Jurisdiction Commons^™

Cooperative Localism: Federal-Local Collaboration In An Era Of State Sovereignty Part Ii: Federalism, Nestor M. Davidson

Faculty Scholarship

Direct relations between the federal government and local governments - what this article calls "cooperative localism" - play a significant and underappreciated role in areas of contemporary policy as disparate as homeland security, law enforcement, disaster response, economic development, social services, immigration, and environmental protection. Despite the ubiquity of this practice, a jurisprudential clash is looming that threatens this important facet of intergovernmental relations. Historically, courts have allowed local governments to invoke federal authority as a source of local autonomy, despite the prevailing view of local governments as powerless instrumentalities of the state. The Supreme Court is increasingly suggesting, however, …

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

Journal Articles

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 …

Molecular Federalism And The Structures Of Private Lawmaking, David Snyder

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Anti-Federalist Procedure, A. Benjamin Spencer

Faculty Publications

"[T]he new federal government will ... be disinclined to invade the rights of the individual States, or the prerogatives of their governments."

"[T]he Constitution of the United States ... recognizes and preserves the autonomy and independence of the States-independence in their legislative and independence in their judicial departments. . . . Any interference with either, except as [constitutionally] permitted, is an invasion of the authority of the State and, to that extent, a denial of its independence."

The understanding expressed by these opening quotes-that the national government was designed to be one of limited powers that would refrain from encroaching …

The Puzzle Of State Constitutions, Jim Rossi

Vanderbilt Law School Faculty Publications

In a series of groundbreaking articles published over the past fifteen years, James Gardner has led the charge to make state constitutionalism a part of the constitutional law discussion more generally. His new book, Interpreting State Constitutions: A Jurisprudence of Function in a Federal System, steps beyond his study of specific issues in state constitutionalism to lay out an ambitious theory about how state constitutions should be interpreted based on their function within a federal system. Gardner's book is a significant scholarly effort to take state constitutions seriously, in a way that transcends any one jurisdiction or constitutional provision. Gardner's …

Jurisdiction To Adjudicate: A Revised Analysis, A. Benjamin Spencer

Faculty Publications

Personal jurisdiction doctrine as articulated by the Supreme Court is in disarray. As a constitutional doctrine whose contours remain imprecise, the law of personal jurisdiction has generated confusion, unpredictability, and extensive satellite litigation over what should be an uncomplicated preliminary issue. Many commentators have long lamented these defects, making suggestions for how the doctrine could be improved. Although many of these proposals have had much to offer, they generally have failed to articulate (or adequately justify or explain) a simple and sound approach to jurisdiction that the Supreme Court can embrace. This Article revises the law of personal jurisdiction by …

When Worlds Collide: Federal Construction Of State Institutional Competence, Marcia L. Mccormick

ExpressO

The federal courts routinely encounter issues of state law. Often a state court will have already analyzed the law at issue, either in a separate case or in the very situation before the federal court. In every one of those cases, the federal courts must decide whether to defer to the state court analysis and, if so, how much. The federal courts will often defer, but many times have not done so, and they rarely explain the reasons for the departures they make. While this lack of transparency gives the federal courts the greatest amount of discretion and power, it …

What Is Rehnquist Federalism?, Marci A. Hamilton

Articles

No abstract provided.

The Constitutional Limits To Court-Stripping, Michael J. Gerhardt

Faculty Publications

This Article is part of a colloquy between Professor Michael J. Gerhardt and Professor Martin Redish about the constitutionality of court-stripping measures. Court-stripping measures are laws restricting federal court jurisdiction over particular subject matters. In particular, the authors discuss the constitutionality of the Marriage Protection Act of 2004. Professor Gerhardt argues that the Act is unconstitutional and threatens to destroy the principles of separation of powers, federalism and due process. It prevents Supreme Court review of Congressional action and hinders the uniformity and finality of constitutional law. Furthermore, the Act violates the equal protection component of the Fifth Amendment Due …

Past And Present Proposed Amendments To The United States Constitution Regarding Marriage, Edward D. Stein

Articles

Proposals to amend the Constitution to prohibit same-sex marriage were recently actively discussed and voted on in the U.S. Congress. This Article situates arguments for these proposals within the history of attempts to amend the Constitution related to marriage by providing the first detailed, synthetic analysis of such previously proposed amendments. This examination reveals 133 previously proposed amendments to the Constitution relating to marriage, consisting primarily of proposals to prohibit interracial marriage, proposals to prohibit polygamy, and proposals to empower Congress to make uniform laws concerning marriage and divorce. By tracing the arguments made in support of these amendments, this …

The Rehnquist Court And Administrative Law, Michael Herz

Articles

No abstract provided.

Formalism, Pragmatism, And The Conservative Critique Of The Eleventh Amendment, Michael E. Solimine

Michigan Law Review

For many years the Second Amendment to the constitution was construed by most authorities to grant a communal right to bear arms, through state militias and the like. Some years ago Sanford Levinson labeled this interpretation "embarrassing" to liberal scholars. That characterization was deserved, Levinson argued, since liberal academics had been eager to defend expansive interpretations of other rights-granting provisions of the Constitution. But they failed to do so when it came to language in the Second Amendment, which could be plausibly construed to grant an individual right to bear arms. The failure might be attributed, in part, to the …

Federalism And The Public Good: The True Story Behind The Religious Land Use And Institutionalized Persons Act, Marci A. Hamilton

Articles

No abstract provided.

Suspecting The States: Supreme Court Review Of State-Court State-Law Judgments, Laura S. Fitzgerald

Michigan Law Review

At the Supreme Court these days, it is unfashionable to second-guess states' fealty to federal law without real proof that they are ignoring it. As the Court declared in Alden v. Maine: "We are unwilling to assume the States will refuse to honor the Constitution or obey the binding laws of the United States. The good faith of the States thus provides an important assurance that 'this Constitution, and the Laws of the United States which shall be made in Pursuance thereof ... shall be the supreme Law of the Land.'" Accordingly, without proof that a state has "systematic[ally]" …

The Devil In Us. V. Jones: Church Burnings, Federalism, And A New Look At The Hobbs Act, Thomas Heyward Carter, Iii

Washington and Lee Law Review

No abstract provided.

No Longer Safe At Home: Preventing The Misuse Of Federal Common Law Of Foreign Relations As A Defense Tactic In Private Transnational Litigation, Lumen N. Mulligan

Michigan Law Review

In an increasingly common litigation strategy, plaintiffs in Patrickson v. Dole Food Company, laborers in the banana industries of Costa Rica, Ecuador, Guatemala and Panama, brought a classaction suit in Hawaii state court against Dole Food and other defendants. Plaintiffs brought only state law causes of action, alleging that they had been harmed by Dole Food's use of DBCP, a toxic pesticide banned from use in the United States. Dole Food removed the case to federal district court seeking the procedural advantages of a federal forum, as corporate defendants facing alien tort plaintiffs seeking redress for overseas conduct invariably do. …

Revisiting Erie, Guaranty Trust, And Gasperini: The Role Of Jewish Social History In Fashioning Modern American Federalism, Daniel R. Gordon

Seattle University Law Review

This article explores the connection between traditional Jewish localism and the creation of modern American federalism that flows from the Erie doctrine. First, the riddle of Gasperiniis explored. Next, the federalist philosophies of Justices Brandeis and Frankfurter in Erie and Guaranty Trust are discussed. Finally, the article analyzes how Justices Brandeis, Frankfurter, and Ginsburg, as twentieth century American Jews, embody the traditional Jewish minority experience that, at least in part, was informed by anti-Semitism.

Nine Shibboleths Of The New Federalism, Marci A. Hamilton

Articles

No abstract provided.

Federal Regulation Of State Court Procedures, Anthony J. Bellia Jr.

Journal Articles

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 …

Why Federalism Must Be Enforced: A Response To Professor Kramer, Marci A. Hamilton

Articles

The United States Supreme Court has issued a series of opinions that turn on the Constitution's inherent principles of federalism, decisions that have alarmed many a legal scholar. Some scholars have attacked the Court for overstepping its bounds, and others have criticized the Court on the ground that the federal/state balance should be maintained through the political process rather than judicial review. The most recent advocate of this position, Professor Larry Kramer, recently argued in the Columbia Law Review that the political party structure ensures that state interests are taken into account at the federal level, and therefore the Supreme …

Admiralty And Federalism In The Wake Of Yamaha Motor Corp., Usa V. Calhoun: Is Yamaha A Cry By The Judiciary For Legislative Action In State Territorial Waters?, David R. Lapp

William & Mary Law Review

No abstract provided.

Delaware As Demon: Twenty-Five Years After Professor Cary's Polemic, Mark J. Loewenstein

Publications

No abstract provided.

Judges And Federalism: A Comment On "Justice Kennedy's Vision Of Federalism", Robert F. Nagel

Publications

No abstract provided.

Citizen Suits Under The Resource Conservation And Recovery Act: Plotting Abstention On A Map Of Federalism, Charlotte Gibson

Michigan Law Review

In the shadow of the Supreme Court's constitutional federalism doctrines, lower federal courts have developed doctrines of common law federalism through vehicles such as abstention. In the environmental law arena, courts have employed a number of abstention theories to dismiss citizen suits brought under federal statutes. The appearance of primary jurisdiction and Burford abstention in citizen suits brought under the Resource Conservation and Recovery Act ("RCRA") exemplifies this trend. In rejecting RCRA suits, some courts have relied on primary jurisdiction, a doctrine conceived as a mechanism to allocate responsibility for limited fact-finding between courts and agencies, to dismiss RCRA citizen …

Dissecting The State: The Use Of Federal Law To Free State And Local Officials From State Legislatures' Control, Roderick M. Hills Jr.

Michigan Law Review

In discussions about American federalism, it is common to speak of a "state government" as if it were a black box, an individual speaking with a single voice. State governments are, of course, no such thing. Rather, a "state" actually incorporates a bundle of different subdivisions, branches, and agencies controlled by politicians who often compete with each other for electoral success and governmental power. In particular, these institutions compete with each other for the power to control federal funds and implement federal programs. This article explores one aspect of this intrastate competition - the extent to which federal law can …

El Federalismo Y La Administración De Justicia En Los Estados Unidos, Robert S. Barker

Barker Papers

In the United States, there is not just one system of justice; there are many. Each of the fifty states has its own constitution, laws, and courts of law. In addition, there is the overall federal justice system, which operates through the federal courts. Federalism profoundly affects the administration of justice in the United States, and the administration of justice, in turn, affects our federalism.

The purpose of this brief essay is to identify the most important aspects of the relationship between federalism and the administration of justice in the United States and its division of governmental powers between the …

State Immunity Waivers For Suits By The United States, Evan H. Caminker

Articles

The Supreme Court closed this millennium with a virtual celebration of state sovereignty, protecting state authority from the reach of congressional power in several significant ways. In a pair of cases, Seminole Tribe v. Florida1 and Alden v. Maine,2 the Court held that states enjoy a constitutional immunity from being sued without their consent. In Seminole Tribe, the Court opined that "the background principle of state sovereign immunity embodied in the Eleventh Amendment"3 protects states from unconsented suits in federal court. In Alden, the Court held that this principle is not merely embodied in the Eleventh Amendment but rather is …

International Jurisdiction In Products Liability Cases (Analysis Of Asahi And Post-Asahi Cases), Tsutomu Kuribayashi

LLM Theses and Essays

With the increase of foreign trade, there has also been an increase in the number of foreign manufacturers and distributors involved in product liability litigation in the United States. In many cases, the products from these foreign manufacturers and distributors reach the forum states through the stream of commerce, and are distributed to the customers by regional distributors, wholesalers, and retailers. Therefore, in many product liability cases where defective products from these foreign manufacturers and distributors cause injuries to people in the United States, those foreign companies do not have a direct relationship with the forum states. In these cases, …

New Global Potentates: Nongovernmental Organizations And The “Unregulated” Marketplace, Peter J. Spiro

Cardozo Law Review

The nation-state surely is in decline. As John McGinnis eloquently demonstrates, power has become increasingly difficult to exercise on a territorial basis, in part because individuals no longer require physical protection from foreign invaders (a service the state performed with elan), in part because vastly enhanced capacities for exit expose states to unprecedented regulatory competition. Barring a resurgent security threat-something that takes the world back to the brink, restores the state's importance as defender, and justifies renewed constraints on mobility-the erosion of state control seems irreversible and undeniable. But if not the state, then what? Through Professor McGinnis's lens …

The Future Of Federalism, Robert F. Nagel

Publications

No abstract provided.