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Articles 91 - 120 of 132
Full-Text Articles in State and Local Government Law
Localist Statutory Interpretation, Ethan J. Leib
Localist Statutory Interpretation, Ethan J. Leib
Faculty Scholarship
This paper argues for more attention to citizens’ point of contact with our legal system within local courts – and makes an effort to conceptualize local judges as parts of local governments. Once the paper highlights the role of local courts within the constellation of local government, it offers an argument for why certain forms of "localist judging" are appropriate postures for local judges to take when confronted with hard cases of statutory interpretation. The paper explores the virtues of a type of "intrastate judicial federalism."
Wireless Localism: Beyond The Shroud Of Objectivity In Federal Spectrum Administration, Olivier Sylvain
Wireless Localism: Beyond The Shroud Of Objectivity In Federal Spectrum Administration, Olivier Sylvain
Faculty Scholarship
Recent innovations in mobile wireless technology have instigated a debate between two camps of legal scholars about how policymakers should structure federal administration of the electromagnetic spectrum. The first argues that the Federal Communications Commission should define spectrum use rights more clearly and give spectrum licensees near fee-simple property rights in frequencies that they can use and sell in secondary markets as they wish. The second camp argues that, rather than award exclusive licenses to the highest bidder, the FCC ought to open much if not most of the spectrum to unlicensed use by smartphones and tablets equipped with the …
The Omnipresent Specter Of Omnicare, Sean J. Griffith
The Omnipresent Specter Of Omnicare, Sean J. Griffith
Faculty Scholarship
In this Article, written for a symposium commemorating the tenth anniversary of the Delaware Supreme Court’s opinion in Omnicare, Inc. v. NCS Healthcare, Inc., I argue, notwithstanding reports to the contrary, that Omnicare is still very much with us. Although there is a line of cases that qualifies the narrow holding of the opinion, the strong reading of Omnicare, which requires a fiduciary out in every merger agreement and elevates the “unremitting” duty to remain “fully informed” to an absolute jurisprudential principle, lives on in Delaware law, animating the Court of Chancery’s controversial rulings in the recent standstill cases. Shifting …
Changing The Conversation In Education Law: Political Geography And Virtual Schooling Book Review Essay, Aaron J. Saiger
Changing The Conversation In Education Law: Political Geography And Virtual Schooling Book Review Essay, Aaron J. Saiger
Faculty Scholarship
In Five Miles Away, A World Apart, James E. Ryan concludes that the educational reforms of the hour, school accountability and school choice, will exacerbate rather than undermine the systematic educational advantages enjoyed by wealthier Americans. Paul Peterson, in his Saving Schools, argues that increasingly centralizing American schools have become sufficiently centralized that, as a labor-intensive industry, few productivity gains are available from governance reform, even as demand escalates for the customization of education to individual needs. Both volumes therefore pin their hopes for change upon political geography-the relationship between people and educational institutions in space. Ryan argues that changing …
Broadband Localism, Olivier Sylvain
Broadband Localism, Olivier Sylvain
Faculty Scholarship
Today, local governments are supplying broadband service to residents to fill the service gap left by major providers. Municipalities are joining forces with local anchor institutions and private providers to close the digital divide and incubate novel public-minded service models. This is the new broadband localism. Some stakeholders fear that local public participation in the broadband market will negatively impact competition. They have articulated this concern in state legislation across the country: nineteen states forbid or otherwise restrict municipal ownership or administration of broadband and three may enact similar restrictions this year. No matter the substantive policy merits of such …
Collective Action And The Urban Commons, Sheila R. Foster
Collective Action And The Urban Commons, Sheila R. Foster
Faculty Scholarship
Urban residents share access to a number of local resources in which they have a common stake. These resources range from local streets and parks to public spaces to a variety of shared neighborhood amenities. Collectively shared urban resources suffer from the same rivalry and free-riding problems that Garrett Hardin described in his Tragedy of the Commons tale. Scholars have not yet worked up a theory about how this tragedy unfolds in the urban context, particularly in light of existing government regulation and control of common urban resources. This Article argues that the tragedy of the urban commons unfolds during …
Administering The Second Amendment: Law, Politics, And Taxonomy , Nicholas J. Johnson
Administering The Second Amendment: Law, Politics, And Taxonomy , Nicholas J. Johnson
Faculty Scholarship
This article anticipates the post-McDonald landscape by assessing the right to arms in the context of several state regulations and the arguments that might be employed as challenges to them unfold. So far, the core test for determining the scope of the individual right to arms is the common use standard articulated in District of Columbia v. Heller. Measured against that, standard firearm regulations fit into three categories. The first category contains laws that are easily administered under the common use standard. The second category – and the primary focus of this article – consists of laws that can be …
School Choice And States' Duty To Support Public Schools , Aaron J. Saiger
School Choice And States' Duty To Support Public Schools , Aaron J. Saiger
Faculty Scholarship
The education clauses of state constitutions require states to support schools that not only educate children adequately and equitably, but that are "public" or "common." This Article argues that state-supported school choice can be consistent with these latter requirements. Individual choices, about where to live and whether to educate children privately, have long shaped traditional "public" schooling arrangements. The more direct role choice plays in school voucher and charter programs is also consistent with the requirement that schools be "public." Such programs must ensure, however, that parents' choices among schools are "genuine and independent." This criterion, developed by the U.S. …
Cooperative Localism: Federal-Local Collaboration In An Era Of State Sovereignty , Nestor M. Davidson
Cooperative Localism: Federal-Local Collaboration In An Era Of State Sovereignty , Nestor M. Davidson
Faculty Scholarship
Contemporary debates about federalism and localism often proceed with, at best, a glancing reference to each other.' Commentators portray parallel, largely disconnected worlds in which the federal government relates only to the states, and the states, in turn, hermetically encompass local governments. In practice, however, numerous federal regulatory, spending, and enforcement policies actively rely on the participation of local governments independent from the states. Indeed, direct relations between the federal government and local governments-what this Article calls "cooperative localism"-play a significant role in areas of contemporary policy as disparate as homeland security, law enforcement, disaster response, economic development, social services, …
Last Wave: The Rise Of The Contingent School District, The , Aaron J. Saiger
Last Wave: The Rise Of The Contingent School District, The , Aaron J. Saiger
Faculty Scholarship
Spurred in part by state court cases holding that states bear a constitutional duty to educate all children adequately, and making creative use of the arguments of school choice advocates, the states and other policy actors have in recent years recast the problem of deficient schooling as one of government structure rather than one of individual rights. This reorientation has contributed to a dramatic erosion of the traditional role of the local school district as the leading administrative, policymaking, and legal unit of American school government. A new, polyarchic distribution of power has arisen in place of district primacy, bearing …
Legislating Accountability: Standards, Sanctions, And School District Reform , Aaron J. Saiger
Legislating Accountability: Standards, Sanctions, And School District Reform , Aaron J. Saiger
Faculty Scholarship
The “New Accountability” movement in American education purports to catalyze improvement in American education by setting clear state standards for academic performance, measuring performance against those standards, and disseminating information about results. This Article argues that the potential of state accountability programs lies not in their imposition of standards but in their imposition of a sanction - the disestablishment of school districts, which entails unseating the local superintendent and school board and replacing them with state officials or their designees - that is extremely painful for the targeted district but is also painful for states to impose. The first Part …
Job Segregation, Gender Blindness, And Employee Agency Symposium: Law, Labor, And Gender - New Perspectives On Labor And Gender, Tracy E. Higgins
Job Segregation, Gender Blindness, And Employee Agency Symposium: Law, Labor, And Gender - New Perspectives On Labor And Gender, Tracy E. Higgins
Faculty Scholarship
Almost forty years after the enactment of Title VII, women's struggle for equality in the workplace continues. Although Title VII was intended to "break[] down old patterns of segregation and hierarchy," the American workplace remains largely gender-segregated. Indeed, more than one-third of all women workers are employed in occupations in which the percentage of women exceeds 80%. Even in disciplines in which women have made gains, top status (and top paying) jobs remain male-dominated while the lower status jobs are filled by women. This pattern of gender segregation, in turn, accounts for a substantial part of the persistent wage gap …
Dialogic Federalism: Constitutional Possibilities For Incorporation Of Human Rights Law In The United States Social Movements And Law Reform, Catherine Powell
Dialogic Federalism: Constitutional Possibilities For Incorporation Of Human Rights Law In The United States Social Movements And Law Reform, Catherine Powell
Faculty Scholarship
Discussions about the allocation of authority between federal and subfederal systems in the implementation of international human rights law typically proceed by staking out one of two initial positions. At one end of the spectrum, a traditional constitutional theory takes a restrictive view of state and local authority, envisioning hierarchical imposition of federally implemented international law norms through the federal treaty power and determination of customary international law by federal courts. At the other end of the spectrum, a revisionist theory assumes greater fragmentation and authority reserved to the states based on federalism and separation of powers limits on federal …
Disestablishing Local School Districts As A Remedy For Educational Inadequacy Note, Aaron J. Saiger
Disestablishing Local School Districts As A Remedy For Educational Inadequacy Note, Aaron J. Saiger
Faculty Scholarship
Most state constitutions recognize a right to education, but courts have been hard pressed to respond to violations of that right. Some state courts have imposed financial and substantive reforms, only to see their implementation miscarry as educational deficiencies stubbornly persist. Other state courts, fearing such outcomes, instead treat education claims as nonjusticiable political questions; in these states, public education is a right with no remedy. This Note argues that courts should instead base remedies on state statutes that permit states to disestablish-i.e., to withdraw authority from-deficient school districts. Disestablishment, like other structural remedies, is largely self-implementing and avoids judicial …
Tragic Irony Of American Federalism: National Sovereignty Versus State Sovereignty In Slavery And In Freedom, The Federalism In The 21st Century: Historical Perspectives, Robert J. Kaczorowski
Tragic Irony Of American Federalism: National Sovereignty Versus State Sovereignty In Slavery And In Freedom, The Federalism In The 21st Century: Historical Perspectives, Robert J. Kaczorowski
Faculty Scholarship
A plurality on the Supreme Court seeks to establish a state-sovereignty based theory of federalism that imposes sharp limitations on Congress's legislative powers. Using history as authority, they admonish a return to the constitutional "first principles" of the Founders. These "first principles," in their view, attribute all governmental authority to "the consent of the people of each individual state, not the consent of the undifferentiated people of the Nation as a whole." Because the people of each state are the source of all governmental power, they maintain, "where the Constitution is silent about the exercise of a particular power-that is, …
Plenary Power And Constitutional Outcasts: Federal Power, Critical Race Theory, And The Second, Ninth, And Tenth Amendments , Nicholas J. Johnson
Plenary Power And Constitutional Outcasts: Federal Power, Critical Race Theory, And The Second, Ninth, And Tenth Amendments , Nicholas J. Johnson
Faculty Scholarship
Rights and power in modern American constitutionalism are conceptually interdependent: "We have no way of thinking about constitutional rights independent of what powers it would be prudent or desirable for government to have." In an era where substantive boundaries on federal power seem ephemeral, this suggests that what we call rights may be primarily fair weather or illusory barriers to the exercise of power.From a majoritarian perspective, the shifting boundary between rights and powers, and the capacity of power to consume rights, may be unproblematic and even attractive. If the exercise of plenary power reflects majority will, then this exercise …
Municipal Home Rule And The Conditions Of Justifiable Secession, Joseph P. Viteritti
Municipal Home Rule And The Conditions Of Justifiable Secession, Joseph P. Viteritti
Fordham Urban Law Journal
This Article suggests a uniform standard by which domestic legislatures may decide current and future secession cases. Part I discusses the philosophical and legal foundations of the Home Rule principle and its relationship to secession. Part II considers secession as a political and legal concept, its underpinnings and the moral arguments on both sides of secession debates. Part III suggests a unified standard by which legislatures may consider secession attempts; and Part IV applies this standard to our prototypical Staten Island case. The article concludes that if the New York State legislature were to apply these uniform criteria to review …
Making Government Work, Robert W. Linn, Karen Flisek
Making Government Work, Robert W. Linn, Karen Flisek
Fordham Urban Law Journal
For a city or state government to be viable in the last decade of the 20th century, elected leaders must view modern management as a crusade. The work force must receive fair and equitable compensation, and all must be committed to constant quality improvement. Newspapers, magazines, radio and television must report the success stories and the failures. Taxpayers must understand that government services can improve, and the leaders must be held accountable. This is possible throughout the country but it will not happen unless an educated electorate demands it and the elected officials understand the stakes and urgency involved.
A Case Study In Fiscal Federalism: New York City And New York State, Carol O'Cleireacain
A Case Study In Fiscal Federalism: New York City And New York State, Carol O'Cleireacain
Fordham Urban Law Journal
This essay argues that under the current system of American state and local government funding schemes, there is a permanent imbalance between revenues and expenditures as a result of strain placed on local governments by other levels of government which can only be fixed with actions take by these other levels of government. This essay examines the current structure of American "Fiscal Federalism", the recent experience of America's cities with Fiscal Federalism (particularly New York), changing relationship between city and state government, and Governor Mario Cuomo's proposal for a phased-in takeover of Medicaid spending. The author concludes that the Governor's …
Do We Really Want Ethical Government, John D. Feerick
Do We Really Want Ethical Government, John D. Feerick
Faculty Scholarship
The question I would like to address in this article arises out of my recent work with the New York State Commission on Government Integrity. As you may recall, the Commission was appointed by Governor Cuomo in 1987 following a series of corruption scandals in our State involving officials at all levels of government. It was a nonpartisan group comprised of a former Secretary of State, a former judge of the State's highest court, a prominent civil libertarian, a former federal prosecutor, and other prominent citizens of this State.' The Commission had a very broad mandate. It was directed to …
Inaugural Address Inaugural Address, John D. Feerick
Inaugural Address Inaugural Address, John D. Feerick
Faculty Scholarship
I am honored and humbled to accept the designation of the Nominating Committee and membership to become president of this venerable Association. I feel especially privileged to be the first member of the academic community to be chosen since Robert McKay, who was for me a role model and special friend. In accepting this designation, I become heir to a tradition of remarkable service by the presidents of this Association for more than 120 years. Their names are synonymous with the best of the American legal profession in so many ways, and especially if judged by a standard of commitment …
Beyond The Second Amendment: An Individual Right To Arms Viewed Through The Ninth Amendment , Nicholas J. Johnson
Beyond The Second Amendment: An Individual Right To Arms Viewed Through The Ninth Amendment , Nicholas J. Johnson
Faculty Scholarship
Traditionally, the debate over the individual right to possess firearms has focused on the origins and meaning of the Second Amendment. Some constitutional scholars have dismissed the idea that the Second Amendment protects an individual right to arms. They argue that it only prevents the federal government from disarming states. Other scholars, focusing on the language of the amendment and its historical context, conclude that it does indeed establish an individual right to firearms. This article examines whether, even absent the Second Amendment, the Constitution restrains government from taking away what may be individuals' best tools of self-defense. The foothold …
How Much Does That $8.00 Yankee Ticket Really Cost? An Analysis Of Local Governments' Expenditure Of Public Funds To Maintain, Improve Or Acquire An Athletic Stadium For The Use Of Professional Sports Teams, Student Note
Fordham Urban Law Journal
This Note discusses the background of the controversy surrounding the expenditure of public funds for athletic stadiums for use primarily by professional sports teams and discusses the analyses courts have developed to determine a project's legality and constitutionality. THis Note addresses the economic and policy issues involved in the expenditure of public funds in stadium projects, and suggests methods local authorities may use to prevent court challenges of these projects. This Note concludes by delineating the conditions that should be met in order for state governments to expend funds to acquire and maintain sports stadiums.
A Piece In The Puzzle Of Providing Adequate Housing: Court Effectiveness In Code Enforcement, Sarah H. Ramsey, Fredrick Zolna
A Piece In The Puzzle Of Providing Adequate Housing: Court Effectiveness In Code Enforcement, Sarah H. Ramsey, Fredrick Zolna
Fordham Urban Law Journal
This article provides an overview of the general characteristics of the City of Syracuse, and the efforts of the City to improve housing and its code enforcement system. This overview is designed to relate the Syracuse model to other urban areas that face similar housing problems and share many of the City's demographic attributes. This article proceeds to set out the research methodology and findings of an empirical study of Syracuse's court system. Finally, this article addresses the problems in measuring court effectiveness in code enforcement. This article emphasizes the limits on a court in effecting social changes and suggests …
Mount Laurel And The Fair Housing Act: Success Or Failure? A Presentation By The Affordable Housing Colloquium Of The Seton Hall University Center For Social Justice With An Introduction And Commentary By Paula A. Franzese, Paula A. Franzese, Art Bernard, Peter Van Doren
Mount Laurel And The Fair Housing Act: Success Or Failure? A Presentation By The Affordable Housing Colloquium Of The Seton Hall University Center For Social Justice With An Introduction And Commentary By Paula A. Franzese, Paula A. Franzese, Art Bernard, Peter Van Doren
Fordham Urban Law Journal
This article details a colloquium held by the Seton Hall University University Center for Social Justice concerning affordable housing. This article explores the historical and theoretical underpinnings of the Mount Laurel doctrine, and explores the viability of existing mechanisms to implement the associated constitutional imperative. The first speaker, Mr. Art Bernard, advocates that the current enforcement plan for realizing affordable housing goals is an effective means of enforcement. The second speaker, Professor Peter Van Doren, advocates that the Mount Laurel strategy is fundamentally ineffective, and suggests, in leiu of manipulation of housing market outcomes, that the various efficiency and equity …
The Legality Of Staten Island's Attempt To Secede From New York City, Jeffrey Underweiser
The Legality Of Staten Island's Attempt To Secede From New York City, Jeffrey Underweiser
Fordham Urban Law Journal
This Note argues that, according to judicial interpretations of state and federal constitutions, Staten Island should be allowed to secede from New York City, regardless of the City's position. This Note begins by analyzing the background history of Staten Island's secession and New York City's formation leading up to this case. This Note then analyzes the issue of equal protection under the Fourteenth Amendment of the United States Constitution and Article I Section 11 of the New York Constitution. This Note then discusses the Home Rule Doctrine of the New York State Constitution. This Note concludes that, based upon federal …
Municipal Ethical Standards: The Need For A New Approach Report, John D. Feerick, Carol Schachner, Mark Davies, Sherrie Mcnulty, Arthur Fama
Municipal Ethical Standards: The Need For A New Approach Report, John D. Feerick, Carol Schachner, Mark Davies, Sherrie Mcnulty, Arthur Fama
Faculty Scholarship
The New York State Commission on Government Integrity investigated numerous situations throughout the state that revealed just how bad the current law is. Our findings and a pro- posed municipal ethics act that we drafted to correct the law's deficiencies are contained in the following report, "Municipal Ethical Standards: The Need for a New Approach." Our pro- posed Act would set out the minimum ethical standards that should be observed in every municipality throughout the state. The premise here is that there are certain basic features to good government that make sense for all governments, no matter what their size …
Report: Foreword, John D. Feerick, Cyrus Vance
Report: Foreword, John D. Feerick, Cyrus Vance
Faculty Scholarship
The last few years have been particularly bad for government integrity in New York. Since 1985, New York City has been rocked by a series of highly publicized scandals, arguably the worst since the days of Tammany Hall. One borough president was convicted of felonies; another committed suicide while under investigation; a congressman was recently convicted of bribery and extortion; former party chairmen in two boroughs were convicted of serious crimes; and a number of agency heads, judges, and lesser officials either have been convicted or forced to resign under a cloud of suspicion. And the City does not have …
Enforcement Provisions Of The Civil Rights Act Of 1866: A Legislative History In Light Of Runyon V. Mccrary, The Review Essay And Comments: Reconstructing Reconstruction, Robert J. Kaczorowski
Enforcement Provisions Of The Civil Rights Act Of 1866: A Legislative History In Light Of Runyon V. Mccrary, The Review Essay And Comments: Reconstructing Reconstruction, Robert J. Kaczorowski
Faculty Scholarship
The purpose of this Comment is to examine the history of the enactment and early enforcement of the Civil Rights Act of 1866 from the perspective of the remedies Congress sought to provide to meet the problems that necessitated the legislation. Its main foci are the statute's enforcement provisions and their early implementation, an aspect of the history of the statute that has not been fully considered in relation to section one, the provision that has received the most scholarly attention. The occasion of this study is the Supreme Court's reconsideration of Runyon v. McCrary' in Patterson v. McLean Credit …
Speech Given At The Fordham University School Of Law On The Occasion Of The Celebration Of The Law Revision Commission's 50th Anniversary December 14, 1984, Carolyn Gentile
Fordham Urban Law Journal
In a speech given at Fordham Law School, the speaker describes the history of the New York State Law Revision Commission, including its founding, the procedure by which it operates, and major recommendations and actions the Commission has taken over the years.