State and Local Government Law Commons^™

Wrong Or (Fundamental) Right?: Substantive Due Process And The Right To Exclude, Jack May

Washington Law Review

Substantive due process provides heightened protection from government interference with enumerated constitutional rights and unenumerated—but nevertheless “fundamental”—rights. To date, the United States Supreme Court has never recognized any property right as a fundamental right for substantive due process purposes. But in Yim v. City of Seattle, a case recently decided by the Ninth Circuit, landlords and tenant screening companies argued that the right to exclude from one’s property should be a fundamental right. Yim involved a challenge to Seattle’s Fair Chance Housing Ordinance, which, among other things, prohibits landlords and tenant screening companies from inquiring about or considering a …

Office Of Attorney General Peter F. Neronha, Attorney General: Access To Public Records Act, Open Meetings Act, Attorney General, State Of Rhode Island, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

Grid Governance In The Energy-Trilemma Era: Remedying The Democracy Deficit, Daniel E. Walters, Andrew N. Kleit

Faculty Scholarship

Transforming the electric power grid is central to any viable scenario for addressing global climate change, but the process and politics of this transformation are complex. The desire to transform the grid creates an “energy trilemma” involving often conflicting desires for reliability, cost, and decarbonization; and, at least in the short run, it is difficult to avoid making tradeoffs between these different goals. It is somewhat shocking, then, that many crucial decisions about electric power service in the United States are made not by consumers or their utilities, nor by state public utilities commissions or federal regulators. Instead, for much …

Municipal Law—A Wedge In Climate Initiatives: How State Legislatures’ Preemption Of Local Government’S Role In Climate Change Policy And Arkansas’ Act 308 Of 2021 Are Misplaced., Travis Golliher

University of Arkansas at Little Rock Law Review

No abstract provided.

When Uncle Sam Spills: A State Regulator’S Guide To Enforcement Actions Against The Federal Government Under The Clean Water Act, Ian M. Staeheli

Washington Law Review

The U.S. government is one of the largest polluters on the planet. With over 700 domestic military bases and countless more federal facilities and vessels operating within state borders, there exists an enormous potential for spills and discharges of pollutants into state waters. The regulatory burden for enforcing environmental laws against the federal government falls on the Environmental Protection Agency and state regulators. But enforcing laws and regulations against the federal government and its progeny is a daunting regulatory task.

Other scholarship addresses some of the vexing peculiarities involved when regulating Uncle Sam. Those works discuss the “confusing mess” that …

Confronting Complexity With Regulatory Excellence: Recommendations In The Wake Of The Philadelphia Refinery Explosion, Cary Coglianese

All Faculty Scholarship

Following the June 2019 explosion at the Philadelphia Energy Solutions (PES) refinery, the city of Philadelphia now confronts major challenges associated with the future of the refinery site. Whether the site is reopened as a refinery or other chemical-processing operation, or redeveloped for other uses, the city will face challenges endemic to all kinds of public policy issues: complexity, uncertainty, dynamism, tradeoffs, and value choices. This testimony, delivered to the City of Philadelphia Refinery Advisory Group’s Environment Committee, offers three main suggestions to help guide Philadelphia officials in dealing with the future of the PES refinery site. First, city officials …

Small Business Cybersecurity: A Loophole To Consumer Data, Matthew R. Espinosa

The Scholar: St. Mary's Law Review on Race and Social Justice

Small businesses and small minority owned businesses are vital to our nation’s economy; therefore legislation, regulation, and policy has been created in order to assist them in overcoming their economic stability issues and ensure they continue to serve the communities that rely on them. However, there is not a focus on regulating nor assisting small businesses to ensure their cybersecurity standards are up to par despite them increasingly becoming a victim of cyberattacks that yield high consequences. The external oversight and assistance is necessary for small businesses due to their lack of knowledge in implementing effective cybersecurity policies, the fiscal …

A Bittersweet Deal For Consumers: The Unnatural Application Of Preemption To High Fructose Corn Syrup Labeling Claims, Josh Ashley

Journal of Food Law & Policy

The recent rise of consumer consciousness regarding the health qualities of foods and beverages has become something akin to common knowledge. Reflecting this rise, studies reveal that labels regarding the health qualities of a food are more likely to increase sales. And among the health labels consumers prefer, labels describing the product as natural top the list. One website reports that according to a recent study, 31.3-percent of respondents thought that "100% natural" was the best description to read on a label, compared with only 14.2-percent who thought that "100% organic" was the best description. "All natural ingredients" was the …

Local And State Governments Are Taking The Stage When It Is Fda's Curtain Call - Are Local And State Governments' Safety Warnings Preempted By Federal Law?, Melissa M. Card

Journal of Food Law & Policy

Eliminated from fad diets, sworn off by celebrities, and frantically reformulated out of processed foods, added sugars have been deemed the new nutritional scoundrel. Recent studies from the American Heart Association, the World Health Organization, and the American Cancer Association demonstrate that the consumption of added sugar leads to increased risks of obesity, diabetes, heart disease, and gout. While all foods containing added sugar are deemed unhealthy, Sugary-Sweetened Beverages ("SSBs") are said to be especially toxic by the American health community, by virtue of these beverages' being excessively high in added sugar content, low in satiety, and incomplete in compensation …

Securing Crypto: Exempting Certain Cryptoassets From The Arkansas Securities Act, Jesse Kloss

Arkansas Law Review

Out of fifty states in 2019, Arkansas was ranked forty-fourth for technology and innovation with a grade of “F,” thirty-sixth for economy with a grade of “D+,” and thirty-seventh for business friendliness with a grade of “D+.” It is time to make Arkansas an innovation and business friendly state. Exempting certain fully functional cryptoassets, those that have some purpose other than a speculative or investment purpose, from the Arkansas Securities Act is one step towards doing so.

The Battle Of The Bulge: Evaluating Law As A Weapon Against Obesity, Margaret Sova Mccabe

Journal of Food Law & Policy

"Silly rabbit, Trix are for kids." Since the 1970s, kids have gotten to know the silly rabbit created to promote sugary, fruit-flavored cereal in television ads. Today, "i'm lovin' it" is the McDonald's slogan, but to millions of children the more recognizable symbol is Ronald McDonald. Ronald McDonald is so recognizable that one study pegged recognition of Ronald among American children at 96% and another at 80% by children in nine other countries. Giventhe "obesity crisis," many question whether these ads should be permitted, with some questioning whether such products are even safe for children's consumption. The Trix Rabbit and …

Innovation In A Legal Vacuum: The Uncertain Legal Landscape For Shared Micro-Mobility, David Pimentel, Michael B. Lowry, Timothy W. Koglin, Ronald W. Pimentel

Journal of Law and Mobility

The last few years have seen an explosion in the number and size shared micro-mobility systems (“SMMS”) across the United States. Some of these systems have seen extraordinary success and the potential benefit of these systems to communities is considerable. However, SMMS have repeatedly ran into legal barriers that either prevent their implementation entirely, confuse and dissuade potential users, or otherwise limit SMMS’s potential positive impact.

This paper reflects a detailed study of state laws relating to SMMS and the platforms commonly used in these systems. The study uncovered many inconsistencies with micro-mobility laws across the country. Currently, many states …

What A Difference A State Makes: California’S Authority To Regulate Motor Vehicle Emissions Under The Clean Air Act And The Future Of State Autonomy, Chiara Pappalardo

Michigan Journal of Environmental & Administrative Law

Air pollutants from motor vehicles constitute one of the leading sources of local and global air degradation with serious consequences for human health and the overall stability of Earth’s climate. Under the Clean Air Act (“CAA”), for over fifty years, the state of California has served as a national “laboratory” for the testing of technological solutions and regulatory approaches to improve air quality. On September 19, 2019, the Trump Administration revoked California’s authority to set more stringent pollution emission standards. The revocation of California’s authority frustrates ambitious initiatives undertaken in California and in other states to reduce local air pollution …

Look To Windward: The Michigan Environmental Protection Act And The Case For Atmospheric Trust Litigation In The Mitten State, Jonathan M. Coumes

Michigan Journal of Environmental & Administrative Law

Failure to address climate change or even slow the growth of carbon emissions has led to innovation in the methods activists are using to push decisionmakers away from disaster. In the United States, climate activists frustrated by decades of legislative and executive inaction have turned to the courts to force the hand of the state. In their most recent iteration, climate cases have focused on the public trust doctrine, the notion that governments hold their jurisdictions’ natural resources in trust for the public. Plaintiffs have argued that the atmosphere is part of the public trust and that governments have a …

Reflections On The Effects Of Federalism On Opioid Policy, Matthew B. Lawrence

Dickinson Law Review (2017-Present)

No abstract provided.

The Opioid Litigation: The Fda Is Mia, Catherine M. Sharkey

Dickinson Law Review (2017-Present)

It is readily agreed that federal preemption of state tort law alters the balance between federal and state power. Federal preemption is a high-profile defense in almost all modern products liability cases. It is thus surprising to see how little attention has been given to federal preemption by courts and commentators in the opioid litigation. Opioid litigation provides a lens through which I explore the role of state and federal courts and the Food and Drug Administration (FDA) in striking the right balance of power. My purpose here is not to resolve the divide among the few courts that have …

The Lasting Impacts Of Mass Consumerism And The Disposable Culture: A Proposition For The Development Of Plastic Shopping Bag Bans In Texas Law, David Brewster

St. Mary's Law Journal

This Article addresses the developing state of plastic bag bans in Texas municipal and state jurisprudence. The Article recites the history of plastic bag bans and their impacts on the environment, the issues pertinent to municipal powers as regulatory devices, and analyzes the most recent case regarding bag bans in Texas, which is the Texas Supreme Court’s opinion in City of Laredo v. Laredo Merchants Association. The Article makes suggestions about how to move forward in developing municipal plastic bag bans for the benefit of the environment, and addresses the immediate impacts of bag ban litigation and legislation in …

Cannabis Legalization In State Legislatures: Public Health Opportunity And Risk, Daniel G. Orenstein, Stanton A. Glantz

Marquette Law Review

Cannabis is widely used in the United States and internationally despite its illicit status, but that illicit status is changing. In the United States, thirty-three states and the District of Columbia have legalized medical cannabis, and eleven states and D.C. have legalized adult use cannabis. A majority of state medical cannabis laws and all but two state adult use laws are the result of citizen ballot initiatives, but state legislatures are beginning to seriously consider adult use legislation. From a public health perspective, cannabis legalization presents a mix of potential risks and benefits, but a legislative approach offers an opportunity …

Scrutinizing Anticompetitive State Regulations Through Constitutional And Antitrust Lenses, Daniel A. Crane

Articles

State and local regulations that anticompetitively favor certain producers to the detriment of consumers are a pervasive problem in our economy. Their existence is explicable by a variety of structural features—including asymmetry between consumer and producer interests, cost externalization, and institutional and political factors entrenching incumbent technologies. Formulating legal tools to combat such economic parochialism is challenging in the post-Lochner world, where any move toward heightened judicial review of economic regulation poses the perceived threat of a return to economic substantive due process. This Article considers and compares two potential tools for reviewing such regulations—a constitutional principle against anticompetitive parochialism …

The Impact Of H.B. 214: A Critical Analysis Of The Texas "Rape Insurance" Bill, Lucie Arvallo

St. Mary's Law Journal

Texas House Bill 214 (H.B. 214) is subject to challenge under the Supreme Court precedent protecting a woman’s right to choose. Passed in 2017, H.B. 214 regulates Texas insurance markets by prohibiting coverage for an elective abortion unless a woman affirmatively opts into such coverage through a separate contract and pays a separate premium. Similar restrictions on insurance coverage for elective abortion in other states have been met with mixed results in the courts. What sets H.B. 214 apart from other regulations of insurance coverage for abortion is that it does not include any exceptions for abortions in cases of …

Rwu First Amendement Blog: Jared Goldstein's Blog: The First Amendment And The Foxy Lady 01-08-2019, Jared A. Goldstein

Law School Blogs

No abstract provided.

Unlocking Access To Health Care: A Federalist Approach To Reforming Occupational Licensing, Gabriel Scheffler

All Faculty Scholarship

Several features of the existing occupational licensing system impede access to health care without providing appreciable protections for patients. Licensing restrictions prevent health care providers from offering services to the full extent of their competency, obstruct the adoption of telehealth, and deter foreign-trained providers from practicing in the United States. Scholars and policymakers have proposed a number of reforms to this system over the years, but these proposals have had a limited impact for political and institutional reasons.

Still, there are grounds for optimism. In recent years, the federal government has taken a range of initial steps to reform licensing …

Dual Regulation Of Insurance, Christopher French

Christopher C. French

Abandoned But Not Forgotten: Improperly Plugged And Orphaned Wells May Pose Serious Concerns For Shale Development, Bret Wells, Tracy Hester

Michigan Journal of Environmental & Administrative Law

This Article addresses the intersection of oil and gas law and environmental law on a topic that has profound significance for the nation’s oil industry and for the environment. In this regard, the Permian Basin is experiencing a renaissance that has fundamentally impacted oil production in the United States. Horizontal drilling and hydraulic fracturing now allow the industry to produce in the Permian Basin’s unconventional shale formations in ways that were unimaginable a decade ago. But, the hot shale plays within the Permian Basin exist above conventional fields that are littered with a century’s worth of abandoned wells. Fracturing new …

Holding Ridesharing Companies Accountable In Texas, Martha Alejandra Salas

St. Mary's Law Journal

Abstract forthcoming

The Gm Food Debate: An Evaluation Of The National Bioengineered Food Disclosure Standard And Recommendations For The United States Based On Food Justice, Courtnee Grego

Seattle University Law Review

This Note aims to identify the food justice issues caused by the National Bioengineered Food Disclosure Standard (NBFDS) and make recommendations for the United States to minimize these concerns. The NBFDS requires the United States Department of Agriculture (USDA) to draft regulations establishing a mandatory disclosure standard for GM food and ultimately, will require a disclosure on the package of any GM food sold in the United States. Part I of the Note provides an overview of the genetically modified (GM) food debate. Part II reviews the NBFDS. Part III explains the food justice implications of GM food production. Part …

The Gm Food Debate: An Evaluation Of The Nationalbioengineered Food Disclosure Standard Andrecommendations For The United States Based On Foodjustice, Courtnee Grego

Seattle University Law Review

This Note aims to identify the food justice issues caused by the National Bioengineered Food Disclosure Standard (NBFDS) and make recommendations for the United States to minimize these concerns. The NBFDS requires the United States Department of Agriculture (USDA) to draft regulations establishing a mandatory disclosure standard for GM food and ultimately, will require a disclosure on the package of any GM food sold in the United States. Part I of the Note provides an overview of the genetically modified (GM) food debate. Part II reviews the NBFDS. Part III explains the food justice implications of GM food production. Part …

Suggestions For State Laws On Biosimilar Substitution, Gary M. Fox

Michigan Telecommunications & Technology Law Review

Biologic drugs offer major advancements over small-molecule drugs when it comes to treating serious diseases. Biosimilars, which mimic innovative biologic drugs, have the potential to further revolutionize the practice of medicine. States now have decades of experience regulating the substitution of generic, small-molecule drugs for their brand-name equivalents. But the complexities of biologic drugs and biosimilars force states to confront novel scientific and legal issues. Many states have begun tackling those issues by passing laws that regulate when pharmacists may substitute biosimilars for their corresponding biologic drugs. Other states have yet to do so. This Note surveys five provisions common …

Marijuana Agriculture Law: Regulation At The Root Of An Industry, Ryan Stoa

Ryan B. Stoa

Marijuana legalization is sweeping the nation. Recreational marijuana use is legal in eight states. Medical marijuana use is legal in thirteen states. Only three states maintain an absolute criminal prohibition on marijuana use. Many of these legalization initiatives propose to regulate marijuana in a manner similar to alcohol, and many titles are variations of the "Regulate Marijuana Like Alcohol Act." For political and public health reasons the analogy makes sense, but it also reveals a regulatory blind spot. States may be using alcohol as a model for regulating the distribution, retail, and consumption of marijuana, but marijuana is much more …

Cooperative Federalism In Biscayne National Park, Ryan Stoa

Ryan B. Stoa

Biscayne National Park is the largest marine national park in the United States. It contains four distinct ecosystems, encompasses 173,000 acres (only five percent of which are land), and is located within densely populated Miami-Dade County. The bay has a rich history of natural resource utilization, but aggressive residential and industrial development schemes prompted Congress to create Biscayne National Monument in 1968, followed by the designation of Biscayne National Park in 1980. When the dust settled, Florida retained key management powers over the Park, including joint authority over fishery management. States and the federal government occasionally share responsibility for regulating …