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Dual Constitutions and Constitutional Duels: Separation of Powers and State Implementation of Federally Inspired Regulatory Programs and Standards
(William and Mary Law Review, 2005)
Frequently, state-wide executive agencies and localities attempt to implement federally-inspired programs. Two predominant examples are cooperative federalism programs and incorporation of federal standards in state-specific ...
Constitutional Isolationism and the Limits of State Separation of Powers as a Barrier to Interstate Compacts
(Marquette Law Review, 2007)
In this Essay, I address the question of which branch of state government ought to have the authority to negotiate interstate compacts - a question of state separation of powers. Recent case law interpreting state constitutions ...
Universal Service in Competitive Retail Electric Power Markets: Whither the Duty to Serve?
(Energy Law Journal, 2000)
This article addresses whether traditional service obligations can coexist with retail competition. A rationale often given for universal service obligations in the telecommunications industry is that universal service, ...
Does the Solicitor General Advantage Thwart the Rule of Law in the Administrative State?
(Florida State University Law Review, 2000)
Linda Cohen and Matthew Spitzer's study, "The Government Litigant Advantage," sheds important light on how the Solicitor General's litigation behavior may impact the Supreme Court's decision making agenda and outcomes for ...
The False Promise of the "New" NonDelegation Doctrine
(Notre Dame Law Review, 2000)
This essay responds to claims that the "new" nondelegation doctrine, applied by D.C. Circuit Judge Stephen Williams in "American Trucking Association, Inc. v. EPA", 175 F.3d 1027 (D.C. Cir. 1999), advances the rule of law. ...
Antitrust Process and Vertical Deference: Judicial Review of State Regulatory Inaction
(Iowa Law Review, 2007)
Courts struggle with the tension between national competition laws, on the one hand, and state and local regulation, on the other--especially as traditional governmental functions are privatized and as economic regulation ...
The Puzzle of State Constitutions
(Buffalo Law Review, 2006)
In a series of groundbreaking articles published over the past fifteen years, James Gardner has led the charge to make state constitutionalism a part of the constitutional law discussion more generally. His new book, ...
Bargaining in the Shadow of Administrative Procedure: The Public Interest in Rulemaking Settlement
(Duke Law Journal, 2001)
This article addresses problems associated with settlement of appeals of legislative rules adopted by administrative agencies. Settlement is a common and important tool for avoiding litigation, but it also raises potential ...
The Electric Deregulation Fiasco: Looking to Regulatory Federalism to Promote a Balance Between Markets and the Provision of Public Goods
(Michigan Law Review, 2002)
The Essay uses three recent books - two by a historians and one by an economist - to address the electric power deregulation fiasco in the U.S. It argues that public law has an important role to play in deregulated markets. ...
Moving Public Law Out of the Deference Trap in Regulated Industries
(Wake Forest Law Review, 2005)
This Article argues that public law has fallen into what I call a deference trap in addressing conflicts in deregulated industries, such as telecommunications and electric power. The deference trap describes a judicial ...