Topics

Federal copyright law limits the copying of certain informational goods. But can state laws, and in particular state contract law, also do that? Until recently, the dominant approach was that they could. However, two recent Second Circuit decisions seem to suggest that only copyright law is allowed to do it. In other words, the Second Circuit assumes that copyright law is the only law that can regulate copying.

The Essay argues that the Second Circuit’s approach, while shared by several other courts, is wrong. It is in tension with the text and history of the Copyright Act and with the desirable relationship between federal IP law and state commercial law. This relationship is best described as symbiotic, but the Second Circuit has put those laws on a collision course. In doing so, the Second Circuit has ignored the practices of multiple industries and the ways in which copyright law and contract law work together. Indeed, state laws, in general, and contract law, in particular, have always regulated copying. Those rights and those contracts play a crucial role in our economy. Holding them unenforceable, as the Second Circuit did, might therefore disrupt well-established legal mechanisms without promoting identifiable federal policies.

In the area of regulatory takings, federal courts often confront issues of state law. This is because property is largely a regime of positive state law, while the Takings Clause is a federal constitutional guarantee. This Note deals with the standard of review to be applied by federal courts as to questions of state property law in the takings context. This Note explores two regulatory takings decisions by the Supreme Court—Lucas v. South Carolina Coastal Council and Stop the Beach Renourishment v. Florida Department of Environmental Protection—in which the Court conducted independent assessments of state property law. This Note argues that a more deferential standard of review, known as the fair support rule, is more appropriate for state-law issues arising in takings disputes. To arrive at this conclusion, this Note draws on principles of federalism and positivism expressed in Erie Railroad Co. v. Tompkins and by scholars in the legal process school.

Medicaid’s cooperative federalism structure gives states significant discretion to include or exclude various categories of noncitizens. This has created extreme geographic variability in noncitizens’ access to health coverage. This Article describes federalism’s role in influencing state policies on noncitizen eligibility for Medicaid and its implications for national health policy. Although there are disagreements over the extent to which public funds should be used to subsidize noncitizen health coverage, this Article reveals that decentralized policymaking on noncitizen access to Medicaid has weakened national health policy by increasing wasteful spending and exacerbating inequities in access to healthcare. It has failed to incentivize the type of state policy experimentation and replication that justifies federalism arrangements in other contexts. Rather, federalism has (1) enabled states to enact exclusionary policies that are ineffective and inhumane and (2) created barriers for states to enact inclusionary policies that advance the normative goals of health policy. This Article concludes that noncitizen access to health coverage is best addressed through centralized policymaking.

This Article contributes to scholarly conversations about federalism and healthcare by providing a case study to test the efficacy of federalism arrangements in achieving equity for those who were left behind by health reform. More broadly, it adds to the federalism literature by synthesizing insights from three fields that rarely comment on one another: health law, immigration law, and federalism theory.