Horizontal Federalism and Contemporary Constitutional Controversies

The Constitution authorizes each of the fifty states to wield identical powers. This coequality can generate interstate friction when a state’s conduct has consequences that transcend its borders. One state’s decision to pursue its interests can frustrate the interests of other states, burden nonresidents, and undermine national harmony. In theory, state borders might seem capable of restricting each state’s actions to its own territory. But in reality, borders are porous in ways that constitutional law has been ill-equipped to handle. Lines that appear formidable on a map are more akin to lane dividers in a swimming pool. Borders cannot contain the effects of state action any better than lane dividers can contain waves.

The Supreme Court has perennially struggled to develop a jurisprudence that accounts for this permeability. Professor Erbsen will explore how the instability of modern doctrine is evident in several salient contexts, including potential post-Dobbs constraints on interstate travel, regulation of labor and agricultural practices by nonresident businesses, taxation of e-commerce, and limits on personal jurisdiction. Courts can enhance their understanding of these ostensibly distinct issues by viewing them as manifestations of a deeper problem embedded in the Constitution’s design.

Professor Allan Erbsen teaches and writes in the areas of civil procedure, federal courts, and constitutional law. He received an A.B. magna cum laude from Harvard College and a J.D. cum laude from Harvard Law School, where he was Articles Chair of the Harvard Law Review. He was a law clerk for Judge Judith Rogers of the United States Court of Appeals for the D.C. Circuit and spent six years in private practice at Mayer, Brown & Platt in Chicago and Wilmer, Cutler, & Pickering in Washington, D.C. While in practice, he specialized in appellate litigation, international arbitration, and class actions. During the 2004-2005 academic year, Professor Erbsen was a Vanderbilt Fellow and Instructor in Law at Vanderbilt Law School. In Fall 2008, he was a Visiting Associate Professor at Georgetown University Law Center.