State and Local Government Law Commons^™

Can Federalism Protect Subnational Liberal Democracy From Central Authoritarianism?, James A. Gardner

Journal Articles

Liberal democracy is eroding rapidly around the globe, including in the United States, raising alarming questions about whether American democratic institutions will endure. Nevertheless, some have speculated that federalism may protect liberal democracy at the subnational level when the central government turns authoritarian. This article argues that such optimism is premature: there is no a priori basis on which to predict the effect of central democratic backsliding on the quality of subnational democracy. Federal theory does suggest that internal heterogeneity in basic political commitments is likely to produce an escalating pattern of severe and possibly intractable intergovernmental conflict. Empirical evidence …

New Challenges To Judicial Federalism, James A. Gardner

Journal Articles

The theory of judicial federalism holds that state constitutions are jurisprudentially independent from the U.S. Constitution, and that state supreme courts consequently may, and often should, interpret state constitutions differently from how the U.S. Supreme Court interprets the federal Constitution. As the U.S. Supreme Court increasingly turns back to the states important decisions of constitutional policy, such as the scope of reproductive rights or the nature and content of limitations on partisan gerrymandering, state constitutional law looms ever larger as a potential ground for resolution of these issues.

The conditions for a revival of judicial federalism today, however, are far …

Resurrecting Weighted Voting, Norman R. Williams

Buffalo Law Review

No abstract provided.

The Case For Waivable Employee Rights: A Contrarian View, William R. Corbett

Buffalo Law Review

No abstract provided.

A New Federalist Approach To Reducing Gun Violence: Model State Policy For Medicaid-Funded, Hospital-Based Violence Intervention Programs, Racquel Bozzelli

Buffalo Law Review

No abstract provided.

New Hurdles To Redistricting Reform: State Evasion, Moore, And Partisan Gerrymandering, Manoj Mate

Journal Articles

Proponents of fair districting reforms continue to face challenges in seeking to address the problem of partisan gerrymandering. Even in states that have successfully enacted redistricting reforms, state actors have been able to evade compliance, and state courts have been unable to guarantee fair districts. In addition, the Supreme Court’s decision in Moore v. Harper could also limit state court efforts to guarantee fair districts. This Article argues that state evasion and Moore threaten to undermine the efficacy of fair districting norms recognized by state courts or enacted through either state political processes. Moore could create a one-way ratchet by …

The New Comity Abstention, John Harland Giammatteo

Journal Articles

In the past ten years, lower federal courts have quietly but regularly abstained from hearing federal claims challenging state court procedures, citing concerns of comity and federalism. Federal courts have dismissed a broad range of substantive challenges tasked to them by Congress, including under the Americans with Disabilities Act, the Indian Child Welfare Act, and various constitutional provisions, involving state court eviction proceedings, foster care determinations, bail and criminal justice policies, COVID-era safety practices, and other instances where state courts determine state policy.

This paper is the first to argue that these decisions constitute a new abstention doctrine, unmoored from …

Progressive State Constitutionalism, Jorge M. Farinacci-Fernós

Buffalo Law Review

Unlike the U.S. Constitution, many state constitutions are truly modern documents that address important social, economic, and political issues from a progressive perspective. This is due to the combination of several key features, including: socially oriented historical circumstances; democratic creation processes; significant substantive content guided by ideas of social justice; and adequate judicial enforcement that takes into account these crucial normative elements. As a result, these progressive state constitutions can become powerful allies in the search for a transformative constitutionalism in the United States that facilitates the goals of social justice and collective prosperity.

The constitutional processes in California (1880), …

Tenure In New York, Matthew W. Finkin

Buffalo Law Review

No abstract provided.

Adirondack Land Use Under The “Forever Wild” Clause After Protect!, Todd Thomas

Buffalo Environmental Law Journal

No abstract provided.

Protecting Consumer Protection: Filling The Federal Enforcement Gap, Amy Widman

Buffalo Law Review

Since 2014, when a first-of-its-kind empirical study looked at how public enforcers use their authority under unfair and deceptive acts and practices (“UDAP”) laws, the enforcement landscape has changed. Most notably, the Trump Administration weakened enforcement on the federal level. In the wake of this political shift, many state enforcers rushed to fill the gap left by weak federal enforcement. At the same time, the state enforcers themselves experienced changes both internal (including changes to budgets and stated policy priorities) and external (electoral changes regarding state Attorneys General, changes to statutory authority, and other changes governing the enforcer’s authority).

This …

Judicial Application Of Strict Liability Local Ordinances, Guyora Binder, Brenner Fissell

Journal Articles

No abstract provided.

Green Energy V. The Constitution: New York State’S Battle With Home Rule Provisions In The Age Of Environmentalism, Alexa L. Archambault

Buffalo Law Review

In the era of metal straws, reusable grocery bags, and glass water bottles, there is no doubt society is becoming more and more environmentally conscious. This ecological ethos has manifested itself inhuge policy shifts away from traditional fossil fuel energy and toward renewable energy, such as wind and solar power. Lawmakers throughoutthe world are making agreements and commitments aimed at decreasingreliance on fossil fuels. In the United States, New York State has taken a leading role in the quest toward renewable energy. With New York State’s ambitious climate goals, though, have come serious encroachments on powers traditionally held by local …

Disbanding Police Agencies, Anthony O'Rourke, Rick Su, Guyora Binder

Journal Articles

Since the killing of George Floyd, a national consensus has emerged that reforms are needed to prevent discriminatory and violent policing. Calls to defund and abolish the police have provoked pushback, but several cities are considering disbanding or reducing their police forces. This Essay assesses disbanding as a reform strategy from a democratic and institutionalist perspective. Should localities disband their police forces? One reason to do so is that discriminatory police departments are often too insulated from democratic oversight to be reformed. But can localities succeed in disbanding and replacing their forces with something better? Unfortunately, the structural entrenchment of …

Cannabis Capitalism, Paul J. Larkin Jr.

Buffalo Law Review

No abstract provided.

The Life And Death Of Confederate Monuments, Jessica Owley, Jess Phelps

Buffalo Law Review

Confederate monuments have again received increased attention in the aftermath of George Floyd’s tragic death in Minneapolis, Minnesota, on May 25, 2020. Momentum and shifting public opinion are working toward the removal of these problematic monuments across the country. This Article seeks to provide insight for monument-removal advocates: specifically focusing on the legal issues associated with the “death” or removal of these monuments, how property law shapes and defines these efforts, and briefly examining what happens to these statues after removal. Our exploration of Confederate monuments reveals that some removal efforts occur outside of legally created processes. Both public and …

Governor Northam’S Executive Order 43: One Stone And Two Birds For Virginia Energy Policy, Antonia M. Douglas

Buffalo Environmental Law Journal

No abstract provided.

The Legislature At War: Bandits, Runaways And The Emergence Of A Virginia Doctrine Of Separation Of Powers, Matthew J. Steilen

Journal Articles

No abstract provided.

Anti-Sanctuary And Immigration Localism, Pratheepan Gulasekaram, Rick Su, Rose Cuison Villazor

Journal Articles

A new front in the war against sanctuary cities has emerged. Until recently, the fight against sanctuary cities has largely focused on the federal government's efforts to defund states like California and cities like Chicago and New York for resisting federal immigration enforcement. Thus far, localities have mainly prevailed against this federal anti-sanctuary campaign, relying on federalism protections afforded by the Tenth Amendment's anticommandeering and anticoercion doctrines. Recently, however, the battle lines have shifted with the proliferation of state-level laws that similarly seek to punish sanctuary cities. States across the country are directly mandating local participation, and courts thus far …

The Supreme Court’S Original Jurisdiction Over Disputes Between The United States And A State, Lochlan F. Shelfer

Buffalo Law Review

Does the Supreme Court have jurisdiction to hear controversies between a state and the United States? Although the Supreme Court has asserted this power, commentators have puzzled over the question for decades. Because Article III does not enumerate controversies between a state and the United States, many scholars have concluded that the Court’s exercise of this power is illegitimate, or at least atextual. This Article argues that the Constitution’s text does give the Supreme Court the power to hear such controversies, but to understand why it is necessary to understand the way that the framers would, for the sake of …

Indian Country Complexities And The Ambiguous State Of Marijuana Policy In The United States, Lauren Adornetto

Buffalo Law Review

No abstract provided.

Have Cities Abandoned Home Rule?, Rick Su

Journal Articles

No abstract provided.

Intrastate Federalism, Rick Su

Journal Articles

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 …

Practice-Driven Changes To Constitutional Structures Of Governance, James A. Gardner

Journal Articles

Among the methods of informal constitutional change, perhaps the least studied or understood is change resulting from alterations in the way governance is practiced. Such changes, typically initiated by political actors in the executive and legislative branches, is probably the most common kind of constitutional change, and is almost certainly the most common source of informal change to structural provisions. In the United States, the best known instances of practice-driven changes to constitutional structure come from the federal level – the rise of a formal party system, for example, or the dramatic twentieth-century expansion of presidential power. Yet by far …

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

Journal Articles

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 …

The States Of Immigration, Rick Su

Journal Articles

Immigration is a national issue and a federal responsibility — so why are states so actively involved? Their legal authority over immigration is questionable. Their institutional capacity to regulate it is limited. Even the legal actions that states take sometimes seem pointless from a regulatory perspective. Why do they enact legislation that essentially copies existing federal law? Why do they pursue regulations that are likely to be enjoined or struck down by courts? Why do they give so little priority to the immigration laws that do survive?

This Article sheds light on this seemingly irrational behavior. It argues that state …

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

Journal Articles

No abstract provided.

Urban Politics And The Assimilation Of Immigrant Voters, Rick Su

Journal Articles

Despite the growing strength of immigrant voters in the U.S., immigrants continue to participate at the polls in much lower rates than not only native voters, but also immigrants in the past. What accounts for this disparity? Looking beyond the characteristics of the immigrants themselves, this essay argues that a major reason lies in the different political structure that immigrants face upon their arrival, especially at the local level. Tracing the evolution of big city politics alongside, and in response to, the three major waves of foreign immigration to the U.S., this essay outlines three competing models of immigrant political …

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

Journal Articles

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.

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

Journal Articles

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 …