Law Commons^™

Regulation Of Fracking Is Not A Taking Of Private Property, Kevin Lynch

Sturm College of Law: Faculty Scholarship

As the use of fracking has spread during the recent oil and gas boom, inevitable conflicts have arisen between industry and its neighbors, particularly as fracking has moved into densely populated urban and suburban areas. Concerned over the impacts of fracking – such as risks to health and safely, diminished property values, air and water pollution, as well as noise, traffic, and other annoyances – many people have demanded a government response.

Government regulation of fracking has struggled to catch up, although in recent years many state and local governments have taken steps to reduce the impacts of fracking in …

Brief For Professor Walter Dellinger As Amicus Curiae In Support Of Petitioners, Walter E. Dellinger Iii

Faculty Scholarship

No abstract provided.

Marriage On The Ballot: An Analysis Of Same-Sex Marriage Referendums In North Carolina, Minnesota, And Washington During The 2012 Elections, Craig M. Burnett, Mathew D. Mccubbins

Faculty Scholarship

No abstract provided.

The New Elections Clause, Michael T. Morley

Faculty Scholarship

No abstract provided.

The Privacy Policymaking Of State Attorneys General, Danielle Keats Citron

Faculty Scholarship

No abstract provided.

Planning For Wildfire In The Wildland-Urban Interface, Stephen R. Miller

Articles

No abstract provided.

Evaluating International State Constitutionalism, Johanna Kalb

Articles

No abstract provided.

The Discretionary Death Penalty For Drug Couriers In Singapore: Four Challenges, Siyuan Chen

Research Collection Yong Pung How School Of Law

In 2012, Singapore amended its Misuse of Drugs to give courts hearing capital drug trafficking cases the discretion to replace the default death penalty with life imprisonment and caning, provided that the accused person can show that he was merely a drug courier and the prosecution certifies that he had substantively assisted the authorities in disrupting drug trafficking activities. The Singapore High Court and Court of Appeal have since made important pronouncements on the 2012 amendments, but several challenges remain: first, whether the privilege against self-incrimination has been further eroded; secondly, whether an accused person can invoke the statutory relief …

National Conference On Copyright Of State Legal Materials, Roger V. Skalbeck

Law Faculty Publications

A surge in legislation and the lawsuits on the copyright status of state legal materials raises concerns about principles of open government and free accessibility and use of these materials. On December 2, 2016, the American Association of Law Libraries (AALL) and Boston University School of Law are convening the National Conference of Copyright in State Legal Materials at BU Law. At this conference, all participants will be able to explore the issues surrounding state legal materials access through parallel goals of: Education, Inspiration, and Conversation.

Accidents Of Federalism: Ratemaking And Policy Innovation In Public Utility Law, William Boyd, Ann E. Carlson

Publications

Decarbonizing the electric power sector will be central to any serious effort to fight climate change. Many observers have suggested that the congressional failure to enact a uniform system of electricity regulation could stifle the transition to a low-carbon electricity grid. This Article contends that the critique is overstated. In fact, innovation is occurring across different aspects of the electricity system and across different types of states in ways one would not expect to see under a single, national approach. As the Article demonstrates, this innovation stems in part from Congress’s failure to enact a single, national approach to electricity …

The Firing Squad As "A Known And Available Alternative Method Of Execution" Post-Glossip, Deborah W. Denno

Faculty Scholarship

This Article does not address the medical debate surrounding the role of midazolam in executions; the problems associated with using the drug have been persuasively argued elsewhere. Nor does it question the soundness of the Glossip Court’s “alternative method of execution” requirement. Rather, this Article’s proposed reform is a constitutionally acceptable alternative that meets the Glossip Court’s standard, rendering moot—at least for the purposes of the following discussion—very real concerns regarding the validity of that dictate. Part I of this Article pinpoints several areas where the Glossip Court goes wrong in glaringly inaccurate or misleading ways, given the vast history …

Trust In Immigration Enforcement: State Noncooperation And Sanctuary Cities After Secure Communities, Ming H. Chen

Publications

The conventional wisdom, backed by legitimacy research, is that most people obey most of the laws, most of the time. This turns out to not be the case in a study of state-local participation in immigration law enforcement. Two enforcement programs involving the use of immigration detainers, a vehicle by which the federal government (through ICE) requests that local law enforcement agencies (LEAs) detain immigrants beyond their scheduled release upon suspicion that they are removable, demonstrate the breakdown of conventional wisdom. In the five years following initiation of the Secure Communities program, a significant and growing number of states and …

U.S. Discovery And Foreign Blocking Statutes, Vivian Grosswald Curran

Articles

What is the reality between U.S. discovery and the foreign blocking statutes that impede it in France and other civil law states? How should we understand their interface at a time when companies are multinational in composition as well as in their areas of commerce? U.S. courts grapple with the challenge of understanding why they should adhere to strictures that seem to compromise constitutional or quasi-constitutional rights of American plaintiffs, while French and German lawyers and judges struggle with the challenges U.S. discovery poses to values of privacy and fair trial procedure in their legal systems. This article seeks to …

Realigning The Governmental/Proprietary Distinction In Municipal Law, Hugh D. Spitzer

Articles

Lawyers and judges who deal with municipal law are perpetually puzzled by the distinction between “governmental” and “proprietary” powers of local governments. The distinction is murky, inconsistent between jurisdictions, inconsistent within jurisdictions, and of limited use in predicting how courts will rule. Critics have launched convincing attacks on the division of municipal powers into these two categories. Most articles have focused on problems with the distinction in specific areas of municipal law. In contrast, this article provides a comprehensive analysis of the governmental/proprietary distinction in seven specific doctrinal areas: legislative grants of municipal authority, government contracts, torts, eminent domain, adverse …

The Concept Of The Speech Platform: Walker V. Texas Division, Abner S. Greene

Faculty Scholarship

In Walker, the Court deemed Texas’ specialty license plate program government speech, and thus applied no First Amendment review to the state’s refusal to allow a Confederate battle flag specialty plate, even though the reason for the refusal was that the plate was offensive. The dissent considered this unconstitutional viewpoint discrimination in a limited public forum. This article argues that the Walker result was correct, but for the wrong reason. Government should have the power to forbid hateful or vulgar speech from limited public forums such as specialty or vanity license plates, transit ads, and after-school extracurricular activities, even though …

Governmental Intervention In An Economic Crisis, Robert K. Rasmussen, David A. Skeel Jr.

All Faculty Scholarship

This paper articulates a framework both for assessing the various government bailouts that took place at the onset of Great Recession and for guiding future rescue efforts when they become necessary. The goals for those engineering a bailout should be to be as transparent as possible, to articulate clearly the reason for the intervention, to respect existing priorities among investors, to exercise control only at the top level where such efforts can be seen by the public, and to exit as soon as possible. By these metrics, some of the recent bailouts should be applauded, while others fell short. We …

A Solution In Search Of A Problem: Kelo Reform Over Ten Years, Wendell Pritchett

All Faculty Scholarship

Kelo is NOT Dred Scott. Kelo is not only NOT Dred Scott, it was, as this Essay will argue, the right decision given the facts of the cases and the current state of legal jurisprudence. As an academic who has detailed the historic exploitation of eminent domain to uproot persons of color in this country, I find it interesting, and somewhat troubling, that the case has received so much criticism, much more criticism, I would argue, than other Supreme Court decisions that deserve condemnation. Certainly, eminent domain, like any other government power, must be regulated carefully. But upending …

Governance Reform And The Judicial Role In Municipal Bankruptcy, Clayton P. Gillette, David A. Skeel Jr.

All Faculty Scholarship

Recent proceedings involving large municipalities such as Detroit, Stockton, and Vallejo illustrate both the utility and the limitations of using the Bankruptcy Code to adjust municipal debt. In this article, we contend that, to truly resolve the distress of a substantial city, municipal bankruptcy needs to do more than simply provide immediate debt relief. Debt adjustment alone does nothing to remedy the fragmented decision-making and incentives for expanding municipal budgets that underlie municipal distress. Unless bankruptcy also addresses governance dysfunction, the city may slide right back into financial crisis. Governance restructuring has long been an essential element of corporate bankruptcy. …

Better Than Bankruptcy?, Andrew B. Dawson

Articles

According to many in the bankruptcy field, small business debtors are increasingly turning to state debtor-creditors laws as an alternative to federal bankruptcy relief. One particularly popular state law is the assignment for the benefit of creditors. The conventional wisdom is that these procedures provide a state law alternative to liquidate a business.

This article reports the results of an original empirical study that challenges this conventional wisdom. Gathering data from every assignment for the benefit of creditors in a major metropolitan area over a three-year period, this study shows that debtors and their secured creditors are using these procedures …

The Freedom To Pursue A Common Calling: Applying Intermediate Scrutiny To Occupational Licensing Statutes (Note), Alexandra L. Klein

Faculty Articles

After the devastation of Hurricane Katrina, the monks at St. Joseph Abbey in Louisiana sought a new source of income. They began producing simple wooden coffins priced at much lower rates than caskets sold in funeral homes. After the Abbey had made a large investment in its business, St. Joseph Woodworks, the Louisiana State Board of Embalmers and Funeral Directors ordered it to close. Although the monks did not provide funeral or embalming services, a Louisiana statute regulating the funeral industry prohibited the monks from selling coffins.

Under the statute, "funeral directing" included "any service whatsoever connected with... the purchase …

Immigration Enforcement Reform: Learning From The History Of Fugitive Slave Rendition, Jeffrey M. Schmitt

School of Law Faculty Publications

The United States deports hundreds of thousands of immigrants each year, leaving many of the country’s eleven million undocumented immigrants living in constant fear of being torn from their families and homes. Because Congress has been unable to address this humanitarian crisis with meaningful legislative reform, President Obama recently announced that his administration will consider changes to its enforcement policy. By drawing a parallel to the nation’s experience with fugitive slave rendition, this Essay argues that President Obama should allow the states to work with U.S. Immigration and Customs Enforcement (ICE) to moderate the implementation of federal enforcement programs.

Out-Beale-Ing Beale, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

In response to the 1991 Supreme Court decision resuscitating the presumption against extraterritoriality [hereinafter “PAE” or “presumption”], EEOC v. Arabian American Oil Co. (Aramco), Larry Kramer described the presumption as an anachronism—a throwback to the strict territorialist approach to choice of law that prevailed before the mid-Twentieth Century but has been mostly abandoned since then. The title of his scathing article, Vestiges of Beale, referred to Joseph Beale, the Harvard Law professor and reporter of the First Restatement of Conflict of Laws, whose since-discredited theories underlay that Restatement’s approach to choice of law. In the cases since Aramco …

The Same River Twice: A Brief History Of How The 1968 Florida Constitution Came To Be And What It Has Become, Mary E. Adkins

UF Law Faculty Publications

In 1968, Florida’s voters adopted a nearly complete revision of the Florida Constitution; the resulting document was Florida’s sixth constitution. That constitution provided four ways by which it could be amended; one was a method unique to Florida then and now. That provision called for a Constitution Revision Commission to meet ten years after the 1968 constitution was adopted and every twenty years thereafter to reconsider the entire constitution; determine what, if any, revisions the constitution needed; and propose revisions directly to the voting public. Two such revision commissions have met since 1968. A third will meet in 2017 and …

Managing Unconventional Oil And Gas Development As If Communities Mattered, Mark Squillace

Publications

The advent of horizontal oil and gas drilling into relatively impermeable shale rock, and the companion technological breakthrough of high-pressure, multi-stage fracking that frees hydrocarbons along the substantial length of these horizontal wells, has fundamentally altered the oil and gas industry. The Energy Information Administration has gone so far as to predict that North America could become a net energy exporter as early as 2019, largely as a result of the explosive growth of this “unconventional” oil and gas development. Despite its promise, managing unconventional oil and gas development has proved challenging, and many of the communities that find themselves …

The Energy Prosumer, Sharon B. Jacobs

Publications

Decentralization is becoming a dominant trend in many industries, and the electricity industry is no exception. Increasing numbers of energy consumers generate their own electricity and/or provide essential grid services such as storage, efficiency, and demand response. This Article offers a positive account of the emergence of these new energy actors, which it calls "energy prosumers. " It then frames several doctrinal and procedural puzzles that prosumers create, including jurisdictional puzzles, distributional concerns, and democratic challenges. Ultimately, it concludes that prosumers can be a positive disruptive force in the electricity industry if courts and regulators can manage these challenges effectively. …

Charting The Course: Charter School Exploration In Virginia, Katherine E. Lehnen

Law Student Publications

This comment reviews the background and status of the charter school movement in Part I and addresses legal challenges charters face in Part II. Part III provides an overview of Virginia's charter school law, and Part IV analyzes how the legislature can improve that law to foster charter school exploration in the Commonwealth.

Retirement In The Land Of Lincoln: The Illinois Secure Choice Savings Program Act, Edward A. Zelinsky

Articles

In 2015, Illinois became the first state to enact a state-mandated and state-operated retirement system for private sector employers: The Illinois Secure Choice Savings Program Act. The Illinois program resembles a system approved by the California legislature—a system that has not yet been enacted since it is conditioned on an additional vote by the legislature. Illinois’ program and the one proposed in California have notable differences in that (1) the Illinois retirement accounts will qualify as individual retirement accounts (“IRAs”) under the Internal Revenue Code (“Code”); (2) the Illinois IRAs will be Roth IRAs; (3) the California program requires participation …

On Family Law Localism: A Comment On Sean Hannon Williams's Sex In The City, Richard Briffault

Faculty Scholarship

In his Article “Sex in the City,” Professor Sean Hannon Williams addresses the problems of enormous trial court discretion and concomitant unpredictable and inconsistent decisions found in divorce cases by proposing that local governments adopt nonbinding “rules of thumb” that would guide judges in exercising that discretion with respect to issues such as child custody, property division, and income support. He contends that this proposal would fit within the existing legal framework of state-local relations and would advance the goals of both family law reform and local empowerment with respect to family issues. Specifically, he urges that local legislative action …

Neighborhoods By Assessment: An Analysis Of Non-Ad Valorem Financing In California, Mathew D. Mccubbins, Ellen C. Seljan

Faculty Scholarship

Non-ad valorem assessments on property are a fiscal innovation born from financial stress. Unable to raise property taxes due to limitations, many localities have turned to these charges as an alternative method to fund local services. In this paper, we seek to explain differential levels of non-ad valorem assessment financing through the analysis of property tax records of a large and diverse set of single family homes in California. We theorize that assessments, as opposed to other forms of taxation, will be used when residents hold anti-redistributive preferences. We show that assessment financing is most common in cities with high …