Federalism

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The Patriarch and the Sovereign: The Malheur Occupations and the Hyper-Masculine Drive for Control

Issues Volume 51, Issue 3

by Courtney Irons

On January 2, 2016, a group of armed protestors seized control of the Malheur National Wildlife Refuge. The occupation followed a long tradition of resistance in western states of federal land management policy, but the members took a stricter approach to federalism than most. The group fully rejected federal sovereignty over the land, and in doing so demonstrated a particularly gendered approach to power and government.

The purpose of this Note is to explore how the occupier’s understanding of federalism relates to theories on masculinity. Drawing on statements made during the course of the occupation, news reports, and testimony during the subsequent legal proceedings, this Note will argue the occupiers’ patriarchal beliefs about masculinity influenced and informed their understanding of federalism with the belief that doing so may help us understand the growing nationalist and extremist views in conservative movements today.

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Predicated Predictions: How Federal Judges Predict Changes in State Law

Issues Volume 54, Issue 2

By Connor Clerkin

Erie v. Tompkins requires federal courts to apply state substantive law in diversity suits. In determining the content of the relevant state law, federal judges tend to rely on decisions made by the highest court of the relevant state. Yet decisions subsequent to Erie required federal judges to do more than mechanically apply prior state law decisions; rather, these judges predict how the highest court of the state would rule on the legal issue at that time, thus reducing the possibility of divergent outcomes due to forum. This rule results in the occasional federal court prediction that, if faced with a given legal issue, a state’s highest court would deviate from its previous decisions.

The purpose of this Note is to collect and analyze those cases in which federal judges predict deviations from established state law. This Note compiles and analyzes each case in which a federal court has predicted a change in state law and follows up with the subsequent state high court decision that either verified or rejected that prediction. This Note then categorizes and tallies the various analytical methods used by federal judges in making their decisions, with a table of cases and their utilized methods collected in Appendix I. First, this Note reviews the mid-century Supreme Court decisions that led to the modern predictive method and demonstrates how each federal Circuit Court utilizes that method. Next, this Note discusses problems with the predictive method addressed by scholarship and illustrated with examples from the collected cases. Finally, this Note analyzes the cases in which federal courts predict deviations from established state law and suggests that to improve the verification rate of their predictions of change, federal courts should predict such a divergence only when capable of making certain kinds of arguments.