Law Commons^™

Ohio's Modern Courts Amendment Must Be Amended: Why And How, Richard S. Walinski, Mark D. Wagoner Jr.

Cleveland State Law Review

A 1968 amendment to the Ohio Constitution granted the Supreme Court of Ohio the authority to promulgate “rules governing practice and procedure” for Ohio courts. The amendment also provided that “[a]ll laws in conflict with such rules shall be of no further force or effect after such rules have taken effect” and that no rule may “abridge, enlarge, or modify any substantive right.”

Although the amendment was explicit about automatic repeal of existing laws, it says nothing about whether the General Assembly may legislate on a procedural matter after a court rule takes effect. That silence has caused enduring confusion. …

How Big Money Ruined Public Life In Wisconsin, Lynn Adelman

Cleveland State Law Review

This Article discusses how Wisconsin fell from grace. Once a model good government state that pioneered many democracy-enhancing laws, in a very short time, Wisconsin became a state where special interest money, most of which is undisclosed, dominates politics. This Article identifies several factors as being critical to Wisconsin’s descent. These include the state’s failure to nurture and build on the campaign finance reforms enacted in the 1970s and both the state’s and the United States Supreme Court’s failure to adequately regulate sham issue ads. As evidence of Wisconsin’s diminished status, this Article describes how several of the state’s most …

Stuck In Ohio's Legal Limbo, How Many Mistrials Are Too Many Mistrials?: Exploring New Factors That Help A Trial Judge In Ohio Know Whether To Exercise Her Authority To Dismiss An Indictment With Prejudice, Especially Following Repeated Hung Juries, Samantha M. Cira

Cleveland State Law Review

Multiple mistrials following validly-prosecuted trials are becoming an increasingly harsh reality in today’s criminal justice system. Currently, the Ohio Supreme Court has not provided any guidelines to help its trial judges know when to make the crucial decision to dismiss an indictment with prejudice following a string of properly-declared mistrials, especially due to repeated hung juries. Despite multiple mistrials that continue to result in no conviction, criminal defendants often languish behind bars, suffering detrimental psychological harm and a loss of personal freedom as they remain in “legal limbo” waiting to retry their case. Furthermore, continuously retrying defendants cuts against fundamental …

The "P" Word: Ohio Should Adopt The Uniform Premarital Agreements Act To Achieve Consistency And Uniformity In The Treatment Of Prenuptial Agreements, Jenna Christine Colucci

Cleveland State Law Review

Throughout the United States, courts have used inconsistent standards for the interpretation of prenuptial agreements. Under Ohio jurisprudence, courts are concerned with protecting the vulnerable spouse or the economically disadvantaged party. This legal standard acknowledges the unique relationship of the parties to the contract and will generally review the procedural and substantive components of the prenuptial agreement. Conversely, other courts are weary of interfering with the contractual freedom of the parties and will only invalidate a prenuptial agreement upon a showing of fraud, duress, or misrepresentation. The Uniform Premarital Agreement Act was drafted in 1983 to address the inconsistent treatment …

The Italian Agreement Between The Government And The Regional Authorities: National Guidelines For Aai And Institutional Context, Martina Simonato, Marta De Santis, Laura Contalbrigo, Daniele Benedetti, Elisabetta Finocchi Mahne, Vincenzo Ugo Santucci, Silvio Borrello, Luca Farina

People and Animals: The International Journal of Research and Practice

Animal-assisted interventions (AAI) have developed considerably in the last half century, prompting various private and public realities dealing with AAI worldwide to work on and establish standards and best practice. However, AAI are still far from being regulated harmoniously. In this context, Italy offers a unique example at world level: here the spread of AAI has set in motion an ethical and legal reflection that led to the creation of the Italian National Reference Centre for AAI (NRC AAI) by ministerial decree in 2009 and the approval of National Guidelines for AAI in 2015. The Italian legislation on AAI is …

The Value Of Cryptocurrencies: How Bitcoin Fares In The Pockets Of Federal And State Courts, Brandon M. Peck

University of Miami Business Law Review

A recent Eleventh Judicial Circuit Court of Florida decision has raised concerns over how both federal and state courts consider the unregulated cryptocurrency, Bitcoin. In State of Florida v. Michell Abner Espinoza, Judge Teresa Pooler held that Bitcoin did not fall under the statutory definitions of “payment instrument” or “monetary instrument” because virtual currency is not directly specified nor could it be included within one of the defined categories listed in Fla. Stat. § 560.103(29) or 896.101(2). Furthermore, Judge Pooler, alluding to the doctrine of lenity, refused to hold Espinoza responsible under a statute that is “so vaguely written …

Decision-Making And The Shaky Property Foundations Of Municipal Bankruptcy Law, Juliet M. Moringiello

Brooklyn Journal of Corporate, Financial & Commercial Law

Municipal bankruptcies are unpredictable. There are several reasons for this statement— municipal bankruptcies are rare, involvement of the state itself in the process varies according to the governing state law, and chapter 9, the Bankruptcy Code chapter governing the municipal bankruptcy process, has many gaps. Congress constructed the modern chapter 9 on a foundation of corporate bankruptcy law, a foundation whose roots—corporate finance—are significantly different from the rules governing municipal finance. In this Article, Professor Moringiello aims a spotlight on the property roots of private bankruptcy law and compares them to the promissory and statutory roots of municipal finance law …

Towards A Jurisprudence Of Public Law Bankruptcy Judging, Edward J. Janger

Brooklyn Journal of Corporate, Financial & Commercial Law

In this essay Professor Janger considers the role of bankruptcy judges in Chapter 9 cases in light of the scholarly literature on public law judging. He explores the extent to which bankruptcy judges engaged in the fiscal restructuring of a municipality use tools, and face constraints, similar to those utilized by federal district court judges in structural reform cases, where constitutional norms are at issue.

Mental Health Crisis In Maryland: A Lack Of Hospital Beds For The Mentally Ill Presents Maryland Legislature With Concerns About The Legality And Practicality Of Detainment, Ryan D. Konstanzer

Journal of Legislation

No abstract provided.

Building Community, Still Thirsty For Justice: Supporting Community Development Efforts In Baltimore, Renee Hatcher, Jaime Alison Lee

Renee Hatcher

Baltimore is a city of many challenges, but it possesses true communitybased strength. The city’s residents and community organizations are its greatest assets. This article highlights some of the community’s work and how the Community Development Clinic at the University of Baltimore School of Law (CDC) supports this work through its experiential learning curriculum. The challenges facing Baltimore’s communities (systemic disinvestment, structural racism, vacant buildings, unemployment, and the criminalization of poverty, to name a few) existed long before the national media coverage and uprising surrounding the death of Freddie Gray, an unarmed Black man who suffered a fatal spinal injury …

United States V. Osage Wind, Llc, Summer Carmack

Public Land & Resources Law Review

The Osage Nation, as owner of the beneficial interest in its mineral estate, issues federally-approved leases to persons and entities who wish to conduct mineral development on its lands. After an energy-development company, Osage Wind, leased privately-owned surface lands within Tribal reservation boundaries and began to excavate minerals for purposes of constructing a wind farm, the United States brought suit on the Tribe’s behalf. In the ensuing litigation, the Osage Nation insisted that Osage Wind should have obtained a mineral lease from the Tribe before beginning its work. In its decision, the Tenth Circuit applied one of the Indian law …

Beyond The Reach Of States: The Dormant Commerce Clause, Extraterritorial State Regulation, And The Concerns Of Federalism, Peter C. Felmly

Maine Law Review

The Commerce Clause of the United States Constitution provides that “[t]he Congress shall have Power ... [t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Interpreting this explicit grant of power to Congress, the Supreme Court has long recognized the existence of an implied limitation on the power of a state to legislate in areas of interstate commerce when Congress has remained silent. Under what is referred to as the negative or “dormant” Commerce Clause, the federal courts have thus scrutinized state legislation for well over one hundred years. In the past several …

Time To Reconsider Nullum Tempus Occurrit Regi - The Applicability Of Statutes Of Limitations Against The State Of Maine In Civil Actions, Sigmond D. Schutz

Maine Law Review

Many states, including the State of Maine, take the position that they have, essentially, an infinite time within which to bring a civil action. The basis for the State's claim of immunity from statutes of limitations is the old English common law doctrine, “nullum tempus occurrit regi”-- literally, no time runs against the King--which purports to exempt the State from statutes of limitations of general applicability unless statutes expressly provide otherwise. There has not been a Maine Supreme Judicial Court (Law Court) opinion mentioning the nullum tempusdoctrine since 1955, but the doctrine continues to be actively asserted by the State …

The New York Court Of Appeals' Expansion Of The Definition Of The Term “Parent” Leaves Future Questions Unanswered, Ilana Sharan

Journal of Law and Policy

On August 30, 2016, the New York Court of Appeals in Brooke S.B. v. Elizabeth A.C.C., expanded the definition of the term “parent,” overruling the twenty-five-year-old bright line rule that limited standing to seek custody or visitation to traditional parents. In 1991, the New York Court of Appeals decided Alison D. v. Virginia M. where they defined “parent” to include only people who have a biological or adoptive relationship with the child, reasoning that the typical family consisted of a husband and wife. In many cases subsequent to Alison D., the court attempted to alleviate the harsh application this rule …

No “Gift” Giving Here: The Inadequate Gifted Education Programs In New York State And The Need For Gifted Education Reform, Jamie M. Kautz

Journal of Law and Policy

Gifted Education is a topic that is often not at the forefront of educational issues throughout federal and state discussions and legislative actions. However, while there are a large number of students in classrooms across the country who are “gifted,” the number of individual states with comprehensive gifted programs within their public school districts is small. As a result, gifted programming is limited and gifted students are not guaranteed any sort of academic assistance beyond that of a standard classroom curriculum for their designated grade levels. More importantly, in the majority of states, including New York, the legal protections offered …

“Making Bail”: Limiting The Use Of Bail Schedules And Defining The Elusive Meaning Of “Excessive Bail”, James A. Allen

Journal of Law and Policy

Every day in the United States, thousands of people are waiting in jail postarrest prior to any trial or conviction. Once arrested, these individuals frequently face harsh conditions while they are held for their first appearance to be assigned bail. Thousands of individuals wait more than forty-eight hours to first appear in front of a judicial officer who determines their bail conditions. Innocent people––people who have committed no offense except that of being underprivileged––are pressured into accepting plea bargains because they cannot pay bail. Thousands remain in jail unwilling to accept plea bargains or admit guilt but are detained nevertheless …

‘Airbnb’ In Western Australia: New Issues For Policy Makers Arising From A ‘Disruptive Innovatation', Bertus De Villiers

The University of Notre Dame Australia Law Review

The short terms rental market, colloquially referred to as ‘Airbnb’ accommodation, has proliferated the Australian (and international) accommodation market. The number of rooms being made available per nights in Australia via sort term rental websites runs into the hundreds of thousands. Policy makers have generally been slow to respond to this ‘disruptive innovation’. It is particularly in strata title schemes where the legality of short term rentals is being tested. In this article consideration is given to a recent judgement of the Supreme Court of Appeal in Western Australia to uphold a decision of the State Administrative Tribunal whereby a …

The New Sister-State Sovereign Immunity, Michael H. Hoffheimer

Washington Law Review

The Article reviews the constitutional status of sister-state sovereign immunity. It argues that the parity requirement announced in Franchise Tax Board v. Hyatt (2016) is a temporary compromise that is supported by neither the purposes of the Full Faith and Credit Clause nor by cases cited by the Court. It further argues that parity is bad policy because parity overprotects states for acts they commit beyond their borders and under protects the interests of forum states in regulating conduct within their territorial jurisdiction. But the Article breaks from most scholarship. It suggests that the Court went too far in Nevada …

Local Government Law, Ken E. Jarrard

Mercer Law Review

During the survey period, the Georgia Supreme Court and the Georgia Court of Appeals examined the applicability of statutory ante litem notice in the context of whistleblower actions against municipalities, while the Georgia Court of Appeals reaffirmed strict compliance in assessing the sufficiency of ante litem notice presented to departments of the state under the Georgia Tort Claims Act (GTCA).

Working On Immigration: Three Models Of Labor And Employment Regulation, Rick Su

Rick Su

The desire to tailor our immigration system to the economic interests of our nation is as old as its founding. Yet after more than two centuries of regulatory tinkering, we seem no closer to finding the right balance. Contemporary observers largely ascribe this failure to conflicts over immigration. Shifting the focus, I suggest here that longstanding disagreements in the world of economic regulations — in particular, tensions over the government’s role in regulating labor conditions and employment practices — also explains much of the difficulty behind formulating a policy approach to immigration. In other words, we cannot reach a political …

The Promise And Peril Of Cities And Immigration Policy, Rick Su

Rick Su

No abstract provided.

Police Discretion And Local Immigration Policymaking, Rick Su

Rick Su

Immigration responsibilities in the United States are formally charged to a broad range of federal agencies, from the overseas screening of the State Department to the border patrols of the Department of Homeland Security. Yet in recent years, no department seems to have received more attention than that of the local police. For some, local police departments are frustrating our nation’s immigration laws by failing to fully participate in federal enforcement efforts. For others, it is precisely their participation that is a cause for concern. In response to these competing interests, a proliferation of competing state and federal laws have …

Locating Keith Aoki: Space, Geography, And Local Government Law, Rick Su

Rick Su

The late legal scholar Keith Aoki wrote on a wide range of legal issues, from intellectual property and genetic engineering to immigration and racial politics. This retrospective highlights his work on space, legal geography, and local government law. Aoki not only began his legal career exploring these issues, he also continuously drew upon their insights to frame legal inquiries in other fields as the scope of his research expanded. This essay shows Aoki to be more than an innovator in the study of space, legal geography and local government law. Indeed, he was one of their most important ambassadors.

Notes On The Multiple Facets Of Immigration Federalism, Rick Su

Rick Su

This symposium essay takes as its starting point the contestable position that some degree of immigration federalism is both constitutionally permissible and politically desirable. It suggests, however, that liberating the issue of immigration from the shadows of federal exclusivity does not necessarily tell us much about what a conceptual framework or legal jurisprudence of immigration federalism should or will actually be like. This is not solely a function of the difficulties inherent in incorporating principles of federalism into what is usually understood to be an exclusive federal field of immigration. Rather, it is also a consequence of the rifts and …

Have Cities Abandoned Home Rule?, Rick Su

Rick Su

No abstract provided.

Intrastate Federalism, Rick Su

Rick Su

In debates about the role of federalism in America, much turns on the differences between states. But what about divisions within states? The site of political conflict in America is shifting: battles once marked by interstate conflict at the national level are increasingly reflected in intrastate clashes at the local. This shift has not undermined the role of federalism in American politics, as many predicted. Rather, federalism's role has evolved to encompass the growing divide within states and between localities. In other words, federalism disputes — formally structured as between the federal government and the states — are increasingly being …

Immigration As Urban Policy, Rick Su

Rick Su

Immigration has done more to shape the physical and social landscape of many of America’s largest cities than almost any other economic or cultural force. Indeed, immigration is so central to urban development in the United States that it is a wonder why immigration is not explicitly discussed as an aspect of urban policy. Yet in the national conversation over immigration, one would strain to hear it described in this manner. This essay addresses this oversight by making the case for a reorientation of immigration toward urban policy; and it does so by advocating for an immigration regime that both …

Local Fragmentation As Immigration Regulation, Rick Su

Rick Su

Immigration scholars have traditionally focused on the role of national borders and the significance of nation-state citizenship. At the same time, local government scholars have called attention to the significance of local boundaries, the consequence of municipal residency, and the influence of the two on the fragmentation of American society. This paper explores the interplay between these two mechanisms of spatial and community controls. Emphasizing their doctrinal and historic commonalities, this article suggests that the legal structure responsible for local fragmentation can be understood as second-order immigration regulation. It is a mechanism that allows for finer regulatory control than the …

A Localist Reading Of Local Immigration Regulations, Rick Su

Rick Su

The conventional account of immigration-related activity at the local level often assumes that the "local" is simply a new battleground in the national immigration debates. This article questions that presumption. Foregrounding the legal rules that define local governments and channels local action, this article argues that the local immigration "crisis" is much less a consequence of federal immigration policy than normally assumed. Rather, it can also be understood as a familiar byproduct of localism: the legal and cultural assumptions that shape how we structure and organize local communities, provide and allocate local services, and define the legal relationship of local, …

Autonomy And Isomorphism: The Unfulfilled Promise Of Structural Autonomy In American State Constitutions, James A. Gardner

James Gardner

In the American system of federalism, states have almost complete freedom to adopt institutions and practices of internal self-governance that they find best-suited to the needs and preferences of their citizens. Nevertheless, states have not availed themselves of these opportunities: the structural provisions of state constitutions tend to converge strongly with one another and with the U.S. Constitution. This paper examines two important periods of such convergence: the period from 1776 through the first few decades of the nineteenth century, when states were inventing institutions of democratic governance and representation; and the period following the Supreme Court’s one person, one …