scholarly journals Unfair Competition and Federal Law: Constitutional Restraints on the Scope of State Law

1987 ◽  
Vol 54 (4) ◽  
pp. 1411
Author(s):  
Paul Heald
Keyword(s):  
Unfair Competition ◽  
State Law ◽  
Federal Law

Unresolved Business: Federal Corporate Governance Enhancements

2018 ◽  
Author(s):  
Marc I. Steinberg
Keyword(s):  
Corporate Governance ◽  
Insider Trading ◽  
Securities And Exchange Commission ◽  
Federal Courts ◽  
Professional Conduct ◽  
State Law ◽  
Federal Law ◽  
Tender Offers ◽  
Federal Level ◽  
Federal Statute

This chapter analyzes and recommends federal corporate governance enhancements that should be implemented. These enhancements, which should be adopted in a measured and directed manner, are necessary to remediate certain deficiencies that currently exist. Consistent therewith, this chapter focuses on several important matters that merit attention, including the undue deference by federal courts to state law, the appropriate application of federal law to tactics undertaken in tender offers, the need for a federal statute encompassing insider trading, and the propriety of more vigorous oversight by the Securities and Exchange Commission (such as with respect to the “current” disclosure regime, the SEC’s Standards of Professional Conduct for Attorneys, and the Commission’s neglecting at times to invoke its statutory resources). Thus, the analysis set forth in this chapter identifies significant deficiencies that currently exist and recommends measures that should be implemented on the federal level to enhance corporate governance standards.

Suing Media for Libel: A Litigation Study

1981 ◽  
Vol 6 (3) ◽  
pp. 797-831 ◽  
Author(s):  
Marc A. Franklin
Keyword(s):  
State Law ◽  
Federal Law ◽  
Federal Constitutional ◽  
Constitutional Protections ◽  
Recent Attention

This article summarizes the results of a study of 291 reported cases brought against media for libel during a four-year period. The results confirmed the finding in an earlier study that only 5 percent of plaintiffs emerged from the appellate process with judgments compared with more than 60 percent of defendants. Most of the defense successes occurred without trial. In cases that did reach trial, plaintiffs were successful far more often before juries than before judges but lost more than half these judgments on appeal. Cases were analyzed in terms of the identity of the parties, the content of the charges, and the role of state and federal law in shaping the outcome. Despite the recent attention to federal constitutional protections, it is clear that media defendants still do, and must, rely heavily on state law defenses. Finally, the Hutchinson and Wolston rulings of 1979 produced little change in appellate decisions.

Sexual Harassment in the Workplace: A United States Perspective

2005 ◽  
Vol 7 (1-4) ◽  
pp. 29-85
Author(s):  
Joseph M. Kelly ◽  
David D. Kadue ◽  
Robert J. Mignin
Keyword(s):  
United States ◽  
Sexual Harassment ◽  
Common Law ◽  
Burden Of Proof ◽  
The United States ◽  
State Law ◽  
Hostile Environment ◽  
Federal Law ◽  
Men And Women ◽  
Sexual Harassment Law

Sexual harassment litigation has increased significantly within the United States. It is a cause of action that was created by the judiciary to enable an employee to work in an atmosphere free from a sexually hostile environment. Some parameters of U.S. sexual harassment law are still unclear, but the law now applies to men and women, and the burden of proof has gradually been eased. Under judge-made law, an employer will always be liable when harassment culminates in a tangible employment detriment. The employer is also automatically liable when a supervisor creates a hostile environment, unless the employer can prove that it has taken reasonable steps to prevent or correct harassment and that the employee unreasonably failed to use the employer's anti-harassment procedures. Employers are also liable for harassment perpetrated by supervisors, co-workers and non-employees if the employer is negligent in failing to prevent or correct harassment. Employers are thus well advised to formulate and enforce an anti-harassment workplace policy that allows a complainant to have a thorough, impartial and prompt investigation of any allegation of harassment. Complainants can elect to use federal-law and state-law remedies for sexual harassment/discrimination. The state law, unlike the federal, may allow unlimited tort-like damages. A complainant may also allege common law causes of action such as infliction of emotional distress.

Perceptions of Protection under Nondiscrimination Law

2020 ◽  
Vol 46 (1) ◽  
pp. 21-54
Author(s):  
Kristen Underhill
Keyword(s):  
Health Care Disparities ◽  
Perceived Barriers ◽  
Actual State ◽  
Medical Mistrust ◽  
Care Seeking ◽  
State Law ◽  
Federal Law ◽  
Cross Sectional Survey ◽  
Cross Sectional ◽  
Erroneous Beliefs

Nondiscrimination rules—statutes, regulations, and soft law protections—are critical for reducing health and health care disparities. Although scholarship has interrogated how nondiscrimination rules affect behavior by discriminators, comparatively little has considered how protections can affect choices made by members of protected groups. A number of states and some interpretations of federal law protect people from discrimination on the basis of sexual orientation. This Article seeks to identify relationships between actual state law, perceived state law, and experiences of discrimination and medical mistrust. This Article reports the results of a national cross-sectional survey of over 3,000 men using Grindr to meet male partners. Participants scored comparable to chance in knowledge about state nondiscrimination protections, with “optimistic errors” (erroneous beliefs that one was protected) significantly more common than pessimistic errors. Perceptions of protection were significantly correlated with lower medical mistrust and greater uptake of care, as well as lower perceived barriers to disclosure and care-seeking. Actual state law protections, however, were significant predictors of having had discussions with providers that depended on disclosure of sexual behavior or orientation. Building on these results, this Article considers pathways by which nondiscrimination law may exert welcome mat (and “unwelcome mat”) effects.

scholarly journals American Immigration Microfederalism

2018 ◽  
Vol 18 (2) ◽  
pp. 171-200
Author(s):  
Tuan N. Samahon
Keyword(s):  
Legal Status ◽  
The United States ◽  
State Law ◽  
Immigration Enforcement ◽  
Integration Policy ◽  
Federal Programs ◽  
Federal Law ◽  
Independent State ◽  
State And Local ◽  
Migration Crisis

Immigration power is thought to be a federal power in the United States, but the States and their localities play key roles in filling congressional immigration policy gaps. When confronted with a major migration crisis, these microfederal jurisdictions in a multi-layered federal system respond differently to the policy gaps. A healthy tolerance for microfederal policies promotes this experimentation and voter preference maximisation. A countervailing interest in uniformity, among other values, tempers the case for microfederalism by suggesting temporal or other limitations may be justified. States and localities have experimented with microfederal policies concerning migrants that touch on migration and integration policy. Restrictionist jurisdictions have promoted policies that discourage migration and integration. Their strategies include: formal cooperation with federal immigration enforcement when restrictionist in policy orientation; adoption of independent state-law measures to supplement federal immigration enforcement; and litigation to attempt to force or realign federal executive enforcement priorities on migration and integration. Sanctuary jurisdictions adopt inverse strategies. They may decline to participate in voluntary federal programs; refuse to access available federal immigration status information; deny federal requests to cooperate with federal detainer requests; provide access to State and local services to all comers, without regard to legal status; and, like restrictionist jurisdictions, litigate to attempt to force or realign the federal government’s enforcement priorities to favour migration and integration. Inevitably, conflict between federal and state administration results in litigation. The federal government attempts to assert its primacy in those matters touching on alien regulation. During the Trump administration, this effort has included the likely unconstitutional Executive Order 13768, but also the threat of affirmative federal pre-emption litigation against sanctuary jurisdictions. Provisions of the Immigration and Nationality Act may provide Trump with a basis for arguing that federal law expressly or impliedly pre-oempts conflicting state law.

scholarly journals State Vehicle Electrification Mandates and Federal Preemption

2020 ◽  
pp. 433
Author(s):  
Matthew Metz ◽  
Janelle London
Keyword(s):  
Energy Policy ◽  
Fuel Economy ◽  
Clean Air Act ◽  
Nuclear Plant ◽  
State Law ◽  
Federal Law ◽  
State Regulations ◽  
Plant Safety ◽  
Fuel Economy Standards ◽  
Clean Air

By requiring that new vehicles sold after a certain date be electric, states can lower drivers’ vehicle operating costs, boost local employment, and lower electric rates. But there’s a widespread perception that states can’t take advantage of these opportunities because a state vehicle electrification mandate would be preempted by federal law. Not so. While the Federal Clean Air Act (CAA) prohibits state regulations “relating to” the control of emissions in motor vehicles, and the Federal Energy Policy and Conservation Act (EPCA) prohibits state regulations “related to” fuel economy standards, there is a strong rationale for federal courts to reject preemption of state vehicle electrification mandates. The Supreme Court has indicated repeatedly that state laws regulating a product or process “upstream” that have an effect “downstream” are not preempted by the federal law. A state law conditioning construction of nuclear power plants on adequate means for storage and disposal of nuclear waste is not preempted by a federal law regulating nuclear plant safety, although its effect is to advance nuclear plant safety. A state ban on uranium mining is not preempted by a federal law on uranium milling and tailing safety, although its effect is to advance uranium milling and tailing safety. Similarly, a state law requiring that cars run on electricity should not be preempted by federal law on emissions and fuel economy standards, although its effect is to reduce emissions and improve fuel economy. Moreover, there is no conflict between a state vehicle electrification law and the purposes of the CAA and EPCA. The purpose of the Clean Air Act is to clean the air. The relevant purpose of the Energy Policy and Conservation Act is to reduce energy demand. Neither statute has a purpose of ensuring that new vehicles have at least some emissions, nor that they continue to use gasoline. This Article concludes that state vehicle electrification legislation should not be preempted. Neither the CAA nor the EPCA directly regulates how vehicles are powered. Neither statute explicitly prohibits states from mandating electrification of vehicles. And legal precedent limiting regulation of vehicles based on emissions or fuel economy standards has never addressed vehicle electrification mandates. Further, states have compelling reasons for vehicle electrification mandates that have nothing to do with regulating emissions or improving fuel economy standards. Such reasons may be sufficient to avoid preemption. The Supreme Court’s increasingly preemption-skeptical jurisprudence, as articulated in Virginia Uranium v. Warren, limits courts’ ability to scrutinize state motives in passing vehicle electrification statutes. Thus, although preemption cannot be dismissed as a concern, the stage has been set for state-based vehicle electrification mandates.

The Nineteenth-Century Perspective on Federal Judicial Power

2021 ◽  
pp. 73-84
Author(s):  
James E. Pfander
Keyword(s):  
Nineteenth Century ◽  
Federal Courts ◽  
Judicial Power ◽  
State Law ◽  
Federal Law ◽  
The U.S ◽  
The Way

This chapter examines the way nineteenth-century jurists defined the words “cases” and “controversies” in Article III of the U.S. Constitution. It shows that federal courts agreed to hear uncontested applications to claim rights under federal law as “cases” under Article III. But the same courts refused to hear matters governed by state law unless they arose between opposing parties as “controversies” within Article III. This distinction between cases and controversies meant that a claim of right by a petitioner, such as that in a naturalization petition, would qualify as a case, even though the plaintiff did not join an adverse party from whom the plaintiff sought redress.

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