Law Commons^™

Climate Change, Regulatory Fragmentation, And Water Triage, Robin K. Craig

Robin K. Craig

Fresh water is a regulatorily fragmented resource – that is, water is subject to multiple assertions of regulatory authority and to multiple types of use right claims that those authorities regulate. As fresh water supplies become increasingly unequal to task of meeting the multiple demands for both consumptive and in situ use, and as consumptive and in situ uses of water come increasingly into irreconcilable conflict, the various regulatory schemes governing water have also increasingly come into legal conflict. These courtroom battles have revealed many tensions, overlaps, and gaps in the overall governance of water as a natural resource, especially …

The Future Of School Finance Litigation, James E. Ryan

james e. ryan

Just about everyone who writes on the topic agrees that school finance litigation, going forward, will be inextricably linked with the standards and testing movement. The basic idea is that state constitutions can and should be read to protect the right to an adequate education. Academic standards, in turn, define what counts as an adequate education. This leaves to courts in school finance cases the task of determining if schools have sufficient resources to meet the standards -- and thus provide an adequate education. Linking school finance litigation to standards and testing, so everyone also seems to agree, will benefit …

Government Lawyers And Confidentiality Norms, Kathleen Clark

Kathleen Clark

This article addresses the confidentiality obligations of government lawyers, and how those obligations differ from private sector lawyers. It examines the rather complex question of the identity of a government lawyer’s client, notes that many government lawyers make decisions that are normally reserved for clients, and finds that those lawyers can appropriately consider the public interest in making those decisions. On the specific issue of confidentiality, the article asserts that, as a substantive matter, government lawyers may disclose government wrongdoing and may reveal information that is subject to disclosure under freedom of information laws. But as a procedural matter, state …

Katrina’S Window: Localism, Re-Segregation And Equitable Regionalism, David D. Troutt

Rutgers Law School (Newark) Faculty Papers

The worst national disaster in United States history also showcased the dire consequences of localism as the cultural and legal successor to de jure segregation. Long before Hurricanes Katrina and Rita devastated the Gulf Coast, New Orleans’ status as an exceptional city had been lost to Americanizing trends. Its resistance to the conventional racial binary was overcome after Reconstruction; its unique densities and accommodation of the physical landscape were transformed into sprawling divisions by technology and suburbanization. From the Brown decision forward, New Orleans and the metropolitan area around it developed much like the rest of the nation. Localist tendencies …

A Comparative Guide To The Eastern Public Trust Doctrines: Classifications Of States, Property Rights, And State Summaries, Robin K. Craig

Robin K. Craig

Public trust doctrine literature to date has displayed two distinct tendencies, both of which limit comprehensive discussion of the American public trust doctrines. At one end of the spectrum, articles focused on broader legal principles tend to discuss the public trust doctrine, as though a single public trust doctrine pervaded the United States. At the other end, articles focus on how one particular state implements its particular state public trust doctrine. Few articles have grappled with the richness and complexity of public trust philosophies that more comparative approaches to the nation’s public trust doctrines – emphasis on the plural – …

Reviving Cities - Legal Remedies To Municipal Financial Crises, Omer Kimhi

Omer Kimhi

Local fiscal crises are by no means a negligible phenomenon. In the last 30 years a significant number of the nation’s cities have suffered from serious financial strain, and several large and important cities (such as New York, Philadelphia and Miami) have even experienced a full-blown crisis (where they did not have sufficient resources to finance basic public services). In this paper I discuss the legal remedies developed over the years to address local insolvency (the creditors’ remedies, Chapter 9 of the bankruptcy code and state financial boards), and I explain the logic and limits of each remedy. The analysis …

Searching For Robin Hood: Suggested Legislative Responses To Kelo, Mark Seidenfeld

Mark Seidenfeld

This article is a short essay that employs an economic analysis of the need for and potential abuses of eminent domain used to transfer property from one private entity to another. It adds to the current literature by suggesting that states can establish mechanisms for evaluating and compensating current landowners for the idiosyncratic value they place on their property, and can establish administrative procedures and judicial review essentially to require local governments to auction the opportunity to obtain the property to the private entity that will provide the greatest benefit to the jurisdiction.

Five Myths About Sprawl , Michael E Lewyn

Michael E Lewyn

In Sprawl: A Compact History, Robert Bruegmann, an art historian, has painted a superficially convincing case for the status quo, asserting that sprawl is “a natural result of affluence that occurs in all urbanized societies.” Bruegmann's book has generated glowing media publicity. This article suggests that Bruegmann overestimates the universality of sprawl, by overlooking the differences between pedestrian-friendly cities with some sprawling development and cities in which automobile-dependent sprawl is the only choice available to most consumers. In addition, Bruegmann understates the harmful social effects of sprawl, especially the effect of automobile-dependent development upon non-drivers. Bruegmann also consistently underestimates the …

Pandemics And Public Health Emergencies: Lessons From The 1918 Flu, Jason B. Marisam

Jason B Marisam

Public health law scholars are currently grappling with state and community responses to pandemics, bioterrorist attacks, and other public health emergencies. However, this burgeoning scholarship lacks a historical perspective. This article fills that gap by examining the worst epidemic in American history – the 1918 influenza outbreak. Several lessons for scholars and policymakers emerge from the article. Most importantly, it demonstrates how officials in the middle of an emergency can relinquish their public health powers to citizens, who may then make their own risk assessments and decisions through town meetings and other deliberative democratic processes. This observation challenges the public …

Local Public Entrepreneurship And Judicial Intervention In A Euro-American And Global Perspective, Fernando Christian Iaione

Fernando Christian Iaione

Local public entrepreneurship is a concept which encompasses a variety of activities carried out by local governments to foster local economic development. The first part of this paper puts forward local public entrepreneurship as a windfall of the right to local self-government. In the second part two cases are presented - one from EU and one from US - where local public entrepreneurship is playing a major role. However, in the EU the ECJ jurisprudence is discouraging local governments to engage in such activities thereby undermining the right to local self-government. By contrast, the US legal system actively encourages a …

Local Public Entrepreneurship And Judicial Intervention In A Euro-American And Global Perspective, Christian Iaione

Fernando Christian Iaione

Local public entrepreneurship is a concept which encompasses a variety of activities carried out by local governments to foster local economic development. The first part of this paper puts forward local public entrepreneurship as a windfall of the right to local self-government. In the second part two cases are presented - one from EU and one from US - where local public entrepreneurship is playing a major role. However, in the EU the ECJ jurisprudence is discouraging local governments to engage in such activities thereby undermining the right to local self-government. By contrast, the US legal system actively encourages a …

Local Public Entrepreneurship And Judicial Intervention In A Euro-American And Global Perspective, Fernando Christian Iaione

Fernando Christian Iaione

Local public entrepreneurship is a concept which encompasses a variety of activities carried out by local governments to foster local economic development. The first part of this paper puts forward local public entrepreneurship as a windfall of the right to local self-government. In the second part two cases are presented - one from EU and one from US - where local public entrepreneurship is playing a major role. However, in the EU the ECJ jurisprudence is discouraging local governments to engage in such activities thereby undermining the right to local self-government. By contrast, the US legal system actively encourages a …

How Government Regulation Forces Americans Into Their Cars: A Case Study, Michael E Lewyn

Michael E Lewyn

Shows how zoning law in Jacksonville contributes to automobile dependence.

Municipal Overreaching; Federal Preemption As It Applies To Town Ordinances Outlawing The Rental Of Housing To Undocumented Aliens, Hayden Patrick O'Byrne

Hayden Patrick O'Byrne

Within the past year or so a handful of towns around the United States have passed ordinances prohibiting undocumented aliens from renting housing. This paper explores how these ordinances are incompatible with the Federal Immigration Scheme and preempted by Federal Law.

Plenty Of Bark, But Not Much Bite: Putting Teeth Back Into Historic Preservation Enforcement In D.C., Winston Sale

Georgetown Law Historic Preservation Papers Series

Washington, D.C. has one of the largest inventories of protected historic buildings of any city in the United States. Over 25,000 structures stand within the city's borders that are either individually landmarked or contributing buildings within a historic district. These buildings are covered by statutory protection designed to prevent alteration or demolition without consultation with the Office of Historic Preservation (HPO) and/or the D.C. Historic Preservation Review Board (HPRB). Enforcement of these protections relies on HPO's inspectors.

While the District currently employs two historic preservation inspectors, recent changes in the structure of HPO and other D.C. bureaucracies brought about a …

The Intersection Of Gender And Early American Historic Preservation: A Case Study Of Ann Pamela Cunningham And Her Mount Vernon Preservation Effort, Jill Teehan

Georgetown Law Historic Preservation Papers Series

American historic preservationists universally credit Ann Pamela Cunningham, the woman who saved George Washington's Mount Vernon home, as the chief architect of the historic preservation movement in the United States. However, little scholarship has considered how Cunningham's social position as a woman significantly contributed to her ability to save Mount Vernon, and thus jumpstart a national movement to save historically significant places. Using Cunningham and the organization she formed, the Mount Vernon Ladies' Association of the Union (MVLA), widely regarded as the nation's first historic preservation society, this paper considers the intersection of gender and early historic preservation in the …

Demolition By Neglect: Repairing Buildings By Repairing Legislation, Anna Martin

Georgetown Law Historic Preservation Papers Series

One of the biggest problems today facing communities with historic preservation ordinances is delinquent owners who don’t have the will or the finances to maintain their historic properties and landmarks. Historic preservation law plays an important role in building a sense of patriotism and community togetherness, fostering education and providing incentives for aesthetically pleasing architecture. When residents can identify with a community, this creates a dialogue and sense of belonging. There are also environmental and psychological impacts of preserving old buildings, since human beings are positively affected by their surroundings when they feel a "sense of place." When buildings in …

Conservation Districts: A Solution For The Deanwood Neighborhood?, Kelly B. Bissinger

Georgetown Law Historic Preservation Papers Series

Preserving and protecting home ownership and the affordable housing in the United States remains a serious concern despite numerous federal programs intended to encourage home ownership and to provide affordable housing to low-income individuals and families. Often times, low-income people live in older, run-down neighborhoods in urban areas. There is a constant threat that developers will purchase properties in these areas in order to demolish or renovate existing structures and redevelop the area (this process is often referred to as "gentrification").

One of the consequences of gentrification is the displacement of low-income residents. In those instances where low-income residents own …

Collective Bargaining Agreements And Chapter 9 Bankruptcy, Ryan Preston Dahl

Ryan P Dahl

The recent cycle of automotive and aviation bankruptcies is ending. The next major restructuring cycle may come from a very different quarter. Municipalities throughout the United States will face the very real prospect of insolvency. The treatment of collective bargaining agreements will play a significant role in this process. Unaffordable collective bargaining obligations may be the efficient cause of such filings. Alternatively, rejecting such agreements may be the most effective means of restoring a municipal debtor’s financial health.

Statutory gaps, the absence of significant caselaw, and limited scholarly commentary raise serious questions as to how courts should treat collective bargaining …

Beware Of Greens In Praise Of The Common Law, James L. Huffman

James L. Huffman

Beware of Greens in Praise of the Common Law

James L. Huffman

ABSTRACT

After several decades of general agreement among environmental law scholars and environmentalists that the common law is inadequate to meet the challenges of environmental protection, a few scholars have taken a second look at common law remedies in recent years. Simple pragmatism explains some of this newborn interest in the common law, while for others there has been at least some acceptance of the efficiency arguments made by free market environmentalists since the 1970s. But for the most part the fledgling environmentalist case for revival of common …

Crossing The Constitutional Border: An Analysis Of Illegal Immigrants' Rights In America, Cheryl L. Torralba

Cheryl L. Torralba

I wrote my comment on the constitutional issues concerning the Illegal Immigration Relief Act (IIRA) that was passed in Hazleton, PA on July 13, 2006. This act penalizes landlords and employers that hire or lease housing to illegal immigrants leading to constitutional violations to the Latino-American community and mixed status families of Hazleton. First, I discuss the Fourteenth Amendment Equal Protection violations that the IIRA implies since it is too overbroad and is not narrowly tailored enough to serve a compelling government interest. Second, I argue that the IIRA violates the procedural due process rights of suspected illegal immigrants because …

Local Inclusionary Housing Programs: Meeting Housing Needs, John R. Nolon, Jessica A. Bacher

Elisabeth Haub School of Law Faculty Publications

This article explores the expansive legal authority that local governments in many states have to meet housing needs directly by providing for the production of new affordable homes. There is not a great deal of scholarship on the subject as we approach it. The emphasis in the academic literature in the field of affordable housing is on top-down, systemic, or theoretical solutions: urging reforms in federal and state finance programs, imploring courts to penalize localities that engage in exclusionary zoning, describing in detail a variety of inclusionary zoning techniques, or explaining relevant theories or the economics of the issue of …

Striking A Match In The Historic District: Opposition To Historic Preservation And Responsive Community Building, Sarah N. Conde

Georgetown Law Historic Preservation Papers Series

In her 1981 Stanford Law Review article, Carol Rose articulated as a justification for the historic preservation "vogue" a community building rationale that transformed preservation from an end in itself to a means for community self-definition. Procedurally, Rose argued, preservation laws give communities the power to comment on the direction of development, and impurity of motive does not weaken the cause of community members who use the tools preservation law gives them. Suppose, she suggested, that the primary concern of neighbors is avoiding massive construction, and they emphasize history only as an instrument to oppose change. Such a motive is …

If They Can Raze It, Why Can't I? A Constitutional Analysis Of Statutory And Judicial Religious Exemptions To Historic Preservation Ordinances, Erin Guiffre

Georgetown Law Historic Preservation Papers Series

In 1996, America almost lost a great piece of its history. The Cathedral of Saint Vibiana, located in Los Angeles, was in danger of being destroyed. The "Baroque-inspired Italianate structure" was completed in 1876 by architect Ezra F. Kysor. The cathedral is one of only a few structures from Los Angeles' early history remaining. As an important part of history and a beautiful piece of architecture, the cathedral was listed on California's register of historic places. In 1994, an earthquake damaged part of the building. After an inspection by the building and safety department in 1996, the only portion of …

American Cities, Urban Planning, And Place Based Crime Prevetion, Edward H. Ziegler

Edward H Ziegler

Nearly a generation after Oscar Newman first wrote about the issues of place-based crime prevention and defensible space, cities large and small throughout the world are showing interest in what is now generally known as the field of “Crime Prevention Through Environmental Design.” In the United States and elsewhere throughout the world, preventing crime and reducing the fear of crime continue to be high priorities of citizens and city officials. Place-based crime prevention techniques are increasingly viewed as important urban planning tools to enhance the physical safety of citizens and to protect the public and private economic investment in new …

Who Owns "Hillary.Com"? Political Speech And The First Amendment In Cyberspace, Jacqueline Lipton

Jacqueline D Lipton

In the lead-up to the next presidential election, it will be important for candidates both to maintain an online presence and to exercise control over bad faith uses of domain names and web content related to their campaigns. What are the legal implications for the domain name system? Although, for example, Senator Hillary Clinton now owns ‘hillaryclinton.com’, the more generic ‘hillary.com’ is registered to a software firm, Hillary Software, Inc. What about ‘hillary2008.com’? It is registered to someone outside the Clinton campaign and is not currently in active use. This article examines the large gaps and inconsistencies in current domain …

Reforming Redistricting: Why Popular Initiatives To Establish Redistricting Commissions Succeed Or Fail, Nicholas Stephanopoulos

Nicholas Stephanopoulos

There are several ways in which redistricting reform could in theory be achieved. State legislatures could voluntarily cede control over district-drawing, courts could invalidate especially egregious gerrymanders, or popular initiatives could be launched to create redistricting commissions. However, thanks to the self-interest of legislators as well as the Supreme Court’s unfortunate recent decisions in Vieth v. Jubelirer and LULAC v. Perry, the redistricting initiative is now the only realistic way to curb political gerrymandering. This Article provides the first detailed empirical and normative examination of redistricting initiatives. The Article begins by making the case for the popular initiative in the …

Effective Implementation Of The Trafficking Of Persons And Involuntary Servitude Articles: Lessons From The Criminal Justice System Response To The Illinois Domestic Violence Act, Alison L. Stankus, Jennifer A. Kuhn

Alison L Stankus

When the Illinois Domestic Violence Act was enacted in 1986, the General Assembly acknowledged that “the legal system has ineffectively dealt with family violence in the past … and has not adequately acknowledged the criminal nature of domestic violence; that, although many laws have changed, in practice there is still widespread failure to appropriately protect and assist victims.” However, despite these stated purposes, the criminal justice system response to the Act in the last twenty years has been slow to correct this failure. Last year, the Trafficking of Persons and Involuntary Servitude Articles were added to the Illinois Criminal Code. …

Speaking Of Inconvenient Truths -- A History Of The Public Trust Doctrine , James L. Huffman

James L. Huffman

In the nearly four decades since Professor Joe Sax published an article in the Michigan Law Review, there has been a flood of academic writing and court decisions on the public trust doctrine. The vast majority of these articles and judicial opinions give a brief synopsis of the doctrine’s Roman, English and early American roots. In a nutshell, the generally accepted history is that from Justinian’s Institutes through Magna Charta and Bracton, Hale and Blackstone reporting on English law and Chancellor Kent acknowledging the reception of English and Roman law in America, the public has deeply rooted rights in access …

Cold Comfort Pharmacy: Pharmacist Tort Liability For Conscientious Refusals To Dispense Emergency Contraception, Kristen Marttila Gast

ExpressO

The past several years have seen an increasing number of pharmacists refuse to dispense emergency contraception, an effective, post-coital form of contraception, on the grounds that the drug violates their personal beliefs. This Article addresses the impact of those pharmacist refusals under existing principles of tort law. The Article draws on existing pharmacy case law, state-specific refusal clauses, and ethics statements promulgated by professional pharmacy associations to investigate whether pharmacists have a legal duty to dispense emergency contraception, notwithstanding religious or ethical objections. Concluding that in most states, such a legal duty does exist, the Article develops a “wrongful conception” …