Second-Tier Certiorari: Adverse Precedential Effect As A Predicate For Finding A “Miscarriage Of Justice” In Government Appeals, 2017 City of Miami
Second-Tier Certiorari: Adverse Precedential Effect As A Predicate For Finding A “Miscarriage Of Justice” In Government Appeals, John A. Greco
FIU Law Review
No abstract provided.
Florida Joins The Fight Against Revenge Porn: Analysis Of Florida’S New Anti-Revenge Porn Law, 2017 Florida International University College of Law
Florida Joins The Fight Against Revenge Porn: Analysis Of Florida’S New Anti-Revenge Porn Law, Diane Bustamante
FIU Law Review
No abstract provided.
Without Explanation: Judicial Restraint, Per Curiam Affirmances, And The Written Opinion Rule, 2017 City Attorney of Coral Gables
Without Explanation: Judicial Restraint, Per Curiam Affirmances, And The Written Opinion Rule, Craig E. Leen
FIU Law Review
No abstract provided.
A Cure For “Acute Motion Sickness”: A Practitioner’S Guide To Motion Practice In Florida’S Appellate Courts, 2017 McIntosh Sawran Cartaya, P.A.
A Cure For “Acute Motion Sickness”: A Practitioner’S Guide To Motion Practice In Florida’S Appellate Courts, Kimberly Kanoff Berman
FIU Law Review
No abstract provided.
Community Development Law, Economic Justice, And The Legal Academy, 2017 University of Maine School of Law
Community Development Law, Economic Justice, And The Legal Academy, Peter R. Pitegoff
Faculty Publications
The evolution of community economic development (CED) over the past several decades has witnessed dramatic growth in scale and complexity. New approaches to development and related lawyering, and to philosophies underlying these approaches, challenge us to reimagine the framework of CED. From the early days of community development corporations to today’s sophisticated tools of finance and organization, this evolution reflects “why law matters” in pursuit of economic justice and opportunity. Change is visible in new approaches to enterprise development and novel grassroots initiatives that comprise a virtual “sharing economy,” as well as intensified advocacy around low-wage work and efforts to …
The Economic Foundation Of The Dormant Commerce Clause, 2017 University of Pennsylvania Carey Law School
The Economic Foundation Of The Dormant Commerce Clause, Michael S. Knoll, Ruth Mason
All Faculty Scholarship
Last Term, a sharply divided Supreme Court decided a landmark dormant Commerce Clause case, Comptroller of the Treasury of Maryland v. Wynne. Wynne represents the Court’s first clear acknowledgement of the economic underpinnings of one of its main doctrinal tools for resolving tax discrimination cases, the internal consistency test. In deciding Wynne, the Court relied on economic analysis we provided. This Essay explains that analysis, why the majority accepted it, why the dissenters’ objections to the majority’s reasoning miss their mark, and what Wynne means for state taxation. Essential to our analysis and the Court’s decision in Wynne …
Partial Takings, 2017 University of San Diego
Partial Takings, Abraham Bell, Gideon Parchomovsky
All Faculty Scholarship
Partial takings allow the government to expropriate the parts of an asset it needs, leaving the owner the remainder. Both vital and common, partial takings present unique challenges to the standard rules of eminent domain. Partial takings may result in the creation of suboptimal, and even unusable, parcels. Additionally, partial takings create assessment problems that do not arise when parcels are taken as a whole. Finally, partial takings engender opportunities for inefficient strategic behavior on the part of the government after the partial taking has been carried out. Current jurisprudence fails to resolve these problems and can even exacerbate them. …
Constitutional Challenges And Regulatory Opportunities For State Climate Policy Innovation, 2017 University of Miami School of Law
Constitutional Challenges And Regulatory Opportunities For State Climate Policy Innovation, Felix Mormann
Articles
This Article explores constitutional limits and regulatory openings for innovative state policies to mitigate climate change by promoting climate-friendly, renewable energy. In the absence of a comprehensive federal policy approach to climate change and clean energy, more and more states are stepping in to fill the policy void. Already, nearly thirty states have adopted renewable portfolio standards that create markets for solar, wind, and other clean electricity. To help populate these markets, a few pioneering states have recently started using feed-in tariffs that offer eligible generators above-market rates for their clean, renewable power.
But renewable portfolio standards, feed-in tariffs, and …
Custom In Our Courts: Reconciling Theory With Reality In The Debate About Erie Railroad And Customary International Law, 2017 Duke Law School
Custom In Our Courts: Reconciling Theory With Reality In The Debate About Erie Railroad And Customary International Law, Nikki C. Gutierrez, Mitu Gulati
Faculty Scholarship
One of the most heated debates of the last two decades in U.S. legal academia focuses on customary international law’s domestic status after Erie Railroad v. Tompkins. At one end, champions of the “modern position” support customary international law’s (“CIL”) wholesale incorporation into post-Erie federal common law. At the other end, “revisionists” argue that federal courts cannot apply CIL as federal law absent federal legislative authorization. Scholars on both sides of the Erie debate also make claims about the sources judges reference when discerning CIL. They then use these claims to support their arguments regarding CIL’s domestic status. Interestingly, neither …
Regulatory Competition And The Market For Corporate Law, 2017 Duke Law School
Regulatory Competition And The Market For Corporate Law, Ofer Eldar, Lorenzo Magnolfi
Faculty Scholarship
This article develops an empirical model of firms’ choice of corporate laws under inertia. Delaware dominates the incorporation market, though recently Nevada, a state whose laws are highly protective of managers, has acquired a sizable market share. Using a novel database of incorporation decisions from 1995- 2013, we show that most firms dislike protectionist laws, such as anti-takeover statutes and liability protections for officers, and that Nevada’s rise is due to the preferences of small firms.Our estimates indicate that despite inertia, Delaware would lose significant market share and revenues if it adopted protectionist laws. Our findings support the hypothesis that …
Domicile Dismantled, 2017 Duke Law School
Domicile Dismantled, Kerry Abrams, Kathryn Barber
Faculty Scholarship
No abstract provided.
The Vested Rights Doctrine: How A Shield Against Injustice Became A Sword For Opportunistic Developers, 2017 University of Washington School of Law
The Vested Rights Doctrine: How A Shield Against Injustice Became A Sword For Opportunistic Developers, Steve P. Calandrillo, Chryssa Deliganis, Christina Elles
Articles
In an era of pioneering environmental and land use laws, savvy developers are using the “vested rights” doctrine to circumvent and undermine critical public health, safety, and environmental regulations. This controversy pits two legitimate interests against each other: On the one hand, local governments must have the power to pass land use laws and regulations in the public interest to protect their community’s health, safety, welfare, and environment. On the other, developers who rely on the laws in existence at the time their project is approved should be protected from subsequent changes to the law that could increase transactional costs …
The English Rule - It Ain't English, And Ought Not Be American., 2017 St. Mary's University
The English Rule - It Ain't English, And Ought Not Be American., Timothy M. Mulligan
St. Mary's Law Journal
Abstract Forthcoming.
A New Remedy For Junk Science: Article 11.073 And Texas's Response To The Changing Landscape In The Forensic Sciences., 2017 St. Mary's University
A New Remedy For Junk Science: Article 11.073 And Texas's Response To The Changing Landscape In The Forensic Sciences., Trevor Rosson
St. Mary's Law Journal
Abstract Forthcoming.
United States V. Mcintosh: Ninth Circuit Limits Federal Prosecutors From Spending To Enforce Marijuana Laws In Medicinal States., 2017 St. Mary's University
United States V. Mcintosh: Ninth Circuit Limits Federal Prosecutors From Spending To Enforce Marijuana Laws In Medicinal States., Daniel Haley
St. Mary's Law Journal
Abstract Forthcoming.
The Exclusionary Rule And The Dueling Legacies Of Utah V. Streiff: Which Will Be Suppressed., 2017 St. Mary's University
The Exclusionary Rule And The Dueling Legacies Of Utah V. Streiff: Which Will Be Suppressed., Marcos Herrera
St. Mary's Law Journal
Abstract Forthcoming.
The Post-Production Costs Issue In Texas And Louisiana: Implications For The Fate Of Implied Covenants And Pro-Lessor Clauses In The Shale Era Oil And Gas Lease., 2017 Saint Mary's University of San Antonio
The Post-Production Costs Issue In Texas And Louisiana: Implications For The Fate Of Implied Covenants And Pro-Lessor Clauses In The Shale Era Oil And Gas Lease., Laura H. Burney
St. Mary's Law Journal
This Article discusses the implications of Heritage Resources, Hyder, and several Louisiana cases on the “post-production costs” issue in gas royalty clauses, as well as the fate of implied covenants in the shale era. To better understand that issue, this Article first provides a background on the interaction of express lease clauses and the doctrine of implied covenants. This discussion reveals that implied covenants are relegated to a minor role in light of extensive express clauses in Shale Era leases because courts frequently view express or “plain” terms as barring implied covenants. The problem, however, as commentators have noted—particularly regarding …
Tx Rice V. Denbury., 2017 St. Mary's University
Force Majeure: How Lessees Can Save Their Leases While The War On Fracking Rages On., 2017 St. Mary's University
Force Majeure: How Lessees Can Save Their Leases While The War On Fracking Rages On., Allison R. Ebanks
St. Mary's Law Journal
Abstract Forthcoming.
The Bylaw Puzzle In Delaware Corporate Law, 2017 University of Pennsylvania Carey Law School
The Bylaw Puzzle In Delaware Corporate Law, David A. Skeel Jr.
All Faculty Scholarship
In less than a decade, Delaware’s legislature has overruled its courts and reshaped Delaware corporate law on two different occasions, with proxy access bylaws in 2009 and with shareholder litigation bylaws in 2015. Having two dramatic interventions in quick succession would be puzzling under any circumstances. The interventions are doubly puzzling because with proxy access, Delaware’s legislature authorized the use of bylaws or charter provisions that Delaware’s courts had banned; while with shareholder litigation, it banned bylaws or charter provisions that the courts had authorized. This Article attempts to unravel the puzzle.
I start with corporate law doctrine, and find …