Law Commons^™

Tort Law: The Languages Of Duty, Jay Tidmarsh

Jay Tidmarsh

No abstract provided.

States' Rights In The Twenty-First Century, Jay Tidmarsh, Mark Racicot, Robert Miller, Michael Greve

Jay Tidmarsh

No abstract provided.

Finding Room For State Class Actions In A Post-Cafa World: The Case Of The Counterclaim Class Action, Jay Tidmarsh

Jay Tidmarsh

No abstract provided.

Localism And Capital Punishment, Stephen F. Smith

Stephen F. Smith

Professor Adam Gershowitz presents an interesting proposal to transfer from localities to states the power to enforce the death penalty. In his view, state-level enforcement would result in a more rationally applied death penalty because states would be much more likely to make capital charging decisions based on desert, without the distorting influence of the severe resource constraints applicable to all but the wealthiest of localities. As well conceived as Professor Gershowitz’s proposal is, however, I remain skeptical that statewide enforcement of the death penalty would be preferable to continued local enforcement. First, Professor Gershowitz underestimates the benefits of localism …

Pretextual Takings: Of Private Developers, Local Governments, And Impermissible Favoritism, Daniel B. Kelly

Daniel B Kelly

Since Kelo v. City of New London, the preferred litigation strategy for challenging a condemnation that benefits a private party is to allege that the taking is pretextual. This Article contends that, although pretextual takings are socially undesirable, the current judicial test for identifying such takings is problematic. Yet an alternative, intent-based test might be impracticable, as well as underinclusive: condemnors often have mixed motives, particularly when confronted with a firm's credible threat to relocate. Instead, the Article develops a framework that emphasizes informational differences between local governments and private developers. When the government lacks information regarding the optimal site …

Survey Of Recent Developments In Indiana Law: Labor And Employment Law, Barbara J. Fick

Barbara J. Fick

This article examines developments in labor and employment law occuring shortly before its publicaiton in 1992. The article discusses cases revisiting the Frampton rule, addressing employee defamation suits against employers, employment discrimination, issues arising in public sector employment, wage statutes, unemployment compensation, and workers' compensation. It also discusses a state statute prohibiting employment discrimination based on employees' off-duty use of tobacco.

See The Mojave!, John C. Nagle

John Copeland Nagle

This article examines how the law is being asked to adjudicate disputed sights in the context of the Mojave Desert. The Mojave is the best known and most explored desert in the United States. For many people, though, the Mojave is missing from any list of America’s scenic wonders. The evolution in thinking about the Mojave’s aesthetics takes places in two acts. In the first act, covering the period from the nineteenth century to 1994, what began as a curious voice praising the desert’s scenery developed into a powerful movement that prompted Congress to enact the CDPA. The second act …

Managing The Urban Commons, Nicole Stelle Garnett

Nicole Stelle Garnett

No abstract provided.

Restoring Lost Connections: Land Use, Policing, And Urban Vitality, Nicole Stelle Garnett

Nicole Stelle Garnett

No abstract provided.

Affordable Private Education And The Middle Class City, Nicole Stelle Garnett

Nicole Stelle Garnett

This Essay, which was prepared for a University of Chicago Law School’s symposium on “Rethinking the Local Government Toolkit,” argues that affordable private schools serve an important urban-development function: They partially unbundle the residential and educational decisions of families with children. Thus, state and local officials hoping to make our make central city neighborhoods attractive places to raise children should consider employing a familiar urban development tool - tax incentives - to make quality private schools more financially accessible to middle-income families. The Essay proceeds in three parts. Part I builds the case for a middle class city. Part II …

The Market For Deadbeats, Margaret F. Brinig, F. H. Buckley

Margaret F Brinig

This article outlines three explanations for why states seek migrants and tests them by references to 1985-90 interstate migration flows. On race-for-the-top theories, states compete for value-increasing migrants by offering them healthy economies and efficient laws. On vote-seeking theories, states compete for clienteles of voters, with some states seeking to attract and some to deter welfare- or tax-loving migrants. On deadbeat theories, states compete for high human capital debtors by offering them a fresh start from out-of-state creditors. Our findings support vote-seeking and deadbeat theories.

State Courts And The Interpretation Of Federal Statutes, Anthony J. Bellia

Anthony J. Bellia

Scholars have long debated the separation of powers question of what judicial power federal courts have under Article III of the Constitution in the enterprise of interpreting federal statutes. Specifically, scholars have debated whether, in light of Founding-era English and state court judicial practice, the judicial power of the United States should be understood as a power to interpret statutes dynamically or as faithful agents of Congress. This Article argues that the question of how courts should interpret federal statutes is one not only of separation of powers but of federalism as well. State courts have a vital and often …

Federal Regulation Of State Court Procedures, Anthony J. Bellia

Anthony J. Bellia

May Congress regulate the procedures by which state courts adjudicate claims arising under state law? Recently, Congress not only has considered several bills that would do so, but has enacted a few of them. This Article concludes that such laws exceed Congress's constitutional authority. There are serious questions as to whether a regulation of court procedures qualifies as a regulation of interstate commerce under the Commerce Clause. Even assuming, however, that it does qualify as such, the Tenth Amendment reserves the power to regulate court procedures to the states. Members of the Founding generation used conflict-of-laws language to describe a …

May A Federal Court Remand A Case To State Court After Federal Claims Have Been Deleted?, Joseph P. Bauer

Joseph P. Bauer

This Article provides a preview of Carnegie-Mellon University v. Honorable Maurice B. Cohill, Jr., argued before the Supreme Court of the United States on November 10, 1987. This case concerns the circumstances under which a lawsuit, properly commenced in a state court and then removed before trial to a federal court, may be sent back (remanded) to the state court.

On one level, this case seems only to involve technical interpretations of federal statutes governing procedure in the federal courts. At another level, however, it involves more general and important issues. Among these are how to allocate judicial power …

Addressing The Incoherency Of The Preemption Provision Of The Copyright Act Of 1976, Joseph P. Bauer

Joseph P. Bauer

Section 301 of the Copyright Act of 1976 expressly preempts state law actions that are within the "general scope of copyright" and that assert claims that are "equivalent to" the rights conferred by the Act. The Act eliminated the previous system of common law copyright for unpublished works, which had prevailed under the prior 1909 Copyright Act. By federalizing copyright law, the drafters of the statute sought to achieve uniformity and to avoid the potential for state protection of infinite duration. The legislative history of § 301 stated that this preemption provision was set forth "in the clearest and most …

Baker V State And The Promise Of The New Judicial Federalism, Lawrence Friedman, Charles Baron

Charles H. Baron

In Baker v. State, the Supreme Court of Vermont ruled that the state constitution's Common Benefits Clause prohibits the exclusion of same-sex couples from the benefits and protections of marriage. Baker has been praised by constitutional law scholars as a prototypical example of the New Judicial Federalism. The authors agree, asserting that the decision sets a standard for constitutional discourse by dint of the manner in which each of the opinions connects and responds to the others, pulls together arguments from other state and federal constitutional authorities, and provides a clear basis for subsequent development of constitutional principle. This Article …

The Supreme Judicial Court In Its Fourth Century: Meeting The Challenge Of The "New Constitutional Revolution", Charles H. Baron

Charles H. Baron

In the mid-19th century, when the United States was confronted with daunting changes wrought by its expanding frontiers and the advent of the industrial revolution, its state supreme courts developed the principles of law which facilitated the nation's growth into the great continental power it became. First in influence among these state supreme courts was the Supreme Judicial Court of Massachusetts-whose chief justice, Lemuel Shaw, came widely to be known as "America's greatest magistrate." It is this tradition that the court brings with it as it develops its place in the "new constitutional revolution" presently sweeping our state supreme courts. …

Medical Paternalism And The Rule Of Law: A Reply To Dr. Relman, Charles Baron

Charles H. Baron

In this Article, Professor Baron challenges the position taken recently by Dr. Arnold Relman in this journal that the 1977 Saikewicz decision of the Supreme Judicial Court of Massachusetts was incorrect in calling for routine judicial resolution of decisions whether to provide life-prolonging treatment to terminally ill incompetent patients. First, Professor Baron argues that Dr. Relman's position that doctors should make such decisions is based upon an outmoded, paternalistic view of the doctor-patient relationship. Second, he points out the importance of guaranteeing to such decisions the special qualities of process which characterize decision making by courts and which are not …

Fetal Research: The Question In The States, Charles H. Baron

Charles H. Baron

This article is based on a paper delivered at the Third National Symposium on Genetics and the Law in Boston, April 1984.

In Favor Of Restoring The Sherbert Rule - With Qualifications, Jesse H. Choper

Jesse H Choper

No abstract provided.

Towards A Theory Of Equitable Federated Regionalism In Public Education: Reversing The Role Of School District Boundary Lines In Dismantling Brown V. Board Of Education, Erika Wilson

Erika K. Wilson

School quality and resources vary dramatically across school district boundary lines. Students who live mere miles apart have access to vastly different and disparate educational opportunities based upon which side of a school district boundary line their home is located. Owing in large part to metropolitan fragmentation, most school districts and the larger localities in which they are situated, are segregated by race and class. Further, because of a strong ideological preference for localism in public education, local government law structures in most states do not require or even encourage collaboration between school districts in order to address disparities between …

I'Ll Huff And I'Ll Puff - But Then You'll Blow My Case Away: Dealing With Dismissed And Bad-Faith Defendants Under California's Anti-Slapp Statute, Jeremiah Ho

Jeremiah A. Ho

This Article will demonstrate that, despite efforts to recognize SLAPPs and to safeguard our legal process from abuses, SLAPP suits and their underlying interference with the legitimate exercise of the right to petition can often engender new ways of creeping back onto the legal stage to wreak havoc on the private citizen - that the devious, shape-shifting Big Bad Wolf of First Amendment rights can return to reprise its role as the subversive villain and to trot unsuspecting litigants out to slaughter. After an introduction into the general world of SLAPPs and the specific history behind California's section 425.16, this …

Milk And Other Intoxicating Choices: Official State Symbol Adoption, Ryan Valentin

Ryan Valentin

No abstract provided.

The Contours Of Judicial Tenure In State Courts Of Last Resort: Accountability Vs. Independence, Todd A. Curry

Todd A. Curry

The study of state courts of last resort is a field which has, up until recently, been significantly underrepresented in political science (Baum 1987, Dubois 1980). The bulk of work in judicial politics over the last fifty years has focused on the federal system. Furthermore, the study of state courts allows for a true comparative analysis. The methods of selection used for the staffing of state courts of last resort are highly varied. There are five distinctly different methods which are used for judicial selection in the states, and many states have institutional nuances that provide further variation for study. …

Municipal Liability And Liability Of Supervisors: Litigation Significance Of Recent Trends And Developments, Karen Blum, Celeste Koeleveld, Joel B. Rudin, Martin A. Schwartz

Martin A. Schwartz

"The purpose of this presentation is to examine two recent Supreme Court decisions, Connick v. Thompson and Ashcroft v. Iqbal with an eye to their impact on how lower federal courts will assess such claims in the wake of new constraints imposed by these cases. The focus of the discussion will be on developments in single-incident liability cases after Connick and supervisory liability claims after Iqbal."

Horizontal Erie And The Presumption Of Forum Law, Michael S. Green

Michael S. Green

According to Erie Railroad v. Tompkins and its progeny, a federal
court interpreting state law must decide as the state’s supreme
court would. In this Article, I argue that a state court interpreting
the law of a sister state is subject to the same obligation. It must
decide as the sister state’s supreme court would.

Horizontal Erie is such a plausible idea that one might think it is
already established law. But the Supreme Court has in fact given
state courts significant freedom to misinterpret sister-state law. And
state courts have taken advantage of this freedom, by routinely presuming
that …

Limited Powers In The Looking-Glass: Otiose Textualism, And An Empirical Analysis Of Other Approaches, When Activitists In Private Shopping Centers Claim State Constitutional Liberties, Richard Peltz-Steele

Richard J. Peltz-Steele

This article examines closely a narrow range of highly factually analogous cases, in which state constitutional rights are asserted despite a clear lack of entitlement to assert any federal constitutional claim. Specifically, the cases selected are those in which private persons assert a right to conduct expressive activity, including electoral activity, in private shopping centers during hours when the properties are held open to the general public. These cases may be referred to colloquially as “the mall cases.” Selected here are only those which were decided after the federal question became clear. The Article first inquires into the role of …

Arkansas's Public Records Retention Program: Records Retention As A Cornerstone Of Citizenship And Self-Government, Richard Peltz-Steele

Richard J. Peltz-Steele

This article first provides background, charting the scope of record retention in relation to the freedom of information, then outlining record retention through its history and development in the federal government, through its general principles and modes of practice, through a sketch of the problems that have arisen specially in the electronic era, and through an overview of its development at the state level. The article then describes the recent history of record retention law in Arkansas, up to and including the initiative enacted by the General Assembly in 2005, and the process and product of a state working group …

The Arkansas Proposal On Access To Court Records: Upgrading The Common Law With Electronic Freedom Of Information Norms, Richard Peltz-Steele, Joi Leonard, Amanda Andrews

Richard J. Peltz-Steele

The law and practice of court record access across United States jurisdictions is in a confused state. Public access to records in the hands of government, including court records, is a desirable norm of public policy; on this point, there is universal agreement. But there is disagreement on questions as fundamental as whether public access to court records is founded in constitutional law, or only in common law; and the extent to which court record access is the province of the courts or the legislature. And most importantly, there is widely divergent disagreement about what circumstances warrant restriction on public …

Implementation Of The Apa Growing Smart Legislative Guidebook: Beginning To Benchmark Success, Patricia Salkin

Patricia E. Salkin

No abstract provided.