Digital Commons Network^™

Realigning The Governmental/Proprietary Distinction In Municipal Law, Hugh D. Spitzer

Articles

Lawyers and judges who deal with municipal law are perpetually puzzled by the distinction between “governmental” and “proprietary” powers of local governments. The distinction is murky, inconsistent between jurisdictions, inconsistent within jurisdictions, and of limited use in predicting how courts will rule. Critics have launched convincing attacks on the division of municipal powers into these two categories. Most articles have focused on problems with the distinction in specific areas of municipal law. In contrast, this article provides a comprehensive analysis of the governmental/proprietary distinction in seven specific doctrinal areas: legislative grants of municipal authority, government contracts, torts, eminent domain, adverse …

Challenging The "Criminal Alien" Paradigm, Angélica Cházaro

Articles

Deportation of so-called “criminal aliens” has become the driving force in U.S. immigration enforcement. The Immigration Accountability Executive Actions of late 2014 provide the most recent example of this trend. Even for immigrants’ rights advocates, conventional wisdom holds that if deportations must occur, “criminal aliens” should be the first to go. A voluminous “crimmigration” scholarship notes the ever-growing entwinement of criminal and immigration enforcement, but does not challenge this fundamental premise.

This Article calls for a rejection of the formulation of the “criminal alien”—the figure used to increasingly justify the preservation and expansion of a harmful immigration regime. It thus …

Federal Treaty And Trust Obligations, And Ocean Acidification, Robert T. Anderson

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Ocean acidification will have profound effects on the entire human population and natural resources that depend in any way upon Earth’s oceans and lakes. In turn, those effects will be even greater, and potentially catastrophic, for indigenous populations who rely on the seas for physical, cultural, and spiritual sustenance. While most research on carbon dioxide absorption from the atmosphere has focused on oceans and the resulting acidification, many believe that acidification levels also will also increase in the Great Lakes. Indian tribes in the Pacific Northwest and the Great Lakes regions share reliance on marine and freshwater resources, and many …

The Risks Of Clouded Property Title For Cannabis Business Owners, Investors, And Creditors, Sean M. O'Connor, Jason Liu

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This Article provides a brief primer on the surprising range of assets that the Controlled Substances Act forfeiture provisions govern for the state-legal cannabis businesses. It outlines these provisions for tangible as well as intangible property, with an emphasis on risks to state-legal cannabis businesses’ intellectual property and issued securities.

We argue that these forfeiture risks create clouded title for all subject tangible and intangible property—not only for the state-legal businesses and their proprietors, but also for those businesses’ outside investors, creditors, and suppliers/contractors.

Privacy, Public Disclosure, Police Body Cameras: Policy Splits, Mary D. Fan

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When you call the police for help—or someone calls the police on you—do you bear the risk that your worst moments will be posted on YouTube for public viewing? Police officers enter some of the most intimate incidences of our lives—after an assault, when we are drunk and disorderly, when someone we love dies in an accident, when we are distraught, enraged, fighting, and more. As police officers around the nation begin wearing body cameras in response to calls for greater transparency, communities are wrestling with how to balance privacy with public disclosure.

This Article sheds light on the balances …

Chevron Is Dead; Long Live Chevron, Michael Herz

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The Supreme Court's decision in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. continues to obsess academics and courts alike. Despite all the attention, however; the "Chevron revolution" never quite happens. This decision, though seen as transformatively important, is honored in the breach, in constant danger of being abandoned, and the subject of perpetual confusion and uncertainty. This Essay seeks both to bury and to praise Chevron.

Chevron is not a revolutionary shift of authority from the judiciary to the executive. That Chevron is dead. The Chevron that survives is an appropriate allocation of decisionmaking responsibility among the three …

Designing Regulatory Experiments, Jennifer Nou

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No abstract provided.

Process Costs And Police Discretion, Charlie Gerstein, J. J. Prescott

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Cities across the country are debating police discretion. Much of this debate centers on “public order” offenses. These minor offenses are unusual in that the actual sentence violators receive when convicted — usually time already served in detention — is beside the point. Rather, public order offenses are enforced prior to any conviction by subjecting accused individuals to arrest, detention, and other legal process. These “process costs” are significant; they distort plea bargaining to the point that the substantive law behind the bargained-for conviction is largely irrelevant. But the ongoing debate about police discretion has ignored the centrality of these …

Prisoners' Rights Lawyers' Strategies For Preserving The Role Of The Courts, Margo Schlanger

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This Article is part of the University of Miami Law Review’s Leading from Below Symposium. It canvasses prisoners’ lawyers’ strategies prompted by the 1996 Prison Litigation Reform Act (“PLRA”). The strategies comply with the statute’s limits yet also allow U.S. district courts to remain a forum for the vindication of the constitutional rights of at least some of the nation’s millions of prisoners. After Part I’s introduction, Part II summarizes in several charts the PLRA’s sharp impact on the prevalence and outcomes of prison litigation, but demonstrates that there are still many cases and situations in which courts continue to …

The Status Of Nonstatus, Geoffrey Heeren

Articles

Millions of unauthorized immigrants in the United States have no legal immigration status and live in constant fear of deportation. There are millions more who do have some sort of status, like lawful permanent residency, asylum, or a nonimmigrant visa. In between is the netherworld of nonstatus. Here live noncitizens who possess government documentation but few rights. They have no pathway to lawful permanent residence or citizenship and cannot receive most public benefits. If nonstatus is denied or revoked by a prosecutor or bureaucrat, there is no right to a hearing or an appeal. If the Executive Branch discriminates in …

Civil Disabilities In An Era Of Diminishing Privacy: A Disability Approach For The Use Of Criminal Records In Hiring, Andrew Elmore

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No abstract provided.

Entick V. Carrington And Boyd V. United States: Keeping The Fourth And Fifth Amendments On Track, Richard A. Epstein

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No abstract provided.

Food Trucks, Incremental Innovation, And Regulatory Ruts, Elizabeth Kregor

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No abstract provided.

Legal Scholarship For Judges, Diane P. Wood

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Is Abood Irrelevant?, Daniel Hemel, David Louk

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No abstract provided.

Redressing Hiv/Aids Discrimination In Nigeria: The Implications Of The Anti-Discrimination Act Of 2015, Ngozi Okidegbe

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Civil Protection Orders: Increased Access And Narrowed Enforcement, Courtney K. Cross

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Critical Perspectives On Police, Policing, And Mass Incarceration, Richard Delgado, Jean Stefancic

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Shows that aggressive policing is only one of a number of measures that society uses to control minority groups with whom it is displeased for some reason and that failing to see how the authorities deploy the different measures separately serially or in coordinated fashion is a serious mistake Sketches a new form of policing that is respectful of minority residents and values and provides a framework for reducing excessive incarceration and mitigating some of the cruelties associated with it

Intelligence Legalism And The National Security Agency’S Civil Liberties Gap, Margo Schlanger

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Since June 2013, we have seen unprecedented security breaches and disclosures relating to American electronic surveillance. The nearly daily drip, and occasional gush, of once-secret policy and operational information makes it possible to analyze and understand National Security Agency activities, including the organizations and processes inside and outside the NSA that are supposed to safeguard American’s civil liberties as the agency goes about its intelligence gathering business. Some have suggested that what we have learned is that the NSA is running wild, lawlessly flouting legal constraints on its behavior. This assessment is unfair. In fact, the picture that emerges from …

"Home Rule" Vs. "Dillon's Rule" For Washington Cities, Hugh D. Spitzer

Articles

This Article focuses on the tension between the late-nineteenth-century “Dillon’s Rule” limiting city powers, and the “home rule” approach that gained traction in the early and mid-twentieth century. Washington’s constitution allows cities to exercise all the police powers possessed by the state government, so long as local regulations do not conflict with general laws. The constitution also vests charter cities with control over their form of government. But all city powers are subject to “general laws” adopted by the legislature. Further, judicial rulings on city powers to provide public services have fluctuated, ranging from decisions citing the “Dillon’s Rule” doctrine …

Push, Pull, And Spill: A Transdisciplinary Case Study In Municipal Open Government, Jan Whittington, Ryan Calo, Mike Simon, Jesse Woo, Meg Young, Perter Schmiedeskamp

Articles

Municipal open data raises hopes and concerns. The activities of cities produce a wide array of data, data that is vastly enriched by ubiquitous computing. Municipal data is opened as it is pushed to, pulled by, and spilled to the public through online portals, requests for public records, and releases by cities and their vendors, contractors, and partners. By opening data, cities hope to raise public trust and prompt innovation. Municipal data, however, is often about the people who live, work, and travel in the city. By opening data, cities raise concern for privacy and social justice.

This article presents …

Private Data, Public Safety: A Bounded Access Model Of Disclosure, Mary D. Fan

Articles

A growing volume of crucial information for protecting public health and safety is controlled by private-sector entities. The data are private in two senses—both proprietary and secluded from scrutiny. Controversies over corporate secrecy, such as sealed settlements that hide deaths due to product defects or nondisclosure of potentially hazardous substances, illustrate how corporate privacy and public safety can conflict.

Courts are conflicted about when to defer to companies’ claims of the right to keep information private when important public interests are implicated by the data that companies refuse to disclose.

This Article proposes allowing what it terms “bounded access” to …

The Promise And Peril Of The Anti-Commandeering Rule In The Homeland Security Era: Immigrant Sanctuary As An Illustrative Case, Trevor George Gardner

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This brief narrative captures the second wave of “immigrant sanctuary”—a term used to describe the state and local government practice of restricting police departments from participation in immigration enforcement. The immigrant sanctuaries of the Homeland Security era are of unique significance given the ongoing dialogue among legal scholars regarding the significance of local law enforcement participation in national and domestic security administration after 2001, as well as the legal framework structuring cooperative security governance.

Despite the broad powers wielded by the federal government in security administration, the Supreme Court’s holding in Printz v. United States serves as a substantial check …

Sex Offender Law And The Geography Of Victimization, Amanda Y. Agan, J. J. Prescott

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Sex offender laws that target recidivism (e.g., community notification and residency restriction regimes) are premised—at least in part—on the idea that sex offender proximity and victimization risk are positively correlated. We examine this relationship by combining past and current address information of registered sex offenders (RSOs) with crime data from Baltimore County, Maryland, to study how crime rates vary across neighborhoods with different concentrations of resident RSOs. Contrary to the assumptions of policymakers and the public, we find that, all else equal, reported sex offense victimization risk is generally (although not uniformly) lower in neighborhoods where more RSOs live. To …

Does The Whistleblower Protection Act Protect A Tsa Employee Who Revealed Which Commercial Flights Would Lack Air Marshals?, Richard Henry Seamon

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No abstract provided.

Offices Of Goodness: Influence Without Authority In Federal Agencies, Margo Schlanger

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Inducing governmental organizations to do the right thing is the central problem of public administration. Especially sharp challenges arise when “the right thing” means executing not only a primary mission but also constraints on that mission (what Philip Selznick aptly labeled “precarious values”). In a classic example, we want police to prevent and respond to crime and maintain public order, but to do so without infringing anyone’s civil rights. In the federal government, if Congress or another principal wants an executive agency to pay attention not only to its mission, but also to some other constraining or even conflicting value—I …

Tesla And The Car Dealers' Lobby, Daniel A. Crane

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Tesla Motors, the offspring of entrepreneur Elon Musk (who brought us Pay-Pal and SpaceX), is the most exciting automotive development in many decades and a marquee story of American technological dynamism and innovation. The company’s luxury electric cars have caused a sensation in the auto industry, including a review by Consumer Reports calling Tesla’s Model S the best car it ever tested. Despite the acclaim, Tesla faces enormous challenges Despite the acclaim, Tesla faces enormous challenges in penetrating an automotive market that has been dominated for a century by internal combustion engines. Not only must it build cars that customers …

The Function Of Article V, Aziz Huq

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No abstract provided.

Street Diversion And Decarceration, Mary Fan

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States seeking more cost-effective approaches than imprisoning drug offenders have explored innovations such as drug courts and deferred prosecution. These treatment-based programs generally involve giving diversion discretion to prosecutors and judges, actors further down the criminal processing chain than police. The important vantage of police at the gateway of entry into the criminal system has been underutilized. [para] The article explores developing the capacity of police to take a public health approach to drug offending by engaging in street diversion to treatment rather than criminal processing. This approach entails giving police therapeutic discretion—the power to sort who gets treatment rather …

Guest Editor's Observations: Recurring Policy Issues Of Guidelines (And Non-Guidelines) Sentencing: Risk Assessments, Criminal History Enhancements, And The Enforcement Of Release Conditions, Richard Frase

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No abstract provided.