Federalism in the 21st Century: The Legal Arizona Worker’s Act

ASU Law Online
By: Patrick S. Cunningham (Mr. Cunningham's full article is available in the Journal's Summer 2010 issue.) In less than one week, the Supreme Court will hear arguments on the ever-present issue in American political and legal circles, federalism.  In Chamber of Commerce v. Whiting the Court will decide whether the Legal Arizona Worker’ Act (“LAWA”), a law that allows Arizona to revoke the business licenses of companies that hire undocumented workers, is preempted by federal immigration law.  With the surge of support for State’s rights as demonstrated by the mid-term election success of the Tea Party, combined with Arizona’s newest controversial immigration bill, SB 1070, and the flurry of spin-off legislation, this decision is bound to create a huge impact.  It will likely establish a discernible cairn for legislatures to…
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Eighth, and final, Journal Summary for Upcoming Publication of ASU Law Journal

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THE GROSS BEAST OF BURDEN OF PROOF: Experimental Evidence On How The Burden of Proof Influences Employment Discrimination Case Outcomes. David Sherwyn & Michael Heise David Sherwyn is an Associate Professor of Law at Cornell University School of Hotel Administration, and Michael Heise is a Professor of Law at Cornell Law School.  A summary of, including excerpts from, their forthcoming Article in the Arizona State Law Journal is provided below. Scholarly and public attention to the burden of proof and jury instructions has increased dramatically since the Supreme Court’s 2009 decision in Gross v. FBL Financial Services Inc. Although Title VII, the ADEA, and the ADA prohibit employers from discriminating because of certain characteristics protected by the statutes, the statutes do not explain how parties prove their case, which side…
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Seventh Journal Summary for Upcoming Publication of ASU Law Journal

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LESSONS LEARNED FROM BERNARD MADOFF: Why We Should Partially Privatize the Barney Fife’s at the SEC Mark Klock Mark Klock is a Professor of Finance at George Washington University. A summary of, including excerpts from, his forthcoming Article in the Arizona State Law Journal is provided below.   Klock likens Barney Fife, the comically inept character on “The Andy Griffith Show,” to the personnel in the SEC’s Office of Compliance Inspections and Examinations, whom were responsible for multiple U.S. Securities and Exchange Commission (SEC) investigations of Bernard Madoff beginning in 1992. Klock argues that two lessons should be learned from the Madoff scandal. First, the SEC is simply not capable of providing adequate protection for the integrity of our public financial markets without assistance from private attorney generals. Securities laws…
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Sixth Journal Summary for Upcoming Publication of ASU Law Journal

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When Natural Science Meets the Dismal Science An upcoming Arizona State University School of Law publication will include an article written by Stephanie Tai, an Assistant Professor of Law at the University of Wisconsin Law School. Professor Tai has written a number of articles on law and the environment and teaches in areas of the law related to this article such as environmental law, law and science, and natural resources law. The principal focus of the article is consideration of the way in which courts have dealt with economic and scientific developments in considering Commerce Clause challenges to environmental laws, particularly in the context of wetland regulation. Professor Tai advances three arguments during the course of the article: (1) that scientific and economic developments have been incorporated in the Commerce…
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Fifth Journal Summary for Upcoming Publication of ASU Law Journal

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The Arizona State Law Journal will soon publish an article by Kelli A. Alces.  Professor Alces is an Assistant Professor at the Florida State University College of Law.  This article discusses the shareholder “collective action,” entrenchment, and short-terms goal problems in depth, focusing on how they related to the recent recession.  Professor Alces proposes a unique solution to this problem, the appointment of a new position to oversee the management of corporations.  Professor Alces calls this new role the “equity trustee,” from which the name of the article, “The Equity Trustee” comes. Professor Alces begins the article by describing the obstacles to the effective performance of what Professor Alces calls the “shareholder job” in the governance of corporations.  Discussed in depth are the “collective action” and apathy problems preventing effective…
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Fourth Journal Summary for Upcoming Publication of ASU Law Journal

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The Arizona State Law Journal will soon publish an article by Richard Albert.  Professor Albert is an Assistant Professor at Boston College Law School and received his J.D. from Yale University, his LL.M. from Harvard University, and also has a B.C.L. from Oxford University.  Professor Albert’s article discusses the problem of constitutional entrenchment and the illegitimacy it can bring, and offers a unique solution, what he calls the “entrenchment simulator,” which brings many of the benefits and few of the drawbacks of permanent constitutional entrenchment. Professor Albert begins with a discussion of constitutional entrenchment and defines a sliding scale in which he delineates five levels of entrenchment.  At the beginning of Professor Albert’s scale is legislative non-entrenchment, which would be akin to the amendment requirements of an ordinary law requiring…
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Third Journal Summary for Upcoming Publication of ASU Law Journal

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Revisiting the Lyons Den: Summers v. Earth Island Institute’s Misuse of Lyons’s “Realistic Threat” of Harm Standing Test by Bradford Mank The Arizona State Law Journal will soon publish an article by Bradford Mank.  Professor Mank is the James Helmer, Jr. Professor of Law at the University of Cincinnati College of Law. He has written a series of articles discussing the doctrine of standing. This latest article discusses the Supreme Court’s 2009 decision in Summers v. Earth Island Institute, 129 S. Ct. 1142 (2009), in depth and discusses perceived inconsistencies between this latest word on standing and previous applications of the test in other decisions. Professor Mank faults the majority and the dissenting opinions for “failing to discuss how subsequent decisions applied or distinguished Lyons’s realistic threat test.” A plaintiff…
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Second Journal Summary for Upcoming Publication of ASU Law Journal

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Arizona State University College of Law is previewing its upcoming articles for publication.  The second article featured is written by third-year student, Cody Huffaker. In February 2009, Congress passed and President Barack Obama signed the “American Recovery and Reinvestment Act of 2009”—more commonly known as the stimulus package.  The stimulus package includes provisions that grant sums of money to states in an effort to help them with local economic problems.  As is the case with most federal grants of money to states, the grants came with various strings attached.  A handful of state governors insisted that they would not accept any federal funds because of such strings. One such state governor was Mark Sanford of South Carolina, whose vocal opposition to the stimulus package gained wide publicity.  In an effort…
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