Law Commons^™

A 'Velvet Hammer': The Criminalization Of Motherhood And The New Maternalism, Eliza Duggan

Eliza Duggan

In 2014, Tennessee became the first state to criminalize the use of narcotics during pregnancy. While women have been prosecuted for the outcomes of their pregnancies and for the use of drugs during pregnancy in the past decades, Tennessee is the first state to explicitly authorize prosecutors to bring criminal charges against pregnant women if they use drugs. This Article suggests that this new maternal crime is reflective of a social and political paradigm called “maternalism,” which enforces the idea that women are meant to be mothers and to perform motherhood in a particular fashion. This concept has developed from …

The High Price Of Poverty: A Study Of How The Majority Of Current Court System Procedures For Collecting Court Costs And Fees, As Well As Fines, Have Failed To Adhere To Established Precedent And The Constitutional Guarantees They Advocate., Trevor J. Calligan

Trevor J Calligan

No abstract provided.

What The Frack? How Weak Industrial Disclosure Rules Prevent Public Understanding Of Chemical Practices And Toxic Politics, Benjamin W. Cramer

Benjamin W. Cramer

Hydraulic fracturing, known colloquially as “fracking,” makes use of chemically-formulated fluid that is forced down a gas well at great pressure to fracture underground rock formations and release embedded natural gas. Many journalists, environmentalists, and public health advocates are concerned about what may happen if the fracking fluid escapes the well and contaminates nearby drinking water supplies. This article attempts a comprehensive analysis and comparison of all relevant fracking fluid disclosure regulations currently extant in the United States, and considers whether the information gained is truly useful for citizens, journalists, and regulators. In recent years the federal government and several …

Resolution 07-10-2015 About K-12 School Field Trip Liability, Catherine L. Rucker

Catherine L Rucker

To amend California Education Code section 35330 and to delete section 44808 in order to resolve the conflict between the liability provisions for “field trips/excursions” and “school-sponsored activities.”

The Hypocrisy Of "Equal But Separate" In The Courtroom: A Lens For The Civil Rights Era, Jaimie K. Mcfarlin

Jaimie K. McFarlin

This article serves to examine the role of the courthouse during the Jim Crow Era and the early stages of the Civil Rights Movement, as courthouses fulfilled their dual function of minstreling Plessy’s call for “equality under the law” and orchestrating overt segregation.

Amenities, Amenities, Amenities? How Policymakers Can Swot Their Way To Better Entrepreneurial Facility Options, Darren Prum

Darren A. Prum

Across the country, policymakers from both the public and private sector regardless of their level of responsibility turn to entrepreneurial ventures as an opportunity to drive economic activity within their sphere of influence. They develop and implement strategies that encourage new business ventures but fail to consider a fundamental aspect of the organizing process of a business, which is finding a suitable facility. As such, this article seeks to consider and evaluate the forms and types of facilities available to entrepreneurs in order to provide policymakers with an insight on the best methods to assist in facilitating their success while …

Environmental Federalism's Tug Of War Within, Erin Ryan

Erin Ryan

Anyone paying attention has noticed that many of the most controversial issues in American governance—health care reform, marriage rights, immigration, drug law, and others—involve questions of federalism. The intensity of these disputes reflects inexorable pressure on all levels of government to meet the increasingly complicated challenges of governance in an ever more interconnected world, where the answers to jurisdictional questions are less and less obvious. Yet even as federalism dilemmas continue to erupt all from all corners, environmental law remains at the forefront of controversy, and it is likely to do so for some time. From mining to nuclear waste …

Protecting The Sender: Liability Protection For The Senders Of Electronic Communication, Meredith W. Doherty

Meredith W. Doherty

As the technology of smartphones has progressed, electronic communication has become an integral and portable part of our daily lives. A recent New Jersey case highlighted the issue of holding the sender of a text message liable for injuries resulting from a motor vehicle accident in which the driver at fault was reading a text message from the sender at the time of the accident. This note focuses on the implications of such liability being imposed on senders of text messages as well as the slippery slope that could result, taking all forms of electronic communication, social media and mobile …

Navigating A Post-Windsor World: The Promise And Limits Of Marriage Equality, Nancy J. Knauer

Nancy J. Knauer

When the 2013 landmark decision in U.S. v. Windsor invalidated part of the Defense of Marriage Act (DOMA), it was hailed as a landmark civil rights victory, but its implementation has been far from seamless. The federal government has not applied a uniform rule for marriage recognition, applying a state-of-domicile rule for some purposes (Social Security) and a broader state-of-celebration rule for others (e.g., federal tax matters). Moreover, Windsor did not directly address the state-level marriage prohibitions that remain in place in the majority of states. As a result, the United States continues to be a patchwork of marriage laws …

Resolution 10-08-2014, To Improve Automated External Defibrillator (Aed) Accessibility, Catherine L. Rucker

Catherine L Rucker

To amend California Health and Safety Code section 1797.196 to require that automatic external defibrillators (AED) units be stored in readily accessible and highly visible locations.

Turf Wars: Territoriality And The Allocation Of Sales And Use Taxes In California, Kevin Schmitt

Kevin Schmitt

Sales and use tax revenue provides an important source of funding for California’s local governments, particularly its cities. Under the Bradley-Burns Uniform Local Sales and Use Tax Law, local governments may enact sales and use tax ordinances and contract with the state to manage collection and distribution. The current allocation system, known as the situs-based system, provides for distribution to local government based on the physical location of the retailer. Although such a system has logical appeal, in practice it has proven highly problematic, promoting unproductive competition among local governments for scarce revenue.

Reform of the situs-based allocation process has …

Federalism And Municipal Innovation: Lessons From The Fight Against Vacant Properties, Benton C. Martin

Benton C. Martin

Cities possess a far greater ability to be trailblazers on a national scale than local officials may imagine. Realizing this, city advocates continue to call for renewed recognition by state and federal officials of the benefits of creative local problem-solving. The goal is admirable but warrants caution. The key to successful local initiatives lies not in woolgathering about cooperation with other levels of government but in identifying potential conflicts and using hard work and political savvy to build constituencies and head off objections. To demonstrate that point, this Article examines the legal status of local governments and recent efforts to …

The Spending Power And Environmental Law After Sebelius, Erin Ryan

Erin Ryan

This article analyzes the Supreme Court’s new spending power doctrine and its impact on state-federal bargaining in programs of cooperative federalism, using the laboratory of environmental law. (It expands on the legal analysis in an Issue Brief originally published by the American Constitution Society on Oct. 1, 2013.) After the Supreme Court ruled in the highly charged Affordable Care Act case of 2012, National Federation of Independent Business vs. Sebelius, the political arena erupted in debate over the implications for the health reform initiative and, more generally, the reach of federal law. Analysts fixated on the decision’s dueling Commerce Clause …

Federalism And Fiduciaries: A New Framework For Protecting State Benefit Funds, Richard E. Mendales

Richard E. Mendales

The financial crisis has underlined difficulties faced by states and their subdivisions in paying benefits to their employees. The most spectacular example is Detroit's bankruptcy, but state and local employers across the country face sharp cuts in benefits as their employers fight for solvency. A federal solution such as ERISA is precluded by considerations of federalism and the impracticability of getting major legislation through Congress. This Article proposes an alternative solution: a uniform state code, following other uniform state laws such as the Uniform Commercial Code, that states could adopt to govern both state and local plans. It would finance …

The Battle For The Soul Of International Shoe, Eric H. Schepard

Eric H Schepard

In 2011, Justice Kennedy’s plurality opinion in J. McIntyre Machinery, Ltd. v. Nicastro repeatedly cited International Shoe v. Washington, a 1945 decision that transformed the law of personal jurisdiction. Kennedy believed that International Shoe broadly supported his position that a state may hear a suit arising from a within-state workplace injury to its citizen only if the foreign (out-of-state) corporate defendant specifically markets its products to that state. This article reexamines the jurisprudence of International Shoe’s author, Chief Justice Harlan Fiske Stone, to argue that Kennedy hijacked International Shoe’s half-buried legacy of judicial restraint. Scholars have suggested that Stone hoped …

Reforma Agraria E Inversión Extranjera: Uno De Los Nuevos Desafíos Del Proceso De Paz, Marco A. Velásquez-Ruiz

Marco A. Velásquez-Ruiz

Uno de los secretos a viva voz en la corta pero compleja historia de Colombia como nación, es que el principal motor del conflicto armado que ha azotado nuestro país por más de sesenta años es la disputa por los recursos naturales escasos, y en especial por el acceso y uso de la tierra. Bajo dicho contexto, el proceso de reparación integral a las víctimas de el conflicto es una realidad gracias a las ley 1448 y otras reformas proyectadas en favor del sector rural, pero enfrenta desafíos provenientes de sectores insospechados como el de la inversión extranjera.

Combating Obesity With A Right To Nutrition, Paul Diller

Paul Diller

Domestic and international law have, in different ways, recognized a human right to food since the twentieth century. The original reason for this recognition was the need to alleviate a particular type of food insecurity—“traditional” hunger, as manifested in conditions like malnutrition and underweight. The current public-health crisis of obesity, however, demands a reconsideration of this right. The food environment in the United States today is awash in high-calorie, low-nutrient food products that are often cheaper, on a relative basis, than more nutritious foods, leading to the overconsumption of the former by much of the American population. Merely ensuring a …

Tactics, Strategies & Battles—Oh My!: Perseverance Of The Perpetual Problem Regarding Preaching To Public School Pupils & Why It Persists, Casey S. Mckay

Casey Scott McKay

After reviewing the history of the religious war on Darwin’s Theory of Evolution, my article, “Tactics, Strategies & Battles—Oh My!: Perseverance of the Perpetual Problem Regarding Preaching to Public School Pupils & Why it Persists,“ examines why such a seemingly well-settled issue survives and, to some extent, succeeds.

First, by exploiting common misconceptions among the American public, lawmakers are able to take advantage of ignorance driven by strong emotions. Next, religious special interests groups, with seemingly unlimited funds, thrust propaganda supported by worldwide media reinforcement on an already vulnerable American public. Thus, irresponsible state legislators, caught between a rock and …

Shifting Sands: A Meta-Theory For Public Access And Private Property Along The Coast, Melissa K. Scanlan

Melissa K. Scanlan

Over half the United States population currently lives near a coast. As shorelines are used by more people, developed by private owners, and altered by extreme weather, competition over access to water and beaches will intensify, as will the need for a clearer legal theory capable of accommodating competing private and public interests. One such public interest is to walk along the beach, which seems simple enough. However, beach walking often occurs on this ambulatory shoreline where public rights grounded in the public trust doctrine and private rights grounded in property ownership intersect. To varying degrees, each state has a …

Retention Redux: Iowa 2012, Todd E. Pettys

Todd E. Pettys

In 2010, Iowa voters ousted three members of the Iowa Supreme Court for their participation in that court's ruling that Iowa's statutory ban on same-sex marriage violated the Iowa Constitution. In 2012, however, Iowa voters opted to retain a fourth member of that same court. This article examines the differences between the two elections.

The Legal Impact Of Emerging Governance Models On Public Education And Its Office Holders, Robert A. Garda Jr., David Doty

Robert A. Garda

The idea that changing the formal structure of governance can lead to better schools is rooted in American political and intellectual history. Politicians, career educators, parents, business leaders, and investors continue to wrangle over the control of public schools all across the country. With these battles for control have come more lawsuits, more laws, and more administrative regulations dictating the governance structures of educational institutions. Indeed, one could argue that, in recent years, debates over how schools and school districts should be governed have subsumed the curriculum debates over how and what children should be taught. Leadership matters, and therefore …

Buying The Electorate: An Empirical Study Of The Current Campaign Finance Landscape And How The Supreme Court Erred By Not Revisiting Citizens United, William Alan Nelson Ii

William Alan Nelson II

The article discusses how the Supreme Court erred by summarily reversing the Montana Supreme Court’s decision in Western Tradition Partnership v. AG and not revisiting their holding in Citizens United v. FEC. The article begins by discussing the holding in the Western Tradition Partnership case and analyzing both the majority and dissenting opinions. The article then analyzes how the Montana Supreme Court distinguished Citizens United, with the Court specifically looking at the “unique” political history in Montana and finding that Montana’s ban on corporate independent political spending served a compelling state interest and was narrowly tailored to that interest.

The …

The Brief History Of "Voter-Owned Elections" In Portland, Oregon: If Public Financing Can't Make It There, Can It Make It Anywhere?, Paul A. Diller

Paul Diller

From 2006 to 2010, Portland, Oregon, experimented with a publicly financed campaign system called "Voter-Owned Elections." In 2010, Portland's voters declined to renew the system. This article assesses Portland's experience with public financing and draws lessons therefrom that may inform efforts to promote public financing at the national, state, and local levels.

Local Health Agencies, The Bloomberg Soda Rule, And The Ghost Of Woodrow Wilson, Paul A. Diller

Paul Diller

Local health agencies are often leaders in public health regulation. Despite the significance of this phenomenon, scant scholarship has assessed the interesting doctrinal and normative questions that local agency rulemaking raises. This paper uses local health agency rulemaking, and the New York City portion-cap rule for sugar-sweetened beverages ("the Bloomberg soda rule"), in particular, as a prism through which to analyze local agency rulemaking. The article first explains why it is important -- both doctrinally and practically -- to determine whence local agency power flows. If agencies are created directly by state law, then their powers should be circumscribed by …

Dirty Remics, Revisited, David J. Reiss, Bradley T. Borden

David J Reiss

We review the differences between two visions for the residential mortgage markets, one driven by the goal of efficiency and the other driven by the goals of efficiency and consumer protection. Both visions advocate for structural reform, but one advocates for industry-led change and the other advocates for input from a wider array of stakeholders. Broader input is not only important to ensure that a broad range of interests are represented but also to ensure the long-term legitimacy of the new system. This is a response to Joshua Stein, Dirt Lawyers Versus Wall Street: A Different View, PROBATE AND PROPERTY …

The Reactionary Road To Free Love: How Doma, State Marriage Amendments And Social Conservatives Undermine Traditional Marriage, Scott Titshaw

Scott Titshaw

Much has been written about the possible effects on different-sex marriage of legally recognizing same-sex marriage. This article looks at the defense of marriage from a different angle: It shows how rejecting same-sex marriage results in political compromise and the proliferation of “marriage light” alternatives (e.g., civil unions, domestic partnerships, or reciprocal beneficiaries) that undermine the unique status of marriage for everyone. In the process, it examines several aspects of the marriage debate in detail. After describing the flexibility of marriage as it has evolved over time, the article focuses on recent state constitutional amendments attempting to stop further development. …

The Full Faith And Credit Clause: Do Factual Executive Documents Require Equivalent Treatment Between States?, Darren Prum

Darren A. Prum

Largely a development of the last half-century of government expansion, many of the health, safety, and welfare protections required by the federal government now fall upon the states. With the states picking up the load, many of the jurisdictions elect to administrate these duties through agencies. These agencies promulgate numerous regulations and enforce them as well. In making these laws and regulations, the government may require the public to submit documents that convey factual information in order to achieve the overall policy goal.

During these interactions with the public, the statute or regulations provide the guidance as to what qualifies …

Obamacare And Federalism's Tug Of War Within, Erin Ryan

Erin Ryan

This month, the Supreme Court will decide what some believe will be among the most important cases in the history of the institution. In the “Obamacare” cases, the Court considers whether the Affordable Care Act (“ACA”) exceeds the boundaries of federal authority under the various provisions of the Constitution that establish the relationship between local and national governance. Its response will determine the fate of Congress’s efforts to grapple with the nation’s health care crisis, and perhaps other legislative responses to wicked regulatory problems like climate governance or education policy. Whichever way the gavel falls, the decisions will likely impact …

A Comprehensive Solution To The Marine Biofouling Problem For The Endangered Florida Manatee And Other Species, Kathleen Oppenheimer Berkey Esq., Aicp, Todd K. Bendor Phd

Kathleen Oppenheimer Berkey

Marine biofouling is the undesirable accumulation of microorganisms, plants, algae, arthropods, or mollusks on a surface, such as a ship’s hull, when it is in contact with water for a period of time. Biofouling and its traditional remedies pose serious environmental consequences, including: 1) the transportation of nonindigenous marine species that can outcompete with native species for space and resources, thereby reducing biodiversity and threatening the viability of fisheries or aquaculture, 2) the accumulation of zinc- or copper-based toxins that can harm mollusk and marine mammal populations, and 3) the increase in weight, decrease in flexibility, decrease in mobility, and …

La Transparencia En La Protección De Datos Personales, Bruno L. Costantini García

Bruno L. Costantini García

La Transparencia en la Protección de Datos Personales, ponencia elaborada dentro de los trabajos del VII Congreso Nacional de Organismos Públicos Autónomos (OPAM)