State and Local Government Law Commons^™

The Private Litigation Impact Of New York’S Green Amendment, Evan Bianchi, Sean Di Luccio, Martin Lockman, Vincent Nolette

Sabin Center for Climate Change Law

The increasing urgency of climate change, combined with federal environmental inaction under the Trump Administration, inspired a wave of environmental action at the state and local level. Building on the environmental movement of the 1970s, activists have pushed to amend more than a dozen state constitutions to include “green amendments” — self-executing individual rights to a clean environment. In 2022, New York activists succeeded, and New York’s Green Amendment (the NYGA) now provides that “Each person shall have a right to clean air and water, and a healthful environment.”

However, the power of the NYGA and similar green amendments turns …

The Perennial Eclipse: Race, Immigration, And How Latinx Count In American Politics, Rachel F. Moran

Faculty Scholarship

In 2016, the U.S. Supreme Court decided Evenwel v. Abbott, a case challenging the use of total population in state legislative apportionment as a violation of the Equal Protection Clause. The plaintiffs sued Texas, alleging that the State impermissibly diluted their voting power because they lived in areas with a high proportion of voting-age citizens. When total population was used to draw district lines, the plaintiffs had to compete with more voters to get their desired electoral outcomes than was true for voters in districts with low proportions of voting-age citizens. The Court rejected the argument, finding that states enjoy …

Slaughtering Slaughter-House: An Assessment Of 14th Amendment Privileges Or Immunities Jurisprudence, Caleb Webb

Senior Honors Theses

In 1872, the Supreme Court decided the Slaughter-House Cases, which applied a narrow interpretation of the Privileges or Immunities Clause of the 14^th Amendment that effectually eroded the clause from the Constitution. Following Slaughter-House, the Supreme Court compensated by utilizing elastic interpretations of the Due Process Clause in its substantive due process jurisprudence to cover the rights that would have otherwise been protected by the Privileges or Immunities Clause. In more recent years, the Court has heard arguments favoring alternative interpretations of the Privileges or Immunities Clause but has yet to evaluate them thoroughly. By applying the …

The Right To Trial By Jury Shall Remain Inviolate: Jury Trials In Civil Actions In Georgia’S Courts, David E. Shipley

Scholarly Works

Trials, though rare, “shape almost every aspect of procedure,” and the jury trial is a distinctive feature of civil litigation in the United States. The Seventh Amendment of the U.S. Constitution ‘preserves’ the right to jury trial “[i]n suits at common law, where the value in controversy shall exceed twenty dollars.” Even though this amendment does not apply to the states, courts in the states “honor the right to the extent it is created in their constitutions or local statutes.”

The Georgia Constitution provides that “[t]he right to trial by jury shall remain inviolate,” and Georgia’s appellate courts have shown …

Brief Of Amici Curiae In Support Of The United States: Moyle & Idaho V. United States, David S. Cohen, Greer Donley, Rachel Rebouché

Amici Briefs

This amicus brief, submitted to the Supreme Court in Moyle v. United States, argues that Moyle, and the impending circuit split surrounding it, is a symptom of a larger workability problem with the Dobbs v. Jackson Women’s Health Organization framework. Dobbs is already proving, in its brief existence, to be unworkable, and must be overturned. In short order, the Dobbs ruling has ushered in an era of unprecedented legal and doctrinal chaos, precipitating a fury of disorienting legal battles across the country. The Dobbs framework has created destabilizing conflicts between federal and state authorities, as in the current …

Why U.S. States Need Their Own Cannabis Industry Banks, Christoph Henkel, Randall K. Johnson

Faculty Works

The legal cannabis trade is the fastest growing industry in the United States. In 2019, about 48.2 million Americans used the drug at least once. As such, it is easy to see why the legal cannabis trade may generate annual revenues exceeding $30 billion in Fiscal Year 2022 alone.

One inconvenient truth, however, is that the parties to any cannabis trade may face a range of difficulties due to conflicts between federal and state laws. These difficulties include the fact that many financial institutions are reluctant to handle cannabis proceeds. One reason is that a lack of alignment in terms …

Interposition: A State-Based Constitutional Tool That Might Help Preserve American Democracy, Christian G. Fritz

Faculty Scholarship

Interposition was not a claim that state sovereignty could or should displace national authority, but a claim that American federalism needed to preserve some balance between state and national authority.

http://commonplace.online/article/interposition/

Personhood, Property, And Public Education: The Case Of Plyler V. Doe, Rachel F. Moran

Faculty Scholarship

Property law is having a moment, one that is getting education scholars’ attention. Progressive scholars are retooling the concepts of ownership and entitlement to incorporate norms of equality and inclusion. Some argue that property law can even secure access to public education despite the U.S. Supreme Court’s longstanding refusal to recog- nize a right to basic schooling. Others worry that property doctrine is inherently exclusionary. In their view, property-based concepts like resi- dency have produced opportunity hoarding in schools that serve affluent, predominantly white neighborhoods. Many advocates therefore believe that equity will be achieved only by moving beyond property-based claims, …

Monitoring American Federalism: The Overlooked Tool Of Sounding The Alarm Interposition, Christian G. Fritz

Faculty Scholarship

One key feature of the U.S. Constitution – the concept of federalism – was unclear when it was introduced, and that lack of clarity threatened the Constitution’s ratification by those who feared the new government would undermine state sovereignty. Proponents of the new governmental framework were questioned about the underlying theory of the Constitution as well as how it would operate in practice, and their explanations produced intense and extended debate over how to monitor federalism.

http://50shadesoffederalism.com/case-studies/monitoring-american-federalism-the-overlooked-tool-of-sounding-the-alarm-interposition/#more-1574

No Sense Of Decency, Kathryn E. Miller

Articles

For nearly seventy years, the Court has assessed Eighth Amendment claims by evaluating “the evolving standards of decency that mark the progress of a maturing society.” In this Article, I examine the evolving standards of decency test, which has long been a punching bag for critics on both the right and the left. Criticism of the doctrine has been fierce, but largely academic until recent years. Some fault the test for being too majoritarian, while others argue that it provides few constraints on the Justices’ discretion, permitting their personal predilections to rule the day. For many, the test is seen …

Uncertainty Surrounding Takings Claimants’ Rights In Municipal Bankruptcies, Gillian Deery

Bankruptcy Research Library

(Excerpt)

Governments in the United States and its territories have the power to exercise eminent domain so long as they provide property owners with the constitutionally guaranteed “just compensation.” The Fifth Amendment’s Takings Clause specifically prescribes this remedy for parties whose property has been subject to a government taking. “Just compensation” has proven to be an issue in the context of bankruptcy, as bankruptcy law inherently allows debtors to alter their obligations to their creditors.

In response to Puerto Rico’s financial crisis, Congress enacted the Puerto Rico Oversight, Management, and Economic Stability Act (“PROMESA”), which created a modified version of …

A Theory Of Federalization Doctrine, Gerald S. Dickinson

Articles

The doctrine of federalization—the practice of the U.S. Supreme Court consulting state laws or adopting state court doctrines to guide and inform federal constitutional law—is an underappreciated field of study within American constitutional law. Compared to the vast collection of scholarly literature and judicial rulings addressing the outsized influence Supreme Court doctrine and federal constitutional law exert over state court doctrines and state legislative enactments, the opposite phenomenon of the states shaping Supreme Court doctrine and federal constitutional law has been under-addressed. This lack of attention to such a singular feature of American federalism is striking and has resulted in …

Judicial Federalization Doctrine, Gerald S. Dickinson

Articles

This Article explores the concept of “judicial federalization doctrine.” The doctrine emanates from well-documented areas of federal constitutional law, including exactions, racially motivated peremptory challenges, the exclusionary rule, same-sex sodomy, marriage, and freedom of speech and press. The origin and development of these federal doctrines, however, is anything but federal. The U.S. Supreme Court has, on rare occasions, heavily consulted with or borrowed from state court doctrines to create a new federal jurisprudence. While the literature addressing the Court’s occasional vertical dependence on state court doctrine is sparse, there is a complete absence of scholarly attention studying the Court’s reluctance …

State Constitutional Law: Standing To Litigate Public Rights In Georgia Courts, Randy Beck

Scholarly Works

State courts interpreting state constitutions face the recurring issue of how much weight to afford Supreme Court of the United States precedent addressing comparable questions under the United States Constitution. At one end of the spectrum, many state courts routinely engage in what federal Judge Jeffrey Sutton calls “lockstepping,” importing federal doctrine wholesale into state decisional law. For a court engaged in lockstepping, concepts like freedom of speech or equal protection of the laws under a state constitution mean whatever the U.S. Supreme Court interprets them to mean under the federal Constitution, even if the state provision differs in potentially …

Extreme Risk Protection Orders In The Post-Bruen Age: Weighing Evidence, Scholarship, And Rights For A Promising Gun Violence Prevention Tool, Andrew Willinger, Shannon Frattaroli

Faculty Scholarship

Extreme Risk Protection Orders (ERPOs) are civil court orders that temporarily prohibit gun purchase and possession by people who are behaving dangerously and at risk of committing imminent violence. As of September 2023, ERPOs are available in 21 states and the District of Columbia. This Article presents an overview of ERPO laws, the rationale behind their development, and a review and analysis that considers emerging constitutional challenges to these laws (under both the Second Amendment and due process protections) in the post-Bruen era. This Article notes that the presence of multiple constitutional challenges in many ERPO-related cases has confused judicial …

Changemakers: Master Of Studies In Law: "Exactly What I Needed...": John Marion, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

States Of Emergency: Covid-19 And Separation Of Powers In The States, Richard Briffault

Faculty Scholarship

No event in recent years has shone a brighter spotlight on state separation of powers than the COVID-19 pandemic. Over a more than two-year period, governors exercised unprecedented authority through suspending laws and regulations, limiting business activities and gatherings, restricting individual movement, and imposing public health requirements. Many state legislatures endorsed these measures or were content to let governors take the lead, but in some states the legislature pushed back, particularly — albeit not only—where the governor and legislative majorities were of different political parties. Some of these conflicts wound up in state supreme courts.

This Essay examines the states’ …

The Right To Amend State Constitutions, Jessica Bulman-Pozen, Miriam Seifter

Faculty Scholarship

This Essay explores the people's right to amend state constitutions and threats to that right today. It explains how democratic proportionality review can help courts distinguish unconstitutional infringement of the right from legitimate regulation. More broadly, the Essay considers the distinctive state constitutional architecture that popular amendment illuminates.

State Constitutional Rights, State Courts, And The Future Of Substantive Due Process Protections, Jonathan L. Marshfield

UF Law Faculty Publications

By most accounts, the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization signaled a broader stagnation (and perhaps retrenchment) of federal substantive due process protections. As a result, there is now great interest in the role that state constitutions and courts might play in protecting and expanding reproductive and privacy rights. This Article aims to place this moment in state constitutional development in broader context. It makes two core claims in this regard. First, although state courts are free to interpret state constitutions as providing broader individual rights protections than those contained in the Federal Constitution, state constitutions …

State Constitutional Rights And Democratic Proportionality, Jessica Bulman-Pozen, Miriam Seifter

Faculty Scholarship

State constitutional law is in the spotlight. As federal courts retrench on abortion, democracy, and more, state constitutions are defining rights across the nation. Despite intermittent calls for greater attention to state constitutional theory, neither scholars nor courts have provided a comprehensive account of state constitutional rights or a coherent framework for their adjudication. Instead, many state courts import federal interpretive practices that bear little relationship to state constitutions or institutions.

This Article seeks to begin a new conversation about state constitutional adjudication. It first shows how in myriad defining ways state constitutions differ from the U.S. Constitution: They protect …

Abortion Pills, David S. Cohen, Greer Donley, Rachel Rebouché

Articles

Abortion is now illegal in roughly a third of the country, but abortion pills are more widely available than ever before. Though antiabortion advocates and legislators are attacking pills with all manner of strategies, clinics, websites, and informal networks are openly facilitating the distribution of abortion pills, legally and illegally, across the United States. This Article is the first to explain this defining aspect of the post-Roe environment and the novel issues it raises at the level of state law, federal policy, and on-the-ground advocacy.

This Article first details antiabortion strategies to stop pills by any means necessary. These tactics …

The New Laboratories Of Democracy, Gerald S. Dickinson

Articles

Nearly a century ago, Justice Louis D. Brandeis’s dissent in New State Ice Co. v. Liebman coined one of the most profound statements in American law: “It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” Justice Brandeis reminded us of our strong tradition of federalism, where the states, exercising their sovereign power, may choose to experiment with new legislation within their separate jurisdictions without the concern that such …

Oral Argument In Moore V. Harper And The Perils Of Finding “Compromise” On The Independent State Legislature Theory, Katherine A. Shaw

Online Publications

The Supreme Court’s cert grant last June in Moore v. Harper was an ominous note on which to end an explosive term. The grant seemed to broadcast an openness to embracing what’s known as the “independent state legislature theory,” or ISLT. It is a once-fringe idea that the U.S. Constitution, and in particular Article I’s “elections clause,” grants to state legislatures alone, and withholds from other state entities (think: courts and constitutions), the power to regulate elections for federal office.

Cle Working Paper No. 3/2022--What Is The Test For Interlocutory Injunctions Affecting Homeless Encampments? A Critique Of Vancouver Fraser Port Authority V Brett And Associated Case Law, Stepan Wood

Centre for Law and the Environment

Vancouver Fraser Port Authority v Brett (VFPA v Brett), decided in 2020, marked a new low in judicial responses to the intersecting crises of housing, homelessness, poverty, toxic drugs, mental health, racism and colonialism. By dropping to the ground the already low bar for granting interlocutory injunctions to evict homeless encampments from publicly owned land i n BC, this decision invites a critical assessment of BC courts’ approach to homeless encampment injunctions. In this paper I present the first comprehensive survey of 21st century BC homeless encampment interlocutory injunction applications, which shows that they have an extremely high …

No-One Receives Psychiatric Treatment In A Squad Car, Judy A. Clausen, Joanmarie Davoli

Faculty Scholarship

No abstract provided.

Think State Supreme Courts Will Save Abortion Rights? Think Again., Neal Devins

Popular Media

No abstract provided.

"A Mystifying And Distorting Factor": The Electoral College And American Democracy, Katherine A. Shaw

Articles

A Review of Let the People Pick the President: The Case for Abolishing the Electoral College. By Jesse Wegman.

The Emergency Next Time, Noa Ben-Asher

Elisabeth Haub School of Law Faculty Publications

This Article offers a new conceptual framework to understand the connection between law and violence in emergencies. It is by now well-established that governments often commit state violence in times of national security crisis by implementing excessive emergency measures. The Article calls this type of legal violence “Emergency-Affirming Violence.” But Emergency Violence can also be committed through governmental non-action. This type of violence, which this Article calls, “Emergency-Denying Violence,” has manifested in the crisis of the COVID-19 pandemic.

The Article offers a taxonomy to better understand the phenomenon of Emergency Violence. Using 9/11 and COVID-19 as examples, the Article proposes …

Protecting State Constitutional Rights From Unconstitutional Conditions, Kay L. Levine, Jonathan R. Nash, Robert A. Schapiro

Faculty Articles

The unconstitutional conditions doctrine limits the ability of governments to force individuals to choose between retaining a right and enjoying a government benefit. The doctrine has primarily remained a creature of federal law, with neither courts nor commentators focusing on the potentially important role of state doctrines of unconstitutional conditions. This omission has become especially significant during the COVID-19 pandemic, as actions by state and local governments have presented unconstitutional conditions questions in a range of novel contexts. The overruling of Roe v. Wade and the resulting focus on state constitutional rights to abortion will offer additional new settings for …

Reasoning V. Rhetoric: The Strange Case Of “Unconstitutional Beyond A Reasonable Doubt”, Hugh D. Spitzer

Articles

An odd formulation has frequented American constitutional discourse for 125 years: a declaration that courts should not overturn a statute on constitutional grounds unless it is “unconstitutional beyond a reasonable doubt.” This concept has been thought of as a presumption, a standard, a doctrine, or a philosophy of coordinate branch respect and judicial restraint. Yet it has been criticized because “beyond a reasonable doubt” is at root an evidentiary standard of proof in criminal cases rather than a workable theory or standard for deciding constitutional law cases. This article discusses the history and use of “unconstitutional beyond a reasonable doubt,” …