Federalism

In the 2022 case of Oklahoma v. Castro-Huerta, the Supreme Court departed from one of the foundational cases in federal Indian law, Worcester v. Georgia. Chief Justice John Marshall’s 1832 opinion had dismissed state power over Indian Country. But in Castro-Huerta, the Court took precisely the kind of arguments about state power that Chief Justice Marshall rejected in Worcester and turned them into the law of the land—without...

TAXING POLICE BRUTALITY BONDS

Likhitha Butchireddygari*

In view of decades of devastating police violence and efforts to reform policing, this Note points to two concurrent phenomena that result in the federal tax code granting benefits to the wealthiest taxpayers who lend to municipalities for police brutality settlements. The first phenomenon is cities electing to issue bonds to satisfy these costly payouts. These bonds have been coined “police brutality bonds.” The second phenomenon is the tax...

THE MYTH OF THE LABORATORIES OF DEMOCRACY

Charles W. Tyler* & Heather K. Gerken**

A classic constitutional parable teaches that our federal system of government allows states to function as “laboratories of democracy.” This tale has been passed down from generation to generation, often to justify constitutional protections for state autonomy from the federal government. But scholars have failed to explain how state governments manage to overcome numerous impediments to experimentation, including resource scarcity, free rider...

CATEGORICAL NONUNIFORMITY

Sheldon A. Evans*

The categorical approach, which is a method federal courts use to ‘categorize’ which state law criminal convictions can trigger federal sanctions, is one of the most impactful yet misunderstood legal doctrines in criminal and immigration law. For thousands of criminal offenders, the categorical approach determines whether a previous state law conviction—as defined by the legal elements of the crime—sufficiently matches...

Once it became apparent that the SEC would not impose a broker-dealer fiduciary duty to retail customers, a number of states proposed regulations that would rectify the perceived shortcomings of Regulation Best Interest (Reg BI). The new SEC rule brought into question the validity of these state fiduciary rules, as well as the common law broker-dealer fiduciary rules in other states. This Note is the first attempt to frame and resolve Reg BI’s...

THE INTERNATIONAL LAW ORIGINS OF AMERICAN FEDERALISM

Anthony J. Bellia Jr.* & Bradford R. Clark**

Courts and commentators have long struggled to reconcile promi­nent federalism doctrines with the text of the Constitution. These doc­trines include state sovereign immunity, the anticommandeering doc­trine, and the equal sovereignty of the States. Supporters of such doctrines have generally relied on the history, structure, and purpose of the Constitution rather than its text. Critics have charged that the doctrines lack adequate support in...

Most state and federal employment discrimination statutes prohibit employers from making certain decisions “because of” an employee’s protected characteristics or activities. Courts interpreting this language have developed a number of frameworks and standards to assess whether a plaintiff has demonstrated the causation required to make out a claim of employment discrimination. Two standards frequently invoked by courts are but-for causation...

Until recently, the Supreme Court interpreted the Federal Power Act (FPA) to draw an impermeable boundary between the jurisdiction of the Federal Energy Regulatory Commission (FERC) and those of state public utility commissions. But the Court’s recent decisions in FERC v. Electric Power Supply Association (EPSA) and Hughes v. Talen Energy Marketing, LLC appear to relax the formalistic test tradi­tion­ally used to resolve...

ABDICATION AND FEDERALISM

Justin Weinstein-Tull*

States abdicate many of their federal responsibilities to local governments. They do not monitor local compliance with those laws, they disclaim responsibility for the actions of their local governments, and they deny state officials the legal capacity to bring local governments into compliance. When sued for noncompliance with these federal laws, states attempt to evade responsibility by arguing that local governments—and not the state—are...