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"New Federalism" in a New Deal World: Ramifications for Civil Rights and Environmental


October 2, 2003


New York, NY

Recent Senate battles over judicial nominations have raised many questions about competing theories of statutory and constitutional interpretation. Most of the debate, however, has focused on the overt political leanings of the nominees rather than on the impact that their underlying conservative constitutional philosophies could have on our laws. “New federalist” theories have already been used to restrain the reach of the federal government, enhance the power of the states, and limit the ability of citizens to seek redress in court. They have had an enormous impact on long-standing civil rights and environmental protections, as well as a variety of other areas such as labor, copyright, and bankruptcy law.

On October 2, 2003, the Environmental Law Institute held a panel discussion, co-sponsored by the Brennan Center for Justice and the American Constitution Society, NYU Chapter. The panelists included, Sylvia Law (Professor, NYU School of Law; Co-Director, Arthur Garfield Hayes Civil Liberties Program), who provided an overview of current trends in the constitutional law of federalism; Martin Flaherty (Professor, Fordham Law School; Co-Director, Joseph R. Crowley Program in International Human Rights) who discussed the impact of these trends on civil rights cases; andJim Hecker (Environmental Enforcement Director, Trial Lawyers for Public Justice), who spoke about their application in recent environmental litigation. The panel was introduced by Ken Berlin (Partner, Skadden, Arps, Slate, Meagher & Flom and Board Chair, Environmental Law Institute), who co-moderate with J.J. Gass (Associate Counsel, Brennan Center for Justice). The discussion encompassed the theoretical implications of “new federalist” theories, the practical effects of recent court opinions that adopt a federalist approach, and pending cases in the Supreme Court and lower federal courts.

This seminar was part of the Environmental Law Institute’s Environmental Law Legacy Seminar Series, which convenes legal scholars and practitioners to explore recent and pending constitutional law decisions applicable to environmental law and the consequences of emerging legal trends for environmental protection.