Caleb Nelson on when federal courts can make federal law

Caleb Nelson has an excellent new paper on SSRN, The Legitimacy of (Some) Federal Common Law. As my friend Steve Sachs put it, “self-recommending.” Here’s the abstract: Much of the modern debate over federal common law starts from the premise that when courts articulate rules of decision as a matter of unwritten law, they are […]

Libertarianism and federalism

My Cato Institute Policy Analysis on the relationship between libertarianism and federalism argues that federalism often helps promote libertarian goals, but can also sometimes pose a threat to them. Whether federalism promotes liberty or instead undermines it often depends on the structure of the federal system in question,

Bond v. United States reads statute narrowly — in light of federalism principles — and avoids Treaty Clause question

From the majority opinion (the Court was unanimous on the result, but not the reasoning): [I]t is appropriate to refer to basic principles of federalism embodied in the Constitution to resolve ambiguity in a federal statute. In this case, the ambiguity derives from the improbably broad reach of the key statutory definition given the term […]