Search

Introduction 1032 I. The Movement for Paid Sick Time Has Been Grounded in Local Innovation and Progress 1037 A. History of the Paid Sick Time Movement and Its Rapid Growth [...]

I. Federalist Backdrop 1127 II. Innovation in the U.S. Virgin Islands 1130 III. The Right to Stable Employment in the U.S. Virgin Islands 1132 IV. Lessons from the U.S. Virgin [...]

Federal and state actors sometimes condition access to benefits that they are constitutionally permitted but not obligated to provide on the willingness of recipients to engage in certain behavior that governments cannot compel directly. Current judicial doctrine treats such conditional offers as sometimes permitted and sometimes prohibited. But existing case law addressing such 'unconstitutional conditions' challenges lacks a coherent account of when and why such conditional offers violate the Constitution. A wide-ranging academic debate has swirled around the doctrine, with commentators proposing various reforms to bring order to the courts' confused and confusing jurisprudence. A curious feature of this debate has been the relative inattention most participants have given to what the Constitution itself has to say on the subject. The comparative paucity of text-centered arguments in the unconstitutional conditions literature is likely attributable to a perception that the text has little or nothing to say on the issue. This Article challenges that assumption by demonstrating how the text can provide important insights regarding the permissible limits of conditional governmental offers. This analysis suggests that certain aspects of current judicial doctrine, including the presumed waivability of most significant individual rights guarantees and the courts' tendency to focus on the 'germaneness' of particular conditions to the government's regulatory objectives as a measure of constitutionality, are likely consistent with a proper interpretation of the constitutional text. But not every feature of current unconstitutional conditions jurisprudence is similarly textually defensible. In particular, this Article contends that efforts to extend the unconstitutional conditions framework developed in cases involving individual rights to the much different context of state-federal bargaining ignores important textual distinctions between the Constitution's individual rights guarantees and the structural limitations that allocate authority between the states and the federal government. And while the Constitution almost certainly places some limits on the permissible scope of state-federal bargaining, certain aspects of the Supreme Court's existing federalism jurisprudence--including the presumed invalidity of federal offers that 'compel' or 'coerce' state decision-making--lack any firm grounding in the constitutional text., INTRODUCTION 749 I. PRELIMINARY OBSERVATIONS ON THE CONSTITUTIONAL 756 TEXT A. A Constitution of Ends and Means 757 B. Two Textual Strategies for Limiting Government: 761 Enumerating Rights Versus Enumerating [...]

Heightened political polarization across the United States has resulted in the increased use of Rule 24(a) intervention as a matter of right by elected legislators in federal litigation concerning state law. Because states differ in their approaches to intervention, with only some states expressly granting intervention in state matters, lower federal courts have been tasked with evaluating motions to intervene by reconciling Rule 24(a)'s requirements with state statutes, which poses challenging questions concerning Rule 24. This Note aims to provide lower courts with a reimagined standard for evaluating motions to intervene from state legislators that considers the administrative, political, and legislative consequences that occur without such a standard. Under this standard, lower courts first determine whether Rule 24(a) trumps state law before utilizing a shareholder test to evaluate whether the existing party adequately represents the interest of the potential legislator intervenor. This standard ultimately seeks to prevent the overburdening of the courts and to protect their independence., INTRODUCTION 276 I. BACKGROUND 278 A. The Standard Under Rule 24(a) 278 B. When Politicians and Rule 24(a) Collide: Bethune-Hill and Cameron 278 C. The Berger Decision Upends Legislator Intervention [...]

TABLE OF CONTENTS INTRODUCTION 2 I. DOUGLASS AND THE GARRISONIANS 4 II. THE GARRISONIAN CONSTITUTION 6 III. DOUGLASS'S NATURAL-LAW CONSTITUTIONALISM 8 A. Argument #1 9 B. Argument #2 10 C. [...]

There is a widespread sense that the internet and social media are broken, and there is great political pressure to fix them. But there is little consensus regarding what the problem is or how to solve it. While Congress has been unable to come to sufficient consensus to act, state governments recently have begun to enact laws addressing the issue, and hundreds of bills are pending in state legislatures across the country. Conservative states, like Florida and Texas, have enacted laws prohibiting platforms from moderating speech. Liberal states, like New York and California, have enacted laws to encourage platforms to moderate more expression, such as hateful content or speech that could harm children. Some states have restricted platforms' ability to offer their services to minors and imposed significant moderation requirements with respect to permitted underage users. And many states have enacted or considered laws requiring internet companies to make burdensome disclosures. Many more state laws, some based on these and many taking new approaches, are sure to follow. But such state regulation of content moderation by online platforms is undesirable. These are national media that are enormously important for expression, and a myriad of state regulations would have a devastating effect on speech. Many of the laws discussed in this Article would violate the First Amendment, even more would be preempted by federal law, and almost all would be bad policy. Laws that require content moderation unconstitutionally restrict platforms' speech and editorial discretion. Laws that prohibit content moderation or impose significant disclosures compel speech, in violation of the First Amendment. And even for those state regulations that do not infringe the First Amendment, almost all are preempted by Section 230, a federal law that immunizes platforms from liability for user content that the platforms host or remove, or other federal laws. This Article focuses not on how social media should be regulated, but on who should do the regulating. We argue that, to the extent that regulation of content moderation is desirable, it should come from the federal government. State attempts to regulate internet content should be struck down, and states should abstain even from those attempts to regulate content moderation that are not unconstitutional or preempted., INTRODUCTION 3 I. STATE LAWS REGULATING THE INTERNET AND SOCIAL MEDIA 7 A. State Content-Moderation Laws 7 1. Laws Prohibiting Content Moderation 8 2. Laws Requiring Content Moderation 10 B. [...]

It is originalist gospel that the Fourteenth Amendment's Privileges or Immunities Clause was intended, at a minimum, to incorporate the Bill of Rights against the states. This Article revisits forty [...]

In Milliken v. Bradley, the Supreme Court declared 'local control' the single most important tradition of public education. Milliken and other related cases developed this notion of a tradition, which has frustrated attempts to achieve equitable school funding and desegregation through federal courts. However, despite its significant impact on American education, most scholars have treated the 'tradition of local control' as doctrinally insignificant. These scholars depict the tradition either as a policy preference with no formal legal meaning or as one principle among many that courts may use to determine equitable remedies. This Note argues that the Supreme Court conceived of the tradition not merely as good policy or remedial law but as a principle that was supported by multiple freestanding constitutional provisions. It shows how the policy and remedial law explanations for the tradition do not fully explain the Court's reasoning. It then demonstrates that the Court located the tradition in the federal Constitution's guarantees of substantive due process, the right to vote, federalism, and the separation of powers., TABLE OF CONTENTS INTRODUCTION I. THE ORIGINS AND IMPACT OF THE TRADITION OF LOCAL CONTROL A. The Context and Reasoning of Milliken v. Bradley B. Why Milliken and the Tradition [...]

The COVID-19 pandemic exposed systemic quality-of-care problems in American nursing homes as well as the deadly consequences of a regulatory system that has enabled nursing homes to divert funds needed for care to profit. Policy experts have responded by urging regulators to improve nursing-home oversight practices and by calling for new regulatory and statutory authority to increase accountability. These calls, however, have been met with sharp political headwinds. This Article suggests a path around the political impasse. Specifically, it identifies and explores four opportunities to leverage existing statutory schemes to create stronger incentives for nursing homes to provide high-quality care. It then explores how politics, administrative complexity, and ageism have come together to prevent this existing authority from being used to its full potential. It concludes by situating the current regulatory failure to hold nursing homes accountable in the context of a larger discussion about the costs of federalism in the health care arena., TABLE OF CONTENTS INTRODUCTION 130 I. AMERICA'S NURSING HOME CRISIS 133 A. Systemic Quality-of-Care Problems 134 B. Relationship Between Quality and Ownership 139 C. Current Reform Efforts 141 II. CERTIFICATION [...]

New York State Rifle & Pistol Association, Inc. v. Bruen was the first significant Second Amendment case that the Supreme Court had heard in nearly fifteen years since its decision in District of Columbia v. Heller. This Article offers some preliminary observations about the opinion itself, as well as its likely effects, some of which are starting to manifest. Our first take concerns the question of opinion assignment. Why did Chief Justice Roberts--whose support for the Second Amendment has been suspect--assign the opinion to Justice Thomas? Takes Two and Three concern Justice Thomas's substitution of text, history, and tradition for tiered security, and his call for courts to adopt analogical reasoning should the former fail to provide answers to resolve particular cases. In rejecting tiered scrutiny, Thomas argued that the lower courts had misread the Heller decision itself; that Heller rejected tiered security in favor of a textual, historical, and traditional inquiry. To make Bruen seem less like an abrupt departure, we argue, Justice Thomas had to 'retcon' Heller--reading back into the latter decision the analytical framework adopted in Bruen. We also question how helpful his explanation of the method for analogizing to other extant gun regulations when history and tradition have run out is likely to be to lower courts who must rehear cases involving dozens of these laws in light of Bruens new standard. Take Four wonders about the status of what we earlier termed 'the Heller safe harbor'--the list of 'presumptively lawful' regulations that the Court said were not called into question by the decision. Critics at the time questioned whether these could be squared with the self-conscious originalism of the rest of the opinion. This tension is only heightened by Bruen's text-history-tradition only approach. Finally, we look at the reaction of the lower courts post-Bruen. While approaches differ, a surprising number of these opinions seem to recognize Bruen for the sea change it portends and are attempting to implement it in good faith. Although, as was true with cases like United States v. Lopez and Heller itself, some courts are also trying to avoid the wider implications of Bruen using any available argument, however specious, and we detect in some an 'uncivil obedience' intended to raise the Supreme Court's costs of holding the line laid down in Bruen., TABLE OF CONTENTS INTRODUCTION 82 I. BRUEN: A SUMMARY 86 II. BRUEN: THE FIVE TAKES 91 A. Take One: The Curious Case of the Opinion Assignment 91 B. Take Two: [...]

TABLE OF CONTENTS I. INTRODUCTION 578 II. MERGER INVESTIGATIONS 578 A. The Legislative Scheme and History of Merger Investigations: The Role of California v. Frito-Lay and the Enactment of the [...]

The Appointments Clause is one of the United States Constitution s vital structural limits on government power--it protects liberty by helping to enforce the separation of powers. Over time, as the federal government has continued to grow, conflicts with the structural limits on government power have inevitably increased, and will continue to do so. In response, Congress has increasingly tried to work around those limits, including through the increased use of state actors to achieve federal policy goals under the guise of 'cooperative federalism.' In the Appointments Clause context, this can lead to constitutional problems where state actors are taking actions only allowed by Officers of the United States who are appointed pursuant to the Appointments Clause. This paper looks at the historical underpinnings of the clause and the caselaw that has developed around it. The paper then turns to various statutes adopted under the guise of cooperative federalism and calls for a reinvigoration of the Appointments Clause as a means of pushing federal policy back toward competitive federalism and thereby reining in the ever-growing federal administrative state., TABLE OF CONTENTS INTRODUCTION 339 BACKGROUND ON THE 341 APPOINTMENTS CLAUSE A. The Founders' View 341 B. The Text of the Clause 342 C. Caselaw Development 343 1. Marbury v. [...]

This lecture--now an article--is about the COVID-19 pandemic and its impact on the health and safety of essential frontline workers. (3) This larger story includes several important themes: the complexity [...]

INTRODUCTION Amidst cries for tort reform (1) and the ongoing 'preemption war' that has taken the courts by storm, (2) an atmosphere of unease has settled over the American public [...]

I. INTRODUCTION Historically, the law imposed harsh penalties on debtors who could not meet their obligations. (1) One regime dismembered the debtor's body and proportionally distributed it to creditors. (2) [...]

The Kenai Rule, enacted by the U.S. Fish and Wildlife Service in 2016, prohibits (a) the hunting of brown bears with bait in the Kenai National Wildlife Refuge, (b) most hunting in the Skilak Wildlife Recreation Area, and (c) the discharge of firearms along the Kenai and Russian Rivers. The Kenai Rule was challenged by the State of Alaska and Safari Club International in Alaska v. Bernhardt. This Comment provides an overview of the case as it was heard in the District Court of Alaska. This discussion includes arguments and counterarguments surrounding the application of four legislative acts: the Administrative Procedure Act, the National Wildlife Refuge System Improvement Act, the Alaska National Interest Lands Conservation Act, and the National Environmental Policy Act. Additionally, this Comment examines the holding and subsequent public response to the Ninth Circuit's decision in Safari Club International v. Haaland, the public's opinion on bear baiting, the culling of predators to increase moose and caribou populations for hunters, and the future impact this decision will have on the federalist arrangement of Alaska's natural resources., I. INTRODUCTION Environmental sustainability is at the forefront of numerous public domains, including politics, popular culture, and for many Alaskans, everyday life. A variety of environmental issues have made headlines [...]

Two individuals enter the United States--one as a refugee, the other as a visitor, and later, as a graduate student. Several years later, each adjusts his status, (1) becoming a [...]

With Vladimir Putin's brutal invasion of Ukraine in February 2022 and the new coalition government's resulting reorientation of German foreign and security policy--an epochal shift that jettisoned 30, even 50 [...]

Sub-national diplomacy, also known as paradiplomacy, occurs when sub-national actors (think cities or states) engage in international relations, either with other sub-national actors or nation-states. Though typically the province of foreign policy scholarship, paradiplomacy touches on several legal issues, particularly where sovereignty and legal frameworks collide. In the United States, the federal system established by the Constitution gives individual states plenary power but reserves international relations to the federal government through the Supremacy Clause. However, the lines between federal power and state power with regards to international relations remain fuzzy. Sub-national actors are taking advantage of this lack of sharply drawn lines to combat local, regional, and global issues. This Comment examines what sub-national actors in the United States can do on the international stage and details illustrative examples of previous attempts and iterations of American paradiplomacy. This Comment, while focusing on the Pacific Northwest, argues that the value and efficacy of these paradiplomatic efforts both encourage their acceptance by the federal government and serve as a call for standardization and increased federal oversight., It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and [...]

In the years leading up to the Civil War, fugitives from slavery put their lives on the line to improve, their own status and that of their families in their quest for freedom-Fugitives from slavery, or 'freedom seekers, ' engaged in civil disobedience, resisting laws that they believed to be unjust and inhumane. In the North, free black people and their white allies supported the freedom seekers by engaging in civil disobedience of their own. The transgressive actions of freedom seekers sparked constitutional controversy during the antebellum era over issues of interstate comity, federalism, citizenship rights, and fundamental human rights. Their actions were central to the antislavery struggle, and their sacrifices sent a profound moral message which inspired, other activists and strengthened their cause. Eventually, the Reconstruction Congress enshrined their claims into constitutional law. Until now, fugitives from slavery have largely been absent from virtually all of the legal scholarship about the antebellum and Reconstruction Era. This Article seeks to remedy that oversight., I. FREEDOM SEEKERS AS CONSTITUTIONAL ADVOCATES 1382 A. Litigants in Constitutional Cases 1382 B. Political Advocacy and Popular Constitutionalism 1384 C. Performative Constitutionalism 1385 D. Transgressing Battle Lines 1390 II. [...]

Introduction 617 I. The Rise of Intrastate Pre-Emption 619 II. The Delegation of Marijuana Police Powers to Municipalities 623 III. Recreational Marijuana 'Opt-Out' Provisions in California 626 IV. Recreational Marijuana [...]

Sometimes the United Stales Supreme Court speaks, and states do not follow. For example, in 2003, the Arizona Supreme Court agreed to 'reject' a derision of the U.S. Supreme Court, because no 'sound reasons fustiff[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' slate 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 attempts by states to reject or nullify federal court decisions, these state, laws and decisions remain in effect. How can this be ? The reason is simple enough: the Supremacy Clause is not a binary switch. Without complete preemption, our system of federalism leaves room for slate law to supplement or stand alongside federal law. States often use that freedom to depart from federal lean by passing laws or issuing judicial opinions that explicitly reject specific opinions issued by the U.S. Supreme Court. This Article documents and analyzes that phenomenon of state rejection of federal caselaw, which has not received systematic scholarly attention. Analyzing states' reactions to three federal cases--Illinois Brick Co. v. Illinois, Kelo v. City of New London, and Lujan v. Defenders of Wildlife--allows for a novel analysis of the causes and consequences of this phenomenon. These varied examples show that there is no single explanation for slate law rejecting federal law, nor is it even always carried out by the same institutional actor. Similarly, the pathologies and virtues that result from divergent stale and federal law vary considerably across legal contexts. That states reject the decisions of federal courts has both practical and theoretical consequences for our understanding of federal courts' influence on state law. As a jyractical matter, the examples comprise a playbook for slate decisionmakers seeking to extend, supplement, or transcend the limitations of federal law. In an era of increasing and anticipated clashes between courts and legislatures, rejecting federal caselaw is one luay that democratic majorities can reduce the practical impact of federal court decisions. More broadly, this phenomenon resonates with theoretical accounts of how legal systems' rejection of precedent from other jurisdictions can shape domestic law. The act of defining law aversively to that of another sovereign leaves a lasting mark. Slates that reject the decisions of federal courts exhibit difference from federal law as an important strain of state law. Rejection of federal law therefore sows the seeds of its mun future growth., Introduction 762 I. Supremacy and Metaphor 768 A. Federalism 769 B. State Constitutional Law and the New Judicial Federalism 771 C. Constitutional Borrowing 774 II. State Rejection in Praci ice [...]

There exists a notion in the United States that the federal government manages land while the states manage wildlife. While it is true that the responsibilities of wildlife management have traditionally been reserved to the states, in many instances the federal government does have the authority to manage and conserve wildlife. This overlapping jurisdiction most often leads to the preemption of a state's laws and the frustration of its wildlife management goals. In the 2020 election, Colorado voters narrowly passed Proposition 114, which requires Colorado Parks and Wildlife to reintroduce wolves to the state by the end of 2023. This marks the first instance of voters requiring a wildlife agency to take such a broad action regarding the management of a species. While this fact may not have an impact on the exact plan that Colorado Parks and Wildlife creates, it presents a novel opportunity for Colorado, and any states that follow, to strengthen their authority over resident wildlife. By undertaking this reintroduction effort with a mandate from voters, Colorado may benefit from the heightened deference that courts often give, or suggest giving, to state ballot initiatives. Operating much like a presumption against preemption, this heightened deference would serve to tilt the scales in the states' favor in the event of a conflict with federal authority. This article explores how ballot initiatives present the opportunity for states to claw back some authority over their wildlife that has been eroded by courts over the last century, including introducing the deferential framework under which courts should analyze conflicts between federal authority and state ballot initiatives., INTRODUCTION Paws on the ground by 2023. In the 2020 election Colorado voters passed Proposition 114, which requires Colorado Parks and Wildlife ('CPW') to reintroduce wolves to the state by [...]

Historically, the Supreme Court has offered scant attention to or analysis of the Elections Clause, resulting in similarly limited scholarship on the Clause's original meaning and public understanding over time. The Clause directs states to make regulations for the time, place, and manner of congressional elections, and grants Congress superseding authority to make or alter those rules. But the 2020 elections forced the Elections Clause into the spotlight, with Republican litigants relying on the Clause to ask the Supreme Court to limit which state actors can regulate federal elections. This new focus comes on the heels of the Clause serving as the primary constitutional basis for democracy reform legislation that passed the U.S. House of Representatives in 2019 and was reintroduced in 2021. Increased interest heightens the need for a deeper understanding of the intent and meaning of the Elections Clause. This Article fills a gap in the literature by providing a first-of-its-kind comprehensive analysis of the purpose, meaning, and interpretation of the Elections Clause by the Framers, early Congresses, and federal courts., INTRODUCTION I. THE ELECTIONS CLAUSE AT THE FOUNDING A. The Constitutional Convention 1. The Framers' Goals 2. Drafting the Elections Clause and Debate at the Constitutional Convention B. Ratification of [...]

Despite over 200 years of deliberation and debate, the United States has not adopted a federal corporate chartering law. Instead, Delaware is the 'Federal Option' for corporate law and adjudication. The contemporary federal corporate chartering debate is, in part, a referendum on its role. Although the federal government has regulated other aspects of interstate commerce and has the power to charter corporations and preempt Delaware pursuant to its Commerce Clause power, it has not done so. Despite the rich and robust scholarly discussion of Delaware's jurisdictional dominance, its role as a de facto national regulator remains underdeveloped. This Article addresses a vexing question: Can Delaware, a haven for incorporation and adjudication, serve as an effective national regulator? Following an analysis of federal chartering alternatives, such as the Nader Plan, the Warren Plan, the Sanders Plan, and other modes of regulation, the answer is yes, but with some caveats and qualifications. Delaware's adequate, if imperfect, performance as a surrogate national regulator of corporate internal affairs argues against the upheaval of the existing corporate law framework federal chartering would bring. Even in the contemporary moment where longstanding concerns about corporate power, purpose, accountability, and the uneasy relationship between corporations and society are amplified, Delaware can continue to perform an important agency- like role in collaboration with federal regulators and regulated firms. A deeper examination comparing the merits of federal corporate chartering with Delaware's de facto agency function illuminates the potential of existing and future reforms. This Article concludes that federal chartering proposals have an important impact despite not being adopted for centuries. First, federal chartering proposals encourage policymakers to look beyond the status quo toward greater hybridization in regulatory design. Second, elements of previous federal chartering proposals have historically become successful 'a la carte' reforms or part of other successful reform measures. Third, federal chartering proposals provide value as a bargaining tool where the threat of more intrusive federal regulation makes other reform methods more palatable to diverse corporate constituencies., INTRODUCTION I. DELAWARE AS A DE FACTO AGENCY A. Corporate Lawmakers B. Delaware's Institutional Dynamics C. Federal Lawmaking D. The Agency Analogy II. THE FEDERAL CHARTERING DEBATE A. The Recurrence [...]

I. Introduction The Roberts Court is continuing with its most recent predecessors, the Burger and Rehnquist Courts, in the erosion of constitutional protections of individual rights and liberties from state [...]