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Articles 1 - 30 of 84
Full-Text Articles in Law
Tort Law: The Languages Of Duty, Jay Tidmarsh
States' Rights In The Twenty-First Century, Jay Tidmarsh, Mark Racicot, Robert Miller, Michael Greve
States' Rights In The Twenty-First Century, Jay Tidmarsh, Mark Racicot, Robert Miller, Michael Greve
Jay Tidmarsh
No abstract provided.
Finding Room For State Class Actions In A Post-Cafa World: The Case Of The Counterclaim Class Action, Jay Tidmarsh
Finding Room For State Class Actions In A Post-Cafa World: The Case Of The Counterclaim Class Action, Jay Tidmarsh
Jay Tidmarsh
No abstract provided.
Localism And Capital Punishment, Stephen F. Smith
Localism And Capital Punishment, Stephen F. Smith
Stephen F. Smith
Professor Adam Gershowitz presents an interesting proposal to transfer from localities to states the power to enforce the death penalty. In his view, state-level enforcement would result in a more rationally applied death penalty because states would be much more likely to make capital charging decisions based on desert, without the distorting influence of the severe resource constraints applicable to all but the wealthiest of localities. As well conceived as Professor Gershowitz’s proposal is, however, I remain skeptical that statewide enforcement of the death penalty would be preferable to continued local enforcement. First, Professor Gershowitz underestimates the benefits of localism …
Pretextual Takings: Of Private Developers, Local Governments, And Impermissible Favoritism, Daniel B. Kelly
Pretextual Takings: Of Private Developers, Local Governments, And Impermissible Favoritism, Daniel B. Kelly
Daniel B Kelly
Since Kelo v. City of New London, the preferred litigation strategy for challenging a condemnation that benefits a private party is to allege that the taking is pretextual. This Article contends that, although pretextual takings are socially undesirable, the current judicial test for identifying such takings is problematic. Yet an alternative, intent-based test might be impracticable, as well as underinclusive: condemnors often have mixed motives, particularly when confronted with a firm's credible threat to relocate. Instead, the Article develops a framework that emphasizes informational differences between local governments and private developers. When the government lacks information regarding the optimal site …
Survey Of Recent Developments In Indiana Law: Labor And Employment Law, Barbara J. Fick
Survey Of Recent Developments In Indiana Law: Labor And Employment Law, Barbara J. Fick
Barbara J. Fick
This article examines developments in labor and employment law occuring shortly before its publicaiton in 1992. The article discusses cases revisiting the Frampton rule, addressing employee defamation suits against employers, employment discrimination, issues arising in public sector employment, wage statutes, unemployment compensation, and workers' compensation. It also discusses a state statute prohibiting employment discrimination based on employees' off-duty use of tobacco.
See The Mojave!, John C. Nagle
See The Mojave!, John C. Nagle
John Copeland Nagle
This article examines how the law is being asked to adjudicate disputed sights in the context of the Mojave Desert. The Mojave is the best known and most explored desert in the United States. For many people, though, the Mojave is missing from any list of America’s scenic wonders. The evolution in thinking about the Mojave’s aesthetics takes places in two acts. In the first act, covering the period from the nineteenth century to 1994, what began as a curious voice praising the desert’s scenery developed into a powerful movement that prompted Congress to enact the CDPA. The second act …
Managing The Urban Commons, Nicole Stelle Garnett
Managing The Urban Commons, Nicole Stelle Garnett
Nicole Stelle Garnett
No abstract provided.
Restoring Lost Connections: Land Use, Policing, And Urban Vitality, Nicole Stelle Garnett
Restoring Lost Connections: Land Use, Policing, And Urban Vitality, Nicole Stelle Garnett
Nicole Stelle Garnett
No abstract provided.
Affordable Private Education And The Middle Class City, Nicole Stelle Garnett
Affordable Private Education And The Middle Class City, Nicole Stelle Garnett
Nicole Stelle Garnett
This Essay, which was prepared for a University of Chicago Law School’s symposium on “Rethinking the Local Government Toolkit,” argues that affordable private schools serve an important urban-development function: They partially unbundle the residential and educational decisions of families with children. Thus, state and local officials hoping to make our make central city neighborhoods attractive places to raise children should consider employing a familiar urban development tool - tax incentives - to make quality private schools more financially accessible to middle-income families. The Essay proceeds in three parts. Part I builds the case for a middle class city. Part II …
The Market For Deadbeats, Margaret F. Brinig, F. H. Buckley
The Market For Deadbeats, Margaret F. Brinig, F. H. Buckley
Margaret F Brinig
This article outlines three explanations for why states seek migrants and tests them by references to 1985-90 interstate migration flows. On race-for-the-top theories, states compete for value-increasing migrants by offering them healthy economies and efficient laws. On vote-seeking theories, states compete for clienteles of voters, with some states seeking to attract and some to deter welfare- or tax-loving migrants. On deadbeat theories, states compete for high human capital debtors by offering them a fresh start from out-of-state creditors. Our findings support vote-seeking and deadbeat theories.
State Courts And The Interpretation Of Federal Statutes, Anthony J. Bellia
State Courts And The Interpretation Of Federal Statutes, Anthony J. Bellia
Anthony J. Bellia
Scholars have long debated the separation of powers question of what judicial power federal courts have under Article III of the Constitution in the enterprise of interpreting federal statutes. Specifically, scholars have debated whether, in light of Founding-era English and state court judicial practice, the judicial power of the United States should be understood as a power to interpret statutes dynamically or as faithful agents of Congress. This Article argues that the question of how courts should interpret federal statutes is one not only of separation of powers but of federalism as well. State courts have a vital and often …
Federal Regulation Of State Court Procedures, Anthony J. Bellia
Federal Regulation Of State Court Procedures, Anthony J. Bellia
Anthony J. Bellia
May Congress regulate the procedures by which state courts adjudicate claims arising under state law? Recently, Congress not only has considered several bills that would do so, but has enacted a few of them. This Article concludes that such laws exceed Congress's constitutional authority. There are serious questions as to whether a regulation of court procedures qualifies as a regulation of interstate commerce under the Commerce Clause. Even assuming, however, that it does qualify as such, the Tenth Amendment reserves the power to regulate court procedures to the states. Members of the Founding generation used conflict-of-laws language to describe a …
May A Federal Court Remand A Case To State Court After Federal Claims Have Been Deleted?, Joseph P. Bauer
May A Federal Court Remand A Case To State Court After Federal Claims Have Been Deleted?, Joseph P. Bauer
Joseph P. Bauer
This Article provides a preview of Carnegie-Mellon University v. Honorable Maurice B. Cohill, Jr., argued before the Supreme Court of the United States on November 10, 1987. This case concerns the circumstances under which a lawsuit, properly commenced in a state court and then removed before trial to a federal court, may be sent back (remanded) to the state court.
On one level, this case seems only to involve technical interpretations of federal statutes governing procedure in the federal courts. At another level, however, it involves more general and important issues. Among these are how to allocate judicial power …
Addressing The Incoherency Of The Preemption Provision Of The Copyright Act Of 1976, Joseph P. Bauer
Addressing The Incoherency Of The Preemption Provision Of The Copyright Act Of 1976, Joseph P. Bauer
Joseph P. Bauer
Section 301 of the Copyright Act of 1976 expressly preempts state law actions that are within the "general scope of copyright" and that assert claims that are "equivalent to" the rights conferred by the Act. The Act eliminated the previous system of common law copyright for unpublished works, which had prevailed under the prior 1909 Copyright Act. By federalizing copyright law, the drafters of the statute sought to achieve uniformity and to avoid the potential for state protection of infinite duration. The legislative history of § 301 stated that this preemption provision was set forth "in the clearest and most …
Utilizing Credit Reports For Employment Purposes: Casting A Wider Net Into The Ocean Of Employment Practices Results In Unintended Yet Much Needed Outcomes, David D. Schein, James D. Phillips
Utilizing Credit Reports For Employment Purposes: Casting A Wider Net Into The Ocean Of Employment Practices Results In Unintended Yet Much Needed Outcomes, David D. Schein, James D. Phillips
David D. Schein
In our previous article, “Holding Credit Reporting Agencies Accountable: How the Financial Crisis May be Contributing to Improving Accuracy in Credit Reporting”[1] we reviewed the legal history of the Fair Credit Reporting Act (FCRA) and its amendments, and the Federal case law by circuit. We suggested that the ability of consumers to ensure the accuracy and security of their credit reports might lead to an expansion of the litigation surrounding accurate credit reporting. This article takes the discussion further by exploring the ever-expanding use of credit reports in the employment law arena. We review the state legislation limiting the use …
Federalism And Fiduciaries: A New Framework For Protecting State Benefit Funds, Richard E. Mendales
Federalism And Fiduciaries: A New Framework For Protecting State Benefit Funds, Richard E. Mendales
Richard E. Mendales
The financial crisis has underlined difficulties faced by states and their subdivisions in paying benefits to their employees. The most spectacular example is Detroit's bankruptcy, but state and local employers across the country face sharp cuts in benefits as their employers fight for solvency. A federal solution such as ERISA is precluded by considerations of federalism and the impracticability of getting major legislation through Congress. This Article proposes an alternative solution: a uniform state code, following other uniform state laws such as the Uniform Commercial Code, that states could adopt to govern both state and local plans. It would finance …
Baker V State And The Promise Of The New Judicial Federalism, Lawrence Friedman, Charles Baron
Baker V State And The Promise Of The New Judicial Federalism, Lawrence Friedman, Charles Baron
Charles H. Baron
In Baker v. State, the Supreme Court of Vermont ruled that the state constitution's Common Benefits Clause prohibits the exclusion of same-sex couples from the benefits and protections of marriage. Baker has been praised by constitutional law scholars as a prototypical example of the New Judicial Federalism. The authors agree, asserting that the decision sets a standard for constitutional discourse by dint of the manner in which each of the opinions connects and responds to the others, pulls together arguments from other state and federal constitutional authorities, and provides a clear basis for subsequent development of constitutional principle. This Article …
The Supreme Judicial Court In Its Fourth Century: Meeting The Challenge Of The "New Constitutional Revolution", Charles H. Baron
The Supreme Judicial Court In Its Fourth Century: Meeting The Challenge Of The "New Constitutional Revolution", Charles H. Baron
Charles H. Baron
In the mid-19th century, when the United States was confronted with daunting changes wrought by its expanding frontiers and the advent of the industrial revolution, its state supreme courts developed the principles of law which facilitated the nation's growth into the great continental power it became. First in influence among these state supreme courts was the Supreme Judicial Court of Massachusetts-whose chief justice, Lemuel Shaw, came widely to be known as "America's greatest magistrate." It is this tradition that the court brings with it as it develops its place in the "new constitutional revolution" presently sweeping our state supreme courts. …
Medical Paternalism And The Rule Of Law: A Reply To Dr. Relman, Charles Baron
Medical Paternalism And The Rule Of Law: A Reply To Dr. Relman, Charles Baron
Charles H. Baron
In this Article, Professor Baron challenges the position taken recently by Dr. Arnold Relman in this journal that the 1977 Saikewicz decision of the Supreme Judicial Court of Massachusetts was incorrect in calling for routine judicial resolution of decisions whether to provide life-prolonging treatment to terminally ill incompetent patients. First, Professor Baron argues that Dr. Relman's position that doctors should make such decisions is based upon an outmoded, paternalistic view of the doctor-patient relationship. Second, he points out the importance of guaranteeing to such decisions the special qualities of process which characterize decision making by courts and which are not …
Fetal Research: The Question In The States, Charles H. Baron
Fetal Research: The Question In The States, Charles H. Baron
Charles H. Baron
This article is based on a paper delivered at the Third National Symposium on Genetics and the Law in Boston, April 1984.
In Favor Of Restoring The Sherbert Rule - With Qualifications, Jesse H. Choper
In Favor Of Restoring The Sherbert Rule - With Qualifications, Jesse H. Choper
Jesse H Choper
No abstract provided.
Is Brown Holding Us Back? Moving Forward, Sixty Years Later, Palma Joy Strand
Is Brown Holding Us Back? Moving Forward, Sixty Years Later, Palma Joy Strand
palma joy strand
Brown v. Board of Education brought the democratic value of equality to U.S. democracy, which had previously centered primarily on popular control. Brown has not, however, resulted in actual educational equality—or universal educational quality. Developments since Brown have changed the educational landscape. While the social salience of race has evolved, economic inequality has risen dramatically. Legislative and other developments have institutionalized distrust of those who do the day-to-day work of education: public schools and the teachers within them. Demographic and economic shifts have made comprehensive preschool through post-secondary education a 21st-century imperative, while Common Core Standards represent a significant step …
The Battle For The Soul Of International Shoe, Eric H. Schepard
The Battle For The Soul Of International Shoe, Eric H. Schepard
Eric H Schepard
In 2011, Justice Kennedy’s plurality opinion in J. McIntyre Machinery, Ltd. v. Nicastro repeatedly cited International Shoe v. Washington, a 1945 decision that transformed the law of personal jurisdiction. Kennedy believed that International Shoe broadly supported his position that a state may hear a suit arising from a within-state workplace injury to its citizen only if the foreign (out-of-state) corporate defendant specifically markets its products to that state. This article reexamines the jurisprudence of International Shoe’s author, Chief Justice Harlan Fiske Stone, to argue that Kennedy hijacked International Shoe’s half-buried legacy of judicial restraint. Scholars have suggested that Stone hoped …
The Underutilized Foreign Investor, Griffin Weaver
The Underutilized Foreign Investor, Griffin Weaver
Griffin Weaver
For most states, if not all, the push for economic advancement is at the front of every administration’s agenda. This is especially true for developing countries in the Middle East whose standard of living and international power is largely tied to its economic condition. An important indicator, if not condition, of a state’s economic health is the level of foreign direct investment (FDI) received by the state. This inflow of money is essential for the growth and stability of a state’s economy. As one U.S. official once noted, the United States “need[s] a net inflow of capital of $3 billion …
Towards A Theory Of Equitable Federated Regionalism In Public Education: Reversing The Role Of School District Boundary Lines In Dismantling Brown V. Board Of Education, Erika Wilson
Erika K. Wilson
School quality and resources vary dramatically across school district boundary lines. Students who live mere miles apart have access to vastly different and disparate educational opportunities based upon which side of a school district boundary line their home is located. Owing in large part to metropolitan fragmentation, most school districts and the larger localities in which they are situated, are segregated by race and class. Further, because of a strong ideological preference for localism in public education, local government law structures in most states do not require or even encourage collaboration between school districts in order to address disparities between …
I'Ll Huff And I'Ll Puff - But Then You'll Blow My Case Away: Dealing With Dismissed And Bad-Faith Defendants Under California's Anti-Slapp Statute, Jeremiah Ho
Jeremiah A. Ho
This Article will demonstrate that, despite efforts to recognize SLAPPs and to safeguard our legal process from abuses, SLAPP suits and their underlying interference with the legitimate exercise of the right to petition can often engender new ways of creeping back onto the legal stage to wreak havoc on the private citizen - that the devious, shape-shifting Big Bad Wolf of First Amendment rights can return to reprise its role as the subversive villain and to trot unsuspecting litigants out to slaughter. After an introduction into the general world of SLAPPs and the specific history behind California's section 425.16, this …
Milk And Other Intoxicating Choices: Official State Symbol Adoption, Ryan Valentin
Milk And Other Intoxicating Choices: Official State Symbol Adoption, Ryan Valentin
Ryan Valentin
No abstract provided.
The Contours Of Judicial Tenure In State Courts Of Last Resort: Accountability Vs. Independence, Todd A. Curry
The Contours Of Judicial Tenure In State Courts Of Last Resort: Accountability Vs. Independence, Todd A. Curry
Todd A. Curry
The study of state courts of last resort is a field which has, up until recently, been significantly underrepresented in political science (Baum 1987, Dubois 1980). The bulk of work in judicial politics over the last fifty years has focused on the federal system. Furthermore, the study of state courts allows for a true comparative analysis. The methods of selection used for the staffing of state courts of last resort are highly varied. There are five distinctly different methods which are used for judicial selection in the states, and many states have institutional nuances that provide further variation for study. …
Reforma Agraria E Inversión Extranjera: Uno De Los Nuevos Desafíos Del Proceso De Paz, Marco A. Velásquez-Ruiz
Reforma Agraria E Inversión Extranjera: Uno De Los Nuevos Desafíos Del Proceso De Paz, Marco A. Velásquez-Ruiz
Marco A. Velásquez-Ruiz
Uno de los secretos a viva voz en la corta pero compleja historia de Colombia como nación, es que el principal motor del conflicto armado que ha azotado nuestro país por más de sesenta años es la disputa por los recursos naturales escasos, y en especial por el acceso y uso de la tierra. Bajo dicho contexto, el proceso de reparación integral a las víctimas de el conflicto es una realidad gracias a las ley 1448 y otras reformas proyectadas en favor del sector rural, pero enfrenta desafíos provenientes de sectores insospechados como el de la inversión extranjera.