The so-called “federalism revolution” of the past 30 years, reflected in a series of controversial Supreme Court decisions, has engendered reams of commentary and provoked widespread litigation challenging a range of federal statutes under constitutional provisions including the Commerce Clause, the Spending Clause, and the Tenth and Eleventh Amendments.
Rarely has so complex a body of interrelated law developed so quickly. The seminar will trace the development of the Court’s recent federalism jurisprudence both from a doctrinal perspective and as a study in the dynamics of judicial decision-making. A critical aim of the course will be to understand the values underlying the federalism debate, and to observe judges and justices of all persuasions seeking to reconcile those values with other priorities and with the institutional limitations of the courts. We also will consider the extent to which the Court’s recent jurisprudence actually has altered the dynamics of federal-state relations and whether future decisions are likely to do so.
We will use the developing nature of the federalism jurisprudence as an opportunity to develop advocacy skills. Students will satisfy the writing requirement by writing a 25-page appellate brief in one of several cases designated in the syllabus. We will work closely with each student in developing the structure and argument of the brief, and in moving from draft to final product. Each of the decisions will also be the subject of a short, informal moot court presentation by the students briefing that case. There will be no additional writing or research required for these presentations, which are designed to focus our dialogue.