Federalism and the Double Standard of Judicial Review

Lynn A. Baker (Texas) & Ernest A. Young (Texas), Federalism and the Double Standard of Judicial Review, 51 Duke L.J. 75 (2001)

Unfinished. Not entirely helpful. Basically, federalism is good, federalism wasn't being enforced before, thank god federalism is being enforced now. Of course, that can be argued with - it's not that federalism wasn't being enforced, it's that the boundary lines were drawn very expansively, and Congress never crossed over them.

Interesting references

Peter M. Shane, Federalism's Old Deal: What's Right and Wrong With Conservative Judicial Activism, 45 Vill. L. Rev. 201 (2000)

Dan Braveman, Enforcement of Federal Rights Against States: Alden and Federalism Non-Sense, 49 Am. U. L. Rev. 611 (2000)

John Gibbons, Our Federalism, 12 Suffolk U. L. Rev. 1087 (1978)

Inside the Federalism Cases: Concern About the Federal Courts

Ann Althouse (Wisconsin), Inside the Federalism Cases: Concern About the Federal Courts, 574 Annals Am. Acad. Pol. & Soc. Sci. 132 (2001)

Thinks that the federalism decisions are really about wanting to lessen the burden on the federal courts, cut the caseload. Also refers to the Congress "taking advantage" of the Court's relative hands-off attitude, and that causing a Court backlash. Not much of real use, I think.

Radicals in Tweed

Saikrishna Prakash (San Diego), Radicals in Tweed Jackets: Why Extreme Left-Wing Law Professors are Wrong For America, 106 Colum. L. Rev. 2207 (2006)

Review essay of Sunstein's Radicals in Robes. Sunstein apparently argues for minimalism in the book, but Prakash says that minimalism is only Sunstein's argument because the "wrong" people are in power. If this were Brennan and Marshall running the court, Sunstein wouldn't be arguing for slow, incremental steps. Sunstein is a consequentialist. He wants good outcomes, and he prescribes methods by which to get them, or at least by which to slow the flow of bad ones.

Moreover, says Prakash, minimalism isn't even a theory of decisionmaking.