Resume

• 2015

  Competitive Enterprise Institute

• 2012

  George Mason University School of Law

  George Mason University School of Law

  John G. Searle Scholar

  American Enterprise Institute

• 2010

  Johns Hopkins University

  Constitutional Design; Thinking Legally

  Johns Hopkins University

• 2004

  Boston College

  Teaching a graduate seminar each fall.

  Boston College

• 1993

  Competitive Enterprise Institute

  Competitive Enterprise Institute

• 1989

  Center For Individual Rights

  Center For Individual Rights

• 1981

  Ph.D.

  Government

  Telluride Association Scholarship

• 1977

  Diploma

  Political Science

  Philosophy

• 1966

  Christianeum

• Federalism

  Public Speaking

  Government

  Constitutional Law

  Public Affairs

  Legislation

  Legal Research

  Grants

  Economics

  Policy Analysis

  Commercial Litigation

  Politics

  Policy

  Litigation

  Public Policy

  Class Actions

  Political Science

  Courts

  Legal Writing

  Federal Preemption: States’ Powers

  National Interests

  ed.

  Richard A. Epstein

  When does federal law trump state law? The arcane topic of federal preemption has become the stuff of public debate and major news stories. The partisan lines are clearly drawn. On one side

  consumer advocates

  plaintiffs' attorneys

  and state officials argue that broad federal preemption claims interfere with the states' historic police power to protect their citizens against corporate misconduct. On the other side

  corporations and federal agencies maintain that preemption is a vital safeguard against unwarranted and inconsistent state interferences with the national economy and against aggressive trial lawyers and attorneys general.\n\nFierce struggles along these lines dominate the political debate

  judicial decisions

  and legal commentary in a wide range of regulatory arenas

  from financial regulation to automobile safety; from clean air laws to the regulation of telecommunications

  energy

  and other network industries; from securities law to consumer products standards; from pharmaceutical drugs to pesticides to outboard motors. In all these areas

  billions of dollars hang on regulatory nuances and arcane points of legal interpretation.\n\nThe preemption debate is also being waged in the shadow of broader

  sometimes constitutional arguments concerning the role and utility of federalism and “states' rights” in a modern

  highly mobile

  integrated economy. Legal scholars are sharply divided over both the substance of those arguments and the extent to which they should dominate economic considerations or statutory language.\n\nWhat the preemption debate needs is an examination that reflects the delicate interplay between our constitutional structure and the details of specific regulations. In this book

  Richard A. Epstein and Michael S. Greve

  two leading scholars in the field of preemption

  have assembled an exceptional group of prominent legal scholars and practicing attorneys for a probing analysis and spirited discussion of these difficult issues.

  Federal Preemption: States’ Powers

  National Interests

  ed.

  “Real” federalism

  Michael S. Greve argues

  is a federalism that promotes citizen choice and competition among the states. Far from being an anachronism in an increasingly complex society

  a regime that permits citizens to choose among competing jurisdictions

  each offering a different mixture of government services

  is uniquely suited to a country of highly mobile and increasingly sophisticated citizen-consumers.\n\nReal federalism requires effective constitutional constraints on the national government. American government lost such constraints–and hence

  real competitive federalism–some six decades ago

  when the traditional constitutional notion of “enumerated” powers collapsed in the wake of the New Deal. It will prove exceedingly difficult to reestablish constitutional constraints because so many powerful interests have acquired huge stakes in a centralized and essentially unconstrained national government.\n\nIn several important decisions (each discussed in this book)

  the United States Supreme Court has reestablished at least some federalism constraints. At the same time

  a loose coalition of “leave-us-alone” constituencies–including

  for example

  religious groups

  the term limits movement

  home school and school choice organizations

  and tax limitation initiatives–have developed a strategic interest in open

  decentralized political arrangements. Real Federalism shows that those constituencies and the Supreme Court can

  through a “virtuous cycle” of progressive accommodation and (often implicit) cooperation

  succeed in advancing federalism.\n\nReal Federalism combines a compelling

  jargon-free analysis of important legal decisions and of the Supreme Court’s role in modern American politics with a practical interest in reestablishing constitutional federalism.

  Real Federalism: Why It Matters

  How It Could Happen

  Over the course of the nation’s history

  the Constitution has been turned upside-down

  Michael Greve argues in this provocative book. The Constitution’s vision of a federalism in which local

  state

  and federal government compete to satisfy the preferences of individuals has given way to a cooperative

  cartelized federalism that enables interest groups to leverage power at every level for their own benefit. Greve traces this inversion from the Constitution’s founding through today

  dispelling much received wisdom along the way.\r\n\r\nThe Upside-Down Constitution shows how federalism’s transformation was a response to states’ demands

  not an imposition on them. From the nineteenth-century judicial elaboration of a competitive federal order

  to the New Deal transformation

  to the contemporary Supreme Court’s impoverished understanding of constitutional structure

  and the “devolution” in vogue today

  Greve describes a trend that will lead to more government and fiscal profligacy

  not less. Taking aim at both the progressive heirs of the New Deal and the vocal originalists of our own time

  The Upside-Down Constitution explains why the current fiscal crisis will soon compel a fundamental renegotiation of a new federalism grounded in constitutional principles.\r\n\r\n

  The Upside-Down Constitution

  Federalism questions are at the heart of today’s intensely controversial policy debates. From education to disaster relief to health care and insurance

  federal arrangements are failing

  and the federal structure itself has reemerged as a subject of public debate. Bloated bureaucracies defy reform and governments pursue ever-deeper debt. These debilities loom especially large in times of economic stress and widespread public disaffection.\n\nThis essay examines the sources and the scope of federalism’s failures. It provides a trenchant

  constitutionally grounded analysis with profound implications for a range of current policy debates. Federalism’s restoration requires not merely rebalancing the federal-state relationship through decentralization. Rather

  we must restore the structure of federalism to competitive federalism—which encourages states to compete to enhance freedom and economic growth—in response to the rise of cartel federalism

  which squashes competition between the states and makes states dependent on the federal government.

  Federalism and the Constitution: Competition versus Cartels

  The essays in this volume challenge the widespread belief that the government's environmental policies

  unlike those in other areas

  are drafted and implemented for the public good and genuinely seek to effect a cleaner environment. The contributors demonstrate through seven important cases that there are strong reasons to reconsider the present command and control approach to environmental policy. They argue that policies and programs are often designed to address political and economic objectives dear to power centers and interest groups. The authors seek to force a critique of present policies and programs and to contribute to the making of an environmental policy more authentically in the public's interest. To that end

  the work analyzes the role of organized interests and political institutions in environmental policies

  what their rationales may be

  and what impact they have on the public welfare.\n\nThe book provides specific case studies of clean air legislation

  biotechnology regulation

  Superfund

  pollution deadlines

  citizen suits

  and international environmental regulation. The work constitutes a most timely

  well-informed

  and persuasive argument for more reliance on other sources than just central government to reduce risk and to enhance environmental well-being.

  Environmental Politics: Public Costs

  Private Rewards

  ed.

  Richard A. Epstein

  Competition Laws in Conflict: Antitrust Jurisdiction in the Global Economy

  ed.

  Traditional notions of citizenship are linked to the idea of the democratic nation-state

  a sovereign entity capable of defending itself against foreign and domestic enemies. But these notions have become increasingly problematic as the very concept of the nation-state is challenged

  not only by ethnic and religious conflicts

  but also by increased global mobility and the political integration of nation-states into international organizations-most prominently

  the European Union. Will the concept of citizenship as we know it survive the decline of the nation-state?\n\nIn this volume

  scholars from both sides of the Atlantic consider how concepts of citizenship affect debates over immigration and assimilation

  tolerance and minority rights

  and national cohesion and civic culture. The authors explore the notion of \"constitutional patriotism

  \" which seeks to establish principles of citizenship in a middle ground between cosmopolitanism and nationalism; the theoretical and practical questions of citizenship

  including the complexities surrounding the legal status of citizenship in the European Union and the United States; the challenges of making EU citizenship \"complementary\" with national citizenship; and the issue of competing allegiances to home states and the European Union. Finally

  the authors examine the centrality of rights

  and the challenges of conflicting rights claims

  in contemporary conceptions of citizenship. To what extent―if at all―should citizens' rights and duties change as the nation-state itself changes?\n\nIn a globalizing

  post-9/11 world

  it is more important than ever to understand the future of citizenship and the nation-state. In essays that range from the pragmatic to the theoretical

  from the historical to the personal

  Citizenship in America and Europe sheds light on these crucial issues.

  Citizenship in America and Europe: Beyond the Nation-State?

  ed.

  This volume argues that environmental values no longer play a formative role in American law - a sharp and recent change. The author shows how it would be a mistake to look to the judiciary for wholesale regulatory reform: such reform can come only from Congress.

  The Demise of Environmentalism in American Law

  Consumer class actions often generate billion-dollar verdicts or settlements

  even when the plaintiffs’ class is composed entirely of individuals whose harms are purely hypothetical. Typically

  these cases proceed under broadly worded state laws against fraud

  misrepresentation

  unfair business dealing

  and the like. The plaintiffs are not required to show that they actually relied

  to their detriment

  on the defendant’s alleged misrepresentation. Consumers who were injured are explicitly excluded from the class and may obtain separate redress for their harms.\n\nSuch “harm-less lawsuits” are supported not only by trial lawyers and ideologically motivated consumer advocacy groups but also

  and somewhat perplexingly

  by a substantial body of law and economics scholarship. Class actions that encompass all possible claimants

  the theory runs

  will provide finality and efficient deterrence of wrongful corporate conduct. That view

  however

  is almost certainly mistaken. When added to existing legal protections and recovery for injured consumers

  additional actions on behalf of unharmed consumers will generate double recoveries and excessive deterrence.\n\nHarm-Less Lawsuits? describes the origins of consumer class actions and analyzes their theoretical and practical problems. It concludes that a viable reform agenda must focus not solely on courts and common law tort but rather on the statutory laws that give rise to those actions. To protect against the massive risk of excessive enforcement and deterrence

  the private enforcement of consumer protection laws should be closely tied to traditional common law requirements of detrimental reliance and loss causation.\n\nThe AEI Liability Studies examine aspects of the U.S. civil liability system central to the political debates over liability reform. The goal of the series is to contribute new empirical evidence and promising reform ideas that are commensurate to the seriousness of America’s liability problems.

  Harm-Less Lawsuits? What's Wrong with Consumer Class Actions

  Should online purchases be taxed based on the buyer’s location or the seller’s? In Sell Globally

  Tax Locally

  Michael S. Greve offers a provocative new approach to Internet sales taxation. Drawing upon his extensive background in federalism issues

  Greve argues that an origin-based tax system would break the “tax cartel” and replace it with competition–giving states a motive to lower their sales taxes as a means of enticing companies to choose their state as a base of operations.\n\nCross-border sales

  through the Internet or other channels

  are commonly taxed on the basis of their destination

  not the country or state of origin. That regime is uniformly decried as terribly complex

  burdensome

  and inefficient. It allows many Internet sales to escape taxation

  depriving governments of revenues and giving Internet retailers an unwarranted advantage over traditional industries. Most reform proposals focus on intergovernmental tax harmonization and simplification. Instead of extending a broken destination-based sales tax system to e-commerce

  Greve argues that we should tax cross-border sales on the basis of their location of origin

  not their destination. Destination-based sales tax systems invariably conflict with elementary principles of sensible taxation–simplicity

  fairness

  neutrality

  and ease of administration. An origin-based system

  in contrast

  satisfies those demands: Each cross-border sale would be taxed equally

  once

  and by a single authority.\n\nGreve discusses the flaws of destination-based taxation

  demonstrates the futility of international and national tax harmonization

  and makes the theoretical case for origin-based taxation. He concludes with practical proposals to forestall international tax harmonization and to advance an origin-based sales tax system in the United States.

  Sell Globally

  Tax Locally: Sales Tax Reform for the New Economy

  Michael

  Greve

  American Enterprise Institute