Law Commons^™

The (Somewhat) False Hope Of Comprehensive Planning, Michael Lewyn

Michael E Lewyn

Comprehensive planning at the municipal level, although useful in a variety of ways, is neither necessary nor sufficient to promote "smart" (that is, pedestrian and transit-oriented) growth. Comprehensive plans can be used to support sprawl as easily as to support smart growth, while smart growth may be promoted effectively through zoning reform or statewide legislation as well as through local planning.

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

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 …

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

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.

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

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

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 …

Milk And Other Intoxicating Choices: Official State Symbol Adoption, Ryan Valentin

Ryan Valentin

No abstract provided.

How Comprehensive Planning Makes Suburbia More Sprawling, Michael Lewyn

Michael E Lewyn

Many commentators associate comprehensive land use planning with smart growth- but in fact, municipal plans can be used to further sprawl as well as smart growth.

Judicial Deference And Institutional Character: Homeowners Associations And The Puzzle Of Private Governance, Michael C. Pollack

Michael C. Pollack

Much of the study of judicial review of governing institutions focuses on the institutions of public government at the federal, state, and local levels. But the courts’ relationship with private government is in critical need of similar examination, and of a coherent framework within which to conduct it. This Article uses the lens of homeowners associations—a particularly ubiquitous form of private government—to construct and employ such a framework. Specifically, this Article proceeds from the notion that judicial deference is less appropriate the more unaccountable a governing institution is. It therefore develops a set of tests for institutional accountability and applies …

Battering The Poor: How Georgia’S Mandatory Family Violence Classes Deny Indigent Defendants Equal Protection Of The Law, Whitney Scherck

Whitney Scherck

Thirty years ago, the U.S. Supreme Court in Bearden v. Georgia held that the Equal Protection Clause of the Fourteenth Amendment prevents a court from incarcerating an individual for failure to pay a fine unless it first inquires into their reasons for failing to do so and determines that the defendant willfully failed to make bona fide efforts to pay. However, recently, a new kind of legal debt has emerged. As states’ budgets tighten, so-called user fees are becoming an increasingly common way for legislatures to toughen the criminal justice system without having to come up with funding for it. …

Virginia: How Does The Affordable Care Act Affect Workers’ Compensation In The Commonwealth?, Elisabeth M. Wright

Elisabeth M Wright

No abstract provided.

Social Media And Our Misconceptions Of The Realities, Richard Sanvenero Jr.

Richard Sanvenero Jr.

This article will review the current laws of the expectations of privacy under the two-pronged Katz test, and more specifically other cases that the courts have tried to interpret the test as applicable to social media such as Facebook, Instagram, Twitter, and e-mail. Since there seems to be “no light at the end of the tunnel” with any uniform decision within the courts on the Fourth Amendment protections against search and seizure when there is a reasonable expectation of privacy with social media. This reasonable expectation standard is developed by the users themselves who will allow their rights to be …

Is Welching On Public Pension Promises An Option For Illinois? An Analysis Of Article Xiii, Section 5 Of The Illinois Constitution, Eric M. Madiar

Eric M. Madiar

Illinois has the largest unfunded public pension liabilities of any state in the nation. This article considers whether the Illinois General Assembly may, without violating Article XIII, Section 5 of the 1970 Illinois Constitution, unilaterally cut the pension benefits of current public employees as a means to reduce the $96.8 billion the State owes to its five public pension systems. Article XIII, Section 5 (i.e., the “Pension Clause”) of the Illinois Constitution provides that: “Membership in any pension or retirement system of the State, any unit of local government or school district, or any agency or instrumentality thereof, shall be …

Why Equal Protection Trumps Federalism In The Same-Sex Marriage Cases, Erin Ryan

Erin Ryan

Federalism is once again at the forefront of the Supreme Court’s most contentious cases this Term. The cases attracting most attention are the two same-sex marriage cases that were argued in March. Facing intense public sentiment on both sides of the issue and the difficult questions they raise about the boundary between state and federal authority, some justices openly questioned whether to just defer to the political process. And while this is often a wise prudential approach in review of contested federalism-sensitive policymaking, it’s exactly the wrong course of action when the matter under review is an individual right. This …

Tactics, Strategies & Battles—Oh My!: Perseverance Of The Perpetual Problem Regarding Preaching To Public School Pupils & Why It Persists, Casey S. Mckay

Casey Scott McKay

After reviewing the history of the religious war on Darwin’s Theory of Evolution, my article, “Tactics, Strategies & Battles—Oh My!: Perseverance of the Perpetual Problem Regarding Preaching to Public School Pupils & Why it Persists,“ examines why such a seemingly well-settled issue survives and, to some extent, succeeds.

First, by exploiting common misconceptions among the American public, lawmakers are able to take advantage of ignorance driven by strong emotions. Next, religious special interests groups, with seemingly unlimited funds, thrust propaganda supported by worldwide media reinforcement on an already vulnerable American public. Thus, irresponsible state legislators, caught between a rock and …

The False Hope Of Comprehensive Planning, Michael Lewyn

Michael E Lewyn

Some commentators on sprawl and smart growth speak of municipal comprehensive plans and sprawl as polar opposites: but in fact, a comprehensive plan can be used to further auto-oriented sprawl just as easily as it can be used to encourage more pedestrian-friendly development. This speech uses parts of Jacksonville, Florida's plan as examples of pro-sprawl planning.

Conflicting Federal And State Medical Marijuana Policies: A Threat To Cooperative Federalism, Todd Grabarsky

Todd Grabarsky

The legal status of medical marijuana in the United States is something of a paradox. On one hand, federal government has placed a ban on the drug with no exceptions. On the other hand, over one-third of the states have that legalizes the cultivation, distribution, and consumption of the drug for medical purposes. As such, the usage of medical marijuana is an activity that is at the same time proscribed (by the federal government) and encouraged (by state governments through their systems of regulation and taxation). This Article seeks to shed light on this unprecedented nebulous zone of legality in …

Shifting Sands: A Meta-Theory For Public Access And Private Property Along The Coast, Melissa K. Scanlan

Melissa K. Scanlan

Over half the United States population currently lives near a coast. As shorelines are used by more people, developed by private owners, and altered by extreme weather, competition over access to water and beaches will intensify, as will the need for a clearer legal theory capable of accommodating competing private and public interests. One such public interest is to walk along the beach, which seems simple enough. However, beach walking often occurs on this ambulatory shoreline where public rights grounded in the public trust doctrine and private rights grounded in property ownership intersect. To varying degrees, each state has a …

The Management Of Public Natural Resource Wealth, Paul Rose

Paul Rose

As improved but often more environmentally-obtrusive technologies such as hydraulic fracturing facilitate the extraction of billions of dollars in natural resource wealth, more states are now faced with a welcome but exceedingly complex set of problems: Who should benefit from natural resources extracted from public lands? If the state retains much of this wealth in the form of tax receipts, how should these funds be spent? What do states owe to the communities from which these resources were extracted? What do states owe to future generations? While these are questions of first impression for a few, fortunate states, a number …

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Do California’S Teacher Tenure Laws Violate California’S Constitutional Right To Education, Allen W. Hubsch

Allen W Hubsch

The accompanying note addresses an important and topical issue. In May 2012, Ted Olson, the former Solicitor General of the United States, and Theodore Boutrous, co-chair of the appellate practice at Gibson Dunn & Crutcher, filed a complaint in Los Angeles Superior Court, entitled Vargara v. California, naming the State of California, the California Department of Education, the Los Angeles Unified School District and others as defendants.

The complaint alleges that California’s teacher tenure statutes are unconstitutional under the California constitution because such laws have the effect of preventing school districts from providing a quality education to school age …

Why Leave It To The Liberals? Conservative Views On Smart Growth, Michael E. Lewyn

Michael E Lewyn

Part of panel discussion on "Why Leave It To The Liberals? Conservative Views on Smart Growth"

The Public Trust In Wildlife, Michael Blumm, Aurora Paulsen

Michael Blumm

The public trust doctrine, derived from ancient property principles, is thought to mostly apply to navigable waters and related land resources. The doctrine supplies a mediating force to claims of both private ownership and unfettered government discretion over these resources, vesting the state with trust responsibility to ensure that the use of these resources promotes long-term sustainability. A related doctrine—sovereign ownership of wildlife—is also an ancient public property doctrine inherited from England. State ownership of wildlife has long defeated private ownership claims and enabled states to enact and implement wildlife conservation regulations. This paper claims that these two doctrines should …

Institutional Free Exercise And Religious Land Use, John Infranca

John Infranca

The Supreme Court’s recent decision in Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C. declared that the First Amendment “gives special solicitude to the rights of religious organizations.” This recognition of institutional free exercise rights has important implications for religious land uses. The Religious Land Use and Institutionalized Persons Act (RLUIPA) protects religious landowners from the imposition, through a land use regulation, of a substantial burden on religious exercise. Most RLUIPA claims are brought by the religious institution that owns property subject to a regulation. Nonetheless, courts and commentators evaluate these claims by applying a standard derived from cases involving …

North Carolina’S Superintendent Of Public Instruction: Defining A Constitutional Office, Andrew P. Owens

Andrew P. Owens

In 2009 a superior court case determined the fate of the Governor’s initiative to streamline education leadership by promoting a State Board of Education member while greatly reducing the Superintendent of Public Instruction’s powers. The judge’s decision in favor of Superintendent Atkinson turned on “the inherent constitutional authority” of her office; yet no one really knows what authority is inherent to the office, where that authority derives, or how to go about analyzing the office’s constitutional role. In short: what does it mean to be the Superintendent of Public Instruction? This paper explains the origins and meaning of the Superintendent …

Contract Theory And The Failures Of Public-Private Contracting (Forthcoming), Wendy Netter Epstein

Wendy Netter Epstein

The market for public-private contracting is huge and flawed. Public-private contracts for services such as prisons and welfare administration tend to result in cost savings at the sacrifice of quality service. For instance, to cut costs, private prisons skimp on security. Public law scholars have studied these problems for decades and have proposed various public law solutions. But the literature is incomplete because it does not approach the problem through a commercial lens. This Article fills that gap. It considers how economic analysis of contract law, in particular efficiency theory and agency theory, bear upon the unique problems of public-private …

Dirty Remics, Revisited, David J. Reiss, Bradley T. Borden

David J Reiss

We review the differences between two visions for the residential mortgage markets, one driven by the goal of efficiency and the other driven by the goals of efficiency and consumer protection. Both visions advocate for structural reform, but one advocates for industry-led change and the other advocates for input from a wider array of stakeholders. Broader input is not only important to ensure that a broad range of interests are represented but also to ensure the long-term legitimacy of the new system. This is a response to Joshua Stein, Dirt Lawyers Versus Wall Street: A Different View, PROBATE AND PROPERTY …

The Once And Future Challenges Of American Federalism: The Tug Of War Within, Erin Ryan

Erin Ryan

This essay is drawn from a lecture for the “Ways of Federalism” conference (University of the Basque Country, October 19, 2011) and a new book, "Federalism and the Tug of War Within" (Oxford, 2012) (http://www.oup.com/us/catalog/general/subject/Law/ConstitutionalLaw/?view=usa&ci=9780199737987), which explores how constitutional interpreters struggle to reconcile the core tensions within American federalism. The essay reviews the current challenges of the American federal system through the theoretical lens developed in the book, focusing on the role of state-federal bargaining within the U.S. federal system. It appears as a chapter in a book of selected conference proceedings, The Ways of Federalism in Western Countries and …