American Business Law Journal
Volume 60, Issue 3, 481–540, Fall 2023
Brute Force (Anti) Federalism
Kathryn Kisska-Schulze, John T. Holden and Corey Ciocchetti
States are engaging in brute force (anti) federalism, where both sides of the political
spectrum push agendas that extend beyond the Founder’s early ideal of balanced feder-
alism, using popular support and special interest groups’ interests as their springboard.
These trial-and-error tactics increase vertical and interstate horizontal frictions, create
political and economic challenges for businesses, and increase American polarization.
However, they also allow states the opportunity to force an increasingly stalemated fed-
eral government into action. This article introduces the concept of brute force (anti)
federalism by first examining the evolution of modern federalism. It then offers a sam-
pling of state brute force efforts, analyzes the effect of popular momentum and special
interest groups on state political activity, advances broad-based perspectives surround-
ing brute force (anti) federalism, and poses additional questions to be considered.
INTRODUCTION
Amidst the current U.S. partisan climate, states are partaking in what this
article identifies as brute force (anti) federalism. Merriam-Webster
defines brute force as “relying on or achieved through the application of
*Associate Professor, Wilbur O. and Ann Powers College of Business, Clemson University.
The authors are deeply indebted to the Academy of Legal Studies in Business (ALSB) and
a number of individual peer scholars who provided feedback throughout various stages of
this article. Specifically, the authors significantly benefited from presenting an early version
of this article at the 2021 ASLB H.E.L.P Session, with particular thanks e xtended to Jamie
Prenkert and Robert Bird. The authors also wish to thank Michael Schuster, Greg Day,
Nathaniel Grow, Alex Reed, and Lucien Dhooge for their important and insightful feed-
back on later stages of this working paper. This article was the 2022 recipient of the
Holmes-Cardozo Award offered annually by the ALSB.
**Associate Professor, Spears School of Business, Oklahoma State University.
*** Professor, Daniels College of Business, the Universityof Denver.
[Correction added on 10 August 2023 after first online publication: this version has been
updated to include edits missed by the publisher during the correction process.]
©2023 The Authors. American Business Law Journal published by Wiley Periodicals LLC on
behalf of Academy of Legal Studies in Business.
This is an open access article under the terms of the Creative Commons Attribution-
NonCommercial-NoDerivs License, which permits use and distribution in any medium,
provided the original work is properly cited, the use is non-commercial and no
modifications or adaptations are made.
481
force, effort, or power in usually large amounts instead of more efficient,
carefully planned, or precisely directed methods.”
1
Academic scholars have
studied the impact of brute force activity across multiple fronts, including
cybersecurity and cryptography,
2
copyright,
3
and court jurisdiction.
4
Brute
force has also been recognized within the broader political,
5
and judicial
1
Brute-force,in MERRIAM-WEBSTER DICTIONARY (2022).
2
See, e.g., Anthony G. Volini, A Deep Dive into Technical Encryption Concepts to Better Understand
Cybersecurity & Data Privacy Legal & Policy Issues,28J.I
NTELL.PROP. L. 291, 305 (2021) (iden-
tifying a brute force attack of encrypted data as “trying every possible key upon the data
directly until the data is decrypted . . . [or] trying every possible password to gain access to
a computer”); E. Paige Williams, The Writing on the [Fire]Wall: “Mission Critical”Cybersecurity
Derivative Litigation Is on Delaware’s Horizon,74F
LA.L.REV. 169, 179 n.80 (2022) (noting that
a brute force attack occurred against Wyndham Worldwide Corporation “when hackers
guessed user IDs and passwords to enter an administrator’s account, and then used ‘mem-
ory-scraping malware’to collect sensitive data”); Lawrence J. Trautman, Mohammed
T. Hussein, Emmanuel U. Opara, Mason J. Molesky & Shahedur Rahman, Posted: No Phish-
ing,8E
MORY CORP.GOVER.&ACCOUNTABILITY REV. 39, 59 (2021) (identifying a brute force
attack as “a cryptological trial-and-error methodology used to obtain information such as
personal identification numbers for credit cards”) (citing Press Release, U.S. Dep’t of Just.,
United States and International Law Enforcement Dismantle Online Organized Crime Ring
Operating out of Romania that Victimized Thousands of U.S. Residents (Feb. 7, 2019)),
https://www.justice.gov/opa/pr/united-states-and-international-law-enforcement-dismantle-
online-organized-crime-ring; A. Michael Froomkin, The Metaphor Is the Key: Cryptography, the
Clipper Chip, and the Constitution, 143 U. PA.L.REV. 709, 887–90 (1995) (noting that within
the realm of cryptography, attackers “can mount a ‘brute force’attack using computers,
perhaps with large numbers of specially optimized chips running in parallel, to try every
possible key until the message is decrypted”); Andres Rueda, The Implications of Strong
Encryption Technology on Money Laundering,12A
LB. L.J. SCI.&TECH. 1, 23–26 (2001) (exam-
ining brute force attacks within the context of electronic money laundering).
3
See, e.g., Kirk Sigmon, How to Kill Copyright: A Brute-Force Approach to Content Creation,
14 WAKE FOREST J. BUS.&INTELL.PROP. L. 26 (2013) (examining the legal ramifications of
brute force attacks on copyrighted content).
4
See, e.g., Tung Yin, PresidentObama’s First Two Years: A Legal Reflection: “Anything But Bush?”:
The Obama Administration and Guantanamo Bay,34H
ARV. J.L. & PUB.POL’Y453, 463,
466 (2011) (suggesting that “[t]he Bush Administration’s argument against the Guantanamo
detainees’ habeas petitions was a brute force attack on [federal] courts’ jurisdiction to hear
those petitions”).
5
See, e.g.,LanCao,Toward a New Sensibility for International Economic Development,32TEX.
INT’LL.J. 209, 255 (1997) (briefly noting the existence of brute force politics); Andrew
J. Walker, When a Good Idea Is Poorly Implemented: How the International Criminal Court Fails to Be
Insulated from International Politics and to Protect Basic Due Process Guarantees,106W.V
A.L.REV.
245, 254 (2004) (providing that the International Criminal Court (ICC) “offers the possibility
of a stable and legal alternative to the traditional use of Machiavellian politics and brute force
as the guide to international relations”); Mark D. Rosen, The Special Norms Thesis: Why Con-
gress’s Constitutional Decision-Making Should Be Disciplined by More Than the Usual Norms of
482 Vol. 60 / American Business Law Journal
spheres,
6
leading one scholar to opine, “the suggestion that politics doesn’t
ordinarily involve the use of brute force merits further consideration.”
7
Such examinations invoke captivating images, likening brute force attacks
to “jamming random thin objects into a l ock until it opens;”
8
kicking down
adoor;
9
and seeing “who can apply the pressure and who can withstand
the pressure.”
10
This article advances these prior examinations, scrutinizing the impact
of brute force on American federalism. This article defines brute force
(anti) federalism as trial-and-error tactics employed by the states that stra-
tegically leverage popular momentum and special interest group pur-
suits that ignore federal law or policy, pass contradictory law or policy,
and/or run public relations campaigns that malign the federal govern-
ment’s work and erode the boundaries of U.S. federal supremacy. Two
issues that best exemplify states’ successful deployment of brute force
(anti) federalism activity are the Republican-led attacks on long-standing
federal abortion law that lead to the demise of Roe v. Wade,
11
and the
Democratic-led attacks on the federal prohibition of marijuana legaliza-
tion that forced Congress to relax its stance on the drug.
12
Pol iti cs ,40CARDOZO L. REV. 2769, 2820 (2019) (noting that “persuasion and compromise are
mechanisms for achieving [political] consensus, unlike the brute force of pure majoritarian-
ism”); Rok Spruk & Mitja Kovac, Persistent Effects of Colonial Institutions on Long-Run Develop-
ment: Local Evidence from Regression Design in Argentina,17J.E
MPIRICAL LEGAL STUD. 820, 825
(2020) (notingthe use of special interests and bruteforce in corrupt judicial politics).
6
See, e.g., Chevron Corp. v. Donziger, 974 F. Supp. 2d 362 (2014) (examining defendant
Steven Donziger’s perceived campaign to exert pressure on Chevron).
7
Alice Ristroph, Is Law? Constitutional Crisis and Existential Anxiety,25CONST.COMMENTARY
431, 440 (2009).
8
Sigmon, supra note 3, at 30.
9
Matthew Parker Voors, Encryption Regulation inthe Wake of September 11, 2001: Must We Pro-
tect National Security at the Expense of the Economy?,55F
ED.COMM. L.J. 331, 348 (2003).
10
Donziger, 974 F. Supp. 2d at 578.
11
See infra Part III.A; see also Roe v. Wade, 410 U.S. 113 (1973).
12
See infra Part III.B; see also CAL.HEALTH &SAFETY CODE § 11362.5(d) (West 1998); LEGIS.
COUNCIL COLO.GEN.ASSEMB., 68–614, 1st Sess., at 7 (2012) (adopted as COLO.CONST. art.
XVIII, § 16); The Controlled Substances Act, 21 U.S.C. § 812(b) (1970). See also Memoran-
dum from James M. Cole, Deputy Att’y Gen., to all United States Attorneys, United States
Department of Justice (Aug. 29, 2013), https://www.justice.gov/iso/opa/resources/
3052013829132756857467.pdf. The federal government softened its stance on marijuana
beginning with the Cole Memo, which directed federal prosecutors to avoid devoting
resources to low-level marijuana offenses. Id.
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