Federalism
Ghostwriting Federalism
Drawing on interviews and historical accounts, this Article explains how federal agencies help states write legislation. Even as the Supreme Court has curtailed administrative power in the name of federalism, this Article shows how agency collaborations with statehouses may further values associated with federalism by encouraging accountability, deliberation, and experimentation.
De-judicialization Strategies
Constitutions have long been understood to empower courts. We argue, however, that constitutions can also be used to de-judicialize politics. We focus on the de-judicialization strategy of adding detailed provisions to U.S. state constitutions, and demonstrate that it has been employed throughout U.S. history and is still in use today.
Tar Heel Constitutionalism: The New Judicial Federalism in North Carolina
Like many other state constitutions, the North Carolina Constitution contains unique provisions guaranteeing individual rights not present in the U.S. Constitution. This Essay explores the extent to which political and civil rights in the North Carolina Constitution have been enforced by the state supreme court in modern times.
The “Bounds” of Moore: Pluralism and State Judicial Review
This Essay examines a potential version of the “independent state legislature theory” (ISLT) that, were it adopted, could require states to adopt particular interpretive methods for state laws regarding federal elections. That ISLT variant, however, has no basis in history, federalism, or democracy.
The Right to Amend State Constitutions
This Essay explores the people’s right to amend state constitutions and threats to that right today. It explains how democratic proportionality review can help courts distinguish unconstitutional infringement of the right from legitimate regulation. More broadly, the Essay considers the distinctive state constitutional architecture that popular amendment illuminates.
Demoralizing Elite Fraud
The Supreme Court’s effort to avoid interpreting morally weighted terms like “fraud” and “honest services” has led it to make bad and confusing law in wire-fraud cases. These cases, unlike Citizens United and its ilk, are unanimous, joining liberal and conservative Justices, reflecting a shared skepticism about anticorruption law.
Navigating Between “Politics as Usual” and Sacks of Cash
Like other recent corruption reversals, Percoco was less about statutory text than what the Court deems “normal” politics. As prosecutors take the Court’s suggestions of alternative theories and use a statute it has largely ignored, the Court will have to reconcile its fears of partisan targeting and its textualist commitments.
The Stakes of the Supreme Court’s Pro-Corruption Rulings in the Age of Trump: Why the Supreme Court Should Have Taken Judicial Notice of the Post-January 6 Reality in Percoco
In Percoco, the Supreme Court squandered opportunities to contextualize political corruption. This Essay argues that the Supreme Court should have taken judicial notice of the post-January 6 circumstances which surround the decision. This is a perilous time in American democracy for the Justices to make prosecuting corrupt campaign managers arduous.
What Are Federal Corruption Prosecutions for?
This Essay considers the role of prosecutors in the Supreme Court’s decades-long contraction of public corruption law. It examines how federal prosecutors’ reliance on broad theories of liability has paradoxically narrowed federal criminal law’s reach over public corruption, and considers how prosecutors might adjust their approach.
Coordinated Rulemaking and Cooperative Federalism’s Administrative Law
Distilling patterns across cooperative federalism programs, this Article uncovers the distinctive cross-governmental administrative law—and the unusual rulemaking it facilitates—in our most consequential federal-state collaborations.
General Citizenship Rights
This Article explores ideas of citizenship rights from the Revolutionary Era through Reconstruction and challenges the conventional view that citizenship rights came in only two sets—state and national. It argues that Americans also widely recognized general citizenship rights, reflecting an older constellation of ideas about federalism and fundamental law.
The Limits of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act
The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act was supposed to eliminate forced arbitration of cases involving sexual misconduct. This Essay explains why the Act fails to do so. In addition, it outlines what lawmakers and courts can do to fix this problem.
Divide and Conquer? Lessons on Cooperative Federalism from a Decade of Mental Health Parity Enforcement
This ten-year retrospective on the Mental Health Parity and Addiction Equity Act (MHPAEA) traces the law’s ambivalent track record to its merely partial adoption of a cooperative-federalist framework. Drawing from enforcement data, state settlement documents, and other cooperative-federalist statutes, this Note suggests policy interventions tailored to improve enforcement.
Federalism by Contract
Just as private parties use contracts to facilitate joint projects and nation-states use treaties to organize joint undertakings, our domestic governments use written instruments to formally coordinate their activities. This Article analyzes these distinctive contract-like instruments in which both parties are governments and the mutual objective is public governance.
Fidelity and Construction
Lawrence Lessig’s Fidelity & Constraint: How the Supreme Court Has Read the American Constitution makes an important contribution to “New Originalism.” This Review explores how Lessig’s theory of fidelity to role can inform an originalist understanding of constitutional construction.
Empire States: The Coming of Dual Federalism
In the standard account of federalism’s eighteenth-century origins, the Framers divided government power among two sovereigns to protect individual liberties. This Article offers an alternative history. It emphasizes that federalism was a form of centralization—a shift of authority from diffuse quasi-sovereigns into the hands of only two legitimate sovereigns.
A Response to Justice Goodwin Liu
Judge Jeffery Sutton responds to Justice Goodwin Liu’s Review of 51 Imperfect Solutions: States and the Making of American Constitutional Law.
State Courts and Constitutional Structure
Justice Goodwin Liu of the California Supreme Court reviews Judge Jeffrey Sutton’s new book, 51 Imperfect Solutions: The Making of American Constitutional Law.
The Past, Present, and Future of Section 1115: Learning from History to Improve the Medicaid-Waiver Regime Today
This Essay argues that section 1115 waivers in the Medicaid program have increasingly bee misused, opening the door to ideologically motivated cuts or preconditions on coverage, and suggests a response.
Wayfair Undermines Nicastro: The Constitutional Connection Between State Tax Authority and Personal Jurisdiction
This Essay exposes connections between two controversial cases that unsettled two ostensibly distinct areas of constitutional law—Wayfair v. South Dakota and J. McIntyre Machinery, Ltd. v. Nicastro—arguing that Wayfair’s underlying logic warrants narrowing or overruling Nicastro.