Chapter 3 Governing Law 28 results (showing 5 best matches)
- While the advantages of federalism may be only arguable, it surely seems terribly complicated, in a way so typical of American law. However, there is nothing peculiarly American here. Federalism is today a common form of political organization around the world, with Canada and Germany being ready examples (as well as the European Union itself). Some of those regimes make federalism somewhat less complicated, as by having basically one hierarchy of courts. But other of federalism’s complications are unavoidable. In particular, because federalism involves the people living under the authority of more than one sovereign, the problem of choosing between state and federal law is inevitably ubiquitous in any form of federalism.
- See Erwin Chemerinsky, Enhancing Government: Federalism for the 21st Century (2008); Erin Ryan, Federalism and the Tug of War Within (2011); Christopher K. Bader, A Dynamic Defense of Cooperative Federalism, 35 Whittier L. Rev. 161 (2014).
- Yet, surprisingly, federalism has kept the federal government from capitalizing on the states’ theoretical weakness. Today, states have a broad range of power, and their laws govern much of our lives. In many regulatory areas, a mixture of state and federal law governs. Federalism apparently works because the sovereigns want to make it work, rather than their being compelled to make it work.
- While separation of powers was the Framers’ great horizontal theme for the federal government, they hit upon federalism to build the . For the theory of federalism, they drew on various political experiments in the governance of the British Empire. But their Constitution was the first attempt to institutionalize this system of government. “The Framers split the atom of sovereignty.”
- First, federalism was their solution for meeting the states’ sovereignty demands and for reconciling multiple political identities. The states would not agree to a union without a compromise to ensure their continued existence. Citizens strongly identified with their state, probably more so than with the new nation. Today, seriously divided identity may no longer prevail, but its resolution was an original aim of federalism.
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Chapter 4 Authority to Adjudicate 24 results (showing 5 best matches)
- Horizontal federalism differs in aim from vertical federalism. It has worked well, if one can overlook the Civil War. The years have seen a marked decrease in the psychological and legal significance of state borders.
- Although their ends and means thus differ, horizontal federalism nevertheless overlaps with vertical federalism. The reason is that enablement of federal authority, together with disablement of state authority, is the major technique for restraining state power on a horizontal level. For example, the states lost their right to print their own money in 1789.
- So, how precisely to define horizontal federalism? This doctrine comprises a diverse set of constitutional mechanisms for ameliorating the interstate conflicts or tensions that would inevitably result from union. The best way to convey horizontal federalism’s set of mechanisms is by giving additional examples.
- The subject that most nicely exposes the workings of horizontal federalism is interstate territorial authority to adjudicate. The preceding chapter’s introduction to interstate, or horizontal, choice of law smoothed the transition to study of territorial authority to adjudicate. The next chapter will continue the theme of horizontal federalism in connection with full faith and credit for judgments. But here the study is of state-court territorial jurisdiction.
- Both vertical federalism and horizontal federalism were necessary ingredients for thirteen nation-states to get together and form a union. They needed not only to establish the new federal government of separated and limited powers coexisting with state powers, but also to regulate the horizontal relations among the states. Interstate relations had not prospered under the Articles of Confederation. Each state came into the Constitutional Convention intent on keeping the other states from inflicting more harm.
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Chapter 2 Stages of Litigation 4 results
- . By contrast, federalism treats the vertical relationship between the new federal government and the existing state sovereigns.
- Federalism and the State Civil Jury Rights, 65 Stan. L. Rev. 851 (2013)
- power through a whole series of jurisdictional statutes. However, out of congressional concern for maintaining a healthy federalism, these statutes fall far short of bestowing all of the federal judicial power under the Constitution. Thus, when considering an issue of federal jurisdiction, one must refer first to the congressional enactment on jurisdiction and then to the constitutional limit on the
- doctrine. The rulemakers could have written their own federal procedure but instead simply chose to adopt state law as federal law, not because of the federalism concerns of
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Chapter 5 Former Adjudication 2 results
Chapter 1 Introduction 4 results
- Moreover, even if Congress had its sights fixed on separation-of-powers concerns when it inscribed the REA’s outer limit, the precedents are clear that federalism concerns are now in play in reading the Rules. Thus, courts, when interpreting a Rule, should also account for states’ interests by trying to skirt substantive rights.
- horizontal federalism
- vertical federalism
- ’s federalism policies. Second, substantive and state interests are relevant to the drafting of Rules, even if not to the testing of Rules. The framers of broad-ranging Rules should draft them with consideration of the generalized congressional and state interests in regulating substantive rights; and for any later-perceived missteps, the rulemakers (or Congress) can rewrite any Rule deemed overly intrusive on substantive or state rights. Third, the procedural/substantive test of validity has the advantage of sheltering good rulemaking. Experience has shown the simplicity and practicality of the
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Chapter 7 Conclusion 1 result
- and associated with a particular place and time. The intelligent study of civil procedure will reveal many policies, such as those in favor of deciding the case on its merits, resolving all disputes concerning the whole transaction in one shot, and forging a cooperative federalism. An individual policy sometimes is in the process of evolution, and one policy often collides with others. Such turmoil is a very important cause of the surprisingly considerable
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- Publication Date: November 20th, 2017
- ISBN: 9781683286820
- Subject: Civil Procedure
- Series: Concise Hornbook Series
- Type: Hornbook Treatises
- Description: This Concise Hornbook covers the main points of civil procedure that any student needs to understand, and covers them briefly but thoroughly enough to be understandable. It focuses on the material covered in a typical law school course on civil procedure, tied to no one casebook. It breaks down the subject of civil procedure along the standard lines: a brief orientation; then a lengthier overview of the stages of litigation, followed by a close inspection of the major procedural problems (governing law, authority to adjudicate, former adjudication, and complex litigation); and finally some reflections in conclusion. It discusses specific problems and illustrations, with the aid of generously sprinkled diagrams and special text boxes. Special attention was given to fitting the civil procedure course's main points together to form the big picture, with each topic ending in a section on the “big idea” (separation of powers, vertical federalism, horizontal federalism, full faith and credit, or procedural due process) that the student is supposed to take from the topic.