Tag: Federalism

The Perils of Over-Constitutionalizing the Law: A Reply to Professor Epstein

Jonathan F. Mitchell - George Mason University School of Law

The Supreme Court deems itself powerless to reverse a state supreme court solely on state-law grounds. As a result, whenever anyone asks the Supreme Court to review a state court’s ruling, the litigants and justices proceed as though the only options are to reverse on federal constitutional grounds or allow… Read More »

Collective Action Federalism: A General Theory of Article I, Section 8

Robert Cooter & Neil Siegel

The Framers of the United States Constitution wrote Article I, Section 8 in order to address some daunting collective action problems facing the young nation. They especially wanted to protect the states from military warfare by foreigners and from commercial warfare against one another. The states acted individually when they… Read More »

Bring on the Heavy Constitutional Artillery: A Brief Response to Professor Mitchell’s Reconsidering Murdock

Richard A. Epstein - New York University Law School

In his recent article in The University of Chicago Law Review, Reconsidering Murdock: State-Law Reversals as Constitutional Avoidance, Professor Jonathan Mitchell has challenged one of the bedrock principles of federal jurisdiction. His thesis is that, in limited cases, the United States Supreme Court should take it upon itself to review certain… Read More »


Tom Ginsburg & Eric A. Posner

Many nation states have a two-tiered constitutional structure that establishes a superior state and a group of subordinate states that exercise overlapping control of a single population. The superior state (or what we will sometimes call the “superstate”) has a constitution (a “superconstitution”) and the subordinate states (which we will… Read More »

The Reach of State Corporate Law Beyond State Borders: Reflections Upon Federalism

Honorable Jack B. Jacobs - Justice, Delaware Supreme Court

During their first year of law school, students are taught some eternal verities.  One of them is that America’s federal system consists of fifty states, each governed only by its own law and not by the law of any other state.  Overlying this state law tapestry is a system of… Read More »

Federalism Accountability: “Agency-Forcing” Measures

Catherine M. Sharkey - N.Y.U. School of Law

Federal preemption of state tort law is a multifaceted topic. In Federalism Accountability: “Agency-Forcing” Measures, I tackle the federalism dimension of the contentious preemption debate: Congress’s and federal agencies’ respective abilities to serve as loci of meaningful debate with state governmental entities about the impact of federal regulatory schemes on… Read More »

Iterative Federalism and Climate Change

Ann E. Carlson - UCLA School of Law

With the election of Barack Obama as President, national and global attention on climate change will turn to the federal government.  Though the looming economic crisis may slow a federal response, President Obama has made clear his support for ambitious action on climate change with a cap and trade scheme… Read More »

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