Law Commons^™

State Net Neutrality, Daniel A. Lyons

Daniel Lyons

For nearly a century, state regulators played an important role in telecommunications regulation. The 1934 Communications Act gave the Federal Communications Commission authority to regulate interstate telephone service, but explicitly left intrastate calls—which comprised 98% of Depression-era telephone traffic—to state public utility commissions. By the late 2000s, however, as landline telephony faded to obscurity, scholars and policymakers alike recognized that the era of comprehensive state telecommunications regulation had largely come to an end.

Perhaps surprisingly, however, the first years of the Trump Administration have seen a resurgence in state telecommunications regulation—driven not by state institutional concerns, but by policy disagreements …

Forward: Some Puzzles Of State Standing, Tara Leigh Grove

Tara L. Grove

When should states have standing? In recent years, there has been an explosion in literature on that question.1 Yet, even today, there seem to be as many questions as answers. In this Foreword to the Notre Dame Law Review’s 2019 Federal Courts, Practice, and Procedure Symposium on state standing, I discuss a few such puzzles. First, should states have “special” standing when they sue the federal government—that is, greater access to federal court than private parties? Second, and conversely, should states have at least “equal” access to federal court, or should they face more barriers than private parties? These questions …

Revolt Of The Attorneys General, Neal Devins, Saikrishna B. Prakash

Neal E. Devins

No abstract provided.

Same-Sex Marriage And The New Judicial Federalism: Why State Courts Should Not Consider Out-Of-State Backlash, Neal Devins

Neal E. Devins

No abstract provided.

Fifty States, Fifty Attorneys General, And Fifty Approaches To The Duty To Defend, Neal Devins, Saikrishna B. Prakash

Neal E. Devins

Whether a state attorney general has a duty to defend the validity of state law is a complicated question, one that cannot be decided by reference either to the oath state officers must take to support the federal Constitution or the supremacy of federal law. Instead, whether a state attorney general must defend state law turns on her own state’s laws. Each state has its own constitution, statutes, bar rules, and traditions, and not surprisingly, the duties of attorneys general vary across the states. To simplify somewhat, we believe that there are three types of duties. One set of attorneys …

Referendum Zoning: Legal Doctrine And Practice, Ronald H. Rosenberg

Ronald H. Rosenberg

No abstract provided.

The Legal Implementation Of Coastal Zone Management: The North Carolina Model, Thomas J. Schoenbaum, Ronald H. Rosenberg

Ronald H. Rosenberg

No abstract provided.

The Changing Tradition Of Constitutional Review Of Sign And Billboard Regulation, Ronald H. Rosenberg

Ronald H. Rosenberg

No abstract provided.

State Constitutional Protection For Defendants In Criminal Prosecutions, Paul Marcus

Paul Marcus

No abstract provided.

State Environmental Programs: A Study In Political Influence And Regulatory Failure, Lynda L. Butler

Lynda L. Butler

No abstract provided.

Vertical Power, Michael S. Green

Michael S. Green

Many legal scholars and federal judges - including Justices Ginsburg and Scalia - have implicitly assumed that a state can extend its procedural law solely to federal courts within its borders. To date, however, no one has identified this assumption, much less defended it. Drawing upon an example discussed by Chief Justice Marshall in Wayman v. Southard, 23 U.S. (10 Wheat.) 1 (1825), 1 argue that such vertical power does not exist. Not only do states lack a legitimate interest in extending their law vertically, a state's assertion of vertical power would improperly discriminate against federal courts. If state law …

Georgia And State Research Resources, Pamela C. Brannon

Pamela Brannon

Shares a variety of websites for gathering the state of Georgia and other state information from for legal research.

Mandatory Legal Malpractice Insurance: Exposing Lawyers' Blind Spots, Susan S. Fortney

Susan S. Fortney

The legal landscape for lawyers’ professional liability in the United States is changing. In 2018, Idaho implemented a new rule requiring that lawyers carry legal malpractice insurance. The adoption of the Idaho rule was the first move in forty years by a state to require legal malpractice insurance since Oregon mandated lawyer participation in a malpractice insurance regime. Over the last two years, a few states have considered whether their jurisdictions should join Oregon and Idaho in requiring malpractice insurance for lawyers in private practice. To help inform the discussion, the article examines different positions taken in the debate on …

Residential Property Assessments In The City Of Buffalo: A Study Of The Use Of Administrative Discretion, George M. Hezel

George Hezel

No abstract provided.

Main Street Multidisciplinary Practice Firms: Laboratories For The Future, Susan Poser

Susan Poser

This Article examines the debate over multidisciplinary practice in the wake of the collapse of Enron and Arthur Andersen. Part I addresses the history of the scholarly debate about multidisciplinary practice in the United States. It discusses the focus on large multidisciplinary firms, feared threats to independent professional judgment, and the current rule concerning lawyers and multidisciplinary practice.

Part II examines the reasons for allowing multidisciplinary practice. The author argues that client demand, lawyer demand, and policy reasons all provide valid reasons for permitting "one-stop" shopping. Part I also discusses existing forms of multidisciplinary practice. The author argues that the …

Properly Accounting For Domestic Violence In Child Custody Cases: An Evidence-Based Analysis And Reform Proposal, Debra Pogrund Stark, Jessica M. Choplin, Sarah Elizabeth Wellard

Debra Pogrund Stark

Promoting the best interests of children and protecting their safety and well-being in the context of a divorce or parentage case where domestic violence has been alleged has become highly politicized and highly gendered. There are claims by fathers’ rights groups that mothers often falsely accuse fathers of domestic violence to alienate the fathers from their children and to improve their financial position. They also claim that children do better when fathers are equally involved in their children’s lives, but that judges favor mothers over fathers in custody cases. As a consequence, fathers’ rights groups have engaged in a nationwide …

The "Guarantee" Clause, Ryan C. Williams

Ryan Williams

Article IV’s command that “the United States shall guarantee to every State in this Union a Republican Form of Government” stands as one of the few remaining lacunae in the judicially enforced Constitution. For well over a century, federal courts have viewed the provision — traditionally known as the Guarantee Clause but now referred to by some as the “Republican Form of Government” Clause — as a paradigmatic example of a nonjusticiable political question. In recent years, however, both the Supreme Court and lower federal courts have signaled a new willingness to reconsider this much-criticized jurisdictional barrier in an appropriate …

Dual Regulation Of Insurance, Christopher French

Christopher C. French

Weed And Water Law: Regulating Legal Marijuana, Ryan Stoa

Ryan B. Stoa

Marijuana is nearing the end of its prohibition in the United States. Arguably the country’s largest cash crop, marijuana is already legal for recreational use in Colorado, Washington, Oregon, Alaska, and Washington DC. Between now and election day 2016, an additional 14 states may place marijuana legalization initiatives on their ballots. In addition, 23 states and Washington DC have legalized medical marijuana, with up to seven states pending legislation. The era of marijuana prohibition is rapidly coming to a close. At the same time, traditional doctrines of water law are struggling to cope with the modern realities of water scarcity. …

Florida Water Management Districts And The Florida Water Resources Act: The Challenges Of Basin-Level Management, Ryan Stoa

Ryan B. Stoa

Florida’s plentiful freshwater resources are indispensable to the state’s municipal, agricultural, and environmental interests. As such, decision makers presiding over complex water management decisions wield extraordinary powers. The Water Resources Act of Florida vests these powers in five water management districts drawn according to hydrological, not political, boundaries. The water management districts have robust technical, financial, and regulatory powers, and hold the key to Florida’s sustainable development. With the stakes so high, Florida’s water management districts are at the center of a broad fight for control of water resources. In particular, transboundary water conflicts, political pressure, and ecological needs show …

Droughts, Floods, And Wildfires: Paleo Perspectives On Diaster Law In The Anthropocene, Ryan Stoa

Ryan B. Stoa

Humanity's impact on the earth has become so pronounced that momentum is building toward adopting a new term for the modem geological age-the "Anthropocene." The term signifies that human activity has reached a scale that it is now a planetary force capable of shaping ecosystems and natural processes. And yet, anthropocentric natural resources management and environmental lawmaking in the United States reveal a lack of control in managing natural systems and fostering resilience to extreme events. These systems do not easily conform to the whims of reactionary environmental policies. Droughts, floods, and wildfires, in particular are often conceptualized as unforeseeable …

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 …

Comparative Cannabis: Approaches To Marijuana Agriculture Regulation In The United States And Canada, Ryan Stoa

Ryan B. Stoa

The United States and Canada may be friends and allies, but the two countries' approaches to the regulation of marijuana agriculture have not evolved in tandem. On the contrary, their respective paths toward legalization and regulation of marijuana agriculture are remarkably divergent. In the United States, where marijuana remains a federally prohibited and tightly-controlled substance, legalization and regulation have remained the province of state legislatures and their administrative agencies for decades. In Canada, a succession of court cases paving the way toward medicinal marijuana use has prompted the federal government to develop a national framework committed to "legalize, regulate, and …

Marijuana Appellations: The Case For Cannabicultural Designations Of Origin, Ryan Stoa

Ryan B. Stoa

An appellation is a certified designation of origin that may also require that certain quality or stylistic standards be met. Appellations are most commonly associated with the wine industry, but they can be applied to any agricultural product for which the geographic origin carries importance. The MMRSA [California Medical Marijuana Regulation and Safety Act] … may have far-ranging effects on the marijuana industry in the United States. [A provision of the act permits the state Bureau of Medical Marijuana Regulation to ‘establish appellations of origin for marijuana grown in California.’] As the most populous state in the Union and the …

Taxing Under The Influence? : Corruption And U.S. State Beer Taxes, Per G. Fredriksson, Stephan Gohmann, Khawaja Mamun

Per Fredriksson

This article examines the effect of state level corruption on state beer taxes in the United States. Our lobby group model predicts that corruption reduces the beer tax, but this effect is conditional on the level of alcohol-related vehicle deaths. Using a panel of state level data from 1982 to 2001, we find that increased corruption is associated with lower state beer tax rates. The magnitude of the effect, however, declines with increases in alcohol-related traffic deaths. Our findings suggest that future empirical work estimating the effect of alcohol taxes on alcohol-related traffic fatalities should treat alcohol taxes as endogenous.

Full Faith And Credit, Choice Of Laws, And Extraterritorial Regulation Of Corporate Transactions, Gregory S. Sergienko

Greg Sergienko

In a federal system in which each state may enact laws providing for the chartering and governance of corporations and in which corporations can and do conduct business in more than one state, several states may claim an interest in regulating the conduct of a given corporation. The enactment of state laws that are intended to restrict hostile corporate takeovers and that purport to extend to foreign corporations is one example of this phenomenon. "Typically, any of a number of jurisdictional links might trigger the application of such an anti-takeover statute: the target's being incorporated in the state, its having …

The Role Of Local Governments In Striking The Proper Balance Between Individualism And Communitarianism: Lessons For And From Americans, Kevin J. Worthen

Kevin J Worthen

No abstract provided.

The Overlooked Significance Of Arizona's New Immigration Law, Rick Su

Rick Su

The current debate over Arizona's new immigration statute, S.B. 1070, has largely focused on the extent to which it “empowers” or “allows” state and local law enforcement officials to enforce federal immigration laws. Yet, in doing so, the conversation thus far overlooks the most significant part of the new statute: the extent to which Arizona mandates local immigration enforcement by attacking local control. The fact is the new Arizona law does little to adjust the federalist balance with respect to immigration enforcement. What it does, however, is threaten to radically alter the state-local relationship by eliminating local discretion, undermining the …

Urban Politics And The Assimilation Of Immigrant Voters, Rick Su

Rick Su

Despite the growing strength of immigrant voters in the U.S., immigrants continue to participate at the polls in much lower rates than not only native voters, but also immigrants in the past. What accounts for this disparity? Looking beyond the characteristics of the immigrants themselves, this essay argues that a major reason lies in the different political structure that immigrants face upon their arrival, especially at the local level. Tracing the evolution of big city politics alongside, and in response to, the three major waves of foreign immigration to the U.S., this essay outlines three competing models of immigrant political …