Titan Summer Debate Institute 1

STATES CP Lopez 1NC......................................................................2 Lopez—Solvency.............................................................3 Lopez—Solvency.............................................................4 Lopez—A2 Rollback.........................................................5 Lopez—A2 Precedent DA.................................................6 Lopez—A2 Legitimacy DA................................................7 Fed Model Ext.................................................................8 Fed Model—A2 Takes Out Link.........................................9 General—Implementation..............................................10 General—Implementation..............................................12 General—Funding..........................................................13 General—A2 Perm ........................................................14 General—A2 Race to the Bottom....................................15 General—A2 Race to the Bottom—X Empirics..................17 General—A2 Race to the Bottom—X Econ Benefits..........18 General—A2 Race to the Bottom—X Fed Fails ................19 General—A2 Biz Con Turn..............................................20 General—A2 Pre-emption ..............................................21 General—A2 Pre-emption ..............................................23 General—Politics NB......................................................24 General—Politics NB—A2 Lopez Courts Link....................25 General—A2 State Budget DA........................................26 General—A2 State Tix DA..............................................27 General—State Fiat Good..............................................28 A2: Narrow commerce clause BAD.................................29 A2: Narrow commerce clause BAD.................................30 A2: Narrow commerce clause BAD.................................31 A2: Lopez bad...............................................................32 A2: Legitimacy turn.......................................................33 A2: Legitimacy impact...................................................34


Titan Summer Debate Institute 2

Lopez 1NC
The United States Supreme Court should, in a narrow ruling on the next available test case, rule that federal authority over the provisions of the plan violates the Tenth Amendment and devolve authority to the fifty states and relevant territories. Lopez-grounded devolution prevents federal rollback Miller 98 – lawyer (Mark, Cleveland State L. Rev.)
The history of the Tenth Amendment is an appropriate starting point in the development of substantive federalism. For a long period of time, the Tenth Amendment operated as nothing more than a plain statement of the obvious that afforded little protection to the states. 249 In the aftermath of Garcia, state sovereignty was left to the political processes. 250 Tenth

Amendment power was reborn in New York v. United States when the Court held that Congress could not commandeer the states' legislative function. 251 This protection is decreed no matter how strong the federal interest in the legislation may be. 252 Protections over state sovereignty were expanded
again in the 1996 Term when the Court invalidated certain portions of the Brady Act. 253 According to Printz, Congress cannot force the states' executive branches to enact federal regulatory programs regardless of the federal interest involved. 254 Whenever the structural framework of dual sovereignty is compromised, the Tenth Amendment steps in to prevent a usurpation of federalism. 255 Printz and New York held that Congress was incapable of commanding the states to take a course of action that it could not undertake directly. 256 But what happens if Congress breaches the Tenth Amendment through an Article I power like the Spending Clause? Do the Court's enunciated protections extend to Article I? These are the questions that the theory of substantive federalism answers. The restraint on Article I began, to large extent, in Garcia when Justice O'Connor predicted that the Commerce power would be affirmatively limited [*191] by state autonomy. 257 The door was further opened in New York when the plenary nature of the Commerce Clause was labeled as "subversive" to the interests of state sovereignty. 258 United States v. Lopez put the first nail in the coffin when it struck down an exercise of the

Commerce power as going so far as to approach a "police power of the sort retained by the States." 259 The Commerce
Clause, in other words, authorizes control over interstate commerce, but does not authorize regulation of the states. 260 Seminole Tribe, however, lends the greatest support to the substantive federalism theory. The Eleventh Amendment -- a core guardian of state sovereign interests 261 -- withstands

any attempt by Congress to pierce the

shield of federalism with Article I. 262


Titan Summer Debate Institute 3

Devolution to the states is key to plan solvency Gary C. Bryner 2002, “policy devolution and environmental law”, lexis
This system of environmental federalism has been widely criticized in the United States for being too expensive, too intrusive, too cumbersome and bureaucratic, as well as ineffective and unable to improve environmental quality in many areas. Advocates of devolution of environmental policy to states, in particular, typically argue that the

current structure is cumbersome and inefficient, accountability is muddled, environmental goals are not achieved in a timely manner, and that it prohibits the kind of legal and political innovations needed to make environmental regulation more effective. One of the most important
challenges to the prevailing model of environmental law and regulation comes from theories of federalism and the increasing interest, prompted by Republican efforts in the 1970s and 1980s and embraced more broadly in the 1990s by some Democrats, to devolve more policy making power to states. Devolution theory calls for increased policy authority and

to be delegated to state governments in order to improve the efficiency of public policies, ensure they effectively resolve specific problems, and foster political accountability.
discretion Devolution may also go beyond states to give different communities the opportunity to strike their own balance among the competing policy objectives such as economic growth and reducing environmental risks. Devolution is also

championed as a way to engage the public in problem solving and gain their commitment to making changes in behavior. Devolution has been a major theme of welfare and other social policies, n8 and is also championed as a way to promote more participatory policy making and enhance the role of citizens in decisions that affect their health, quality of life, and standard of living. n9 Devolution theory calls for increased policy authority and discretion to be
delegated to state governments in order to improve the efficiency of public policies, ensure they effectively resolve specific problems, and foster political accountability. Devolution also gives different communities the opportunity to strike their own balance among the competing policy objectives of economic growth and reducing environmental risks. n10 Devolution to regulated industries promises to reduce the cost of regulation, create incentives for sources of pollution to find the most efficient and effective means of reducing emissions, encourage reductions that go beyond minimum mandates, and allow for flexibility in business decision making. Devolution to citizens is championed as a way to get the public involved in regulatory initiatives that will change the behavior of citizens. Reducing emissions through energy conservation and increased

use of [*5] mass transit, for example, require major commitments on the part of citizens to change their behavior, and that commitment cannot simply be mandated from the top down.
Other forms of participatory policy making have been proposed to respond to the demands of citizens for a role in decisions that affect their health and quality of life. Advocates of devolution argue that the current federal regulatory structure is

plagued by burdensome procedures and a cumbersome chain of command. The combination of environmental statutes, EPA regulations, and guidance documents result in an impenetrable pyramid of paperwork, planning, and reports. A tremendous amount of effort at all levels of
governments is required to manage this process. Compliance with these requirements often replaces energy and resources that could be used to actually reduce pollution and improve environmental quality. Accountability is difficult to identify since so many policy makers compete and jostle for influence, that citizens do not know who to hold accountable when environmental goals are not achieved. Federal officials lay claim to credit for issuing ambitious environmental goals, while state and local officials bear the brunt of criticism for imposing regulatory burdens. The EPA seeks vainly to develop and impose national requirements on conditions that vary widely throughout the nation.


” Ecological systems vary tremendously from one place to the next. environmental and other demands of their constituents. there is a strong case that most (though not all) environmental problems should be addressed at the state and local level. Case Research Paper Series in Legal Studies 05-18 Available at SSRN: http://ssrn. preferences and economic conditions. In this way. leads to “one size fits all” policies that fit few areas well. Adler is Associate Professor of Law and Associate Director of the Center for Business Law and Regulation.” and ensure that regulatory measures take account of local conditions. and even whether. a suitably decentralized regulatory system provides several other advantages. Given the nature of this nation’s federalist system. Rather. An overly centralized environmental regulatory system is itself an “affront to nature. which grants the federal government limited and enumerated powers while reserving all other matters to the states. as where the federal government does not act.Titan Summer Debate Institute 4 Lopez—Solvency Devolved federalism based on the subsidiarity clause provides better local knowledge and allows innovation Adler.” that problems should be addressed at the lowest level at which they can be practically addressed is particularly appropriate in the context of environmental policy. This presumption is embodied in the structure of the federal constitution. Because most environmental problems are local or regional in nature. if at all. to address a given environmental concern. "Jurisdictional Mismatch in Environmental Federalism" (July 2005). and the resulting policy experimentation and interjurisdictional competition. A more decentralized system is better able to overcome this “knowledge problem. the ecological and economic diversity of the nation requires local knowledge and expertise that is often unavailable at the federal level. Jonathan H. that would entail allocating responsibility for most environmental problems to state governments with the hope. Before the federal government can act. however. things will remain in state hands. albeit rebuttable. that state governments would leave many concerns to local authorities. can encourage policy innovation as policymakers seek to meet the economic. Case Western Reserve University School of Law. Different climate.. There are additional policy reasons to support a general presumption in favor of state and local responsibility for environmental concerns. let along local tastes. the varying scopes of various environmental problems suggests the need for a “multitier regulatory structure that tracks the complexity and diversity of environmental problems. In addition to allowing for a closer fit between local ecological conditions and environmental policies. The failure to take into account local environmental conditions. 4 .” The federalist structure of American government supports a general. This principle of “subsidiarity. Jonathan H. it must demonstrate that a given policy is within the scope of its enumerated powers. topography and local conditions mean that the pests each face – and the pest control strategies that are effective – are different as well. This does not mean that all environmental problems should be addressed at the same level. and leads to the sort of “multitier regulatory structure” that Professor Esty suggests. An apple orchard in Washington State has different requirements than an orchard in upstate New York. First. states are able to act as environmental “laboratories” developing new and improved ways of addressing environmental concerns. Second.com/abstract=770305 [Alex KatsRubin] Environmental protection efforts are most likely to be optimal where those who bear the costs and reap the benefits of a given policy determine how best. if not the expectation. decentralization. As a result of such competition. states are able to learn from each others successes and failures. presumption that any given policy question should be addressed by state governments.

Lopez. Inc. “The powers not delegated to the United States by the Constitution. Term Limits. 11 The Tenth Amendment states. Thornton. United States 18 -the Court reversed its thinking in Garcia and is umpiring the federal system once again. asymmetrical positions [on federal power] can be discerned by juxtaposing Term Limits with United States v. or to the people. formed to limit federal power once again. U.S. “The Justices’ opposing.L. neg fiat should be reciprocal—otherwise they’d lose on Bush won’t sign it or overturn it later—reciprocity should ground fairness concerns Education—debate’s a question of should not would—this is the only way to debate disads to state and federal action without spiking the link Courts have authority to devolve Sprick 99 (David. 17 and Printz v.” 19 It is possible to add the recent Printz decision to such an analysis because the same factions within the Court. v. the Tenth Amendment’s reemergence in constitutional decisions has not gone unnoticed by Supreme Court watchers. 5 .Titan Summer Debate Institute 5 Lopez—A2 Rollback Fiat solves rollback—assuming all relevant parties defer to plan mandates is best— Fairness—aff gets durable fiat.” 15 [*531] In a series of recent cases-U. the Tenth Amendment provides “an express federalism marker” and interrelates the amendment with constitutional and political federalism. More importantly. 529) By defining to whom powers not delegated are reserved. 27 Cap. the Court appears to be divided over both the meaning of the Tenth Amendment and the first principles of American federalism.” 13 a role it all but abdicated in Garcia v. are reserved to the States respectively. San Antonio Metropolitan Transit Authority 14 when it told the states they could find better constitutional protection from the “procedural safeguards inherent in the structure of the federal system.” 12 This amendment has been the rallying cry for devolutionists in the political branches concerned with excessive federal power. nor prohibited by it to the States. with respect to federalism. 16 United States v. Moreover. Rev. Lopez. The Court seems to be reestablishing itself as the “umpire of federalism.

with it. The legal system and the public thereby gain. but is unwilling or unable to overrule them explicitly. n215 Thus. Rev. Virginia (Stephen. 80 Tex. 6 . actual case outcomes) back in what it believes to be the right direction. reactivism allows risk-averse Justices and the Court as an institution to avoid the unpleasant consequences of overruling that have historically made Justices so reluctant [*1112] to overrule even the most indefensible decisions. to varying degrees.it provides an efficacious means by which a Court that fundamentally disagrees with earlier precedents. the benefits of the overruling. 1057) This is the advantage of reactivism .Titan Summer Debate Institute 6 Lopez—A2 Precedent DA Narrow rulings avoid court disads Smith 2 – law prof. At the same time. can move the law (and. L. the law gets "fixed" in a way that avoids sharp doctrinal shifts.

it is reasonable to hypothesize that loyalty toward the institution depends upon policy and/or ideological agreement and partisanship. When people have developed a "running tally" about an institution-a sort of historical summary of the good and bad things an institution has done-it is difficult for any given decision to have much incremental influence on that tally. Even less influential are perceptions of decisions in individual cases.cfm? abstract_id=909162. jstor. Nor is it connected to partisan and ideological identifications. Using data stretching from 1987 through 2005. Institutional legitimacy may not be obdurate. the analysis reveals that Court support has not declined.2. including the contested 2000 presidential election. American Journal of Political Science 47. Washington (James.Titan Summer Debate Institute 7 Lopez—A2 Legitimacy DA Single decisions don’t spillover Gibson 3 – Professor of Government.com/sol3/papers. These two types of attitudes are of course not entirely unrelated. Washington (James. but commitments to the Supreme Court are not largely a function of whether one is pleased with how it is doing its job. but it does not seem to be caught up in the divisiveness that characterizes so much of American politics . The Legitimacy of the United States Supreme Court in a Polarized Polity. AG) Since the Court is often intimately involved in making policy in many policy areas that divide Americans.ssrn. AG) Perhaps more important is the rather limited relationship between performance evaluations and loyalty to the Supreme Court.at least not at present. Legitimacy resilient Gibson 6 – Professor of Government. support is embedded within a larger set of relatively stable democratic values. Institutional loyalty is valuable to the Court precisely because it is so weakly related to actions the Court takes at the moment. 7 . Measuring Attitudes toward the United States Supreme Court. Instead. http://papers.

the members of Congress from the states that undertook innovative environmental protection measures in the 1990s all have more pro-environmental records than the House as a whole. one would expect a consistent pattern in which even states with voting records above the median would do no more than satisfy federal requirements. such as a tradable permit. Envtl. if its citizens choose." n31 History is [*64] rife with examples of federal legislation that has drawn heavily from ideas being developed at the state level. Rev. Arizona (Kirsten. In a frequently quoted dissent. 54. 15. L. (2) the search for larger markets by substitute product producers.Y. n4 Regulation of water quality by the interstate Delaware River Basin Commission ("DRBC") n5 provided the model for the system of federal regulation 8 . 12 Penn St. federal environmental laws and multilateral international environmental agreements came about partly in reaction to the regulatory measures implemented by lower-level jurisdictions. 14 N. For example. AG) In summary. But if the federal legislative process had less serious pathologies than state processes had. NYU (Richard.S. California state air regulation provided a model for the Clean Air Act. the ultimate significance of state actions on global climate change lies in the degree to which such actions influence the policies of the larger jurisdictions of which the states are a part .Titan Summer Debate Institute 8 Fed Model Ext States empirically prompt federal environmental regulation—three warrants Engel 5 – law prof. congressional voting records are closely aligned with state leadership roles in environmental regulation. Either both congressional voting records and state programs reflect preferences for environmental protection [*641] within a given state. Regulation by a state or local government might trigger regulation at a higher jurisdictional level as a result of: (1) interest group appeals to regulators to level the competitive playing field. n577 Moreover. and try novel social and economic experiments without risk to the rest of the country. or (3) a desire to regulate the environmental problem through the use of a market mechanism. n34 Many U. one would not expect to see the close correspondence between above-median congressional voting records and state environmental regulatory policies beyond federal requirements. n33 A second mechanism for state influence of broader policy is for such local action to function as a catalyst for regulatory action by higher jurisdictional levels of government encompassing a larger geographic scope. Envtl. Penn State (Robert. State climate change policies can have this kind of influence in a number of ways. n35 Studies prove modeling Revesz 1 – law prof. Empiric examples prove modeling McKinstry 4 – Professor of Environmental Resources Conservation. One way of influencing these larger jurisdictions is by developing new programs or approaches that are subsequently adopted by the federal government based on the idea of the states as "laboratories of democracy.J. a state can trigger regulatory action by governments that contribute a larger percentage of global greenhouse gas emissions. The parallel between state-level environmental innovation and pro-environmental voting at the federal level undermines the public choice argument for federal regulation. social security being a prominent example. To the contrary. Justice Brandeis observed [*16] that "it is one of the happy incidents of the federal system that a single courageous State may. serve as a laboratory. L. AG) For these reasons. Through these mechanisms. 115 Harv.U. or they both reflect similar public choice pathologies. n32 A relevant environmental example is the nitrogen oxides trading programs implemented by Midwestern and Northeastern states that formed the basis of a federal emissions trading program under the Clean Air Act." n3 Results from state "laboratories" have often generated the models for federal legislation governing the United States' national response to environmental problems. Rev.either the federal government or the international community. AG) State leadership in environmental issues has not been uncommon historically. and thus have a greater potential for reducing emissions through regulation. L. 553.

without alienating his own party members by signing far-reaching binding international treaties to mitigate climate change. The Democratic senators. http://www. May. Thus. and particularly no compulsory targets for future CO2 emissions levels. In contrast to Europe. The hopes of environmental groups are therefore focused on the new president. this would specifically imply taking into account the wishes of a (highly probable) Democratic majority in Congress. a green light is given on an important level within the American political system. changes need to be implemented from the bottom-up for a popular and broadly supported climate policy to emerge. Obama en McCain – have voiced their intentions to reduce American CO2 emissions beyond levels that are proposed in Congress and the regional initiatives.S. Senators Clinton and Obama have both declared that they will push hard for an international process to develop a successor to the Kyoto-protocol. no spectacular developments in the U.nl/publications/2008/20080500_ciep_briefingpaper_kate. 9 . For a Republican president. Clingendael International Energy Programme (Warner ten. senator McCain submitted a legislative proposal (co-signed by senator Lieberman and supported by senator Obama) that would reduce the level of 2010 emissions by 65% in 2050. it is clear that when the current US President will be replaced in 2009. climate policy will be established. However. Although three different emission trading schemes are under development. as far as climate change is concerned. n9 Fed Model—A2 Takes Out Link Our counterplan builds state constituencies enabling the next president to model the state action Kate 8 – member. In order to win over representatives that will continue to protect the economic interests of their home states – both Republican and Democrat – support within the individual states will be a very important precondition. has everything to do with the upcoming presidential elections. A federal climate policy that will aim to establish an economy-wide emission trading scheme for the United States can most probably expect a renewed impetus. it is clear that the upcoming presidential elections will not constitute a choice for or against climate change mitigating legislation. Consequently.pdf. but are more in line with the legislation currently under debate in the senate. have ushered virtually identical proposals aimed at reducing the level of 1990 emission 80% in 2050. have been to invest in technological developments such as nuclear energy. energy-efficiency. However. Conclusion Developments in the ongoing climate debate in the United States are considerable. n7 The hazardous site remediation program established by New Jersey pursuant to the New Jersey Spill Compensation and Control Act n8 was copied by Congress in enacting the federal Comprehensive Environmental Response Compensation and Liability Act. A Democratic president will have to recon with Democratic Congressmen who will let their own agendas prevail and (with a miniscule Democrat majority in Congress) could block legislation. A Green Light for the American Climate Discussion?. as was the case in 2000 and 2004. Republican senator McCain is a spectacular breakaway from the policy of the present government. The Bush government’s policy preferences. An indispensable element in both their proposals is an emission trading scheme.Titan Summer Debate Institute 9 implemented by the Clean Water Act. The replacement of the current president will not fundamentally alter the opposition in Congress against a comprehensive climate policy with firm emission reduction targets. The targets of presidential candidate McCain were not as drastic as those proposed by the Democratic candidates today.clingendael. In the past. AG) The expectation that no substantial federal climate legislation will be adopted in the United States before 2009. who will take office in 2009. With respect to his political background. these should be considered policy laboratories for an eventual nation-wide emission trading scheme. Clinton and Obama. the new president will have to rally broad support from the American people and within Congress to enable him to fully take part in the international climate dialogue. To reach the targets in his proposal McCain also turned to market mechanisms that would provide for a as economically responsible CO2 reduction as possible. It is noteworthy that all current presidential candidates – Clinton. n6 Pennsylvania's system of surface mining regulation served as the model for the federal Surface Mining Control and Reclamation Act.

at the federal level. The stakeholders frequently can provide more detailed. (2) to criticize or praise. http://www. Bottom Up Decision Making and Greater Stakeholder Involvement. Barry George. “the smaller the polity in geography and in population. LLPand CCS President Thomas D. "Jurisdictional Mismatch in Environmental Federalism" (July 2005). Jonathan H. [Alex Kats-Rubin] These statements reflect a growing consensus that endorses decentralization in many spheres of public policy. in Pacific McGeorge Global Business & Development Law Journal. Adler is Associate Professor of Law and Associate Director of the Center for Business Law and Regulation.pdf [Alex Kats-Rubin] Having states taking the lead in crafting GHG emissions reduction strategies through these bottom-up.42 A. Ballard Spahr Andrews & Ingersoll. Such processes at these levels allow greater stakeholder involvement in receiving and transmitting information and in formulating policy. It can also often improve the quality of the information used in policy formulation. Jonathan H.us/ewebeditpro/items/O25F17683. Accountability Adler.41 Some of these benefits arising out of a state lead may not be achievable at the federal level. stakeholder driven processes has a number of advantages compared to a more centralized federally developed strategy. the easier it is for the people (1) to monitor what their government is doing. decentralization can enhance accountability. Relatedly.Titan Summer Debate Institute 10 General—Implementation States implement environmental policy best— Local knowledge Robert B. Each potential standard imposes a different trade off between competing values and interests. One of the principal advantages of having the states take the lead in designing strategies arises from the fact that bottom up decision making is frequently employed by these state processes and can function best at a local level. As Marci Hamilton observes. who become more aware of the constraints and goals and have greater confidence in the decision making process and the information used in that process. Environmental matters often implicate subjective value preferences which may be quite variable across the nation. relevant information about what can actually be achieved. As a result. Indeed.43 This is particularly important for businesses.08 or 0.. the Environmental Group.” 2004. even where stake-holder processes are employed there. McKinstry. such as whether the national ambient air quality standard for ozone should be 0. Case Research Paper Series in Legal Studies 05-18 Available at SSRN: http://ssrn. Jr. Innovation Rabe. “Statehouse and Greenhouse.climatestrategies. businesses frequently work through trade organizations that are forced to represent the lowest common denominator of the business and are less able to represent the needs and capabilities of individual businesses who may get a voice in state level stakeholder processes. This results in greater buy-in by stakeholders. and therefore (3) to affect public policy. Brooking Institute. Case Western Reserve University School of Law. there is not always a single “right” answer to a given environmental question. whose particularized needs and capabilities may not be adequately considered at the federal level. Pg 16-17.075 parts per million. [The Implications of the New “Old” Federalism in Climate-Change Legislation: How to Function in a Global Marketplace When States Take the Lead.” Decentralized systems are also less prone to rent-seeking.com/abstract=770305 [Alex KatsRubin] In a decentralized system there is more likely to be a “fit” between a given jurisdiction’s policies and the preferences of local residents. Peterson. partner in the Litigation Department. 2007. The conventional wisdom of the 1960’s and 1970’s reflected severe doubts about the capacity 10 .

local. Indeed.Titan Summer Debate Institute 11 of state and local governments to protect the environment. A growing body of scholarship concludes that these decentralized units are increasingly proving more capable and innovative than their central-level counerparts. 11 . however. has embraced certain state. in some areas of environmental policy analysis.” the subnational units are regularly depicted as capable of doing little that is wrong. this conventional wisdom anticipated that states would be highly unlikely to act without exact marching orders—and funds for implementation—from the federal government. such as the growing body of scholarship on the protection of “common-pool resources” and the emergence of “civic environmentalism. whereas their national counterparts are characterized as doing little that is effective. and regional governments as highly committed to environmental protections. More recent analysis. Applied to climate change. The inherently crossboundary nature of many environmental problems and the potential for localized units to shirk responsibility were seen as insurmountable.

while leaving the actual standard- setting to individual states.S. and so on. As on-the-ground implementers. EPA should have the authority to mediate the dispute and to develop a federal solution. virtually assuring continued vigilance by public officials charged with this responsibility. First. 08 [Franz T Senior Fellow. such as the Endangered Species Act. warming-basics/climate_change_101. Some of these funds would. household waste landfills. landfill cleanup objectives. The desire to protect public health and the environment while fostering the economic well-being of an area is greatest for the citizens. climate change policy”] 6-20http://www. all states should be weaned away from federal subsidies. Center for the Study of American Business.Titan Summer Debate Institute 12 General—Implementation Enforcing compliance Litz. etc. To the extent possible. In contrast to federal agencies. EPA should act as a mediator for regional disputes. 3/’99. state conservation departments and natural resource departments have traditionally found ways to work with property owners to fund win-win methods of protecting wildlife habitat. and difficulties in prioritizing environmental objectives. The “fairness” of these restrictions will continue to be debated and litigated apart from any devolution of authority to the states. WORLD RESOURCES INSTITUTE. easier and more frequent contact with facilities. There would no longer be a direct conflict between the application of federal laws.s. “Enhancing Environmental Protection While Fostering Economic Growth” Devolving intra-state issues to the states can best overcome inefficiencies of federal commandand-control regulations. the affected parties need to be able to develop flexible solutions that fit their circumstances. Secondly. especially to those viewed as requiring significant upgrading to take on the added responsibilities. When voluntary approaches reach an impasse.org/global- In addition to the states’ role as first movers and policy laboratories on important issues. and the “takings” clause in the Fifth Amendment to the Constitution. Environmental Protection Agency’s role should be redefined in several ways. states have greater knowledge of the regulated entities. states often bring an understanding of the unique circumstances within their boundaries. and experience with forcing compliance. public officials and businesses most directly affected. Land-use planning at the state and local level often produces conflicts with private property owners. Arguments that states will then engage in a “race-to-the-bottom” in order to attract polluting industries are not borne out by the behaviors of the states and cities prior to the federalization of environmental protection. Surface and groundwater pollutants and air pollutants often are inter-state problems. Fair treatment for property owners would be advanced by transferring authority for environmental programs to the states. 12 . conflicts arising from too much focus on single medium or single-issue environmental harms. EPA should set desirable targets for air and water quality.76 Citizen demands for strong environmental protections have been firmly established as Americans have become wealthier. localized air and water pollution problems. Chilton. rather than setting one-size-fits all standards for the entire nation. The U. these problems should still be left to state and local authorities to work together to find cost-effective solutions. Eventually. in an efficient and effective way.pewclimate. come from reallocating EPA budgets to state agencies. but this is nothing new. In order to solve place-based problems like hazardous waste landfills. More efficient Kenneth W. “toward a constructive dialogue on federal and state roles in u. Congress should provide adequate transitional funding to the states. of course. familiarity with information sources.

and more than one-half have adopted energy-efficient building codes (Alliance to Save Energy.. AG) Many states have supplemented their market-based renewable energy policies with direct incentives that include production credits and rebates. because it does not take into account the programs managed by individual municipal utilities. industrial equipment. 12 have established minimum efficiency standards for appliances sold in the state. These funds are then disbursed in support of energy efficiency.Efficient Economy.. and include increasingly comprehensive suites of policies targeting everything from consumer appliances. however. The annual income of state renewable energy funds is close to $500 million. are collected in accounts known as public benefits funds (PBFs) (Kushler et al. American policy conflict in the greenhouse. This figure also does not reflect the broad range of state policies designed to supplement public spending. 2007). The combined public benefit fund investments in energy efficiency by 21 American states will average $1. 2003). The revenues from these charges. there were 21 state PBFs in the US. 14 states provide tax incentives for energy-efficiency investments. The lion’s share of state PBF monies is spent on investment in energy efficiency. Energy Policy 35. This spending estimate is conservative. 2006).03 billion on renewables by 2017 (Union of Concerned Scientists. with many states using PBFs to leverage even larger private and utility-sector commitments to efficiency. At present. In a survey of 250 utility-scale projects. The number of states adopting energyefficiency policies has expanded rapidly. But PBFs have also been the primary driver for PV installations around the country. which typically range between $0. buildings and vehicles to land use planning and materials recycling (Prindle et al. investor owned utilities. and renewable energy projects. low-income household weatherization. California’s solar program was given a substantial boost in 2006 through the creation of the California Solar Initiative (CSI). For example.2 billion annually through 2015 (DSIRE. 2007. These incentives are typically funded by a public (or systems) benefit charge (PBC or SBC) that is assessed on each kilowatt-hour (kWh) of electricity sold in the state. wind accounted for over 60% of the $475 million obligated by 10 different funds over the past several years (Bolinger and Wiser. under which $2.35 billion in PBF monies will be spent on solar incentives through 2017 (Go Solar California!. the majority of state renewables spending has been to support wind energy. rural electric cooperatives. American Council for an Energy-Efficient Economy. and cities. As of February 2007. clean energy research. of which 15 have dedicated funds for renewable energy development (DSIRE.003 perkWh. 2004). according to a recent report from the American Council for an Energy. 2004).Titan Summer Debate Institute 13 General—Funding States will attain resources through normal means public benefits funds Byrne 7 – Center for Energy and Environmental Policy (John et al. 2005). and the PBFs will spend $4. 13 .001 and $0. 2005). 2006).

For example. while others have general prohibitions against the adoption of any environmental rules more stringent than applicable federal standards. n122 Virginia law bars state regulatory authorities from requiring greater amounts of water treatment than mandated under the federal Clean Water Act ("CWA"). federal standards can discourage state policy-makers from adopting and maintaining more stringent measures of their own. even where such measures could be justified. n121 New Mexico and Colorado. 31 Harv. Rev. the federal "floor" may become a "ceiling" as well. L. n119 Between 1987 and 1995. This effect is not merely hypothetical. leading to inefficiency Adler 7 – law prof. the adoption of a federal regulatory floor may actually lower instead of raise the aggregate level of environmental protection in a given jurisdiction. Envtl. n10 this Article further seeks to reexamine some of [*70] the conventional assumptions that underpin many discussions of the proper federal-state balance in environmental policy. n120 Some states focus on a given environmental concern. 67) In this way. Case Western (Jonathan. Building on prior research and analysis of federalism in environmental law and policy. if federal regulatory action has the potential to discourage or crowd out state regulatory efforts. As a practical matter. Case Western (Jonathan. federal regulation may discourage states from adopting or maintaining more protective environmental rules or even "crowd out" state-level regulatory action by reducing the net benefits of state-level initiatives. There are numerous examples of state legislation designed to prevent state environmental agencies from adopting regulatory standards that are more stringent than federal rules. n123 Other states have general prohibitions against agency promulgation of environmental rules more stringent than federal law. Among other things. L. 31 Harv. 67) At the same time. n124 [Note: Read perm causes preemption if the case has a preemption warrant[ 14 . have statutes prohibiting the promulgation of air pollution controls more stringent than those required by federal law. nearly twenty states adopted at least one statute limiting the ability of state agencies to adopt regulatory controls more stringent than relevant federal standards. Rev. this Article suggests that insufficient attention to the effects of federal action on state policy choices can reduce the scope and effectiveness of environmental protection efforts. n11 Federal action can quickly become a ceiling on state efforts Adler 7 – law prof. Envtl. for example.Titan Summer Debate Institute 14 General—A2 Perm Perm magnifies the politics link— **plan’s more controversial since it’s even harder to justify federal funding if state initiatives already exist **plan’s more popular because it has constituency support from each state Federal action crowds out state efforts.

so states that fail to maintain high levels of environmental protection risk driving away residents to other states. While it is plausible that interjurisdctional competition could produce suboptimal results due to game theoretic interactions. as noted by economist William Fischel. "Jurisdictional Mismatch in Environmental Federalism" (July 2005). despite its prominence in environmental policy discussions.” and state standards are insufficiently stringent. government efforts to create a more business-friendly regulatory climate need not produce suboptimal levels of environmental protection. and this risk Yard” (NIMBY) reaction to proposed changes in land use. First. so does the demand for environmental protection. or even the most common.” as states seem more likely to increase their environmental efforts in response to neighboring jurisdictions’ actions than to relax regulation.com/abstract=770305 [Alex Kats-Rubin] One immediate problem with the race to the bottom theory is its static view of the tradeoff between economic development and environmental protection. Fischel goes so far as to argue that local governments are “the least likely candidates for a ‘race to the bottom’ of the environmental ladder” and that “local governments are. While there are some studies finding that the stringency of environmental regulation can affect industry siting decisions. than in other contexts. Insofar as it is possible to reduce the costs of environmental regulation without sacrificing existing levels of environmental protection. Homeowners aversion “pervades all local political decisions. At the same time. Indeed. Another problem with the race to the bottom theory. Case Western Reserve University School of Law. empirical evidence of a race to the bottom in environmental policy is conspicuously lacking. The fact that many states adopted federal regulation in advance of the federal government. federal regulation might not solve the problem. Case Research Paper Series in Legal Studies 05-18 Available at SSRN: http://ssrn. Assuming that there is a race to the “bottom. Further evidence suggests that. there is only a race to the top—except that the is no top Empirics prove states race to the top—economic incentives and local pressures motivate competition Jonathan H Adler. which can often produce a “Not in My Back tend to be very risk averse about local changes or developments that have the potential to depress land values. Environmental regulation is not the only. the “race-to-the-bottom” theory is not a particularly strong basis upon which to rest the case for federal intervention. Additional problems with the raceto-the-bottom theory have been identified by Professor Richard Revesz. there is no a priori reason to assume that the result would be state standards that are suboptimally lax. and survey data indicating that such effects may influence state-level environmental policy decisions. As a result. No offense—if race to the bottom’s true. if anything. plan can’t solve 15 . any “race” among jurisdictions is “to the top. would strongly suggest otherwise.” Even those homeowners who are not particularly concerned about the environmental effects of proposed developments or industrial activities are likely to recognize that prospective buyers might. Theory aside. and that in some cases those states with the most to lose from regulation were the first to act. rather than suboptimally stringent.Titan Summer Debate Institute 15 General—A2 Race to the Bottom Uniform fiat solves—states can’t dip below the specified targets to attract business. States are not only competing for industry. including the effect of environmental conditions on labor supply. as incomes rise. there is no reason to assume that interjurisdictional competition in environmental policy is any less likely to produce optimal results or otherwise less reliable. but for workers and taxpayers as well. at least in some environmental contexts. it could justify the federalization of just about everything. inclined to accept too little garden-variety industry” and other environmentally harmful land-uses. business interests often have their own reasons for supporting greater levels of environmental protection. context in which states compete for business investment. Associate Professor of Law and Associate Director of the Center for Business Law and Regulation. the available empirical evidence cannot sustain the claim that interjurisdictional competition produces suboptimally lax environmental regulation. If a federal standard prevents competition in environmental standards. states will compete in other areas. is the dominant role of homeowners in local politics. In short. Moreover. if the race-to-the-bottom argument can justify federal environmental standards.

If states cannot compete over environmental regulation because it has been federalized. leading to the underprovision of public goods. leading to suboptimally lax standards in other areas. 12/97. they will compete along other regulatory dimensions. “THE LAW AND ECONOMICS OF FEDERALISM: The Race to the Bottom and Federal Environmental Regulation: A Response to Critics” Fourth. federal environmental regulation would not necessarily improve the situation. or along the fiscal dimension. the reduction in social welfare implicit in race-to-the-bottom arguments would not be eliminated merely by federalizing environmental regulation: the federalization of all regulatory and fiscal decisions would be necessary to solve the problem. New York University School of Law. Professor of Law. Revesz. 16 . Thus.Titan Summer Debate Institute 16 Richard L. I argue that even if states systematically enacted suboptimally lax environmental standards.

Heritage Foundation. Virginia proves Becky Norton Dunlop. September 20. after Governor Allen initiated the Silicon Dominion and we brought new industries and thousands of new jobs to Virginia. Vice President for External Relations. It also gave other states the option of choosing either national or California standards. Lee Distinguished Professorship in Business Ethics at University of California Berkeley. “Trading Up: Consumer and Environmental Regulation in a Global Economy” The California effect can be seen literally in the history of American automobile emission standards. Consequently its standards remained stricter than those of any other state. Thus. Federalism Project Roundtable on Environmental Policy. In 1994 twelve eastern states requested that the federal government permit them to adopt California’s new standards. Solomon P.org/masterpages/environment/Transcript. California has now had America’s strictest automotive pollution control standards for more than three decades. in the sense of jobs and opportunities for citizens. These standards in turn are likely to become the basis for the next round of minimum federal requirements. people want a cleaner environment. Jonathan H. The 1970 Clean Air Act Amendments specifically permitted California the option of enacting stricter emissions standards than those required for the rest of the United States. In 1990.Titan Summer Debate Institute 17 General—A2 Race to the Bottom—X Empirics California proves race to the top David Vogel.pdf [Alex KatsRubin] With respect to the race to the bottom. in the case of automobile emissions precisely the opposite has occurred: California has helped make American mobile emissions standards steadily stronger. We often saw this in Virginia. Congress brought national emission standards up to California’s and once again permitted California to impose stricter standards. I think history has demonstrated empirically that what we have out there is a race to the top. Where were opportunities to develop? When these new citizens came to the Commonwealth of Virginia. Adler on Let 50 Flowers Bloom: Transforming the States into Laboratories of Environmental Policy. One of the issues on which my department worked very closely with economic development was the environmental situation. 2001. They want to be able to have a community that they are proud and happy to live in. As our citizens grow wealthier and there is more economic prosperity and development. American Enterprise Institute. 1995. instead of states with laxer standards undermining those with stricter ones. Wealthier is healthier. one that is flourishing not only economically but also environmentally. what was available to them from an environmental standpoint? 17 .federalismproject. an option which California chose. http://www.

Cornell University School of Law.142 Moreover.139 Governor Schwarzenegger emphasized that California’s climate change initiatives will not just impose economic costs. different localities are likely to have different preferences and concerns. “CONSTRUCTING A NEW FEDERALISM: JURISDICTIONAL COMPETENCE AND COMPETITION: ENVIRONMENTAL REGULATION: Externalities and the Matching Principle: The Case for Reallocating Environmental Regulatory Authority There are several reasons why local governments should be permitted to address environmental issues that have a primarily localized impact. at a later point. the centralized. and Litigation Initiatives?”. they could also create economic opportunities for companies investing in new technologies. 18 . For example.143 Competition encourages a race to the top Henry N. California businesses will become the exporters of cutting-edge technology. States may be taking more action than expected under a race to the bottom model because of the perceived economic benefits of taking early action. rather than. J. DuPratt White Professor of Law. Local control over environmental issues would permit this. Butler and Jonathan R. Finally. some communities might prefer to trade-off environmental quality for more employment or greater revenue. Some states may hope to benefit their agricultural sectors through supporting biofuels or carbon sequestration. and if California regulates sooner rather than later. Devra Wang. local control is beneficial because state and local governments will engage in healthy competition along a number of vectors. Macey. First. They will compete to attract new business. Some states may thus be racing to the top—racing to develop their response to climate change—rather than racing to the bottom.141 Others may seek more reliable and secure energy supplies through renewable portfolio standards that draw on a diverse set of local energy sources. States have additional economic justifications for taking climate change measures. the Director of the California Energy Program at the Natural Resources Defense Council and one of the original architects of AB 32. Distinguished Teaching Professor of Law and Economics at University of Kansas Law and Business. monopolistic command-and-control apparatus of the federal government does not offer citizens the benefits of competition. University of San Francisco Law Review. energy-efficiency requirements could provide states with net economic benefits. 2007. rational local officials will compete at the national level to obtain wealth transfers from other localities. stressed the economic benefits to California of leading the way in climate change reductions. 96. Reduction requirements are inevitable. Every locality will consume resources lobbying for environmental policies that produce local benefits. University of San Francisco School of Law. having to import innovations developed in other states. State.Titan Summer Debate Institute 18 General—A2 Race to the Bottom—X Econ Benefits Economic benefits are widely perceived Alice Kaswan. they will compete for jobs and revenues. Decentralized government through a federalist system is far more responsive to local needs and concerns.140 At the conference. where local decision-making authority is replaced by federal regulators. regardless of the consequences for the nation as a whole. and they will compete to offer residents better environmental quality. “The Domestic Response to Global Climate Change: What Role for Federal. Second. By contrast.

the race-to-the-bottom rationale underlies much of the federal environmental statutes. The interest group problem is more acute at the federal level than at the state level due to the lack of competition among regulators at the national n43 level. Butler and Jonathan R. The race-tothe-bottom justification for federal intervention. n44 19 . Macey. with logrolling for environmental votes with votes on totally unrelated issues. the race-to-the-bottom rationale for federal government domination of environmental regulation is based on the assumption that the federal government in practice can do a better job at regulating than the state governments. “CONSTRUCTING A NEW FEDERALISM: JURISDICTIONAL COMPETENCE AND COMPETITION: ENVIRONMENTAL REGULATION: Externalities and the Matching Principle: The Case for Reallocating Environmental Regulatory Authority Finally. while critical of state political processes. DuPratt White Professor of Law. J. There are strong reasons to believe that this assumption is wrong. Unfortunately. ignores the problem of interest group domination of the legislative process in Washington. there are numerous reasons to believe that the Washington political market reflects its own regulatory common pool problem. 96. Cornell University School of Law.Titan Summer Debate Institute 19 General—A2 Race to the Bottom—X Fed Fails Interest groups prevent federal sovlency Henry N. Distinguished Teaching Professor of Law and Economics at University of Kansas Law and Business. On the other hand.

Similarly. While this requires more effort at the outset than closed. by CCS President Thomas D. as a result of strong new consensus forged within the process. internal processes. and decision criteria to guide the decision process. as well as an understanding of cost variables that can be managed to address potential conflicts. parameters. Peterson and Adam Z. Recommendations resulting from open. the Connecticut Climate Change Stakeholder Dialog produced 55 recommendations to meet goals of the New England Governors/Eastern Canadian Premiere’s agreement following an extensive series of working group discussions. it has Sound. Puget lower costs in the long term. the benefits of a uniform regional approach is likely to outweigh the benefits of particular "pockets" of less stringent regulation. RI).us/ewebeditpro/items/O25F17701.J. 54. Envtl. if not participation. 14 N. AG) A regional approach should also lead to greater emissions reductions because it is more likely to employ a uniform approach to regulation. in turn. These states are in the process of implementing many of these recommendations today. stakeholder meetings. The degree of public involvement has varied. and negotiated agreements. but the trend is clearly toward open process with full public observation. including legislative action. RI) and lead to higher levels of comfort and credibility of results (CT. March 26. overcome industry resistance to greenhouse gas regulation. Such greater uniformity may. PS. The process of achieving technical consensus on the range and viability of options. Arizona (Kirsten. Typically stakeholder groups are augmented with technical experts through sector based subgroups (technical work groups) responsible for evaluating mitigation options.U.climatestrategies. L.S. Direct involvement of stakeholders in advisory processes builds their interests and expertise into policy design and implementation decisions. and the climate stakeholder dialog in Rhode Island resulted in 52 consensus recommendations to meet the same goal. Even assuming such regulation will impose unwanted costs.Y. Energy Policy 34 (5). the Maine climate change process resulted in 54 recommendations from stakeholders. Similarly.pdf [Alex Kats-Rubin] U. Guidance from technical work groups to stakeholders provides stakeholders the ability to identify a full range of policy options and policy design alternatives.Titan Summer Debate Institute 20 General—A2 Biz Con Turn Uniform multi-state action overcomes industry opposition Engel 5 – law prof. quantitative and highly participatory processes are generally broader and more aggressive than closed processes. state climate planning processes now typically involve some form of stakeholder dialog with technical and facilitation support provided by consultants working with agency staff. Stakeholders are typically representative of all emitter sectors as well as environmental groups and government. and methods for their evaluation. Energy industries are well represented. Rose.S. to the extent the industry does business in more than one state within a region. particularly when conducted with explicit goals. typically resolves many of the differences between opposing stakeholder views (CT. For instance. These have been primarily nonbinding advisory processes lead by the executive branch at the cabinet level. State-level involvement of industry dialogue endures confidence Reducing Conflicts Between Climate Policy and Energy Policy in the U. ME. ME. 20 . the opportunity to join in a more uniform regional approach may overcome political resistance to greenhouse gas regulation within the participating states by rendering such [*70] programs the regional "norm" against which nonaction might be seen as the aberrant regulatory response.: The Important Role of States. 2006 http://www.

but also of a growing number of other states.66 The Court turned to evidence of a “national consensus” in applying its evolving standards of decency test to declare that executing juveniles is cruel and unusual punishment. However. on the fact that. the Court has recognized the shifting tide of public consensus through state laws as a key factor in steering its constitutional course. the Court upheld Georgia’s antisodomy law. in Bowers v. Environmental Law and Policy Center.”63 The Court noted an “emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex. There are strong analogs from the Supreme Court’s consideration of emerging consensuses of state actions and views in evaluating constitutional rights. involving a court’s best guess of Congress’s intent. 100 Nw. which reflects the will of the citizens not only of one particular state. the Court overruled Bowers in striking down Texas’s similar law. Implied preemption is a fuzzy concept. the Court overturned its previous ruling in Wolf v. Moreover. Congress would be “on notice” of the potential federal. Ohio decision. U. leads to the determinative “national consensus. it is much more difficult to contend that the federal government has occupied the field in that area. In Roper v. if Congress enacts legislation that comprehensively addresses global climate change problems or requires reductions in carbon dioxide pollution from cars after a dozen states or more have already taken legislative or administrative regulatory actions moving in the same direction? The rationale for a clear statement preemption rule should apply with greater force in circumstances involving a backdrop of clearly trending state actions.L. Congress. then. upholding the state law. When there is an emerging consensus of states acting in an area of environmental policy. can always explicitly choose to enact exclusive federal standards no matter how many states have acted. What should happen. to limit mercury pollution from coal plants or to require utilities to buy and supply an increasing percentage of electricity generated by renewable energy resources.65 Likewise. Colorado57 and enforced the exclusionary rule against the states through the Fourteenth Amendment.”64 The Court relied on state law—as well as the degree to which state law is or is not enforced in reality—as the yardstick of this emerging awareness of privacy rights. of which 4 enforce their laws only against homosexual conduct.” which controls along with the Court’s own “independent judgment. yes. in the absence of explicit federal preemption. 1 649.’”68 To be sure. but the consistency of the direction of change.58 The Court’s ruling was based. and allowing baseline federal and stronger state laws to coexist—does less violence to both laws and is consistent with the presumption against preemption.59 The Court exhaustively cited the statutory provisions of the twenty-three states that had passed legislation attempting to control invasions of the right to privacy in the search and seizure context. the Court looked to both the number of states that prohibit the death penalty in particular circumstances and the rate at which states adopted prohibitions against the execution of particular classes of individuals. Rev. http://www.pdf. the number of states that have moved to act in a given area and the direction of that movement are relevant to a court’s determination of whether there is an implied conflict between federal and state laws. CONCLUSION 21 . how the states’ views are emerging and trending. in both the Roper and Lawrence cases. should that consensus affect the preemption analysis? In a word.67 To derive its objective view of whether there is such a “national consensus” in Eighth Amendment jurisprudence. For example.62 Part of the Court’s reasoning in Lawrence turned on the clear direction in which states were heading on this issue: “The 25 States with laws prohibiting relevant conduct referenced in the Bowers decision are reduced now to 13. there is much less justification for courts to rule that there is an “implied” conflict between federal and state laws. the Court has looked to the emerging consensus of state decisions. in Eighth Amendment jurisprudence. Texas. in Fourth Amendment jurisprudence involving search and seizure actions. the approach suggested here—defeating claims of implied preemption of state environmental laws that are part of an emerging consensus. for example. more than half of those states had since wholly or partially adopted the exclusionary rule by legislative or judicial decision.edu/lawreview/v102/n2/649/LR102n2Learner. in part. Thus. subject to Commerce Clause and Tenth and Eleventh Amendment limitations. law prof at Northwestern (Howard. the Court pointed out that thirty states prohibited application of the death penalty to juveniles.” Emerging trends matter in the preemption context as well. That is a more tenuous basis for overturning a state law.state conflicts and could resolve any uncertainty regarding the preemptive effect of the federal law by clearly stating its intent. Simmons. For example. the Supreme Court was asked to strike down a state law that was contrary to the emerging consensus of states interpreting the constitutional principle at issue.Titan Summer Debate Institute 21 General—A2 Pre-emption Uniform fifty-state action serves as a national concusses that limits federal preemption— courts will defer to the states Learner 8 – Executive Director. The clear statement rule allows for creativity in state environmental policies while maintaining a national environmental protection floor.60 Substantive due process provides another example of constitutional standards that reflect an emerging consensus of state actions. combined with the growing number of states acting. AG) When there is an emerging consensus of states acting. Hardwick. while nearly two-thirds of states opposed the use of the exclusionary rule at the time that Wolf was decided.69 Therefore. In the landmark Mapp v. When it comes to the Supremacy Clause and preemption analysis.70 By contrast. in Lawrence v.law. and where there is an emerging consensus of state action. The Court stated that “‘[i]t is not so much the number of these States that is significant.61 Seventeen years later. the Court set forth an “evolving standards of decency” test to determine whether a punishment is “cruel and unusual” in violation of the Eighth Amendment.northwestern.

22 . and follows a legal approach adopted by the Supreme Court in adjudicating constitutional rights. Applying the clear statement rule when there is an emerging consensus of state environmental actions in a similar stronger direction restrains preemption. too late. is backed by sound policies respecting both federal and state roles. In the first years of the twentyfirst century.Titan Summer Debate Institute 22 Cooperative federalism allows room for both federal and state actions to achieve environmental protection goals. states have stepped up to act in robust ways to achieve environmental progress while the federal government has refrained from acting or has done so in ways perceived to be too little.

23 . it is constitutional for states to react to risks of global warming. the states were "laboratories where new and creative ideas and methods can be applied and shared with others and inform federal policy." n151 In the Administration's chief negotiator's view. AG) Ironically.[*81] up approach to addressing climate change. The Administration does not view the state efforts as contrary to the national interest. implied preemption will be limited to those areas where Congress has actually left no room for supplementary state regulation. until the federal government acts definitively and comprehensively. in the absence of comprehensive federal legislation addressing climate change. by declaring that the multitude of state and local initiatives demonstrate that "there is a broad effort going on in the United States on many levels to address global climate change. So." n152 Although some people criticize the Administration for hiding behind state actions to mollify international critics of federal hostility towards global warming policy. and Brian S. L.Titan Summer Debate Institute 23 General—A2 Pre-emption Federal government supports state initiatives more that federal action Hodas 3 – law prof. Congress has not expressly preempted state action regarding climate change initiatives. Biering. “Massachusetts vs. 53. Finally. Lexis At this juncture. 08. except. No preemption—there’s no explicit federal initiatives now Raymond A. EPA: Rescuing Icarus with Environmental Federalism” U Oregon Journal of Environmental Law and Litigation. Further. indeed. former Executive Fellow in the California Resources Agency. the federal government responded to the "withering" international criticism of its failure to act on global warming. perhaps." which both federal officials and industry groups believe "is in the best federalist tradition. 21 Pace Envtl. from all constitutional perspectives. but. at least the Administration's federalism approach supports existing. Counsel for the San Luis Obispo County Air Pollution Control District. or to think globally but act locally. Widener (David. a truly bottom. the states' initiatives. Biering. state and local innovations. to be in the nation's interest. in the context of limited areas like vehicular fuels. both regulatory and voluntary. Rev. and encourages future. are not yet conflicting with federal law.

say. States avoid political fights Rabe. multipollutant strategies that include carbon dioxide are being woven into new air quality strategies in multiple states. 1091. p 22) But this is not what occurred in the states examined in this study. At the same time. these states have generally been able to enact these new policies without the kind of divisiveness that either precludes most federal policies or clouds their implementation with likely legal and political battles. [Alex Kats-Rubin] For example. “Statehouse and Greenhouse. collectively responsible for more than 40 percent of total national greenhouse gas emissions. and they are now being implemented in fifteen other states (see table 2-1).” 2004. renewables portfolio standards have clearly triggered a dramatic increase in the use of renewable energy in Texas. Brooking Institute. Pg 150-151. Statehouse and Greenhouse. Contrary to the kinds of political brawls so common in debates about climate change policy at national and international venues. 64 Alb. and mini carbon taxes through social-benefit charges to fund energy efficiency and renewable-energy projects. often officials employed in state government agencies. with our small and agile offices operating below the national political radar.Titan Summer Debate Institute 24 General—Politics NB State action avoids national controversy Rabe 4 (Barry. an approach that appears likely to spread to other states in future years. been far more productive in terms of generating actual policies with the potential to reduce greenhouse gas releases. moreover. These entrepreneurs. These entrepreneurs have tailored policies to the political and economic realities of their particular setting and have built coalitions that seem almost unthinkable when weighed against the past decade of federal-level experience. Until the 2002 legislation that set California on a path to establish carbon dioxide emission standards for vehicles. L. It has. often cutting across traditional partisan and interest group fissures. State action is insulated from politics Celli 1 – Chief of the Civil Rights Bureau. Barry George. however. when the pace of innovation has accelerated and the intent of many policies has been more far-reaching. often officials employed in state government agencies. like me and like Peter Lehner. a much quieter process of policy formation has emerged. Perhaps most surprisingly. that we can use these federal laws in creative and aggressive ways and perhaps in a way that is insulated from the kinds of political pressure that. They have helped make possible a series of diverse policy experiments that can now be examined carefully as they move into more advanced stages of policy implementation 24 . This is not to suggest that climate-related episodes have been irrelevant or that leading environmental groups have played no role in state policy development. statebased policymaking has been far less visible and contentious. Rev. the state experience in developing climate change initiatives has generally been bipartisan and consensual. Instead. the Civil Rights Division of the Justice Department faces. This has reflected a process of careful policy development by policy entrepreneurs. even during more recent years. AG) I also saw that state enforcement officers. sequestration of carbon from agricultural and forestry reforms. Still other states are attempting such incentives as methane recapture from landfills. New York State Attorney General's Office (Andrew. detailed reporting of carbon dioxide releases to guide next stages in policy development.

elected officials increasingly deferred to the judiciary for resolution. Leg. the courts offer politicians the opportunity to deflect issues potentially disruptive to partisan debate. AG) Consistent with Jonathan Casper's finding that the judiciary [*130] announces "policies that other state and federal institutions are unwilling or unable to promulgate. 11 USAFA J. gender equity and social lifestyles. the two major parties remained divided over New Deal economic issues.Titan Summer Debate Institute 25 General—Politics NB—A2 Lopez Courts Link Courts don’t link to politics Intoccia 1 (Gregory. preferring instead that the judiciary decide whether to eliminate abortion restrictions. many mainstream politicians sought to avoid debate on a number of non-economic social issues. In the mid-1960s. race. judicial policy on abortion suggests that this principle is valid." 18 the most plausible explanation for increased judicial involvement in social policies is that mainstream politicians encourage judicial policy-making as a means of removing from partisan debate issues that cut across existing party lines. but to a lesser degree. As the judiciary is a non-partisan institution that has traditionally resolved specific controversies. Wade. As the debate over such issues as abortion intensified. At that time. 25 . many politicians sought to remove themselves from the potential fall-out of a legislative solution to the abortion question. Stud. For example. but voters were increasingly interested in other issues such as law and order. the majority Democratic Party was divided between liberals who were attracted to new views of social lifestyles and traditionalists who condemned them. For at least a decade prior to the Supreme Court's abortion decision in Roe v. Elected politicians appear to "pass the buck" to the judiciary when an issue divides the electorate in a manner that is not in keeping with conventional party divisions. Wade decision. 20 In the months prior to the Roe v. While the two parties primarily debated economic issues. The Republican Party was also divided internally over these issues. 127. 19 many mainstream politicians generally sought to avoid the abortion issue.

26 . would be the development of technology that “could render the internal combustion engine obsolete. entitled Next Energy. One of its primary goals.” In his announcement. In April 2002 he announced plans to create a major state center for energy research.Titan Summer Debate Institute 26 General—A2 State Budget DA No tradeoff—States will go into deficit spending if needed Rabe 4 [Barry G. Pg 44] Even some Michigan –based members of the auto industry began to shift policy gears on this issue. In response. Statehouse and Greenhouse. as did a number of other large manufactures based in the state..” he acknowledged that this initiative could produce both environmental and economic benefits for Michigan. most notably the Ford Motor Company. Despite the fiscal shortfall of more than $1 billion the state faced. DC. Michigan began to be singled out as being behind the curve on a host of environmental protection issues as the Engler administration neared the end of its final term. Engler closed his three terms as governor with an about face of sorts on greenhouse gases. Although he attempted to differentiate his approach from the “kind of ruinous policy Gore was advocating. Washington. 2004. Brookings Institution Press. Engler proposed an initial commitment of $50 million to launch the center. Engler spoke favorably of longterm alternatives such as hydrogen fuel cells and hybrid engines and said he wanted to make sure Michigan industries were on the cutting edge in developing these new technologies. he noted.

J.Y. 54. Uniform action saves political capital Engel 5 – law prof. L. Arizona (Kirsten. 27 .U.Y. AG) Similarly. 54. at least demonstrating that they are doing as much as neighboring jurisdictions on the matter. Politicians may be able to satisfy constituencies concerned about climate change by joining a regional group. without risking the political capital involved in adopting their own program to address climate change.U.Titan Summer Debate Institute 27 General—A2 State Tix DA Uniform action overcomes political resistance Engel 5 – law prof. Hence. 14 N. AG) The prediction that a regional arrangement will result in greater greenhouse gas reductions is also supported by assumptions regarding the political calculus of state and local politicians. politicians may take action on climate change in the context of a regional arrangement where they would not if their only option was the unilateral adoption of a climate change mitigation program.J. Arizona (Kirsten. 14 N. the opportunity to join in a more uniform regional approach may overcome political resistance to greenhouse gas regulation within the participating states by rendering such [*70] programs the regional "norm" against which nonaction might be seen as the aberrant regulatory response. Envtl. L. Envtl.

& Litig. L. to state lawmakers who 28 . AG) First. or whether the field should be simply left to the federal government to address in its own time. 66 U. they should be prepared against possible mechanisms -Reject argument not team Uniformity is real world Ribstein 95 – law prof. NCCUSL can provide drafting and screening services.Titan Summer Debate Institute 28 General—State Fiat Good State fiat is justified— -Best policy—tests “federal government” in the resolution—desirability of policy is inseparable from actor -Neg ground—checks tiny affs with no federal defense -Education—threat of these debates limits number of affs. increasing in-depth research on heart of the topic—federalism disads alone don’t narrow the debate enough Biering 8 – former Executive Fellow in the California Resources Agency (Brian. 23 J. George Mason Larry and Bruce Kobayashi. Rev. thereby performing a model function. -Solvency advocates check—breadth of comparative literature contrasting competing approaches provides sufficient aff ground -Reciprocal—they fiat each Congressperson votes for the plan and that local agencies enforce it -Aff ground—they can read disad to states or impact turn -No infinite regress—“in the US” in the topic means there’s only a few domestic government actors -Not object fiat—the object of the resolution is the incentives—proves states are the relevant actors -Fiating out of rollback key to neg flex and to check infinite aff prep—we have a right to this ground. 35. the fundamental question policymakers need to resolve is whether it is more appropriate for the states to act now in the area of climate change. L. Envtl. 947. NCCUSL Second. Colo. AG) Federalism issues aside. particularly cannot internalize the high costs of these activities. can serve as a coordinator and focal point to achieve uniformity of state law.

A. Sarah J Farley.. candidate. n201 Moreover. . Spanish & Portuguese Studies. Congress has tried harder. Seattle University School of Law. not a federal matter. In doing so. In fact. contends that if Congress does not act.. B. .Titan Summer Debate Institute 29 A2: Narrow commerce clause BAD The counterplan has no broad affect on the commerce clause – the court ruling will be narrow. this did not compel Congress to stop trying to pass laws pursuant to its power under the Commerce Clause. n200 He argues that it would take decades for courts to definitively determine the general validity of the tax incentives that exist in practically every state. L. The above decisions emphasized the Federalist belief that the prosecutions of criminals are a state matter. University of Washington.D. 707. “Gonzalez v. judicial uncertainty and inconsistency will continue to undermine the legitimacy of state tax incentives. the Court diluted Congress’s Commerce Clause power. n202 Touching upon this very point almost fifty years ago. . Congress alone can provide for a full and thorough canvassing of the multitudinous and intricate factors which compose the problem of the taxing freedom of the States and the needed limits on such state taxing power. this Court can only act negatively. it is unlikely that this would lead to a comprehensive resolution of the issue: the Court typically confines its decisions to the facts of individual cases. Daniel A. . Candidate. Brownt. 31 Seattle Univ. J. thereby avoiding questions closely related to those presented in the case before it. R.D. even if the Court were to choose to squarely address the question. it can determine whether a specific state tax is imposed in violation of the Commerce Clause. 2005. . another prominent tax authority. the Supreme Court protected the constitutionally drawn boundaries between the states’ police power and the federal government’s ability to regulate interstate commerce. However. Spring 2008 Yet inaction by Congress would unquestionably have profound effects. . 2007 @ Seton Hall University School of Law. Raich and the Federal Child Pornography Statutes: Balancing the Commerce Clause and State Sovereignty” 2006 Through Lopez and Morrison. 2008. 29 . Justice Frankfurter wrote: At best. Professor Hellerstein. thereby leaving the validity of state tax incentives to the mercy of existing Commerce Clause jurisprudence. n203 The counterplan will not affect future congressional actions. J.

Sidley Austin LLP.acslaw. indeed. overruled a Warren Court decision only eight years old. also discussed above. These repeated failures to formulate durable doctrinal solutions reflect deeper incoherence and inconsistency in the theoretical underpinnings of the Court’s federalism efforts. explained that the “attempt to draw the boundaries of state regulatory immunity in terms of ‘traditional governmental function’” had spawned so much confusion as to be “unworkable. In 1976. a fools’ errand from the get-go. Pepperdine University School of Law. of which the National League of Cities-Garcia and Lopez-Raich fiascos are only the most widely noted. United States.? Did the Roberts Hearings Junk the Rehnquist Court’s “Federalism” Revolution?" January 2006 http://www. almost precisely as fast as the Lopez-Raich turnabout. Indeed.I. the font of effectively unconstrained congressional power is a decision by Chief Justice Rehnquist himself.82 Writing for the Court. like its predecessor. with then. didn’t work because some allies soon concluded that it couldn’t work." The majority did not. in National League of Cities v.org/pdf/SL_Roberts_Federalism. n111 To achieve this delicate balance. Winter 2005 The Lopez and Morrison opinions built upon the logically unassailable premise that. Justice Blackmun. the Court usefully redirected its attention to the pertinent constitutional language. this foundational weakness has led to multiple reversals and anomalies in “federalism” line-drawing exercises. the bold venture on which Rehnquist persuaded his four colleagues to embark in 1995 simply repackaged an idea that. which speaks of "commerce" that occurs "among the several States.86 Another.. the Court creatively reinterpreted its precedent as revealing three general limits on Congress. This failure resulted from the Court's conflicting desire to keep all its cases intact. the Court junked this states’ rights initiative and overruled National League of Cities.Titan Summer Debate Institute 30 A2: Narrow commerce clause BAD Procedural word games by the Morrison majority make inconsistent rulings inevitable. n109 Furthermore. Public Policy Counsel to the National Senior Citizens Law Center. and declared state and local government agencies that performed “traditional governmental functions” immune from federal minimum wage and maximum hour requirements. Clarity on the commerce clause will never happen – uniqueness is impossible. in our constitutional system of limited and enumerated powers. the task may simply have been undoable. and his and the Court’s persistent refusal to apply similar reasoning to constrain spending-clause authority – an area where. Simon Lazarus. however. Condon85 from Justice Scalia’s thunderous 1997 ukase against federal “commandeering” of state agencies and officials in Printz v. Pushaw Jr. Rev. 9 Lewis & Clark L.Associate Justice Rehnquist writing the opinion. post-World War II universe. simply.81 Nine years later. Despite contemporaneous favorable reviews by prominent academic conservatives of the value of Rehnquist’s Lopez enterprise of establishing judicially enforceable state/ federal boundaries. and Senior Counsel. James Wilson Endowed Professor. n110 but to avoid their plain implication: that Congress has plenary power under the Commerce Clause.87 30 .84 the undertaking was.”83 From this perspective. the Commerce Clause cannot be interpreted in a way that effectively leaves Congress with absolute discretion. who had concurred in the 1976 Garcia decision. Usery. the Burger Court. One example is the Rehnquist Court’s 2000 retreat in Reno v. Robert J. Still another was the similar disconnect between with Rehnquist’ proclamation in Lopez of categorical limits on Congress’ Commerce Clause authority. is the longstanding disconnect between the Court’s hospitality to Supremacy Clause “preemption”-based suits against state and local governments – usually brought by or on behalf of businesses – and its hostility to Fourteenth Amendment-based private civil actions and §1983 suits generally – usually brought by or on behalf of traditional civil rights plaintiffs or entitlement beneficiaries. "FEDERALISM R.pdf To begin with. 879.P. The Rehnquist Court’s Lopez-Raich 180° was not the first failed attempt to draw judicially manageable boundaries between federal and state spheres in the post-New Deal. define those terms in a legally precise way.

then. James Wilson Endowed Professor. Rev.Titan Summer Debate Institute 31 A2: Narrow commerce clause BAD Court consistency regarding Morrison is impossible – the standards Morrison established can and will be used to tear legislation apart or be applied at random. n133 Finally. if the Court so desired. 31 . Pepperdine University School of Law. who are perceived as skeptical of environmental laws. Pushaw Jr. the conservative Justices could invoke the standards of Lopez and Morrison to tear down major legislation that previously had been upheld. this methodology would lead to inconsistent results that could easily be characterized as driven by politics or ideology. like the prohibition on carjacking). Winter 2005 At bottom.." did not "substantially" affect interstate commerce. 879. proceeding on a case-by-case basis with no clear pattern. several scholars suggested that Lopez and Morrison were arbitrary decisions motivated by five Republican Justices' antipathy toward liberal laws that limited gun possession and that expanded women's rights. n128 That accusation gained credence when the same five Justices. conservative Justices might be more inclined to uphold federal statutes which implement policies they support. n127 Indeed. n126 First. n130 Second. its decision to apply three vague standards on a caseby-case basis would have two negative consequences. such as that concerning civil rights and the environment. and were historically of "state" rather than "national" concern. it could easily cabin Lopez and Morrison to the trendy and largely symbolic laws at issue in those cases (perhaps adding some similar recent "feel [*897]good" federal statutes. n131 On the one hand. 9 Lewis & Clark L. cast doubt on Congress's power to regulate certain aspects of water pollution. n129 Conversely. Robert J. Lopez and Morrison rest upon the subjective conclusion of five Justices that certain activities were not "commercial. Professor Nelson and I predicted that such common law development of malleable standards would prove inadequate in the long run to sustain genuine doctrinal reform. Grant Nelson and I have long argued that. although the Court reached correct results in Lopez and Morrison. such as tough criminal laws and bans on partial-birth abortion. and relatedly. n132 On the other hand. the Court could steer a middle path.

suggesting the Court's majority was serious about the Commerce Clause. the Court struck down a provision of the Age Discrimination in Employment Act of 1967 that enabled state employees to sue states. Winter 2005 Lopez at least raised the possibility that federal courts would actively police the boundaries of federal power and stem the centralization of governmental authority. This opinion While modest in scope. Associate Professor and Associate Director. In Kimel v. n54 Doctrinally. the Court noted that it had "upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature. tentative decision. even under the Fourteenth Amendment. Unlike in Lopez.United States v. n57 but it can provide courts with a basis upon which to construe a statute so as to keep it within constitutional limits. n21 Lopez represented the first time in nearly sixty years that the Court struck down a statute as exceeding Congress's power under the Commerce Clause. 751. n20 The Morrison decision is especially significant because it reaffirms the case that started it all . particularly if the effect is not obvious. would require more than a single. Building on the prior decision's framework. however. the Court continued to enforce federalism limitations with a vengeance. n59 As with a jurisdictional element. n63 32 .Titan Summer Debate Institute 32 A2: Lopez bad US v. Robert Knowles. Morrison – these arguments are not unique. The Supreme Court would need to extend the doctrine in order to entrench it. n58 Third is whether Congress adopted legislative findings regarding the regulated activity's alleged substantial effect on interstate commerce. is the economic or commercial nature of the activity in question.establishing a causal chain that could connect nearly any conceivable activity to commerce . Rev." n55 Second is whether Congress included a jurisdictional element in the challenged statute that can serve to [*760] "limit its reach to a discrete set" of activities that substantially affect commerce. the Morrison majority identified four factors for courts to consider in determining whether a given activity "substantially affects" interstate commerce. Morrison invalidated provisions of federal law Congress sought to enact explicitly pursuant to the Commerce Clause power. Morrison. n60 but the adoption of such findings can assist a court in identifying a given activity's effect on interstate commerce. the adoption of legislative findings does not ensure a statute's constitutionality.terms. n61 The fourth and final factor is the nexus between the regulated activity and the alleged substantial effect on interstate commerce. “notes & comments: starbucks and the new federalism: the court’s answer to globalization” 95 Nw. the same five Justice majority appeared to take this step by striking down provisions of the Violence Against Women Act (VAWA) in United States v. Lopez. George Mason University School of Law. Morrison was the real breakthrough for enumerated powers jurisprudence. Adler.the statute would not pass muster." n62 If establishing an effect on commerce required piling inference upon inference . Rev. Center for Business Law & Regulation. n19 In United States v. Case Western Reserve University School of Law. expressed Commerce Clause doctrine in more resolute . Visiting Associate Professor of Law. First and foremost. holding that Congress lacked the power to abrogate state sovereign immunity. n56 Such a jurisdictional element does not ensure a statute's constitutionality. Morrison. 735 Winter 2001 In 2000. there was little sign any justice in the majority had any hesitation about striking down VAWA's provision providing a civil remedy in federal court for a "crime of violence motivated by gender. which created a cause of action in federal courts for crimes of violence motivated by gender.L. Lewis & Clark L. Of particular concern to the Court here is that to accept highly attenuated connections of this type between intrastate activities and interstate commerce as the basis for Commerce Clause jurisdiction would make the courts "hard pressed to posit any activity by an individual that Congress is without power to regulate. U. Morrison upheld Lopez more significantly than the counterplan would." n53 There was no concurrence threatening to narrow the decision's reach." n51 Five years after Lopez. Jonathan H. n49 To do so. n52 While most associate the reinvigoration of Commerce Clause scrutiny with Lopez. Morrison began where Lopez left off. n50 The "warning shot" would have to be followed by a "full-out broadside. Florida Board of Regents. the Court sent the message that Congress's exercise of the commerce power must correspond at least loosely with interstate commerce by striking down the Violence Against Women Act (VAWA). Without adopting an ironclad rule. n22 Lopez was locked in by US v.if not completely unqualified .

Caldeira 1986). Yet. as Johnson and Canon (1984: 194) put it: "the greater the perceived legitimacy of the Court. Spriggs. Rodgers and Bullock 1976). 1991. in which bureaucrats' support for the Court and its legitimacy declines precisely because agency decisions are overturned (see Mondak 1991. Gibson and Caldeira 1995) suggests that the Court's legitimacy influences attitudes toward the acceptance of its opinions. Since at least Dahl's (1957) discussion of the Court's legitimation power. Franklin and Kosaki 1989). its influence declines as the salience or personal relevance of and interest in an opinion rises (see Mondak 1990. September 1997 p. a possible alternative theoretical rationale for this overwhelming compliance: the institutional legitimacy of the Court. little empirical research demonstrates a link between legitimacy and actual behavioral compliance with Court opinions (but see Muir 1967. Political Research Quarterly. Since agency officials have strongly-held policy positions it seems unlikely that their perceptions of legitimacy affect compliance. UC-Davis. the opposite effect may occur. scholars have mentioned the possibility that. James F. It also seems reasonable to think that. the greater the probability that its policies will be accepted and faithfully implemented" While few studies test this hypothesis. 33 . 1994) and survey research (Gibson 1989. In fact. recent experimental research on college students (Mondak 1990. cf. however. 583 There is. moreover. these past studies do not deal with federal bureaucracies and.Titan Summer Debate Institute 33 A2: Legitimacy turn The counterplan can solve without Supreme Court credibility. Hoekstra 1995. even if legitimacy plays some role. cf.

a former U." Much in American law and society troubles the world these days. perhaps most important. the U.com/id/6857387/site/newsweek/ Once upon a time. U. They abhor the death penalty and demand broader privacy protections. Kosovo opted for a European constitution. State Department official who currently heads the international relations department at the University of Witwatersrand in Johannesburg: "We can't rely on the Americans. "TV debates and photogenic looks govern election victories. once most foreign systems reach a reasonable level of affluence. Above all.S. to ratify global human-rights treaties such as the innocuous Convention on the Rights of the Child or to endorse the International Criminal Court (coupled with the abuses at Abu Ghraib and Guantanamo) only reinforces the conviction that America's Constitution and legal system are out of step with the rest of the world. 34 . adviser to former president Vaclav Havel. All this. They got a polite hearing. Drafting a post-apartheid constitution." So it is elsewhere. says John Stremlau. contributes to the growing sense that American law. "For Europeans. unlike in American campaigns where. South Africa rejected American-style federalism in favor of a German model. he explains. or at least influence from powerful lobbies. checks and balances. a Bill of Rights. So did Germany and Japan after World War II. Nearly all countries reject the United States' right to bear arms as a quirky and dangerous anachronism.msn.Titan Summer Debate Institute 34 A2: Legitimacy impact Other countries no longer model the United States government structure. and were sent home. Pehe says. recalls the Czechs' firm decision to adopt a European-style parliamentary system with strict limits on campaigning. In the 19th and 20th centuries. says Bruce Ackerman at Yale University Law School. federalism and. "To borrow Lincoln's phrase. After American planes and bombs freed the country. Today? When nations write a new constitution. which leaders deemed appropriate for the social-welfare state they hoped to construct. as dozens have in the past two decades. Constitution was a revolutionary document. Now fledgling African democracies look to South Africa as their inspiration. they follow the Europeans in treating the provision of adequate social welfare is a basic right.S." The United States' refusal to apply the Geneva Conventions to certain terrorist suspects. countries around the world copied the document. Newsweek 1/31/2006 http://www. Jiri Pehe. It's very prone to certain kinds of corruption. When the soviets withdrew from Central Europe. South Africa is now Africa's 'last great hope'. once the world standard. they seldom look to the American model. not least in Latin America." he says." They also sought to limit the dominance of television. full of epochal innovations—free elections." The new democracies are looking for a constitution written in modern times and reflecting their progressive concerns about racial and social equality. money talks too much in American democracy.msnbc. "Europeans would not want to follow that route. constitutional experts rushed in.S. judicial review. has become "provincial.

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