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Concurrency of powers is a key to governance in most federal systems. This volume, Concurrent Powers in Federal Systems: Meaning, Making and Managing, is the first to examine from a comparative perspective its various manifestations, reasons for emergence, and management strategies.

This article analyzes the increasing use of state preemption law by conservative state leaders as a tool to rein in progressive local governments. The scope and special qualities of recent state preemption laws are explored by examining legislation preempting local fracking bans, preventing minimum wage ordinances, targeting sanctuary city policies, overturning LGBT rights ordinances, and enacting blanket preemption measures. Reasons for the recent surge of state preemption laws are suggested, and the overall effectiveness of these laws is discussed. I conclude that rising conservative dominance of state legislatures has provided the opportunity to thwart progressive local policies, and these efforts have been aided by various industry and conservative organized groups. State preemption laws are not always successful in their aims. In some cases, state supreme courts have sided with local officials' claims of state overreach. In others, local officials have simply refused to comply. In any case, the threat of preemption may have a chilling effect on local policy innovation.

America is a complex tapestry of laws, from the local ones passed by your city council to national laws made by Congress. Sometimes Congress passes a law to build a program, such as the Affordable Care Act, and then hands some or all of its administration over to the states. Was it always like this? What happens when a state and the national government disagree? Readers find out how these issues have evolved since before the Constitution was signed.

Since its founding, the U.S. has struggled with issues of federalism and states' rights. In almost every area of law, from abortion to zoning, conflicts arise between the states and the federal government over which entity is best suited to create and enforce laws. In the last decade, immigration has been on the front lines of this debate, with states such as Arizona taking an extremely assertive role in policing immigrants within their borders. While Arizona and its notorious SB 1070 is the most visible example of states claiming expanded responsibility to make and enforce immigration law, it is far from alone. An ordinance in Hazelton, Pennsylvania prohibited landlords from renting to the undocumented. Several states have introduced legislation to deny citizenship to babies who are born to parents who are in the United States without authorization. Other states have also enacted legislation aimed at driving out unauthorized migrants.Strange Neighborsexplores the complicated and complicating role of the states in immigration policy and enforcement, including voices from both sides of the debate. While many contributors point to the dangers inherent in state regulation of immigration policy, at least two support it, while others offer empirically-based examinations of state efforts to regulate immigration within their borders, pointing to wide, state-by-state disparities in locally-administered immigration policies and laws. Ultimately, the book offers an extremely timely, thorough, and spirited discussion on an issue that will continue to dominate state and federal legislatures for years to come.

The past decade has witnessed the emergence and rapid spread of a new and aggressive form of state preemption of local government action across a wide range of subjects, including among others firearms, workplace conditions, sanctuary cities, antidiscrimination laws, and environmental and public health regulation. Particularly striking are punitive measures that do not just preempt local measures but also hit local officials or governments with criminal or civil fines, state aid cutoffs, or liability for damages, as well as broad preemption proposals that would virtually end local initiative over a wide range of subjects. The rise of the new preemption is closely linked to the partisan and ideological polarization between red states and their blue cities. This Essay examines the spread of the new preemption and explores the legal doctrines available to local governments for challenging it. It argues that the more extreme preemption measures threaten the capacity for local self-government and are at odds with the values of local autonomy, the cornerstone role local governments play in our governmental structure, and the widespread state constitutional commitment to home rule. It also considers whether arguments about localism, like arguments about federalism, are really just about means to specific policy ends. It concludes that particularly in the current era of polarization, our system ought to protect some local space for self-determination for problems that arise at the local level.

In the United States, preemption laws enacted by state governments can remove local government authority to enact policy and undermine community self-determination and local democracy. No study to date has evaluated the population, demographic, and socioeconomic characteristics associated with state preemption of public health policies. Our study identifies state characteristics associated with preemption of local paid sick leave, food and nutrition, tobacco control, and firearm safety policies. We conducted a Classification and Regression Tree (CART) analysis using state-level demographic, socioeconomic, and population health indicators from 2009 to 2018 to predict state ceiling preemption of local paid sick leave, food and nutrition, tobacco control, and firearm safety policies. Several demographic, economic, political, and health factors best distinguish states with and without preemption in each of the four domains. Total state population was an important characteristic in all four trees and the non-Hispanic Black population was important in three trees. All other age- and race/ethnicity-related demographic variables included were important characteristics in at least one tree. Additionally, adult obesity and flu vaccination were relevant in the paid sick leave tree and firearm-deaths, suicide-deaths, and the unemployment rate were relevant in the firearm safety tree. The relationship between specific factors and preemption in each of the four domains varied depending on the location of the factor within the trees. Specific population, demographic and economic characteristics in a state are associated with the adoption of ceiling preemption of paid sick, food and nutrition, tobacco, and firearm safety laws, but these characteristics vary by domain. Our study identified which populations within groups of states may be affected by preemption. The findings can inform whether preemption laws considered or adopted in a state may also require protective measures for population groups that could be adversely affected by these laws.

Urban reform prosecutors, who are generally elected at the county level, find themselves in a tricky political spot. On the one hand. most urban counties are in many ways \"too big\" for reformers: they include large numbers of suburban voters who generally dislike reform, in no small part because they are relatively unaffected by the decisions prosecutors make. On the other hand, these counties are also often \"too small\": they lack the political power to resist efforts by conservative state legislatures and governors to rein in, if not outright remove, reformers. This Article examines both vulnerabilities. It first maps out the political challenges that more-conservative, whiter suburbs pose for reform efforts in urban counties. And then this Article examines the rising role of state-level preemption. Perhaps surprisingly, the results here suggest that the latter threat may be less severe than it initially appears. While state legislators introduce a lot of bills targeting reform prosecutors and reform efforts more broadly, almost all appear to die before passage. It is still important not to understate the risk state-level preemption poses for reformers, but it is also important to acknowledge the limits of such threats and the opportunities available to reformers to push back against them.

Mass arbitration represents the newest battleground between corporations and consumer and employee advocates over mandatory arbitration and access to justice. Companies thought they had finally won the arbitration wars after the U.S. Supreme Court ruled that they could insert class action bans into their arbitration clauses, bestowing companies with widespread immunity from a large swath of consumer and employee claims.

Both trademark and unfair competition laws and state right of publicity laws protect against unauthorized uses of a person’s identity. Increasingly, however, these rights are working at odds with one another and can point in different directions with regard to who controls a person’s name, likeness, and broader indicia of identity. This creates what I call an “identity thicket” of overlapping and conflicting rights over a person’s identity. Current jurisprudence provides little to no guidance on the most basic questions surrounding this thicket, such as what right to use a person’s identity, if any, flows from the transfer of marks that incorporate indicia of a person’s identity, and whether such transfers can empower a successor company to bar a person from using their own identity, and, if so, when. Part of the challenge for mediating these disputes is that both right of publicity and trademark laws are commonly thought of as concerned solely with market-based interests. But this is not the case. As I have documented elsewhere, the right of publicity has long been directed at protecting both the economic and the noneconomic interests of identity-holders. And, as I demonstrate here, it turns out that the same is true for trademark and unfair competition laws, which have long protected a person’s autonomy and dignity interests as well as their market-based ones. After documenting and developing this overlooked aspect of trademark law, I suggest a number of broader insights of this more robust account of trademark law both for addressing the identity thicket and for trademark law more generally. First, I suggest that recognizing a personality-based facet of trademark law suggests a basis to limit the alienation of personal marks in some contexts. Second, this understanding shores up trademark’s negative spaces, especially when truthful information is at issue. Third, recognizing trademark’s personality-based interests provides a partial explanation (and limiting principle) for some of its expansionist impulses. Finally, I contend that recognizing this broader vision of trademark law provides significant guidance as to how to navigate the identity thicket. I employ trademark preemption analysis to mediate disputes between trademark and right of publicity laws. Trademark preemption provides an avenue out of the thicket, but only if trademark law’s robust theory of personality is recognized. A failure to do so risks leaving us with one of two bad options: a right of publicity that acts as a “mutant” trademark law, swallowing up and obstructing legitimate rights to use trademarks, or, alternatively, with a shallow husk of trademark law (rooted solely in commercial interests) that swallows up publicity claims at the expense of personal autonomy and dignity. Trademark law already provides us with the tools to avoid both of these unsavory paths — if only we reclaim its lost personality.