Digital Commons Network^™

State Standing And Cooperative Federalism, Ernest A. Young

Faculty Scholarship

State lawsuits challenging federal policy generally encounter arguments that the states lack standing to sue, either under Article III’s “case or controversy” clause or under various prudential standing doctrines. These arguments have often taken novel forms—such as claims that states’ injuries are “self-inflicted” or offset by other benefits of federal policies—that have few precedents or analogs in the standing jurisprudence governing suits by private individuals. The United States has taken the position, in other words, that states should have special disabilities in filing lawsuits that would not apply to ordinary litigants. Likewise, prominent academics have argued that uniquely narrow standing …

Separation Of Powers In New Mexico: Item Vetoes, State Policy-Making, And The Role Of State Courts, Michael B. Browde

Mitchell Hamline Law Review

No abstract provided.

The “Law Of Ramsey County” – Reflections Of A Trial Judge On State Government Gridlock, Kathleen Gearin

Mitchell Hamline Law Review

No abstract provided.

A Gun To Whose Head? Federalism, Localism, And The Spending Clause, Daniel S. Cohen

Dickinson Law Review (2017-Present)

President Trump’s executive order rescinding federal funds from “sanctuary jurisdictions” has brought a critical, but overlooked, question of constitutional law to the forefront of the political debate: how does the Spending Clause apply to local governments? The purpose of the Spending Clause is to empower the federal government to bargain with the states to enact policies it cannot enact itself. This power, however, is constrained within the confines of federalism. The Supreme Court has sought to restrict the Spending Clause by crafting the Dole-NFIB framework, a test to determine whether a federal grant has compromised federalism. At its …

The Effect Of Oral Statements On The Making Of The City Of Providence's Municipal Contracts, John J. Chung

Roger Williams University Law Review

No abstract provided.

Out Of The Home And In Plain Sight: Our Evolving Second Amendment And Open Carry In Wisconsin, Lance Duroni

Marquette Law Review

none

The End Of Intuition-Based High-Crime Areas, Ben Grunwald, Jeffrey A. Fagan

Faculty Scholarship

In 2000, the Supreme Court held in Illinois v. Wardlow that a suspect’s presence in a “high-crime area” is relevant in determining whether an officer has reasonable suspicion to conduct an investigative stop. Despite the importance of the decision, the Court provided no guidance about what that standard means, and over fifteen years later, we still have no idea how police officers understand and apply it in practice. This Article conducts the first empirical analysis of Wardlow by examining data on over two million investigative stops conducted by the New York Police Department from 2007 to 2012.

Our results suggest …

Carrots, Sticks And Problem Drug Use: The Law Enforcement Lobby's Contribution To The Policy Discourse On Drug Use & The Opioid Crisis, Taleed El-Sabawi

Faculty Publications

Despite the growing support for the idea that problem drug use should be treated like a chronic medical disease, some law enforcement interest groups, including trial court judges associations, prosecuting attorneys associations, and police associations (“law enforcement groups” or “criminal justice actors”), continue to argue for the use of the criminal justice system to address the nation’s drug crises. The justification for the use of the criminal justice system to oversee the psychological and medical treatment of persons with substance use disorders (SUDs) is based on the belief that persons with SUDs are deviants, who cannot refrain from engaging in …

A “Critical” Question Of State Law: Georgia’S Ambiguous Treatment Of Initial Appearance Hearings And Implications Of Bail Reform, Anne Miller Reynolds

Georgia Law Review

The Sixth Amendment of the U.S. Constitution guarantees criminal defendants the right to counsel at critical stages of a proceeding. While the U.S. Supreme Court has not addressed whether initial bail hearings are critical stages of a proceeding, several states have elected to provide greater protection for criminal defendants by holding that bail hearings are critical stages. However, Georgia has avoided this question, as Georgia has held that initial appearance hearings, in which questions of bail are often decided, are “not often” critical stages of a proceeding. Logically, it follows that initial appearance hearings must sometimes be critical stages of …

A Common-Sense Defense Of Janus: Forthcoming Changes In The Public Sector, Maria O'Brien

Faculty Scholarship

Many scholars and others have, for some time now, been calling attention to the alarming growth in post-employment and other benefits for unionized employees in the public sector. ¹⁷ A fairly well-understood phenomenon is thought to explain the inability of state and local governments to resist outsized demands from their public unions. As ¹⁸ Is and others ¹⁹ have argued, the central problem with public sector unions is that they find it easy to capture their employers (taxpayers) in ways that private sector unions cannot. The role played by often eager and feckless elected officials in this process has also …

St. Louis Vacancy Collaborative: 2019-2021 Work Plan, Dana M. Malkus

All Faculty Scholarship

Our City has a serious vacant property challenge. To effectively address vacancy, we must understand and respond to the factors that cause and perpetuate it. Much of the story of vacancy in our city, like other cities, includes a legacy of racism, disinvestment, and disengagement that has led to a breakdown in trust. We know that vacancy can result from incomplete foreclosure, bankruptcy, prolonged probate or lack of proper probate, investors with little incentive to care, judgment proof owners, bank ownership, lack of resources to repair or redevelop, lack of value, the foreclosure crisis, sprawl and weak markets.¹ In …

Sb 407 - Sentencing And Punishment, Abigail L. Howd, Alisa M. Radut

Georgia State University Law Review

The Act provides comprehensive reform for offenders entering, proceeding through, and leaving the criminal justice system. The Act requires all superior court clerks to provide an electronic filing option, and it requires juvenile court clerks to collect and report certain data about juvenile offenders to the Juvenile Data Exchange. In addition, the Act creates the Criminal Justice Coordinating Council and the Criminal Case Data Exchange Board. The Act also changes the grounds for granting and revoking professional licenses and drivers’ licenses to offenders and modifies the provisions relating to issuing citations and setting bail. Inmates of any public institution may …

Sb 339 - Education, Daniel F. Barrett, Alexander Hegner

Georgia State University Law Review

The Act amends the statutes in the Georgia Code applicable to the University System and Board of Regents statutes in the Georgia Code. It adds new sections that place affirmative requirements on the Board of Regents to adopt and publish new policies, which aim to encourage the dissemination of free speech across university campuses. Further, the Act directs that universities must implement disciplinary sanctions for anyone subject to the jurisdiction of the University System who interferes with the free speech of invited speakers and others on campus. Finally, the Board of Regents must publish annual reports regarding any barriers to …

Hb 673 - Motor Vehicles And Traffic, Brandon M. Kopp, Caleb L. Swiney

Georgia State University Law Review

The Act prohibits holding any electronic device or using text-based communication while driving. Drivers are further prohibited from watching or creating videos. These prohibitions exclude: electronic headsets; smart watches; navigation systems; dash cam systems; and programs that convert voice messages into text messages. Commercial vehicle drivers are prohibited from using more than a single button to engage in voice communication or reaching for a communication device in an unsafe manner. Violators will be fined and assessed points to their license based on the amount of times that they have previously violated this Act. Notably, these provisions do not apply when …

Hb 701 - Public Officers And Employees, Michael C. Freeman Jr., Monica Laredo Ruiz

Georgia State University Law Review

The Act amends Georgia’s statute to give state employers the authority to drug test certain applicants to various public positions. The Act adds opioids, opioid analgesics, and opioid derivatives to the list of drugs for which state employers may screen.

Ethical Cannabis Lawyering In California, Francis J. Mootz Iii

St. Mary's Journal on Legal Malpractice & Ethics

Cannabis has a long history in the United States. Originally, doctors and pharmacists used cannabis for a variety of purposes. After the Mexican Revolution led to widespread migration from Mexico to the United States, many Americans responded by associating this influx of foreigners with the use of cannabis, and thereby racializing and stigmatizing the drug. After the collapse of prohibition, the federal government repurposed its enormous enforcement bureaucracy to address the perceived problem of cannabis, despite the opposition of the American Medical Association to this new prohibition. Ultimately, both the states and the federal government classified cannabis as a dangerous …

Legal Influences On Shellfish Aquaculture Nursery Facility Siting In Rhode Island, Marine Affairs Institute, Roger Williams University School Of Law, Jordan Viana, Joseph Bingaman, Read Porter

Sea Grant Law Fellow Publications

No abstract provided.

The People's Lawyer: The Role Of Attorney General In The Twenty-First Century, Mark J. Herring

University of Richmond Law Review

For the last five years, it has been my privilege to serve the people as their attorney general. The origin of the position of attorney general can be traced back centuries, but in a world that has become more interconnected, complex, and fast-paced, what does the role of a state attorney general entail in the twenty-first century and beyond? Is the proper role as a diligent but reactive defender of statutes and state agencies, or is there a deeper responsibility that calls for a more proactive and engaged use of its tools and authority? I have found that the job …

Law By Non-Lawyers: The Limit To Limited License Legal Technicians Increasing Access To Justice, Rebecca M. Donaldson

Seattle University Law Review

For the first time in the American legal profession, non-lawyers can openly, independently, ethically, and legally engage in activities recognized by bar associations as the practice of law. In 2012, the Washington Supreme Court passed Admission and Practice Rule 28 (APR 28), establishing the profession’s first paraprofessional licensing scheme that allows non-lawyers to give legal advice. The process authorizes qualified non-lawyers to provide legal advice without the supervision of a lawyer. Washington’s Supreme Court intends for Limited License Legal Technicians, or “LLLTs” as they are known, to increase access to justice by responding to the unmet civil legal needs of …

Much Ado About Nothing?: Local Resistance And The Significance Of Sanctuary Laws, Alyssa Garcia

Seattle University Law Review

This Comment explores the current constitutional discourse of sanctuary laws and compares their various components. Part I provides background on the basic policy components of sanctuary laws and modern policies. Part II explores and compares the substantive legal and political value of sanctuary laws. This section will first assess the impact of sanctuary policies on existing immigration and constitutional law. In doing so, specific sanctuary jurisdictions involved in litigation, Seattle, San Francisco, and Chicago, and their likelihood of withstanding preemption under existing doctrine will be compared. The impact sanctuary laws may have on the Tenth Amendment will next be discussed. …

Reconciling Brady And Pitchess: Association For Los Angeles Deputy Sheriffs V. Superior Court, And The Future Of Brady Lists, Ryan T. Cannon

San Diego Law Review

In 2014, the Los Angeles County Sherriff’s Department (LASD) joined a growing number of law enforcement agencies utilizing “Brady lists”; a system by which prosecutorial agencies are notified of potential Brady/Giglio material in a police officer’s personnel file. These lists enable prosecutors to comply with their constitutional Brady disclosure obligations—to turn over all evidence material to guilt or punishment, including impeachment material. However, in 1978 California made the contents of police officer personnel files confidential with the passage of the Pitchess statutes. Since that time, California courts have wrestled with the extent of allowable disclosure under the Pitchess statutes, including …

Taxing & Zapping Marijuana: Blockchain Compliance In The Trump Administration Part 2, Richard Thompson Ainsworth, Brendan Magauran

Faculty Scholarship

Legalization of marijuana burdens the States with the responsibility of (a) monitoring the physical flows of marijuana through the supply chain (making sure the marijuana does not enter inter-state commerce; making sure it stays out of the hands of minors, etc.), and (b) monitoring the fiscal flows (making sure the proceeds of marijuana production do not end up in criminal hands).

The type of controls favored by the states are track and trace (TAT), or seed-to-sale (STS) systems. These systems are reasonably complex, as well as technology-intensive. Nevertheless, there are questions about whether they are adequate to the enforcement needs. …

Taxing & Zapping Marijuana: Blockchain Compliance In The Trump Administration Part 3, Richard Thompson Ainsworth, Brendan Magauran

Faculty Scholarship

This is the third of a five-part series dealing with the rescission by U.S. Attorney General Jeff Sessions of the Obama-era policy that discouraged federal prosecutors from bringing charges in all but the most serious marijuana cases.

This article focuses on cyber-attacks on the main commercial chain, and the use of a private blockchain using HyperLedger Fabric as a platform.

This fraud is a direct, criminal attack; an attack designed to destroy/corrupt records of marijuana inventory and plant tags throughout the supply chain. The attack allows legalized marijuana to escape the system and be sold on the black market. A …

Department Of Insurance, J. D. Fellmeth

California Regulatory Law Reporter

No abstract provided.

Taxing & Zapping Marijuana: Blockchain Compliance In The Trump Administration Part 1, Richard Thompson Ainsworth, Brendan Magauran

Faculty Scholarship

On January 4, 2018, the Trump Administration through Attorney General Sessions rescinded an Obama-era policy1 that discouraged federal prosecutors from bringing charges in all but the most serious marijuana cases under the federal Controlled Substances Act,2 as well as under the Bank Secrecy Act.3 Federal law is at odds with state law in the majority of states on the legalization and subsequent state taxation of marijuana.4 Twenty-eight states and the District of Columbia have at least partially legalized marijuana. Eight of these states have legalized both medicinal and recreational use.5 With limited exceptions, legalized sales of marijuana are taxed.

We …

Commitment Through Fear: Mandatory Jury Trials And Substantive Due Process Violations In The Civil Commitment Of Sex Offenders In Illinois, Michael Zolfo

Chicago-Kent Law Review

In Illinois, a person deemed a Sexually Violent Person (“SVP”) in a civil trial can be detained indefinitely in treatment facilities that functionally serve as prisons. SVPs are not afforded the right to waive a jury trial, a right that criminal defendants enjoy. This results in SVPs facing juries that treat sex offenders as monsters or sub-humans, due to often sensationalistic media coverage and the use of sex offenders as boogeymen in political campaigns. The lack of a jury trial waiver results in more individuals being deemed SVPs, depriving many of their liberty without the due process of law, a …

A Discouraging Omen: A Critical Evaluation Of The Approved Uniform Language For Testimony And Reports For The Forensic Latent Print Discipline, Simon A. Cole

Georgia State University Law Review

The theme of the 2018 Georgia State University Law Review symposium is the Future of Forensic Science Reform. In this Article, I will assess the prospects for reform through a critical evaluation of a document published in February 2018 by the United States Department of Justice (DOJ), the Approved Uniform Language for Testimony and Reports for the Forensic Latent Print Discipline (ULTR).

I argue that this document provides reason to be concerned about the prospects of forensic science reform. In Part I, I discuss the background of the ULTR. In Part II, I undertake a critical evaluation of the ULTR. …

Three Transformative Ideals To Build A Better Crime Lab, Nicole B. Cásarez, Sandra G. Thompson

Georgia State University Law Review

This Article proposes that policy makers should consider establishing their jurisdiction’s crime laboratories as government corporations independent of law enforcement as a means of improving their quality and efficiency. Simply building new buildings or seeking accreditation will not solve the endemic problems that crime laboratories have faced. Rather, we propose that crime laboratories be restructured with a new organizational framework comparable to the Houston Forensic Science Center's (HFSC) status as a local government corporation (LGC), which has proven to be conducive to creating a new institutional culture.

From our experience with the HFSC, we also believe that crime laboratories are …

Effects Of Senate Bill 4 On Wage-Theft: Why All Workers Are At Risk In Low-Income Occupations, Daniella Salas-Chacon

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

Abstract forthcoming

Sanctuary Cities And The Trump Administration: The Practical Limits Of Federal Power, Joshua W. Dansby

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

On January 25, 2017, President Donald J. Trump signed an executive order with the supposed purpose of enhancing public safety of the interior of the United States. Part of the Administration’s plan includes threatening “sanctuary jurisdictions,” also known as “sanctuary cities,” with the loss of federal funds for failing to comply with federal law, specifically 8 U.S.C. § 1373.

There are several problems with this plan: (1) there is no solid definition for what makes a city a “sanctuary;” (2) if we accept the Administration’s allusion that a sanctuary jurisdiction is one that “willfully” refuses to comply with 8 U.S.C. …