Last week, the Court struck an unexpected blow for federalism, deciding in Wyeth v. Levine that Diana Levine's state-law claim for negligent failure to warn was not preempted by the FDA's regulation of Phenergan's labeling under the Food, Drug, and Cosmetic Act. Among the many interesting aspects of...

The Judiciary Committee of the Connecticut General Assembly is now considering a bill to re-organize the governance of the Roman Catholic Church. I do not mean simply that the Assembly is considering an ostensibly secular bill that has some subtle and insidious purpose to target the Roman Catholic C...

On Monday, the Court denied cert in Sorich v. United States, 08-410. Justice Scalia was correct to dissent: The ambiguity of the "honest services" provision of the federal Mail Fraud statute (18 U.S.C. section 1346) has for decades been an open invitation to federal prosecutors to expand their sway ...

I just posted on SSRN a draft chapter entitled "Federalism and Public Choice." (The chapter is to be included in a collection on Law and Public Choice, edited by Dan Farber and Anne Joseph O'Connell and published by Elgar). Writing this survey about public choice and federalism left me with the odd ...

After Rick Pildes and other colleagues assured me that HBO's The Wire transcended all TV formulae for cop shows, I rented the first season and watched it sporadically with my wife. Artistically speaking, the show is outstanding. But naturally I am more interested in looking at what the show has to s...

The U.S. Department of Justice is engaging in a nation-wide attack on "pay-to-play" contracting practices under which businesses win government contracts in part because they make donations to politicians' campaign funds. Governor Richardson is the latest victim of this play-for-power from DOJ: He h...

Calvin Massey has concluded that the holding of Powell v. McCormack requires the U.S. Senate to seat Roland Burris. I believe that Massey is mistaken: In my view, the Senate may refuse to seat Burris pursuant to its power to judge "the elections" or "returns" of its members. Whether one agrees with ...

Paul Krugman has recently articulated one of my darkest fears -- that the recession might be used as a pretext to destroy federalism in infrastructure spending. (Okay, I concede that I have a few items higher up on my list of worries -- but, being a federalism nut, that worry about federalism's demi...

Dan Markel asked me this question in a response to one of my earlier posts. I am on record as arguing that the feds ought to be constitutionally prohibited from empowering local governments to resist state law. Roderick M. Hills, Jr., Dissecting the State: The Use of Federal Law to Free State and Lo...

Malcolm M. Feeley and Edward Rubin have finally set out their theory of federalism in a book: Federalism: Political Identity and Tragic Compromise (University of Michigan Press 2008) presents their theory that federalism is exclusively a means by which people with different "political identities" pr...