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Licensed Unlicensed Requires Authentication Published by De Gruyter May 14, 2013

The Upside-Down Constitution

R. Shep Melnick EMAIL logo
From the journal The Forum

Reviewed Publication:

Greve Michael The Upside-Down Constitution Cambridge Harvard University Press 2012 978-0674061910 Price: $39.95


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    Two of the most extensive and favorable reviews of the book have also voiced disagreement with some of Greve’s arguments. See Ilya Somin, “Turning Federalism Right-Side Up,” 82 Constitutional Commentary 303–323 (2012) and Robert Gasaway, “The Upside-Down Constitution,” Engage, vol. 13, #1 (2012), pp. 141–147. Much the same could be said of Michael Uhlmann’s shorter review, “Right-Side Up,” Claremont Review of Books, Summer, 2012, pp. 44–45. I should note that for several years I co-chaired a joint Boston College-American Enterprise Institute project on federalism with Greve, and receive mention in his acknowledgement as “a suitably skeptical advisor.” While I doubt I ever offered him useful advice, this review is an attempt to explain what I have learned from Greve, and why I remain “suitably skeptical” of a few of his arguments.

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    “New Deal Constitutionalism and the Unshackling of the States,” 64 University of Chicago Law Review 483 (1997); and “The Nature of Preemption,” 79 Cornell Law Review 767 (1994).

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    Erwin Chemerinsky, Enhancing Government: Federalism for the 21st Century (Stanford, 2008). Also see Robert Schapiro, Polyphonic Federalism: Toward a Protection of Fundamental Rights (Chicago, 2009).

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    Michael Greve and Jonathan Klick, “Preemption in the Rehnquist Court: A Preliminary Empirical Assessment,” 14 Supreme Court Economic Review 43 (2006).

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    For a thorough and illuminating examination of state attorney generals’ campaigns on air pollution and pharmaceuticals, see Paul Nolette, “Advancing National Policy in the Courts: The Use of Multistate Litigation by State Attorneys General.” (PhD dissertation, Boston College Department of Political Science, 2011). The best description and analysis of the tobacco litigation is Martha Derthick, Up In Smoke: From Legislation to Litigation in Tobacco Politics 3rd ed. (CQ Press, 2011).

  6. 6

    “Federalism and Health Policy,” Health Affairs, November 2005.

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    A notable exception is Edward Purcell, Brandeis and the Progressive Constitution: Erie, the Judicial Power, and the Politics of the Federal Courts in Twentieth Century America (Yale, 2000).

Published Online: 2013-05-14
Published in Print: 2013-04-01

©2013 by Walter de Gruyter Berlin Boston

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