Law Commons^™

Globalization And The Environment: Why All The Fuss?, David A. Wirth

David A. Wirth

The relationship between globalization and environmental policies presents more nuances than the popular paradigm of free trader versus self-serving protectionists, the familiar model of environmentalist battling greedy polluters, or the outmoded view of a progressive multilateral agenda juxtaposed against a parochial, inward-looking domestic one. This piece sets out a structural and analytical framework for addressing the major issues in the field -- including (1) unilateral trade-based measures to protect the environment; (2) science-based tests applied through trade agreements; (3) disciplines on foreign investment that may have a "chilling effect" on environmental regulation; and (4) the relationship between free trade agreements …

The Impact Xat, Paul Boudreaux

Paul Boudreaux

Impact fees complicate the construction of new housing across the nation. Although justified as a means of forcing new development to “pay its way” for the costs of government infrastructure necessitated by the new housing, impact fees are imposed in a way that make them, in effect, a dubious population tax. Indeed, the typical impact fee does little to discourage costly suburban sprawl. This essay, using economic lessons from policies to discourage the wasteful use of resources with light bulbs, bathrooms, and buildings, suggests a new policy course. It proposes an impact xat (a cross between a tax and fee) …

The Impact Xat, Paul Boudreaux

Paul Boudreaux

Impact fees complicate the construction of new housing across the nation. Although justified as a means of forcing new development to “pay its way” for the costs of government infrastructure necessitated by the new housing, impact fees are imposed in a way that make them, in effect, a dubious population tax. Indeed, the typical impact fee does little to discourage costly suburban sprawl. This essay, using economic lessons from policies to discourage the wasteful use of resources with light bulbs, bathrooms, and buildings, suggests a new policy course. It proposes an impact xat (a cross between a tax and fee) …

The Toll Road Not Taken: Could The One Option Less Used Make A Difference?, Carlos C. Sun

Carlos C Sun

There is a growing transportation financing crisis in the United States caused by a rapidly aging transportation infrastructure, a growing demand for transportation, soaring infrastructure costs and a lack of systematic planning to account for these multiple trends. Potholes, deteriorating bridges and cracked pavements are everywhere, regardless of geographical location, climate or population density. Such infrastructure deterioration negatively impacts the environment via pollution, wasted fuel and inefficient travel patterns. Courts in states such as California have responded pragmatically to the crisis by opening the door to road tolling in various forms. This shift in states’ attitudes toward toll roads comes …

Canned For Medical Cannabis: Terminating Employees For Lawful, At-Home Use Of Medical Cannabis For Palliative Care Amounts To Disability Discrimination And Chills Their Liberty Interest To Pain Relief, Elizabeth M. Votra

Elizabeth M Votra

Although qualified California citizens may lawfully use medical cannabis, there are no protective regulations in the employment arena for those who are medical cannabis patients. Upon examination of the California Supreme Court case Ross v. RagingWire Telecommunications (medical cannabis patients cannot succeed on grounds of wrongful termination claims when fired for their at-home use of medical cannabis) and the United States Supreme Court case Washington v. Glucksberg (deeply rooted liberty interests in pain relief qualify for protection), I show that there is a disconnect between what the voters clearly wanted-as described in the Compassionate Use Act-and the current state of …

Sustainable Procurement Is Smart Procurement: A Primer For Local Governments To Successfully Implement Sustainable Procurement Policies, Zachary R. Kobrin

Zachary R Kobrin

Most local governments do not understand the benefits of sustainable procurement or how to successfully implement these policies. This article discusses the challenges facing local governments when adopting sustainable procurement policies and makes recommendations to successfully implement sustainable procurement. The U.S. Environmental Protection Agency describes sustainable procurement as the purchasing of products or services that have a lesser or reduced effect on human health and the environment when compared with competing products or services that serve the same purpose. For local governments, sustainable procurement can also be defined by the benefits it will provide the local environment and economy. Before …

Setting The Foundation: How Local Climate Change Adaptation Initiatives Can Pave The Way For A Regulatory Regime That Works, Thomas M. Gremillion

Thomas M Gremillion

Climate change is here and with it a growing awareness of the need to adapt to impacts that are already occurring. At the same time, efforts to establish an international regulatory program to reduce or mitigate greenhouse gas (GHG) emissions have all but collapsed. This article argues that climate change adaptation at the local level, particularly in urban areas, represents a logical step forward. In addition to managing risk, adaptation can stimulate a needed shift in emphasis towards a more pluralist or polycentric approach to climate regulation, laying the groundwork for future national and global regulatory regimes. Examining some of …

Localizing Religion In A Jewish State, Yishai Blank Prof.

Yishai Blank

Cities in Israel are regulating religion and controlling religious liberty. They decide whether to close down roads during the Sabbath, whether to limit the selling of pork meat within their jurisdiction, whether to prohibit sex stores from opening, and whether to allocate budgets and lands to religious activities. They do all that by using their regular local powers as well as special enablement laws which the Israeli parliament enacts from time to time. The immediacy of these issues, the fact that the traditional powers—business licensing, traffic and road control, spending and more—of local authorities touch upon many of them, and …

Safeguarding The Safeguards: The Extension Of Structural Protection To Non-Fundamental Liberties, Abigail R. Moncrieff

Abigail R. Moncrieff

As the lawsuits challenging the Patient Protection and Affordable Care Act (ACA) have evolved, one feature of the litigation has proven especially rankling to the legal academy: the incorporation of substantive libertarian concerns into the structural federalism analysis. The breadth and depth of scholarly criticism is surprising, however, given that judges frequently choose indirect methods, including structural and process-based methods of the kinds at issue in the ACA litigation, for protecting substantive constitutional values. Indeed, indirection in the protection of constitutional liberties is a well-known and well-theorized strategy, which one scholar recently termed “semisubstantive review” and another recently theorized as …

The Feud Between The Queen And The Diva: How A Property Dispute Underscores The Relevance Of A South Beach Gay Bar, Justin Karr

Justin Karr

The article recounts how the gay community was instrumental in the economic and cultural revival of South Beach as its known today. But, with the area currently experiencing a decline in gay tourism, the article suggests why the city is keen to observe the cultural and social benefit provided by a robust gay population. The article details the bar’s lobby of the local government for an expansion of its outdoor drag entertainment, despite the protests of the neighboring boutique hotel, which the bar asserts is homophobic intolerance of the shows’ gay theme.

The article discusses the importance that the modern …

Inclusionary Zoning: The Evolution Of Present-Day Mount Laurel, Kelsey Hotchkiss

Kelsey Hotchkiss

This essay analyzes the present-day effect of the prominent New Jersey Supreme Court Mount Laurel I and II cases on inclusionary zoning. The Mount Laurel decisions, which initiated the provision of affordable housing to low-income New Jersey residents, remain influential in current local legislation. Today, the Mount Laurel Doctrine continues to encourage the development of affordable housing through legislative initiatives designed to satisfy both the constitutional rights of developers as well as the needs of local, low-income families.

Safeguarding The Safeguards: The Aca Litigation And The Extension Of Structural Protection To Non-Fundamental Liberties, Abigail R. Moncrieff

Abigail R. Moncrieff

This article confronts and challenges an emerging scholarly consensus that criticizes the hybridization of substantive and structural arguments in the litigation over the Patient Protection and Affordable Care Act (ACA). Although there is no doubt that the ACA plaintiffs have requested and the ACA judges have provided a hybrid substantive-structural holding, there is nothing at all unusual about this indirect strategy for protecting constitutional liberty interests; it is a well-known and well-theorized strategy, which one scholar recently termed “semisubstantive review.” The article considers three possible distinctions between the ACA case and the ordinary case of semisubstantive review, and concludes that …

Held Hostage: How The Banking Sector Has Distorted Financial Regulation And Destroyed Technological Progress, Aaron Greenspan

Aaron Greenspan

In 2008, a global financial crisis second only to the Great Depression shed light on the utterly dysfunctional system of financial regulation governing the United States. A cacophony of laws and agencies, charged with regulating retail and investment banks, ultimately failed to prevent (and ultimately accelerated) an epic economic disaster that required enormous taxpayer bailouts of private enterprise, sunk two investment banks (Lehman Brothers and Bear Stearns), imploded an enormous insurance provider (A.I.G.), leveled the American auto industry (General Motors and Chrysler), and destroyed the student loan and mortgage industries, among many, many others. Drafted quickly amidst the wreckage, the …

Empower The Neighborhood And Save The City; Why Courts Should Permit Neighborhood Control Of Zoning, Kenneth A. Stahl

Kenneth Stahl

Whether cities should delegate zoning authority to neighborhood groups is one of the most hotly contested issues in municipal politics, yet it is also essentially a moot point. Since a bizarre series of Supreme Court cases in the early twentieth century, it has been largely settled that cities may not constitutionally delegate the zoning power to sub-municipal groups, at least where the power is delegated specifically to landowners in a certain proximity to a proposed land use change.

This article argues that courts have erred in prohibiting cities from devolving zoning control to proximate landowners, a scheme I designate a …

Committing Crimes One Bill At A Time; From The White House To The Jail House, Enacting Rational Laws In An Irrational World, Lanessa Owens

Lanessa L. owens

Committing Crimes One Bill At Time; From The White House To The Jail House, Enacting Rational Laws In An Irrational World. From Masters’ and Slaves’, to Gays’ and Straights’, you think they are different; I will convince you they are the same. I will demonstrate how legislatures have historically and continually abused their power to enact laws. Under the disguise of some governmental interest, legislatures continue to create, enact, and enforce bias laws. This article imports Criminal Procedure into Constitutional Law to create a proactive solution to the ongoing problem of law making. It is this author contention that the …

Missouri's Ring Tone: Jury Sentencing Rights In Death Penalty Cases, Jacqueline M. Whipple

Jacqueline M. Whipple

This Law Summary concerns recent developments in criminal law and the death penalty. It includes the national and state-specific legal background behind criminal defendants' rights regarding jury sentencing, and the latest interpretation and application of the U.S. Supreme Court's holding in Ring v. Arizona by the Missouri Supreme Court.

Tough On Crime (On The State's Dime): How Violent Crime Does Not Drive California Counties’ Incarceration Rates—And Why It Should

W. David Ball

California’s prisons are dangerously and unconstitutionally overcrowded; as a result of the Supreme Court’s recent decision in Plata v. Schwarzenegger, the state must act to reduce its prison population or face court-ordered prisoner releases. The state’s plans to reduce overcrowding are centered around what it calls criminal justice “realignment”, whereby California will send a portion of the state prison population to county facilities. The plan faces opposition from county officials, who see it as pushing the state’s problem on to the counties.

But what if state prison overcrowding is really a county problem? I argue that state prison overcrowding is …

Conditional Spending, Coercion, And Commandeering: The Affordable Care Act And The Federal Regulation Of State Taxation, Bradley W. Joondeph

Bradley W. Joondeph

In their constitutional challenge to the Affordable Care Act (or ACA), the twenty-six states party to Florida v. HHS contend that the ACA’s amendments to Medicaid amount to an impermissible “commandeering” of the states. Specifically, they argue that, though the ACA’s Medicaid provisions are not mandatory in form, they are “in fact”; the sheer volume of the federal funding at stake leaves them with no practical capacity to withdraw from Medicaid. The states’ claim thus poses a very basic question of constitutional law, which the Supreme Court has yet to squarely answer: can conditions imposed on state governments pursuant to …

Re-Conceptualizing The Law Of Nuisance Through A Theory Of Economic Captivity, George P. Smith

George P Smith

Re-conceptualizing the Law of Nuisance through a Theory of Economic Captivity

George P. Smith, II

Matthew Saunig

Abstract:

Generally, the fact that a plaintiff comes to a nuisance is not a per se defense to a nuisance action. This defense is viewed in many jurisdictions as but a factor in determining whether a defendant’s conduct is an unreasonable interference with use and enjoyment of a neighbor’s property. In principle, two other affirmative defenses are—although not often allowed in practice by the courts—found in contributory negligence and assumption of the risk.

This Article seeks to develop a theory of economic captivity …

Re-Conceptualizing The Law Of Nuisance Through A Theory Of Economic Captivity, George P. Smith

George P Smith

Re-conceptualizing the Law of Nuisance through a Theory of Economic Captivity

George P. Smith, II

Matthew Saunig

Abstract:

Generally, the fact that a plaintiff comes to a nuisance is not a per se defense to a nuisance action. This defense is viewed in many jurisdictions as but a factor in determining whether a defendant’s conduct is an unreasonable interference with use and enjoyment of a neighbor’s property. In principle, two other affirmative defenses are—although not often allowed in practice by the courts—found in contributory negligence and assumption of the risk.

This Article seeks to develop a theory of economic captivity …

Re-Conceptualizing The Law Of Nuisance Through A Theory Of Economic Captivity, George P. Smith

George P Smith

Re-conceptualizing the Law of Nuisance through a Theory of Economic Captivity

George P. Smith, II

Matthew Saunig

Abstract:

Generally, the fact that a plaintiff comes to a nuisance is not a per se defense to a nuisance action. This defense is viewed in many jurisdictions as but a factor in determining whether a defendant’s conduct is an unreasonable interference with use and enjoyment of a neighbor’s property. In principle, two other affirmative defenses are—although not often allowed in practice by the courts—found in contributory negligence and assumption of the risk.

This Article seeks to develop a theory of economic captivity …

Re-Conceptualizing The Law Of Nuisance Through A Theory Of Economic Captivity, George P. Smith

George P Smith

Re-conceptualizing the Law of Nuisance through a Theory of Economic Captivity

George P. Smith, II

Matthew Saunig

Abstract:

Generally, the fact that a plaintiff comes to a nuisance is not a per se defense to a nuisance action. This defense is viewed in many jurisdictions as but a factor in determining whether a defendant’s conduct is an unreasonable interference with use and enjoyment of a neighbor’s property. In principle, two other affirmative defenses are—although not often allowed in practice by the courts—found in contributory negligence and assumption of the risk.

This Article seeks to develop a theory of economic captivity …

Re-Conceptualizing The Law Of Nuisance Through A Theory Of Economic Captivity, George P. Smith

George P Smith

Re-conceptualizing the Law of Nuisance through a Theory of Economic Captivity

George P. Smith, II

Matthew Saunig

Abstract:

Generally, the fact that a plaintiff comes to a nuisance is not a per se defense to a nuisance action. This defense is viewed in many jurisdictions as but a factor in determining whether a defendant’s conduct is an unreasonable interference with use and enjoyment of a neighbor’s property. In principle, two other affirmative defenses are—although not often allowed in practice by the courts—found in contributory negligence and assumption of the risk.

This Article seeks to develop a theory of economic captivity …

Re-Conceptualizing The Law Of Nuisance Through A Theory Of Economic Captivity, George P. Smith

George P Smith

Re-conceptualizing the Law of Nuisance through a Theory of Economic Captivity

George P. Smith, II

Matthew Saunig

Abstract:

Generally, the fact that a plaintiff comes to a nuisance is not a per se defense to a nuisance action. This defense is viewed in many jurisdictions as but a factor in determining whether a defendant’s conduct is an unreasonable interference with use and enjoyment of a neighbor’s property. In principle, two other affirmative defenses are—although not often allowed in practice by the courts—found in contributory negligence and assumption of the risk.

This Article seeks to develop a theory of economic captivity …

Re-Conceptualizing The Law Of Nuisance Through A Theory Of Economic Captivity, George P. Smith

George P Smith

Re-conceptualizing the Law of Nuisance through a Theory of Economic Captivity George P. Smith, II Matthew Saunig Abstract: Generally, the fact that a plaintiff comes to a nuisance is not a per se defense to a nuisance action. This defense is viewed in many jurisdictions as but a factor in determining whether a defendant’s conduct is an unreasonable interference with use and enjoyment of a neighbor’s property. In principle, two other affirmative defenses are—although not often allowed in practice by the courts—found in contributory negligence and assumption of the risk. This Article seeks to develop a theory of economic captivity …

Re-Conceptualizing The Law Of Nuisance Through A Theory Of Economic Captivity, George P. Smith

George P Smith

Re-conceptualizing the Law of Nuisance through a Theory of Economic Captivity

George P. Smith, II

Matthew Saunig

Abstract:

Generally, the fact that a plaintiff comes to a nuisance is not a per se defense to a nuisance action. This defense is viewed in many jurisdictions as but a factor in determining whether a defendant’s conduct is an unreasonable interference with use and enjoyment of a neighbor’s property. In principle, two other affirmative defenses are—although not often allowed in practice by the courts—found in contributory negligence and assumption of the risk.

This Article seeks to develop a theory of economic captivity …

Re-Conceptualizing The Law Of Nuisance Through A Theory Of Economic Captivity, George P. Smith

George P Smith

Re-conceptualizing the Law of Nuisance through a Theory of Economic Captivity

George P. Smith, II

Matthew Saunig

Abstract:

Generally, the fact that a plaintiff comes to a nuisance is not a per se defense to a nuisance action. This defense is viewed in many jurisdictions as but a factor in determining whether a defendant’s conduct is an unreasonable interference with use and enjoyment of a neighbor’s property. In principle, two other affirmative defenses are—although not often allowed in practice by the courts—found in contributory negligence and assumption of the risk.

This Article seeks to develop a theory of economic captivity …

Re-Conceptualizing The Law Of Nuisance Through A Theory Of Economic Captivity, George P. Smith

George P Smith

Re-conceptualizing the Law of Nuisance through a Theory of Economic Captivity

George P. Smith, II

Matthew Saunig

Abstract:

Generally, the fact that a plaintiff comes to a nuisance is not a per se defense to a nuisance action. This defense is viewed in many jurisdictions as but a factor in determining whether a defendant’s conduct is an unreasonable interference with use and enjoyment of a neighbor’s property. In principle, two other affirmative defenses are—although not often allowed in practice by the courts—found in contributory negligence and assumption of the risk.

This Article seeks to develop a theory of economic captivity …

Re-Conceptualizing The Law Of Nuisance Through A Theory Of Economic Captivity, George P. Smith

George P Smith

Re-conceptualizing the Law of Nuisance through a Theory of Economic Captivity

George P. Smith, II

Matthew Saunig

Abstract:

Generally, the fact that a plaintiff comes to a nuisance is not a per se defense to a nuisance action. This defense is viewed in many jurisdictions as but a factor in determining whether a defendant’s conduct is an unreasonable interference with use and enjoyment of a neighbor’s property. In principle, two other affirmative defenses are—although not often allowed in practice by the courts—found in contributory negligence and assumption of the risk.

This Article seeks to develop a theory of economic captivity …

Re-Conceptualizing The Law Of Nuisance Through A Theory Of Economic Captivity, George P. Smith

George P Smith

Re-conceptualizing the Law of Nuisance through a Theory of Economic Captivity

George P. Smith, II

Matthew Saunig

Abstract:

Generally, the fact that a plaintiff comes to a nuisance is not a per se defense to a nuisance action. This defense is viewed in many jurisdictions as but a factor in determining whether a defendant’s conduct is an unreasonable interference with use and enjoyment of a neighbor’s property. In principle, two other affirmative defenses are—although not often allowed in practice by the courts—found in contributory negligence and assumption of the risk.

This Article seeks to develop a theory of economic captivity …