State and Local Government Law Commons^™

Sitla And How To Make It Pay: Two Proposals For Increasing The Profitability Of Utah’S School And Institutional Trust Lands, Katrina Cole

Brigham Young University Journal of Public Law

No abstract provided.

Publius’S Protectors Of Liberty: A Still Important Role For States, Adam Reed Moore

BYU Law Review

No abstract provided.

The Original “Market” Understanding Of The Commerce Clause: Insights From Early Federal Government Practice And Precedent, Robert J. Pushaw Jr.

BYU Law Review

No abstract provided.

Public Lands In Public Hands: Analysis Of The Underpinnings Of Utah’S Public Trust Doctrine, Brittany Bunker Thorley

BYU Law Review

Utah Lake, the largest freshwater lake in the third driest state, is a vital, yet underappreciated natural resource. In 2018, the Utah State Legislature passed the Utah Lake Restoration Act in an attempt to restore and enhance the lake’s ecological and recreational value. Yet the new law has been met with strong public resistance because it leaves the lake vulnerable to exploitation and further ecological degradation, a concern made real by a proposed development plan that would build a city of islands on top of the lake. Community members cite specific concerns about threats to native species, disruption of water …

Public Trauma: Why Utah Should Waive Immunity For Mental Anguish Injuries, Adam Reed Moore

BYU Law Review

No abstract provided.

Addressing The Next State Fiscal Crisis: Toward An Ex Ante Scheme Of Federal Assistance To States In Fiscal Distress, Omer Kimhi

BYU Law Review

Every several years, usually after a national recession, and also as a result of the C OVID 19 pandemic, states enter financial difficulties. These difficulties spur a debate, both in the political arena and in the academic literature, concerning the appropriate federal response. Some advocate for federal bailouts to rescue the distressed states, while others argue that the states need to deal with their troubles independently or with the help of state bankruptcy legislation. The Article explores the proper federal response to states’ fiscal fiscal crises.

The Article argues that the current (suggested) responses – state bankruptcy and ex-post discretionary …

The Prudential Standing Quandary When Discriminatory, Facially Neutral Laws Allegedly Cause Collateral Damage, Richard Luedeman

Brigham Young University Journal of Public Law

No abstract provided.

Covid’S Counterpunch: State Legislative Assaults On Publichealth Emergency Powers, James G. Hodge Jr., Jennifer L. Piatt

Brigham Young University Journal of Public Law

Amid the most impactful health crisis in over a century, COVID’s “counterpunch” entails aggressive efforts by numerous state legislatures to diminish state and local public health emergency powers. It is an incredulous movement facially supported by a need to appropriately balance economic interests and rights with communal health objectives. At its political core, however, is a “power grab” by legislatures to free their constituents from extensive emergency powers (e.g., social distancing, assembly limits, and business closures). Never mind the fact that these interventions, when used effectively and constitutionally, save lives and reduce morbidity. Public health agents and activists are understandably …

Creating Oases Throughout America’S Food Deserts, Hannah M. Dahle

BYU Law Review

No abstract provided.

Courts Beyond Judging, Michael C. Pollack

BYU Law Review

Across all fifty states, a woefully understudied institution of government is responsible for a broad range of administrative, legislative, law enforcement, and judicial functions. That important institution is the state courts. While the literature has examined the federal courts and federal judges from innumerable angles, study of the state courts as institutions of state government — and not merely as sources of doctrine and resolvers of disputes — has languished. This Article remedies that oversight by drawing attention for the first time to the wide array of roles state courts serve, and by evaluating the suitability of both the allocation …

Utah, Odr, And The New “Millennial”Um, Devin Cooper

Brigham Young University Journal of Public Law

No abstract provided.

Netflix And (Tax) Bill: Retail Sales Taxation Of Services, Grace Stephenson Nielsen

BYU Law Review

No abstract provided.

Forward: State Enforcement In An Interstate World, Margaret H. Lemos

BYU Law Review

“State Enforcement in an Interstate World” is an important topic—fully deserving of all the attention it has received. Past commentators on this topic have generally treated the federal government as a unitary entity. Building on prior work on the subject, this Article explores the polycentric nature of federal regulatory authority and shows how cooperation and rivalry have long been dominant realities of the modern administrative state. The Article discusses how these dynamics complicate analysis of state enforcement in an interstate world and identifies strategies for reducing the frequency and magnitude of the seemingly inevitable conflicts.

A State Is A “They,” Not An “It”: Intrastate Conflicts In Multistate Challenges To The Affordable Care Act, Anthony Johnstone

BYU Law Review

No abstract provided.

State Enforcement In A Polycentric World, David A. Hyman, William E. Kovacic

BYU Law Review

No abstract provided.

The (Surprisingly) Prevalent Role Of States In An Era Of Federalized Class Actions, Linda S. Mullenix

BYU Law Review

In enacting the Class Action Fairness Act of 2005 (CAFA), Congress intended to expand access to the federal courts for interstate class actions by creating minimal diversity and removal jurisdiction. In Section 2 of the Act, “Findings and Purposes,” Congress stated that class action abuses undermined “the concept of diversity jurisdiction as intended by the Framers of the United States Constitution” in that state courts kept cases of national importance out of federal court and sometimes demonstrated bias against out-of-state defendants. Congress stated that a purpose of CAFA was to “restore the intent of the framers of the United States …

The California Coastal Commission’S Efforts To Provide Affordable Overnight Accommodations By Preempting Cities’ Constitutional Police Power, Taylor Smith

BYU Law Review

No abstract provided.

Faithfully Enforcing The Religious Liberty Guarantees Of The Northwest Territory States, Allan W. Vestal

Brigham Young University Journal of Public Law

No abstract provided.

Enforcement Piggybacking And Multistate Actions, Elysa M. Dishman

BYU Law Review

Civil enforcement in the United States is uniquely “multienforcer.” Numerous public and private enforcers including federal agencies, state attorneys general (AGs), and private litigants have overlapping authority to enforce myriad federal and state laws. Ideally, enforcers would complement one another’s efforts and use their comparative enforcement advantages to broaden the scope of enforcement and act as a check on underenforcement. But in reality, enforcers are often attracted to the same targets—large, public, deep-pocketed corporations. This means that multiple enforcers may pursue essentially the same enforcement action, arising from the same series of events and against the same target. Redundant enforcement …

Changing The Narrative: Sex Trafficking And Its Victims, Danica Baird

Brigham Young University Journal of Public Law

No abstract provided.

Preventing Preemption: Finding Space For States To Regulate Consumers’ Credit Reports, Elizabeth D. De Armond

BYU Law Review

No abstract provided.

Local Home Rule In The Time Of Globalization, Kenneth A. Stahl

BYU Law Review

Cities are increasingly taking the lead in tackling global issues like climate change, financial regulation, economic inequality, and others that the federal and state governments have failed to address. Recent media accounts have accordingly praised cities as the hope of our globally networked future. This optimistic appraisal of cities is, however, undermined by local governments’ cramped legal status. Under the doctrine of home rule, local governments can often only act in matters deemed “local” in nature and cannot regulate “statewide” issues that may have impacts beyond local borders. As a result, the global issues that local governments are being praised …

The State Of The States: The Continuing Struggle To Criminalize Revenge Porn, Justin Pitcher

BYU Law Review

No abstract provided.

Local Governments And Global Commons, Jonathan Rosenbloom

BYU Law Review

No abstract provided.

Symbolic Politics For Disempowered Communities: State Environmental Justice Policies, Tonya Lewis, Jessica Owley

Brigham Young University Journal of Public Law

No abstract provided.

Municipal Manifest Destiny: Constitutionality Of Unilateral Municipal Annexations, Dustin Cammack

BYU Law Review

No abstract provided.

Reconstituting Land-Use Federalism To Address Transitory And Perpetual Disasters: The Bimodal Federalism Framework, Blake Hudson

BYU Law Review

Scholars analyzing the intersection of federalism and disaster law and policy have primarily focused on the difficulties federalism poses for interjurisdictional coordination of disaster response. Though scholars have highlighted that rising disaster risks and costs are associated with “land-use planning that exacerbates, rather than mitigates, disaster risk,” a more holistic analysis of land-use-related disaster law and policy is needed. This Article provides a more comprehensive framework within which to analyze prospective mitigation or prevention of disaster risk and costs through a rebalancing—or reconstituting—of the respective roles of the federal and state governments in land-use planning. The federal government does not …

Preserving Access To Tattoos: First Amendment Trumps Municipal Ban In Anderson V. City Of Hermosa Beach, Richard Hyde

BYU Law Review

No abstract provided.

Can States "Just Say No" To Federal Health Care Reform? The Constitutional And Political Implications Of State Attempts To Nullify Federal Law, Ryan Card

BYU Law Review

No abstract provided.

Managing Agricultural Water Use During Drought: An Analysis Of Contemporary Policies Governing Georgia's Flint River Basin, Mark Masters, Ronald Cummings, Brigham Daniels, Kristen Rowles, Douglas Wilson

Faculty Scholarship

No abstract provided.