Conflict of Laws Article

Despite Preemption: Making Labor Law in Cities and States

Vol. 124 No. 5 The preemption regime grounded in the National Labor Relations Act (NLRA) is understood to preclude state and local innovation in the field of labor law. Yet preemption doctrine has not put an end to state and local labor lawmaking. While preemption has eliminated traditional forms of labor law in cities and states, it has not prevented state and local reconstruction of the NLRA’s rules through what this Article terms “tripartite lawmaking.” The dynamic of tripartite lawmaking occurs when government actions in areas of law unrelated to labor – but of significant interest to employers – are exchanged for private agreements through which unions and employers reorder the rules of union organizing and bargaining. These tripartite political exchanges produce organizing and bargaining rules that are markedly different from the ones the federal statute provides but that are nonetheless fully enforceable as a matter of federal law.
Federalism Foreword

Federalism All the Way Down

Vol. 124 No. 1 In this Foreword, Professor Gerken argues that constitutional theories of federalism remain rooted in a sovereignty account, and they remain disconnected from the many parts of “Our Federalism” where sovereignty is not to be had. In these areas, she notes, institutional arrangements promote voice, not exit; integration, not autonomy; interdependence, not independence. Minorities do not rule separate and apart from the national system, and the power they wield is not their own. Minorities are instead part of a complex amalgam of state and local actors who administer national policy. And the power minorities wield is that of the servant, not the sovereign; the insider, not the outsider. They enjoy a muscular form of voice – the power not just to complain about national policy, but to help set it.
Local Government Article

Mobile Capital, Local Economic Regulation, and the Democratic City

Vol. 123 No. 2 This Article examines local efforts to regulate mobile capital. Despite the conventional wisdom that subnational governments cannot effectively control or redistribute capital, cities have increasingly sought to do just that. This Article describes these efforts, which include putting conditions on the entry of development dollars through contract, excluding capital through anti—chain and anti—big box store laws, and redistributing from capital to labor through local minimum wage laws and other labor-friendly legislation. The Article describes the economic and political factors that have given rise to these local regulatory efforts and assesses the viability of local regulation of mobile capital.