Shady Grove: Duck-Rabbits, Clear Statements, and Federalism
This essay adds to the burgeoning literature on Shady Grove by examining the use of clear statement rules in diversity cases where the federal court must ascertain the scope of an applicable state law, as well as resolve an apparent collision between a state law and a Federal Rule of Civil Procedure. Part I recounts what was in dispute in Shady Grove. Part II examines how the district court resolved whether New York’s ban on penalty class actions applied in a case involving statutory interest. Because lower courts are increasingly treating Justice Stevens’ Shady Grove concurrence as the controlling opinion of the divided Court, Part III focuses on how these courts are resolving whether to apply a state procedural rule that involves substantive state policies in the face of a conflicting Federal Rule. Part IV raises concerns about the federal courts’ interpretive approach at both stages of the analysis. I argue that requiring a clear statement both disempowers and over-empowers states in ways that subvert federalism and nationalism. I conclude by briefly discussing potential alternative approaches.
The Once and Future Constitutional Law: On the Law of American State Constitutions
The Law of American State Constitutions is, first and foremost, a treatise. I mean this as praise. Given the growing complexity of almost any given area of law in the modern day, it is no mean feat to capture an entire field in one volume, and to set out its many dimensions in a manner that is both approachable and scholarly. Williams has organized his discussion of the dimensions of state constitutional law into five parts, ranging from the history and nature of state constitutions before the framing of the federal constitution to the current efforts of state courts to address the process and substance of state constitutional amendment and revision.
Contemporary Assertions of State Sovereignty and the Safeguards of American Federalism
Recent state statutes and constitutional amendments challenging federal health care legislation and other federal laws have attracted significant attention, both from critics who view them as nullification acts that are inconsistent with the Supremacy Clause and from some supporters who have been equally willing to embrace the nullification label for the purpose of defending such legislation. Upon closer examination, it becomes possible to view these measures as falling short of invoking the clearly repudiated doctrine of nullification and as capable of contributing under certain conditions to safeguarding federalism principles. An analysis of these recent assertions of state sovereignty—whether regarding health care, guns, drivers’ licenses, or medical marijuana—can contribute to a better understanding of the range of opportunities for states to wield influence in the U.S. federal system by showing that state statutes challenging federal law can play a role, alongside of, and occasionally in place of, traditional mechanisms by which states can advance their interests in the national political process.
