The Yale Law Journal

Federalism

Forum

Asking for Directions: The Case for Federal Courts To Use Certification Across Borders

Michael J. Wishnie & Oona A. Hathaway

For more than a decade, the bench, bar, and commentators have disagreed as to whether judges should look to decisions of international and foreign courts for guidance in resolving disputes that appear in U.S. courts. In 2003, Justice Scalia’s dissent in Lawrence v. Texas warned darkly that…

Forum

Health Care Exchanges and the Disaggregation of States in the Implementation of the Affordable Care Act

Bridget A. Fahey

Introduction Federalism scholarship and doctrine have long viewed the states as monoliths.1 It is New York that is commandeered,2 Florida’s sovereign immunity that is violated,3 and Indiana that is coerced4—not officials, agencies, or political parties within the state, but the state…

Forum

The Sum of All Delegated Power: A Response to Richard Primus, The Limits of Enumeration

Kurt T. Lash

In his provocative article, The Limits of Enumeration,1 Richard Primus rejects what he calls the “internal-limits canon” and challenges the assumption that the powers of Congress do not add up to a general police power, such that “there are things Congress cannot do, even without refe…

Article

Commandeering and Constitutional Change

Wesley J. Campbell


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 hi…

Note

Curing the Blind Spot in Administrative Law: A Federal Common Law Framework for State Agencies Implementing Cooperative Federalism Statutes

Josh Bendor & Miles Farmer


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 scan…

Essay

Intrastatutory Federalism and Statutory Interpretation: State Implementation of Federal Law in Health Reform and Beyond

Abbe R. Gluck


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…

Forum

The New Judicial Takings Construct

Timothy M. Mulvaney

[To] halt the law's evolution... would be to sever property's link to the culture it serves. In time, a static property regime would inevitably become an anachronism and would gradually be perceived as an obstacle to progressIn Stop the Beach Renourishment, Inc. v. Florida Department of Environmenta…

Forum

CAFA and Federalized Ambiguity: The Case for Discretion in the Unpredictable Class Action

Michael D. Y. Sukenik & Adam J. Levitt

A statute pointedly described as an “opaque, baroque maze of interlocking cross-references” is unlikely to represent an intelligent response to a fundamental failing in one of the most complicated and divisive areas of law. Yet, the Class Action Fairness Act (CAFA), ostensibly enacted by Congres…

Forum

Tremors of Things To Come: The Great Split Between Federal and State Pleading Standards

Roger Michael Michalski

On June 24, 2010, the Washington Supreme Court issued its opinion in McCurry v. Chevy Chase Bank, declining to follow nonmandatory but highly persuasive federal pleading standards. In doing so, Washington State became the first state supreme court post-Iqbal to abandon the ideal of national procedur…

Article

Uncooperative Federalism

Jessica Bulman-Pozen & Heather K. Gerken

118 Yale L.J. 1256 (2009). 

This Essay addresses a gap in the federalism literature. Scholars have offered two distinct visions of federal-state relations. The first depicts states as rivals and challengers to the federal government, roles they play by virtue of being autonomous policymakers outsid…

Feature

Federalization in Information Privacy Law

Patricia L. Bellia

118 Yale L.J. 868 (2009). 

In Preemption and Privacy, Professor Paul Schwartz argues that it would be unwise for Congress to adopt a unitary federal information privacy statute that both eliminates the sector-specific distinctions in federal information privacy law and blocks the development of str…

Feature

Preemption and Privacy

Paul M. Schwartz

118 Yale L.J. 902 (2009). 

A broad coalition, including companies formerly opposed to the enactment of privacy statutes, has now formed behind the idea of a national information privacy law. Among the benefits that proponents attribute to such a law is that it would harmonize the U.S. regulatory ap…

Note

Medicaid and Beneficiary Enforcement: Maintaining State Compliance with Federal Availability Requirements

Jon Donenberg

117 Yale L.J. 1374 (2008).

When states accept federal funding to administer a joint federal-state program, what assurance is there that they will conform to the requirements of governing federal law? This question takes on a new urgency in the Medicaid context since the § 1983 lawsuits that have hi…

Forum

Of Property and Federalism

Abraham Bell & Gideon Parchomovsky

Forum

A Private Idaho in Greenwich Village?

Robert C. Ellickson

Should a landlord and tenant negotiating the lease of an apartment in Greenwich Village be entitled to spurn New York law and instead agree that their relationship is to be governed by the law of Idaho? Bell and Parchomovsky (B&P) apparently would answer yes. Their potentially revolutionary proposal…

Forum

Property Rules Without Borders

Stephen F. Williams

First, the good news: Bell and Parchomovsky (B&P) see federalism’s potential to foster benign competition in the production of legal rules. This vision takes federalism beyond the traditional view of states as laboratories for experiment. It looks to federal structures that create a market for leg…

Feature

The Duty To Defend

Barbara Allen Babcock

114 Yale L.J. 1489 (2005)

Through the lens of history and doctrine, combining personal narrative, memoir, and stump speech, Barbara Babcock recalls John Ely's contributions to criminal defense.

Note

Applying Section 5: Tennessee v. Lane and Judicial Conditions on the Congressional Enforcement Power

Kevin S. Schwartz

114 Yale L.J. 1133 (2005)

Section 5 of the Fourteenth Amendment grants Congress the "power to enforce, by appropriate legislation," the Equal Protection and Due Process Clauses. Yet in the past seven years the Supreme Court has invalidated five different laws--including three landmark civil rights la…

Comment

Overlooking a Sixth Amendment Framework

Jason Colin Cyrulnik

114 Yale L.J. 905 (2005)

As the Supreme Court further plunges the world of criminal sentencing into turmoil, state courts in particular are scrutinizing their own statutory sentencing schemes and judicial practices. Ever since the Court's holding in Apprendi v. New Jersey (recently reformulated and…

Article

The Federalist Dimension of Regulatory Takings Jurisprudence

Stewart E. Sterk

114 Yale L.J. 203 (2004)

Federalism concerns, underappreciated in the takings literature, play an important role in shaping the Supreme Court's takings jurisprudence. The Takings Clause does not guarantee any particular property rights; instead, the Clause protects primarily against change in backgro…

Article

What Kind of Immunity? Federal Officers, State Criminal Law, and the Supremacy Clause

Seth P. Waxman & Trevor W. Morrison

112 Yale L.J. 1943 (2003)

When, if ever, may a State prosecute a federal officer for violating state criminal law while discharging his federal duties? Over the past decade, developments in the doctrines associated with "federalism" have redefined the constitutional status of federal attempts to regu…

Comment

The Tenth Amendment and Local Government

Jake Sullivan

This Comment posits that the Constitution may well carve out a limited space for the people to express themselves and exercise certain powers through local self-government—without interference by the state. More specifically, the Tenth Amendment endows the people with the right to choose and define …

Essay

Vigorous Race or Leisurely Walk: Reconsidering the Competition over Corporate Charters

Lucian Arye Bebchuk & Assaf Hamdani

112 Yale L.J. 553 (2002)

Does American corporate law work effectively to enhance shareholder value? The recent corporate governance crisis makes this time as good as any for reexamining the basic structure of this body of law. This Essay provides such a reconsideration of a defining feature of U.S. c…

Comment

Section 1983, Statutes, and Sovereign Immunity

Nick Daum

112 Yale L.J. 353 (2002)

This Comment argues that a significant, but unnoticed, way around state sovereign immunity has become available under current law. Although sovereign immunity now generally prohibits actions against states for violations of the Americans with Disabilities Act (ADA), a plaint…

Note

The Law of Nations and the Offenses Clause of the Constitution: A Defense of Federalism

Michael T. Morley

112 Yale L.J. 109 (2002)

One of the most important features of the United States government as originally conceived by the Framers is that, even before the addition of the Bill of Rights, its powers were strictly regulated by the Constitution. Instead of being a supreme parliament, able to do whate…