The Burger Court's View of the Relationship Between the States and Their Municipalities

This article examines selected Burger Court cases concerningmunicipal antitrust immunity in order to determine whether theU.S. Supreme Court has a theoretical perspective on the relationshipbetween the states and their municipalities. After delineatingthe constitutional position of municipalities through an examinationof key Court cases and Dillon's rule, the study explores thederivative status of state-action immunity to municipalitiesin antitrust suits. In two significant cases, including oneinvolving a home rule city, the Burger Court has refused togrant municipalities the state-action exemption granted statesunder the Sherman Act. But, in reinforcing the unitary relationshipbetween the states and their municipalities, the Court has notaddressed Dillon's rule or the ambiguities inherent in denyingmunicipalities the residual powers of local self-government.     

State Constitutions, Freedom of Expression, and Search and Seizure: Prospects for State Court Reincarnation

This article examines the decisions of ten state high courtsin the areas of access to private property for expressive purposesand exclusion of the fruits of illegal searches and seizures.The analysis centers on two questions. First, are some statesrelying on their own constitutions to resolve individual rightsissues while other continue to follow the United States SupremeCourts interpretation of the federal Constitution? Second, havethe states that do rely on their own constitutions to resolveindividual rights issues developed an independently based stateconstitutional jurisprudence, or have they simply attemptedto circumvent decisions of the Burger Court? The authors findlittle evidence that the state high courts examined here havebegun, as yet, to develop an independent approach to state constitutionalanalysis.     

Baby M, Surrogate Parenting and Public Policy

This article analyzes the legal and politiml controversies that have arisen in response to the contemporary phenomenon of surrogate parenting. Despite the fact that by the late 1980s 1,000 or more such agreements had been efected, prior to the Baby M litigation no relevant statutes had been passed by state or federal legislafures. The practice continued to exist in a virtual vacuum of public policy with respect to its legality andor the relative rights of the various parties involved. Special attention is paid to the Baby M ruling of the New Jersey Supreme Court as a model for public policy on the subject. The signifimnce of the Court's ruling in shaping subsequent political activity on surrogacy is also noted.     

The Burger Court and Younger Abstention: Enhancing the Role of State Courts in Constitutional Adjudication

An important determinant of federal balance is the degree ofstate court authority to decide federal constitutional issues.This study traces the development of the Younger abstentiondoctrine, one of the primary vehicles by which the Burger Courtrestricted federal court jurisdiction and enhanced the authorityof state courts in constitutional adjudication. The Youngerdoctrine was adopted by the Supreme Court in 1971 for reasonsof comity and equitable restraint. Throughout the Burger Courtyears, Younger was expanded from an initial denial of jurisdictionto litigants seeking injunctive relief in state criminal proceedings,to litigants in cases "akin" to criminal proceedings, and thento litigants in cases "important to state interests." By relyingon Younger abstention, the Burger Court has reduced the roleof the federal courts as the primary enforcement of U.S. constitutionalrights.     

The changing role of the federal and state courts in safeguarding the rights of the mentally disabled

From the mid-1960s until the early 1980s, federal courts havegreatly expanded the rights of persons who have been institutionalizedfor treatment of mental illness. The rights have included dueprocess in commitment proceedings, provision of services, andtreatment in the least restrictive environment. Federal courtshave based their decisions on federal statutes and constitutionalprinciples of due process, equal protection, and protectionfrom harm. More recently, however, the U.S. Supreme Court haseffectively closed the federal courts as a forum for advancingthe rights of the mentally disabled. Federal courts must, inessence, defer to the states for decisions about treatment ofthe mentally disabled. State courts may decide what servicesare required under state law, while state mental health officialsmay decide specific treatment questions for individual patients.Consequently, advocates for the mentally disabled are turningto state courts to advance client rights. In 1984 two significantcases decided by the New York State Court of Appeals have thepotential for significantly expanding the rights of the mentallydisabled.     

State Sovereignty and the Eleventh Amendment in the U.S. Supreme Court: The 1988 Term

During its 1988 term, the U.S. Supreme Court addressed two importantaspects of the Eleventh Amendment, which generally protectsstates from being sued in federal courts. First, the Court heldthat the Congress has power to abrogate states' immunity fromsuit—to subject states to suits in federal courts fordamages—under Congress' expansive commerce-clause power.Second, the Court made clear that such abrogation would be foundonly where the text of the statute itself, as distinct fromits legislative history, clearly and specifically so provided.This article describes these decisions, and analyzes some oftheir implications for judicial federalism.     

Breaking up Is Hard to Do: The Dissolution of Judicial Supervision of Public Services

Public services in many states have been placed under federal court supervision. In our 1991 PAR article, we examined the implications of the federal judicial decisions in supervising the Kansas City Metropolitan School District for the "new triumviate" governing public services—public officials, legislators, and judges. In this article, we examine judicial decisions affecting the same school district a decade later to reveal the impact of judicial supervision on the school district and to discern the implications for policy termination. We find that, once begun, judicially mandated federal court supervision of public institutions is not readily terminated, even pursuant to the wishes of the United States Supreme Court.     

New State Equality: The Ambiguous History of a Constitutional Principle

In Coyle v. Smith (1911), the U.S. Supreme Court ruled thatCongress could not impose admissions conditions on new statesthat detracted from their equal standing in the union. Previously,the Court had deferred to Congress' authority over federal territoryand over its own membership. Before the Civil War, federal interestsin new states—particularly with respect to public lands—weresecured through admissions conditions. Later, however, admissions"compacts" became increasingly redundant; the Court groundedfederal property claims in the new states on the "rules andregulations" provision of the Constitution. Meanwhile, in aseries of decisions, the Court began to uphold the "municipalsovereignty" of the territories against congressional interference.Congress' authority in the territories was progressively limitedto that of acting as "trustee" for future states. These doctrinaldevelopments culminated in Coyle. The Court challenged Congress'right to set invidious admission conditions and asserted itsown jurisdiction over the state-making process. The new stateequality principle thus became "constitutional" as the Courtextended its authority. I wish to thank Herman Belz, University of Maryland, for helpfulcriticism.     

The U.S. Supreme Court's Federalism Jurisprudence: Alden v. Maine and the Enhancement of State Sovereignty

In recent years, the U.S. Supreme Court's federalism jurisprudencehas shielded states from certain aspects of Congress's policymakingand enforcement authority. Through its interpretations of theinterstate commerce clause and of the Tenth and Eleventh Amendments,the Court has reminded Congress that its power to govern haslimits. This article presents the major federalism cases ofthe 1990s, focusing on Alden v. Maine, the most important federalismdecision of the 1998–1999 term. It concludes that theCourt's interpretation of the Eleventh Amendment and the sovereign-immunitydoctrine, which has constrained the federal government's powerto authorize private suits against states for violations offederal law, poses a threat to a fundamental principle of therule of law: "where there is a right, there is a remedy."     

Strategic institutional choice: Voters, states, and congressional term limits

States’ choices on term limits are quantified as a multiple-categorical variable capturing variation in the type of limits passed. Measures of relative political influence in Congress explain much of this variation. Using 1992 data on the American states, the model controls for unobserved heterogeneity due to voter access to direct democracy in some states. At 2002 values for congressional tenure and federal spending, the model predicts approximately eight to ten additional states would choose to limit their own members’ terms but cannot under a Supreme Court ruling. We discuss implications for institutional federalism and the potential passage of similar political institutions across the states.     

Federalism and the Constitutional Right to Keep and Bear Arms

Until recently, the federal courts agreed that the Second Amendmentprotects the interest of states in maintaining their own militias.In United States v. Emerson, the U.S. Court of Appeals for theFifth Circuit rejected this consensus, and held that the Constitutionprotects a right of private individuals to keep and bear arms.The fifth circuit's position is more plausible than the consensusview, and the arguments for treating the Second Amendment asa kind of federalism device are weak. A different set of federalismissues is raised by the prospect that the Supreme Court mightadopt the fifth circuit's position, and then take the next stepof applying the Second Amendment to the states through the FourteenthAmendment. Finally, Emerson shows how certain technical legaldoctrines that protect the dignity of he states can operateto strengthen the federal government's ability to undermineprotections afforded by the Second Amendment.     

Constitutional Law and the Protection of Subnational Governments in the United States and West Germany

In Garcia v. San Antonio Metropolitan Transit Authority (1985),the U.S. Supreme Court concluded in a 5–4 decision thatthe Tenth Amendment does not protect state and local governmentsfrom federal intervention into their "traditional governmentfunctions." The Court majority insisted instead that the protectionof state and local functions lies in the political process and,thus, reversed the previous majority decision in National Leagueof Cities v. Usery (1976). Constitutional provisions in WestGermany grant the states a general protection rather comparableto the Tenth Amendment. These provisions also give explicitprotection to local governments. In spite of the apparent differencesthat suggest greater legal protection for their autonomy, Germanstates and local governments are now sharing most of their protectedfunctions with the federal government in a complex system ofintergovernmental relations. The Federal Constitutional Courthas allowed numerous federal and/or state incursions in localgovernment decisionmaking based on considerations of the commongood.     

Reactive Responses: The Complementary Role of Federal and State Courts

The recent revival of state constitutional law has contributedsignificantly to the development of a dynamic judicial federalism.While interaction between federal and state courts is hardlynovel, acknowledgments of reciprocity have occurred more frequentlythan in the past. The Burger Courts receptivity to state judicialactivism inaugurated an era marked by creativity as well ascooperation. Thus far, major departures from established practiceshave been limited to a readily identifiable and recurring numberof state courts. All the same, the case studies included inthis article range across a variety of factual contexts andexplore an impressive array of links, both explicit and implied,between the federal and state courts. A disquieting new requirement,introduced as the result of a 1983 Supreme Court decision, exactsof state judges an unambiguous declaration of reliance on independentstate grounds as the price of ensuring federal nonintervention.Whether judicial federalism will continue to flourish withinso confining a framework remains problematic.     

Is the government exhausting its powers? An empirical examination of eminent domain exercises in New York City pre- and post-Kelo

A controversial U.S. Supreme Court decision in Kelo v. City of New London (2005) which did not limit the use of state's eminent domain powers, led to an unprecedented legislative reaction by almost all 50 states. Of all, New York State stands out as one of the single states not to respond with a legislative amendment. In this study, I ask whether the state's predation was greater in the years following these legal and political developments, in light of the freedom which was granted to local politicians by both the Supreme Court and the state's legislators. The article hypothesizes that contrary to common perceptions, judicial decisions impact local government actions even when no limits on the use of powers are being posed. I use rigorous statistics and scrupulously defined data to expand scholarly understanding of the aftermath of the judicial decision in Kelo. The main finding is that the decision has in fact affected political behavior, but in the opposite direction than commonly expected: politicians in New York City acted consistently with public opinion, which was hostile too Kelo, not by changing the law, but by changing their practice. Studying all known taking exercises in New York City between 1991 and 2019, the paper finds no increase in the number of development projects involving condemnations after 2005. In fact, the probability of a taking for economic development or urban renewal dropped by 90%. The use of eminent domain for such projects declined even when both state and federal courts refrain from interposing any actual limit on its use. The paper lends qualified support to an alternative assertion that takings decisions by government officials are largely shaped by planning and political needs and that officials are sensitive to revealed public preferences even when there is no constitutional or legal impediment on their exercise of power.     

The West German Federal Constitutional Court as Guardian of the Federal System

The West German Federal Constitutional Court has generally actedas a guardian of the German federal system. The Court has preventedattempts by the federation to encroach upon the modest autonomyleft to the Länder. If a national solution for a problemseems indispensable, the Court favors techniques that compensatethe Länder for a loss of autonomy by granting them certainparticipation rights. Guided by that principle, the Court'sconstruction of the Basic Law has increased considerably thenumber of federal statutes that require the approval of theBunesrat. Thus the Court emphasizes today the idea of partnership.However, in a 1986 decision, the Court made clear that a certainamount of federal leadership is needed to keep the system running.In this decision, the Court reminded the federation expresslyof its responsibility for the whole.     

Identifying the Median Justice on the Supreme Court through Multidimensional Scaling: Analysis of “Natural Courts” 1953–1991

Given the fundamental unidimensionality in thedata on Supreme Court voting patterns1951–1993 we observe, we are able todetermine the identity of ``median'' membersof each court in a fashion that does notrequire subjective coding of the extent towhich particular cases reflect left-rightissues. Also, while the exact numericalvalues of MDS-obtained locations cannot becompared across different ``natural courts'',the positions of Supreme Court justicesacross their careers relative to the courtson which they served can be traced. Ourdata show overwhelming quantified evidenceof a very strong rightward drift (relativeto our MDS defined dimensions) in thecomposition of the court as we move fromthe Warren Court to the Burger Court, andagain as we move from the Burger Court tothe Rehnquist Court.     

STATE ENERGY POLICIES: FEDERAL FUNDS FOR PAPER PROGRAMS

Taking their policy cues from the federal government, the states have done little to effectively deal with energy problems. In fact, their programs could be styled "federal funds for paper programs." inasmuch as the state programs have been written to conform to federal language, but not to attack energy problems in a serious fashion. There is great variation among the states in energy program expenditures, but these are not related to economic or political structures. However, the more urbanized, economically growing, and energy "rich" states spend the most on energy problems.     

The Rehnquist Court and Indigenous Rights: The Expedited Diminution of Native Powers of Governance

The U.S. Supreme Court has long played a prominent role in defining,critiquing, and, in some cases, rearranging the political relationshipbetween indigenous peoples and the states and the federal government,and in enlarging or reducing the inherent sovereign status ofnative peoples. This article assesses the most recent SupremeCourt opinions that are systematically, and without referenceto judicial precedent, redefining the political status of tribalnations by reducing their heretofore acknowledged sovereignauthority from an internal perspective and especially from anintergovernmental standpoint. Although the U.S. Congress stilladheres to a policy of tribal self-determination, the Courtis dramatically and permanently minimizing the rights of tribesto practice political, economic, and cultural self-determinationbecause in the opinion of a majority of the justices, thereare only two sovereigns in the United States: states and thefederal government.     

Broadcasting system in Italy: Evolution and perspectives

Italian public broadcasting service (RAI) has had a monopoly until the middle of the 1970s. The peculiarity of public monopoly in broadcasting is its tendency to secure political rather than economic rents. The dangers that public monopoly causes to consumers (viewers-listeners), has not emerged at least until the mid-seventies for the simple reason that broadcasting has been conceived under the ideological umbrella of public good rather than in terms of opportunity costs. A law limiting monopoly has taken fourteen years to be passed so that the proliferation of private radio and television stations has orgininated the subrogatory intervention by the Constitutional Court. From 1975 to 1989 regulation has tended to perpetuate RAI's monopoly, in a context which was very different from the one in which the RAI was established. It is no wonder, therefore, that reforms have been motivated by RAI's financial crisis in the seventies and eighties, and not by political choices. The 1990 law puts a stop to public monopoly in broadcasting giving rise to what now appears to be a duopoly, but which in 1990 to many seemed to introduce a contestable market able to respond to both consumers' demand and technological innovations more efficiently, so ensuring more freedom of information.     

The Rehnquist Court and Federal Preemption: In Search of a Theory

In the 1980s, the U. S. Supreme Court was expected to becomemore solicitous of "states' rights" and to reconsider doctrinesof federal preemption of state and local laws. Those expectationswere built on the Court's ruling in National League of Citiesv. Usery and reinforced by the Reagan administration's rhetoricand Court appointments. The record ofthe Rehnquist Court, however,demonstrates that it has backed away from vigorously enforcingthe Tenth Amendment and has erected only minor constitutionalbarriers, as in New York v. United States, to the Congress'power over the states. Moreover, the Court has not retreatedfrom finding implied statutory preemptions or from imposingits own dormant-commerce clause power on the states. The articleconcludes by considering a number of explanations for the Court'srecord and rulings on federal preemption.