State and Local Government Law Commons^™

23rd Annual Open Government Summit: Access To Public Records Act, Open Meetings Act Powerpoint Presentation 07-30-2021, Office Of Attorney General State Of Rhode Island, Peter F. Neronha

School of Law Conferences, Lectures & Events

No abstract provided.

Environmental Justice Class Action Rises Above The Rubbish: The Third Circuit Revives Common-Law Nuisance Remedies In Baptiste V. Bethlehem Landfill Co., Kyra G. Bradley

Villanova Environmental Law Journal (1991 - )

No abstract provided.

Don't You Know That You're Toxic? Cercla Section 113(H) Challenges, Sovereign Immunity, And Perfluoroalkyl Substances In Pennsylvania Drinking Water In Giovanni V. Navy, Stephanie J. Oppenheim

Villanova Environmental Law Journal (1991 - )

No abstract provided.

Getting Away With Murder: How California State Law Determined Recovery In First Roundup Cancer Case Johnson V. Monsato Co., Eliza L. Quattlebaum

Villanova Environmental Law Journal (1991 - )

No abstract provided.

Out Of Sight, Out Of Mind: Analyzing Inhumane Practices In Mississippi’S Correctional Institutions Due To Overcrowding, Understaffing, And Diminished Funding, Ariel A. Williams

Honors Theses

The purpose of this research is to examine the political, social, and economic factors which have led to inhumane conditions in Mississippi’s correctional facilities. Several methods were employed, including a comparison of the historical and current methods of funding, staffing, and rehabilitating prisoners based on literature reviews. State-sponsored reports from various departments and the legislature were analyzed to provide insight into budgetary restrictions and political will to allocate funds. Statistical surveys and data were reviewed to determine how overcrowding and understaffing negatively affect administrative capacity and prisoners’ mental and physical well-being. Ultimately, it may be concluded that Mississippi has high …

Who And What Is A City "For"? Municipal Associational Standing Reexamined, Kaitlin Ainsworth Caruso

William & Mary Law Review Online

Cities nationwide increasingly engage in affirmative, plaintiff-side litigation to protect their residents. But despite this trend, standing remains a persistent challenge in municipal affirmative litigation—particularly in federal court, and particularly in impact litigation. I have previously proposed one way to give cities standing in federal court more in line with that of states, and with the role that cities play in their residents’ lives: extending to municipalities the doctrineof associational standing, which nonprofits and associations use to speak for their members in court. Recent works have both amplified and critiqued that initial proposal. With these additional considerations in hand, we …

Remote Court: Principles For Virtual Proceedings During The Covid-19 Pandemic And Beyond, Alicia L. Bannon, Douglas Keith

Northwestern University Law Review

Across the country, courts at every level have relied on remote technology to adapt the justice system to a once-a-century global pandemic. This Essay describes and assesses this unprecedented journey into virtual justice, paying particular attention to eviction proceedings. While many judges have touted remote court as a revolutionary innovation, the reality is more complex. Remote court has brought substantial time savings and convenience to those who are able to access and use the required technology, but it has also posed hurdles to individuals on the other side of the digital divide, particularly self-represented litigants. The remote court experience has …

Increasing Substantive Fairness And Mitigating Social Costs In Eviction Proceedings: Instituting A Civil Right To Counsel For Indigent Tenants In Pennsylvania, Robin M. White

Dickinson Law Review (2017-Present)

The U.S. Constitution provides criminal defendants the right to a court-appointed attorney but gives no similar protection to civil litigants. Although federal law does not supply any categorical rights to counsel for civil litigants, all 50 states have instituted the right in at least one category of civil law that substantially impacts individuals’ rights. Since 2017, several U.S. cities have enacted such a right for tenants facing eviction. In so doing, these cities responded to American families’ increasing rent burden, the recent publication of nationwide eviction data, the sociological research concerning the impact of eviction, and the lack of procedural …

Diligence And Belated Appeals: Ark R. App P.-Civ. 4(B)(3) In Theory And Practice, Johnathan D. Horton

Arkansas Law Review

A series of Arkansas appellate decisions addresses a recurring issue—the entry of a final order without notice to one or more litigants. Appellate deadlines run from the date of entry of a final order, so the lack of notice typically results in the inability to perfect an appeal, as a party unaware of the entry of a final order is unlikely to timely perfect an appeal. This troublesome issue has arisen in Arkansas with sufficient frequency to merit a specific provision in the Arkansas Rules of Appellate Procedure—Civil.4 If a party can satisfy its requirements, Rule 4(b)(3) of the Arkansas …

Rock And Hard Place Arguments, Jareb Gleckel, Grace Brosofsky

Seattle University Law Review

This Article explores what we coin “rock and hard place” (RHP) arguments in the law, and it aims to motivate mission-driven plaintiffs to seek out such arguments in their cases. The RHP argument structure helps plaintiffs win cases even when the court views that outcome as unfavorable.

We begin by dissecting RHP dilemmas that have long existed in the American legal system. As Part I reveals, prosecutors and law enforcement officials have often taken advantage of RHP dilemmas and used them as a tool to persuade criminal defendants to forfeit their constitutional rights, confess, or give up the chance to …

Neither Safe, Nor Legal, Nor Rare: The D.C. Circuit’S Use Of The Doctrine Of Ratification To Shield Agency Action From Appointments Clause Challenges, Damien M. Schiff

Seattle University Law Review

Key to the constitutional design of the federal government is the separation of powers. An important support for that separation is the Appointments Clause, which governs how officers of the United States are installed in their positions. Although the separation of powers generally, and the Appointments Clause specifically, support democratically accountable government, they also protect individual citizens against abusive government power. But without a judicial remedy, such protection is ineffectual—a mere parchment barrier.

Such has become the fate of the Appointments Clause in the D.C. Circuit, thanks to that court’s adoption—and zealous employment—of the rule that agency action, otherwise unconstitutional …

Big Pharma, Big Problems: Covid-19 Heightens Patent-Antitrust Tension Caused By Reverse Payments, Hannah M. Lasting

Seattle University Law Review

In the wake of COVID-19, pharmaceutical companies rushed to produce vaccinations and continue to work on developing treatments, while the tension caused by reverse payments intensifies between patent and antitrust law. Lawmakers must address this tension, and the current pandemic should serve as a catalyst to prompt reform at the legislative level. By amending the Hatch-Waxman Act, lawmakers can ease the increasing strain between patent and antitrust policy concerns. In 2013, the U.S. Supreme Court attempted to resolve this tension in its landmark decision, F.T.C. v. Actavis, but the tension remains as lower courts struggle to produce a uniform standard …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents and Special Thanks.

State-Local Litigation Conflicts, Margaret H. Lemos

Faculty Scholarship

No abstract provided.

The Cyan Decision And Its Impact On State-Level Securities Class Actions, B. John Torabi

Fordham Journal of Corporate & Financial Law

The Supreme Court’s decision in Cyan, Inc. v. Beaver County Employees Retirement Fund^† preserved the Securities Act of 1933’s bar on removing securities class actions brought in state court to federal court. The unanimous ruling cut against a nearly quarter-century long trend of pushing securities class action litigation to the federal courts. Cyan was resolved purely through statutory interpretation, leaving many of the underlying policy questions to be resolved by state courts and in future rulings.

This Note examines the intention of the drafters of the Securities Act of 1933 in designing a disclosure-focused regulatory scheme with a private …

Assertion And Hearsay, Richard Lloret

Dickinson Law Review (2017-Present)

This article explores the characteristics and functions of assertion and considers how the term influences the definition of hearsay under Federal Rule of Evidence 801. Rule 801(a) defines hearsay by limiting it to words and conduct intended as an assertion, but the rule does not define the term assertion. Courts and legal scholars have focused relatively little attention on the nature and definition of assertion. That is unfortunate, because assertion is a robust concept that has been the subject of intense philosophic study over recent decades. Assertion is not a mere cypher standing in for whatever speech or conduct one …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Choice Of Law And The Preponderantly Multistate Rule: The Example Of Successor Corporation Products Liability, Diana Sclar

Dickinson Law Review (2017-Present)

Most state rules of substantive law, whether legislative or judicial, ordinarily adjust rights and obligations among local parties with respect to local events. Conventional choice of law methodologies for adjudicating disputes with multistate connections all start from an explicit or implicit assumption of a choice between such locally oriented substantive rules. This article reveals, for the first time, that some state rules of substantive law ordinarily adjust rights and obligations with respect to parties and events connected to more than one state and only occasionally apply to wholly local matters. For these rules I use the term “nominally domestic rules …

Class Action Squared: Multistate Actions And Agency Dilemmas, Elysa M. Dishman

Notre Dame Law Review

As the Supreme Court continues to restrict the reach of private class actions, numerous commentators have championed public enforcement actions by state attorneys general (AGs) as a superior alternative to hold corporations accountable for misconduct. While AG actions fill some of the void left by the forced retreat of the private class action, few scholars have seriously considered whether the agency problems that exist in private class actions also occur in AG actions. And, until now, no scholar has recognized the unique agency problems that arise when AGs act together in multistate actions.

Multistate actions are made up of two …

Court-Packing In 2021: Pathways To Democratic Legitimacy, Richard Mailey

Seattle University Law Review

This Article asks whether the openness to court-packing expressed by a number of Democratic presidential candidates (e.g., Pete Buttigieg) is democratically defensible. More specifically, it asks whether it is possible to break the apparent link between demagogic populism and court-packing, and it examines three possible ways of doing this via Bruce Ackerman’s dualist theory of constitutional moments—a theory which offers the possibility of legitimating problematic pathways to constitutional change on democratic but non-populist grounds. In the end, the Article suggests that an Ackermanian perspective offers just one, extremely limited pathway to democratically legitimate court-packing in 2021: namely, where a Democratic …

Enough Is As Good As A Feast, Noah C. Chauvin

Seattle University Law Review

Ipse Dixit, the podcast on legal scholarship, provides a valuable service to the legal community and particularly to the legal academy. The podcast’s hosts skillfully interview guests about their legal and law-related scholarship, helping those guests communicate their ideas clearly and concisely. In this review essay, I argue that Ipse Dixit has made a major contribution to legal scholarship by demonstrating in its interview episodes that law review articles are neither the only nor the best way of communicating scholarly ideas. This contribution should be considered “scholarship,” because one of the primary goals of scholarship is to communicate new ideas.

Targeting The Texas Citizen Participation Act: The 2019 Texas Legislature's Amendments To A Most Consequential Law, Amy Bresnen, Lisa Kaufman, Steve Bresnen

St. Mary's Law Journal

Few Texas laws enacted in recent decades have had a greater impact on civil litigation or been more litigated than the Texas Citizen’s Participation Act (“TCPA”) passed in 2011. Despite its stated purpose of protecting First Amendment rights, as written, the TCPA’s seemingly limitless application confounded judges and litigants alike, causing the 86th Legislature in 2019 to pass sweeping changes to that law. The Article describes the original statute’s problematic nature, the caselaw interpreting it, and the recent changes’ legislative history and substance. The authors highlight contributions of key legislators and stakeholders. The Article’s extensive treatment of changes to key …

Mirror, Mirror, On The Wall—Biased Impartiality, Appearances, And The Need For Recusal Reform, Zygmont A. Pines

Dickinson Law Review (2017-Present)

The article focuses on a troubling aspect of contemporary judicial morality.

Impartiality—and the appearance of impartiality—are the foundation of judicial decision-making, judicial morality, and the public’s trust in the rule of law. Recusal, in which a jurist voluntarily removes himself or herself from participating in a case, is a process that attempts to preserve and promote the substance and the appearance of judicial impartiality. Nevertheless, the traditional common law recusal process, prevalent in many of our state court systems, manifestly subverts basic legal and ethical norms.

Today’s recusal practice—whether rooted in unintentional hypocrisy, wishful thinking, or a pathological cognitive dissonance— …

Takings Liability And Coastal Management In Massachusetts, Melissa Chalek

Marine Affairs Institute Staff Publications

No abstract provided.

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

As The Role Of The Driver Changes With Autonomous Vehicle Technology, So, Too, Must The Law Change, Nanci K. Carr

St. Mary's Law Journal

Getting a driver’s license is a highly anticipated rite of passage for most teenagers. Being alone behind the wheel, in control of a 3,000-pound machine, is an honor, a privilege, and a sign of adult responsibility. How will that change when driver’s licenses become licenses “to cause technology to engage” with the increased use of autonomous cars? Will driver’s education courses, with their focus on safety rules and defensive driving techniques, be eliminated if all a vehicle operator needs to do is push a button and the vehicle does the rest? While arguably autonomous cars are safer, they will not …

Forward: State Enforcement In An Interstate World, Margaret H. Lemos

BYU Law Review

“State Enforcement in an Interstate World” is an important topic—fully deserving of all the attention it has received. Past commentators on this topic have generally treated the federal government as a unitary entity. Building on prior work on the subject, this Article explores the polycentric nature of federal regulatory authority and shows how cooperation and rivalry have long been dominant realities of the modern administrative state. The Article discusses how these dynamics complicate analysis of state enforcement in an interstate world and identifies strategies for reducing the frequency and magnitude of the seemingly inevitable conflicts.

State Enforcement In A Polycentric World, David A. Hyman, William E. Kovacic

BYU Law Review

No abstract provided.

A State Is A “They,” Not An “It”: Intrastate Conflicts In Multistate Challenges To The Affordable Care Act, Anthony Johnstone

BYU Law Review

No abstract provided.

The (Surprisingly) Prevalent Role Of States In An Era Of Federalized Class Actions, Linda S. Mullenix

BYU Law Review

In enacting the Class Action Fairness Act of 2005 (CAFA), Congress intended to expand access to the federal courts for interstate class actions by creating minimal diversity and removal jurisdiction. In Section 2 of the Act, “Findings and Purposes,” Congress stated that class action abuses undermined “the concept of diversity jurisdiction as intended by the Framers of the United States Constitution” in that state courts kept cases of national importance out of federal court and sometimes demonstrated bias against out-of-state defendants. Congress stated that a purpose of CAFA was to “restore the intent of the framers of the United States …