue that its exceptional nature is a reason to keep climate change out of court. These parties and judges thus seek to avoid the adjudication of climate cases on the merits, even when the neutral application of existing law would provide for jurisdiction in these cases. We term this phenomenon “climate jurisdiction exceptionalism.”

This Article provides a comprehensive account of climate jurisdiction exceptionalism, focusing on two main threads: Article III standing and state court jurisdiction. First, …

Preclusive Jurisdictional Dismissals, Kevin Song

Northwestern University Law Review

Every litigant deserves their day in court. At the same time, litigants cannot endlessly go to court on the same matter. A complex body of preclusion law balances these fundamental tenets by examining when adjudication of a matter precludes subsequent relitigation. This body of law has evolved over time to preserve the day-in-court ideal in a way that is sensitive to the threats that relitigation present to judicial efficiency, fair adjudication, and repose. Modern preclusion law has settled on a pragmatic approach: where a court has issued a final judgment on the merits but erroneously assumed jurisdiction, relitigation may still …

The Final Frontier Of Federal Power: Understanding, Defining, And Enforcing “Necessary And Proper” To Enhance The General Welfare And Limit Federal Power, Thomas Ralph

Catholic University Law Review

This comment explores the long and inconsistent history of the Necessary and Proper Clause and its unique role as both a grant of power to Congress and a limit on the outer reach of the federal government. The federal government is in theory one of limited powers; however, this promise of the Constitution cannot be truly recognized without developing a robust framework for applying the Necessary and Proper Clause as a reliable source of federal power. After establishing the need for a framework, this comment provides five judicial decision rules that can be applied by trial and appellate courts to …

Put Me In, Coach: Constitutional Concerns Of Judicial Activism And Legislating From The Bench, Jacob M. Elliott

Senior Honors Theses

Unrestrained judicial activism and legislating from the bench at the Supreme Court level place federalism and freedom in jeopardy. By ignoring crucial doctrines like jurisdiction, deference, and independence, the Supreme Court has demonstrated a tendency toward reinterpreting existing Constitutional precedent as they see fit, basing judgments on extra-legal influences, and supplanting Constitutional principles with their own personal policy preferences.

Numerous cases demonstrate the looming threat of judicial overreach; these cases are often considered some of the most damaging and injurious decisions in the history of the American federal judiciary. One potential solution is to appoint justices who will operate …

Legislative Reforms To End Lawfare By State And Local Prosecutors, Elizabeth Beske

Legislative Testimony & Comments

WASHINGTON, D.C. - The House Judiciary Subcommittee on the Constitution and Limited Government will hold a hearing on Tuesday, March 4, 2025, at 2:00 p.m. ET. The hearing, "Legislative Reforms to End Lawfare by State and Local Prosecutors," will examine the use of lawfare tactics by the Biden-Harris Administration to weaponize the rule of law against political opponents. It will further highlight legislative reforms to end politically motivated state and local prosecutions.

Not-So-Special Solicitude, Katherine Mims Crocker

Faculty Scholarship

In a high-profile case last term about state standing to sue in federal court, Justice Gorsuch deemed it “hard not to wonder why” the majority said “nothing about ‘special solicitude.’” The silence was indeed surprising, for in a landmark decision several years earlier, the Supreme Court had declared that states were “entitled to special solicitude”—presumably meaning some sort of preferential treatment—“in [the] standing analysis.” And since then, commentators had depicted the concept as permitting opportunistic states to wage ideological crusades in courts across the country, especially through administrative-law attacks on federal-government defendants.

But what if “special solicitude” is not so …

The Problem With Direct Collateral Review, Jaden M. Lessnick

Pepperdine Law Review

Federal habeas review of state convictions is sharply circumscribed for a reason: Granting the writ of habeas corpus disrupts the federalism and finality interests that lie at the heart of state sovereignty over criminal law. Both the Antiterrorism and Effective Death Penalty Act (AEDPA) and the Supreme Court’s equitable bars to relief reflect the structural dangers inherent in collateral review of state convictions. Given the increasing unavailability of federal habeas relief, state prisoners have turned to another vehicle for collateral federal review, one that bypasses AEDPA’s demanding standard: direct review of state post-conviction proceedings. And regrettably, the Court has entertained …

A History Of Corporate Law Federalism In The Twentieth Century, William W. Bratton

Seattle University Law Review

This Article describes the emergence of corporate law federalism across a long twentieth century. The period begins with New Jersey’s successful initiation of charter competition in 1888 and ends with the enactment of the Sarbanes-Oxley Act in 2002. The federalism in question describes the interrelation of state and federal regulation of corporate internal affairs. This Article takes a positive approach, pursuing no normative bottom line. It makes six observations: (1) the federalism describes a division of subject matter, with internal affairs regulated by the states and securities issuance and trading regulated by the federal government; (2) the federalism is an …

The Wages Of Hitching Wagons, Thomas B. Bennett

Faculty Journal Articles and Book Chapters

This article examines the challenges faced by states that align their constitutions with federal doctrine through the practice of "lockstepping"—adopting federal legal standards into state law. Lockstepping binds states to federal law, regardless of its trajectory. Part I traces the evolution of standing doctrine in both federal courts under Article III and Kentucky courts under its constitution. Part II presents an originalist critique of the federal injury-in-fact requirement, highlighting emerging efforts to abandon this requirement in federal courts. Part III discusses the dilemma states like Kentucky face, balancing constitutional interpretation, federalism, and legal stability.

The Marijuana Insurgency: Federalism And Social Reframing In Policy Reform, Matthew P. Cavedon

Seattle University Law Review

After fifty years of federal prohibition, marijuana reform efforts have won political and legal success. These victories hold lessons for anyone seeking to resist federal law without being able to directly affect it.

Victory can come from reframing an issue. For marijuana reform, social reframing—not formal legal analysis or material factors—provides the best explanation for how advocates achieved change. Their unconventional political tactics, akin to those used by insurgents in wartime, undercut federal prohibition by winning hearts and minds.

This is an analysis of the sociology of legal change. It is also the story of how ordinary Americans retook personal …

The New Comity Abstention, John Harland Giammatteo

Journal Articles

In the past ten years, lower federal courts have quietly but regularly abstained from hearing federal claims challenging state court procedures, citing concerns of comity and federalism. Federal courts have dismissed a broad range of substantive challenges tasked to them by Congress, including under the Americans with Disabilities Act, the Indian Child Welfare Act, and various constitutional provisions, involving state court eviction proceedings, foster care determinations, bail and criminal justice policies, COVID-era safety practices, and other instances where state courts determine state policy.

This paper is the first to argue that these decisions constitute a new abstention doctrine, unmoored from …

The False Promise Of Jurisdiction Stripping, Daniel Epps, Alan M. Trammell

Scholarly Articles

Jurisdiction stripping is seen as a nuclear option. Its logic is simple: By depriving federal courts of jurisdiction over some set of cases, Congress ensures those courts cannot render bad decisions. To its proponents, it offers the ultimate check on unelected and unaccountable judges. To its critics, it poses a grave threat to the separation of powers. Both sides agree, though, that jurisdiction stripping is a powerful weapon. On this understanding, politicians, activists, and scholars throughout American history have proposed jurisdiction-stripping measures as a way for Congress to reclaim policymaking authority from the courts.

The conventional understanding is wrong. Whatever …

American University Law Review Keynote Address, Erwin Chemerinsky

American University Law Review

My talk this morning focuses on the agenda of the current Roberts Court. I think that every Supreme Court can be said to have an agenda. Sometimes it seems conscious and deliberate, apparent from the outset. Sometimes it seems to evolve and only becomes obvious later.

Towards A Monist Constitutional Ideology? In Re: Article 370 Of The Constitution, Subordination Of Jammu And Kashmir, And The Supra-Constitutional Presidential Power, Zaid Deva

National Law School Journal

This case comment shows how the fascination for a certain form of a monist constitutional order, first articulated by the opposition during the Nehru years, was institutionalised in the form of a judicial discourse, culminating in the Article 370 judgement. At the heart of this discourse lay two imaginaries: (i) a subordinated Jammu and Kashmir (J&K) and (ii) an unbounded or supra-constitutional power vested in the Indian president to deal with J&K, freed of the express conditions precedent laid down in the proviso to Clause 3 of Article 370. In this case comment, I trace the continuities between these monist …

A Tipping Point In Ohio: The Primacy Model As A Path To A Consistent Application Of Judicial Federalism, The Honorable Pierre Bergeron

University of Cincinnati Law Review

No abstract provided.

Answering The Call: A History Of The Emergency Power Doctrine In Texas And The United States, P. Elise Mclaren

St. Mary's Law Journal

During times of emergency, national and local government may be allowed to take otherwise impermissible action in the interest of health, safety, or national security. The prerequisites and limits to this power, however, are altogether unknown. Like the crises they aim to deflect, courts’ modern emergency power doctrines range from outright denial of any power of constitutional circumvention to their flagrant use. Concededly, courts’ approval of emergency powers has provided national and local government opportunities to quickly respond to emergency without pause for constituency approval, but how can one be sure the availability of autocratic power will not be abused? …

State Rejection Of Federal Law, Thomas B. Bennett

Faculty Publications

Sometimes the United States Supreme Court speaks, and states do not follow. For example, in 2003, the Arizona Supreme Court agreed to "reject" a decision of the U.S. Supreme Court, because no "sound reasons justif[ied] following" it. Similarly, in 2006, Michigan voters approved a ballot initiative that, according to the legislature that drafted it, sought "at the very least to freeze' the state's ... law to prevent" state courts from following a ruling of the U.S. Supreme Court. Surprising though this language may be, there is nothing nefarious about these cases. Cooper v. Aaron this is not. Unlike more notorious …

The Field Of State Civil Courts, Anna E. Carpenter, Alyx Mark, Colleen F. Shanahan, Jessica K. Steinberg

Faculty Scholarship

This symposium Issue of the Columbia Law Review marks a moment of convergence and opportunity for an emerging field of legal scholarship focused on America’s state civil trial courts. Historically, legal scholarship has treated state civil courts as, at best, a mere footnote in conversations about civil law and procedure, federalism, and judicial behavior. But the status quo is shifting. As this Issue demonstrates, legal scholars are examining our most common civil courts as sites for understanding law, legal institutions, and how people experience civil justice. This engagement is essential for inquiries into how courts shape and respond to social …

Federalism Limits On Non-Article Iii Adjudication, F. Andrew Hessick

Pepperdine Law Review

Although Article III of the Constitution vests the federal judicial power in the Article III courts, the Supreme Court has created a patchwork of exceptions permitting non-Article III tribunals to adjudicate various disputes. In doing so, the Court has focused on the separation of powers, concluding that these non-Article III adjudications do not unduly infringe on the judicial power of the Article III courts. But separation of powers is not the only consideration relevant to the lawfulness of non-Article III adjudication. Article I adjudications also implicate federalism. Permitting Article I tribunals threatens the role of state courts by expanding federal …

Reconstructing The Voting Rights Act: Subnational Action And Voting Rights Post-1965, Sean M. Holly

Honors Theses

The discussion of suffrage and the development of the U.S. electorate is misguidedly based solely around federal action; constitutional amendments and federal legislation are commonly revered as primary determinants of the right to vote. This tendency poses a specific problem with contemporary discussions of the Voting Rights Act of 1965. Specifically, discussions of the VRA ignores the ability of subnational actors to innovate politically and readjust their vehicles of political development in the wake of federal supposition of state powers. The Voting Rights Act did not destroy state authority regarding the right to vote; it merely disrupted their vehicles of …

Dirty Johns: Prosecuting Prostituted Women In Pennsylvania And The Need For Reform, Mckay Lewis

Dickinson Law Review (2017-Present)

Prostitution is as old as human civilization itself. Throughout history, public attitudes toward prostituted women have varied greatly. But adverse consequences of the practice—usually imposed by men purchasing sexual services—have continuously been present. Prostituted women have regularly been subject to violence, discrimination, and indifference from their clients, the general public, and even law enforcement and judicial officers.

Jurisdictions can choose to adopt one of three general approaches to prostitution regulation: (1) criminalization; (2) legalization/ decriminalization; or (3) a hybrid approach known as the Nordic Model. Criminalization regimes are regularly associated with disparate treatment between prostituted women and their clients, high …

Reflections On The Effects Of Federalism On Opioid Policy, Matthew B. Lawrence

Dickinson Law Review (2017-Present)

No abstract provided.

The Opioid Litigation: The Fda Is Mia, Catherine M. Sharkey

Dickinson Law Review (2017-Present)

It is readily agreed that federal preemption of state tort law alters the balance between federal and state power. Federal preemption is a high-profile defense in almost all modern products liability cases. It is thus surprising to see how little attention has been given to federal preemption by courts and commentators in the opioid litigation. Opioid litigation provides a lens through which I explore the role of state and federal courts and the Food and Drug Administration (FDA) in striking the right balance of power. My purpose here is not to resolve the divide among the few courts that have …

Personal Jurisdiction And National Sovereignty, Ray Worthy Campbell

Washington and Lee Law Review

State sovereignty, once seemingly sidelined in personal jurisdiction analysis, has returned with a vengeance. Driven by the idea that states must not offend rival states in their jurisdictional reach, some justices have looked for specific targeting of individual states as individual states by the defendant in order to justify an assertion of personal jurisdiction. To allow cases to proceed based on national targeting alone, they argue, would diminish the sovereignty of any state that the defendant had specifically targeted.

This Article looks for the first time at how this emphasis on state sovereignty limits national sovereignty, especially where alien defendants …

Restraining Judicial Application Of The "Safe Harbor" Provision In The Electoral Count Act, Derek T. Muller

Journal Articles

The Electoral Count Act of 1887, as codified in part at 3 U.S.C. § 5, includes a "safe harbor" for states to resolve disputes in their choices of presidential electors. Congress will treat as "conclusive" a "determination" about "any controversy or contest concerning the appointment" of presidential electors, if that determination is made "at least six days" before the time the electors are to meet. This is a rule governing how Congress handles "the counting of electoral votes as provided in the Constitution."

It is not a judicially-enforceable rule for courts to heed. And it is a rule that state …

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 …

An Organizational Account Of State Standing, Katherine Mims Crocker

Faculty Scholarship

Again and again in regard to recent high-profile disputes, the legal community has tied itself in knots over questions about when state plaintiffs should have standing to sue in federal court, especially in cases where they seek to sue federal-government defendants. Lawsuits challenging everything from the Bush administration’s environmental policies to the Obama administration’s immigration actions to the Trump administration’s travel bans have become mired in tricky and technical questions about whether state plaintiffs belonged in federal court.

Should state standing cause so much controversy and confusion? This Essay argues that state plaintiffs are far more like at least one …