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Localizing Environmental Federalism, Sarah Fox
Localizing Environmental Federalism, Sarah Fox
Faculty Peer-Reviewed Publications
Local environmental action has gained attention and importance in the face of inaction by the federal government and many states. By taking action when other levels of government are not, these local governments are fulfilling an important federalism function. Environmental federalism theory has long highlighted the potential for local governments to play this gap-filling function, and to fulfill other federalism values. To date, however, environmental federalism theory has not examined closely the legal basis for local governmental action, and the vulnerabilities that surround that local authority. In many states, local authority is easily, and often, preempted by the state. Given …
Environmental Gentrification, Sarah Fox
Environmental Gentrification, Sarah Fox
Faculty Peer-Reviewed Publications
Gentrification is a term often used, much maligned, and difficult to define. A few general principles can nonetheless be distilled regarding the concept. First, gentrification is spurred by rising desirability of an area for housing or commercial purposes. Second, this rising desirability, following basic supply-and-demand principles, leads to higher property values and rents in an uncontrolled market. Third, gentrification leads to a shift in the demographics of a neighborhood. This shift can change not only the socioeconomic and racial composition of the area but also the community’s character, as residential and commercial options begin to reflect the preferences of the …
Home Rule In An Era Of Local Environmental Innovation, Sarah Fox
Home Rule In An Era Of Local Environmental Innovation, Sarah Fox
Faculty Peer-Reviewed Publications
As 2016’s national election made clear, striking ideological differences between cities and their surrounding states exist in many parts of the country. One way in which this divide manifests itself is in state governments passing laws with the sole purpose of outlawing particular local conduct. For instance, recent state legislation has prohibited local governments from establishing a minimum wage, from prohibiting the use of plastic bags, and from protecting the rights of transgender individuals to use the bathroom of their identified gender. These state actions do not create substantive law; instead, they merely curtail the grant of authority—known as home …
Admissions In Sec Enforcement Cases: The Revolution That Wasn't, David Rosenfeld
Admissions In Sec Enforcement Cases: The Revolution That Wasn't, David Rosenfeld
Faculty Peer-Reviewed Publications
In 2013, the SEC departed from its long-standing policy of settling enforcement matters on a no-admit/no-deny basis, and for the first time began to require admissions when settling certain cases. The new admissions policy was greeted with considerable concern by many who thought it would lead to fewer settlements, more litigation, and a decline in the effectiveness of SEC enforcement. After more than four years, a full assessment of the policy is in order. The SEC continues to report record enforcement numbers and has touted the admissions policy as a great success. However, this Article empirically demonstrates that the SEC …
An Empirical Critique Of Jcar And The Legislative Veto In Illinois, Marc D. Falkoff
An Empirical Critique Of Jcar And The Legislative Veto In Illinois, Marc D. Falkoff
Faculty Peer-Reviewed Publications
This Article collects and analyzes nearly four decades’ worth of data concerning the legislative oversight of administrative agency rulemaking in Illinois. Its chief purpose is to assess the efficacy of the state’s legislative veto scheme. In particular, the Article focuses on the Joint Committee on Administrative Rules (“JCAR”), a bipartisan legislative committee that is authorized to review rules produced by administrative agencies in the executive branch. Since late 2004, JCAR has possessed veto power over agency rulemaking, meaning the committee may permanently stop implementation of new rules upon the vote of three-fifths of its twelve members. For even longer, the …
Fairness And Farmland Preservation: A Response To Professor Richardson, Mark W. Cordes
Fairness And Farmland Preservation: A Response To Professor Richardson, Mark W. Cordes
Faculty Peer-Reviewed Publications
In a recent article published in this Journal, Professor Jesse Richardson attempted to refute the arguments proposed by myself and others that support the fairness of downzoning land without compensation to property owners. Central to most farmland preservation efforts is agricultural zoning, which typically involves downzoning farmland to agricultural use, precluding more intensive development. Part IV will briefly comment on the role compensatory programs like PDRs and TDRs should play in effective farmland preservation programs. This is true even if downzoning results in substantial diminution of land values, which means that local governments can pursue farmland preservation by putting the …
Old-Fashioned Pregnancy, Newly-Fashioned Paternity, Jeffrey A. Parness
Old-Fashioned Pregnancy, Newly-Fashioned Paternity, Jeffrey A. Parness
Faculty Peer-Reviewed Publications
This paper explores contemporary American laws on paternity as of the time of the live birth of a child conceived through sexual intercourse. In doing so it necessarily examines the roles of biological ties in all determinations of legal parenthood. It does not speak directly to legal paternity arising from the use of reproductive technology; to legal fatherhood arising long after birth for reasons unrelated to biology; or, to actual fatherhood, which remains unrecognized under law. It does assume that there can be no legal paternity of an unborn child, though there certainly may be prospective legal paternity that prompts …
Nonparty Insurers In Federal Civil Actions: The Need For New Written Civil Procedure Laws, Jeffrey A. Parness
Nonparty Insurers In Federal Civil Actions: The Need For New Written Civil Procedure Laws, Jeffrey A. Parness
Faculty Peer-Reviewed Publications
Written laws guiding civil actions in the federal district courts chiefly address the presentation, preparation and resolution of claims involving parties. However, the courts often also consider claims involving non-parties as well as non-claim matters involving parties and non-parties alike. Guidelines here mainly appear in federal precedents and, to a lesser extent, in local court rules. They often follow in-state court practices. The absence of written general laws for non-party claims and non-claim matters often leads to unnecessary confusion and unfair procedures. New, generally applicable written guidelines could help reduce uncertainty and promote fairness. To exemplify, we shall particularly explore …
Designating Male Parents At Birth, Jeffrey A. Parness
Designating Male Parents At Birth, Jeffrey A. Parness
Faculty Peer-Reviewed Publications
It is becoming increasingly difficult to determine the legal parentage of newborns and infants. Although it may be clear who bore a child, whose sperm was involved in conception, to whom a new mother was married at the time of conception, pregnancy, and birth, and which medical personnel helped to facilitate a pregnancy, it is unclear how these facts should affect the determination of a child's legal parentage. Recently, a great deal of national debate has centered around the parenting consequences of births involving surrogates and same-sex marriages. This Essay addresses a topic less frequently discussed-the legal designation of male …
The Legal Status Of The Unborn After Webster, Jeffrey A. Parness
The Legal Status Of The Unborn After Webster, Jeffrey A. Parness
Faculty Peer-Reviewed Publications
The recent U.S. Supreme Court decision in Webster v. Reproductive Health Services, as well as recent advances in our understanding of human reproduction, has prompted new dialogue on the legal status of the unborn and on the level of legal protection appropriate for potential human life. In joining the dialogue, this commentary is prompted by several concerns. First, the landmark decision in Roe v. Wade has frequently been misunderstood, creating much confusion over the permissible boundaries of protecting potential human life. A debate about laws pertaining to the unborn must be founded upon a proper understanding of what the Supreme …
Respecting State Judicial Articles, Jeffrey A. Parness
Respecting State Judicial Articles, Jeffrey A. Parness
Faculty Peer-Reviewed Publications
Differences in the establishment and empowerment of American judicial systems should trigger variations in the ways in which cases are handled and law is practiced. Such differences are found in the sections of state constitutions dealing with the judiciary and known as judicial articles. Unfortunately, those differences are often overlooked. Perhaps the oversight is partially attributable to the widely held view that any variations in the constitutional foundations of judicial systems are meaningless, in that no practical consequences flow from them. In effect this view parallels the popular notion that all seemingly comparable branches of state governments actually have comparable …