Federalism
The Treaty Problem: Understanding the Framers’ Approach to International Legal Commitments
Bond v. United States failed to answer important questions about the scope and limits of the treaty power. This Comment highlights an underexplored factor driving the Framers’ formulation of that power—the threat of war inherent in all treaty violations—and its implications for Bond’s lingering questions.
The Reach of Local Power
Recent litigation has challenged local California prosecutors’ power to seek and receive statewide relief for violations occurring outside county lines. This Essay argues against this trend and explains why it is inappropriate to apply the constitutional norms that state-versus-federal conflicts to conflicts between states and municipalities.
An Avoidance Canon for Erie: Using Federalism to Resolve Shady Grove’s Conflicts Analysis Problem
Since the Supreme Court's tripartite split in Shady Grove, federal courts have struggled to determine whether a Federal Rule of Civil Procedure and a state law conflict under Erie. This Note proposes a novel federalism-based avoidance canon to identify such conflicts.
A Cooperative Federalism Approach to Shareholder Arbitration
Arbitration has begun to take a new form: mandatory arbitration provisions built into corporate charters and bylaws. The debate about the merits of arbitration is well worn, but its application to shareholder claims opens the door to a different set of responses. This Essay provides one, explaining why the overlapping authority of federal and state actors in this field makes cooperative federalism is a natural fit for addressing these issues.
Sexual Harassment Law After #MeToo: Looking to California as a Model
The #MeToo movement has motivated people to speak out about sexual harassment, but many of those speaking remain vulnerable to retaliation. This Essay provides the perspective of an employment lawyer on the shortcomings of sexual harassment law and how state law can afford greater protection.
Local Action, National Impact: Standing Up for Sanctuary Cities
Over the past year, cities have emerged as crucial sites of resistance. Using San Francisco and the sanctuary city litigation more broadly as a case study, this Essay argues that cities can and should take advantage of the Constitution’s federalism protections to resist federal intrusion onto local autonomy.
Asking for Directions: The Case for Federal Courts To Use Certification Across Borders
Health Care Exchanges and the Disaggregation of States in the Implementation of the Affordable Care Act
The Sum of All Delegated Power: A Response to Richard Primus, The Limits of Enumeration
Commandeering and Constitutional Change
122 Yale L.J. 1104 (2013). Coming in the midst of the Rehnquist Court’s federalism revolution, Printz v. United States held that federal commandeering of state executive officers is “fundamentally incompatible with our constitutional system of dual sovereignty.” The Printz majority’s discussion of historical evidence, however, inverted Founding-era perspectives. When Federalists such as Alexander Hamilton endorsed commandeering during the ratification debates, they were not seeking to expand federal power. Quite the opposite. The Federalists capitulated to states’ rights advocates who had recently rejected a continental impost tax because Hamilton, among others, insisted on hiring federal collectors rather than commandeering state collectors. The commandeering power, it turns out, was an integral aspect of the Anti-Federalist agenda because it facilitated federal use of state and local officers, thus ensuring greater local control over federal law enforcement and averting the need for a bloated federal bureaucracy. These priorities carried over into the First Congress, where Anti-Federalists were among the most vehement defenders of the federal power to commandeer state executive and judicial officers. Ironically, though understandably when viewed in context, it was Federalists who first planted the seeds of the anticommandeering doctrine. Incorporating recently uncovered sources and new interpretations, this Article aims to significantly revise our understanding of Founding-era attitudes toward federal commandeering of state officers. Moreover, the Article explains why early Congresses generally shunned the use of state officers and how this custom combined with shifting political priorities to quickly erode what once had been a strong consensus favoring commandeering’s constitutionality.
Curing the Blind Spot in Administrative Law: A Federal Common Law Framework for State Agencies Implementing Cooperative Federalism Statutes
122 Yale L.J. 1280 (2013). This Note examines whether state or federal principles of administrative law should govern suits challenging state agency action pursuant to cooperative federalism statutes. Despite the prevalence of cooperative federalism statutes, courts and scholars alike have given scant attention to this question. That neglect has translated into poorly reasoned and inconsistent judicial decisions. We show that this question is one of federal common law that is properly governed by the framework of Kimbell Foods, which holds that federal common law should take state law as its substantive source unless doing so would create a significant conflict with federal policy.
Intrastatutory Federalism and Statutory Interpretation: State Implementation of Federal Law in Health Reform and Beyond
121 Yale L.J. 534 (2011). State implementation of federal law is commonplace, but has been largely ignored by the interpretive doctrines of legislation and administrative law. We have no Chevron, federalism canon, or anything else for state implementation, nor any doctrines that ask how Congress’s decisions to delegate implementation duties to states should affect how ambiguous statutes should be interpreted. For theories of federalism, state implementation raises a different question, namely, whether this “intrastatutory federalism”—an informal federalism that comes from the inside of federal statutes—is something that doctrine should protect. The prevailing functional and sovereignty accounts of federalism seem less relevant for a federalism that comes at the grace of Congress; this federalism belongs to the domain of statutory interpretation. This Essay argues that state implementation of federal law plays many different roles, and that those differences should affect both how statutes are interpreted and how they are conceived from a federalism perspective. Sometimes state implementation effectuates traditional federalism values like experimentation, but at other times it seems to serve more nationalizing functions, like statutory entrenchment and even federal law encroachment. This variety poses challenges for legislation doctrine, because the prevailing canons of interpretation are not designed to capture such differences, and it illustrates that the broad category of cooperative federalism is more nuanced than commonly acknowledged.
Intersystemic Statutory Interpretation: Methodology as “Law” and the Erie Doctrine
120 Yale L.J. 1898 (2011). Do the Erie Doctrine and its “reverse-Erie” mirror require state and federal courts to apply one another’s statutory interpretation methodologies when they interpret one another’s statutes? Surprisingly, the courts have no consistent answer to this question—even though state and federal courts constantly interpret one another’s laws. What’s more, exploring this application of Erie reveals that one of the most important jurisprudential questions about statutory interpretation also remains entirely unresolved: namely, are the rules of statutory interpretation “law,” individual judicial philosophy, or something in between? This Article argues that many federal courts are getting the Erie question wrong—or at least that they are unaware that the question exists in the first place. The Erie inquiry also makes clear that federal courts treat both state and federal statutory interpretation methodology as much less “lawlike” than they treat analogous interpretive principles, without acknowledging or justifying the distinction. Federal courts routinely bypass state interpretive principles when they interpret state statutes, but almost always look to other state methodological principles, including state rules of contract interpretation, choice of law, and constitutional interpretation. Further, unlike in those other areas, the U.S. Supreme Court does not treat even its own statements about federal statutory interpretation principles as “law” and does not give them precedential effect. This practice has licensed an interpretive freedom for state and lower federal courts when those courts interpret federal statutes—a freedom that facilitates federal-law disuniformity that the Court generally does not tolerate in other contexts. This Article challenges the notion that statutory interpretation is sufficiently different from other decisionmaking regimes to justify these distinctions.
State Pension Deficits, the Recession, and a Modern View of the Contracts Clause
120 Yale L.J. 2199 (2011).
How To Review State Court Determinations of State Law Antecedent to Federal Rights
120 Yale L.J. 1192 (2011). In Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, 130 S. Ct. 2592 (2010), a plurality of the Supreme Court endorsed a judicial takings doctrine for the purpose of policing wayward state property law decisions. The plurality’s opinion culminates several decades’ worth of effort by legal scholars and property law groups to secure closer federal review of state court property law determinations antecedent to federal takings claims. In a great victory for these groups, but in an opinion that also cuts against more than a century of Supreme Court deference to state courts in this area, the plurality adopted a new standard of independent review for antecedent state property law determinations. This Note examines the tradition of deference cast aside by the plurality’s opinion and makes a case for its rehabilitation. Important purposes are served by Supreme Court deference to state court determinations of antecedent state law; not least of these is the check that deference places on the Supreme Court’s own power over state court decisionmaking. This Note concludes that the damaging consequences of independent review ultimately outweigh any benefits that may accrue to property owners; it urges the Court to return to a deferential standard of review and leave state courts free to develop distinctive bodies of property law responsive to their states’ local needs and histories.
Multiplicity in Federalism and the Separation of Powers
120 Yale L.J. 1084 (2011). The Ideological Origins of American Federalism By Allison L. Lacroix Cambridge, MA: Harvard University Press, 19th ed., 2010, PP. 312. $35.00.