State and Local Government Law Commons^™

The Uncertain Future Of Tourism On Migrating Barrier Islands: How And Why The Outer Banks Of North Carolina Should Adjust To Growing Threats, Lillian Coward

William & Mary Law Review

Erosion, storms, and the migration of the barrier islands that comprise the Outer Banks themselves are not new. The rising seas that have resulted from climate change have merely exacerbated what has always occurred. What is new, however, is the economic havoc that natural processes and disasters alike can wreak on the islands. Today, because climate change has accelerated natural island migration, individuals, local governments, and the federal government alike have a lot to lose in the fight against the tides.

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This Note will evaluate a variety of potential solutions to the problems that pose nearly existential threats to …

Assessing State Invasive Species Schemes Through The Lens Of The Spotted Lanternfly, Susanna Clark

William & Mary Environmental Law and Policy Review

Invasive species have long presented an issue across the United States, and continue to do so. They have become more prevalent as the world has become more interconnected. Nonnative species are not always invasive, but many of them are. A somewhat recently introduced invasive species, the spotted lanternfly, has proven to be especially destructive and will put current invasive species laws to the test. The federal government does have some laws on the books regarding invasive species, but much of the legislation and subsequent regulations can be found at the state level. No two states have the same legal and …

Dark "Oro Y Plata" In Montana: The Green Amendment's Defense Of Campaign Finance Transparency, Lucas Della Ventura

William & Mary Environmental Law and Policy Review

In the post–Citizens United dark money age, state disclosure regulations are the last line of defense for citizens to learn who is behind unlimited independent expenditures and electioneering communications flooding their states. Underpinning the ability of state governments to promulgate such transparency measures are the informational benefits provided to the public. However, the Supreme Court’s decision in Americans for Prosperity Foundation v. Bonta to invalidate a California disclosure regulation on dark money groups, marks disclosure regulations—the Court’s repeated fallback when striking down more robust campaign finance regulations—with a bull’s-eye. In the face of repeated legal challenges to disclosure regulations, …

The Private Litigation Impact Of New York's Green Amendment, Evan Bianchi, Sean Di Luccio, Martin Lockman, Vincent Nolette

Faculty Publications

The increasing urgency of climate change, combined with federal environmental inaction under the Trump Administration, inspired a wave of environmental action at the state and local level. Building on the environmental movement of the 1970s, activists have pushed to amend more than a dozen state constitutions to include “green amendments”—self-executing individual rights to a clean environment. In 2022, New York activists succeeded, and New York’s Green Amendment (the NYGA) now provides that “Each person shall have a right to clean air and water, and a healthful environment.”

However, the power of the NYGA and similar green amendments turns on judicial …

Naming, Expressive Interests, And The Law: The Implications Of Governmental Form Design, Laura A. Heymann

Faculty Publications

The design of governmental forms can result in restrictions on the ability of individuals to submit truthful personal naming choices, such as when a form field has character limitations or does not accept diacritics. In some instances, form design operationalizes government policy. But in other instances, form design can itself create law by limiting the ability to submit accurate names on the front end. Awareness of the legal implications of form design is critically important. A more inclusive and accurate approach toward the legal documentation of naming choices means that forms should adapt to people, not the other way around.

Preparing For The Flood: Virginia Local Governments' Stormwater Management Liability, James E. Davidson

William & Mary Environmental Law and Policy Review

This Note explains that modern interpretations of Virginia Code § 15.2-970 have made Virginia municipalities immune to tort suits arising from the negligent maintenance of stormwater systems. Due to the Virginia Supreme Court’s holdings in Livingston v. Virginia Department of Transportation and other inverse condemnation suits, localities may be found liable when their stormwater management decisions cause property damage. However, following the Court’s holding in AGCS Marine Insurance Co. v. Arlington County, which prevented inverse condemnation claims arising from municipal negligence, residents are still unlikely to find legal redress for negligent stormwater management that results in property damage. Therefore, this …

Plaintiff's Problem: Constitutional Concerns With Service Of Process Under Alaska Rule Of Civil Procedure 4(D)(7)-(8), Casey Sawyer

William & Mary Bill of Rights Journal

Rule 4 of Alaska’s Rules of Civil Procedure prescribes how service of process must be completed for a civil lawsuit, much like Rule 4 of the Federal Rules of Civil Procedure. When filing suit against the State of Alaska or one of its agencies or officers, Alaska Civil Rule 4(d)(7)–(8) require that service of process be delivered to multiple locations. The plaintiff will usually have to serve the Attorney General’s office in the district of filing (either Anchorage or Fairbanks) and also must deliver service of process to the Attorney General’s office in Alaska’s capital city of Juneau. If they …

Friends With Benefits: Expanding Virginia's Domestic Violence And Mutual Protection Order Statutes To Include Reciprocal Beneficiaries, Faith A. Parker

William & Mary Journal of Race, Gender, and Social Justice

On June 26, 2015, the Obergefell decision recognized same-sex marriage. While same-sex couples celebrated their new rights to marriage equality, they still face legal battles in the realm of domestic violence. Both married and unmarried same-sex couples face discrimination when reporting incidents of domestic violence. While most domestic violence statutes are gender-neutral on their face, their implementations disparately impact same-sex couples. Furthermore, domestic violence statutes that include same-sex couples punish same-sex couples more harshly than opposite-sex couples. This Note will examine the domestic violence law in Virginia, arguing that the laws are too vague to properly protect same-sex couples and …

Death After Dobbs: Addressing The Viability Of Capital Punishment For Abortion, Melanie Kalmanson

William & Mary Journal of Race, Gender, and Social Justice

Pre-Dobbs legislative efforts and states’ reactions in the immediate aftermath of Dobbs indicate the post-Dobbs reality that deeply conservative states will seek to criminalize abortion and impose extremely harsh sentences for such crimes, up to and including death. This Article addresses that reality. Initially, this Article illustrates that abortion and capital punishment are like opposite sides of the same coin, and it is a handful of states leading the counter majoritarian efforts on both topics. After outlining the position of each state in the nation that retains capital punishment on capital sentencing and abortion, the Article identifies the …

Mitigating Trail Troubles: An Analysis Of The Virginia Recreational Land Use Statute, Rachel Rogers, Cooper Vorel

Virginia Coastal Policy Center

While the overall focus of this discussion is on the law of Virginia, it is often useful to look elsewhere for comparative purposes. This is especially important when it involves considering the future of Virginia’s recreational land use statute. The overall objective of this discussion is to supplement Virginia’s existing recreational land use legal regime by exploring specific issues related to Virginia’s statutory scheme and identifying areas where further research may be needed.

Four issues involving recreational land use statutes are explored herein. First, the scope of recreational use statutes, namely in Virginia, is examined. This issue addresses the substance …

State Separation Of Powers And The Federal Courts, Ann Woolhandler

William & Mary Bill of Rights Journal

The cases discussed herein mostly surfaced in the regulatory era of the latter half of the nineteenth century and the early twentieth century. This Article first discusses arguments as to state delegations of legislative power, and the Court’s rejection of legislative-style deference that state agencies often argued for. This Article next discusses the Court’s decisions as to state adjudicative bodies, and its refusal to treat state agency adjudicators as full-fledged courts. This Article then addresses the Court’s response to arguments for unreviewable executive discretion and to laws allowing delegations to private parties. It then addresses whether the discussion sheds light …

Race, Space, And Place: Interrogating Whiteness Through A Critical Approach To Place, Keith H. Hirokawa

William & Mary Journal of Race, Gender, and Social Justice

Drawing from George Lipsitz’s notion that whiteness is “not so much a color as a condition,” this Article embarks on the project of framing the manner and methods through which whiteness continues to dominate space and place. Wherever whiteness dominates space, space carries rules and expectations about the identity and characteristics of people who are present—visitors and jaunters, owners and occupiers—and the types of activities and cultural practices that might occur there. Occasionally, spaces are racialized because of intentional practices of discrimination and segregation. In others, less intentional methods produce racialized space. In both, American spaces tell their own histories …

Interpreting State Statutes In Federal Court, Aaron-Andrew P. Bruhl

Faculty Publications

This Article addresses a problem that potentially arises whenever a federal court encounters a state statute. When interpreting the state statute, should the federal court use the state’s methods of statutory interpretation—the state’s canons of construction, its rules about the use of legislative history, and the like—or should the court instead use federal methods of statutory interpretation? The question is interesting as a matter of theory, and it is practically significant because different jurisdictions have somewhat different interpretive approaches. In addressing itself to this problem, the Article makes two contributions. First, it shows, as a normative matter, that federal courts …

Improving (And Avoiding) Interstate Interpretive Encounters, Aaron-Andrew P. Bruhl

Faculty Publications

State courts often encounter the statutes of other states. Any encounter with another state’s statutes raises an interesting but inconspicuous question about choice of law. In particular, the interstate encounter presents a choice of interpretive law. Despite some universal practices in statutory interpretation, there are methodological differences across jurisdictions—both at the level of overall approach and in the details of particular interpretive canons. When a state court encounters the statute of a sister state, may the forum state use its own interpretive methods or must it instead use the methods of the enacting state?

The existing doctrine on this choice-of-law …

Checking Out Indefinitely: Supporting Survivors Of Sex Trafficking Alongside Training And Education For Lodging Employees, Alyssa M. Grzesiak

William & Mary Journal of Race, Gender, and Social Justice

There are roughly five million victims of sex trafficking in the United States. Over the course of a decade, over 3,500 instances of human trafficking involved a hotel or motel. Traffickers are relying on unaware lodging establishment employees, as well as complicit employees and managers, to successfully carry out their crimes. Despite the vital role the lodging industry plays in human trafficking, only seven states have implemented mandatory training for hotel and motel employees. This Note posits that the implementation of mandatory training and education programs for employees of lodging establishments could increase awareness and responsiveness to human trafficking, thus …

Frontiers In Regulating Building Emissions: An Agenda For Cities, Danielle Spiegel-Feld

William & Mary Environmental Law and Policy Review

Recent developments in Congress and the Supreme Court have highlighted the folly of relying solely on the federal government to contain global climate change. If the United States is to help rein in the climate crisis, state and local governments will need to accelerate their efforts to reduce greenhouse gas emissions. In many urban areas, where most Americans now live, the most important step that local governments can take to curtail these emissions is to reduce energy use in buildings. Recognizing this, a number of American cities have adopted building performance standards (“BPSs”) in recent years, which limit the annual …

Think State Supreme Courts Will Save Abortion Rights? Think Again., Neal Devins

Popular Media

No abstract provided.

The Case For Local Data Sharing Ordinances, Beatriz Botero Arcila

William & Mary Bill of Rights Journal

Cities in the United States have started to enact data sharing rules and programs to access some of the data that technology companies operating under their jurisdiction— like short-term rental or ride hailing companies—collect. This information allows cities to adapt to the challenges and benefits of the digital information economy. It allows them to understand what the impact of these technology companies is on congestion, the housing market, the local job market, and even the use of public spaces. It also empowers cities to act accordingly by, for example, setting vehicle caps or mandating a tailored minimum pay for gig …

Substituted Service And The Hague Service Convention, William S. Dodge

William & Mary Law Review

State law plays a surprisingly large role in transnational litigation, and how it defines the applicability of the Hague Service Convention is an important example. In Volkswagenwerk Aktiengesellschaft v. Schlunk, the U.S. Supreme Court held that the Convention does not apply when, under state law, service of process is made within the United States. In Schlunk, Illinois law permitted substituted service on the U.S. subsidiary of a foreign parent company, so the Convention did not apply. This Article looks at substituted service under state law today and when it permits avoidance of the Hague Convention. The Article focuses …

Abandoned And Derelict Vessels In The Commonwealth: How To Improve Virginia's Adv Program, Anthony Cusato

Virginia Coastal Policy Center

Vessels abandoned or lost by their owners can get stuck on a shoreline or in a marsh, aimlessly float adrift, or sink in a waterway. As the number of ADVs [abandoned and derelict vessels] increases, efforts to address them similarly intensify. Typically, state government agencies handle most ADVs, and their approaches to ADV control and removal vary widely across jurisdictions. Virginia faces an increasing number of ADVs and can learn from other states to improve its approach. This paper examines the current Virginia ADV program and considers how it can be amended to make it more effective. It then identifies …

Tribal Resilience And Community Plans: A Primer For Tribal Communities Looking To Create Their Own, Karly Newcomb

Virginia Coastal Policy Center

This paper serves as an overview of various Tribal resilience plans across the nation and community planning efforts in Virginia. Although each plan is particularly detailed to address one locality’s specified areas of concern, the plans are fully adaptable to meet any community’s particular needs. Additionally, the paper includes a synthesis of commonalities that these plans share with the goal of providing an overview of resilience plan options and strategies that can be used as a framework for Tribal communities looking to create their own plans.

This abstract has been taken from the author's introduction.

Tribal Communities And State And Local Governments: Existing Relationships, Mikayla Mangle

Virginia Coastal Policy Center

Tribal and state/local governments have maintained a unique and crucial relationship throughout the United States’ history. Today, state and federally recognized Tribes sometimes face obstacles when attempting to implement projects due to state or local government opposition and vice versa. Federally recognized Tribes are sovereign, self-governing entities on equal footing with state governments. State recognized tribes, on the other hand, may not be equal to state governments, depending on the state laws regarding tribal state recognition. State recognized tribes do not have the same benefits as federally recognized tribes in that the tribe’s status is recognized by the state but …

A Study Of Tribal Communication Frameworks: Some Approaches To Building Partnerships Between Tribal, State, And Local Governments In Virginia, Karly Newcomb, Abigail Sisti

Virginia Coastal Policy Center

This paper discusses options the Commonwealth could consider when evaluating decision-making processes that affect tribes in Virginia, with the goal of improving communication and collaboration between tribal, state, and local governments; and will highlight key case studies from other states and localities that provide precedents. The following options are based on a framework of free, prior, and informed consent, which emphasizes self-determination and an individual right to pursue economic, social, and cultural development. This framework can be applied to decision making and projects for any topic. Moving forward, government-to-government communication will be key to developing solutions to pressing issues such …

When Legal Incapacity Becomes A Lack Of Personhood: Why A Ward's Ability To Sue In Their Own Name Should Be A Fundamental Aspect Of Virginia Guardianship, Rachel Davis

William & Mary Journal of Race, Gender, and Social Justice

It is a fundamental failing of any legal system when it is unable to protect the most vulnerable within its population. Whether we are comfortable admitting it or not, guardian abuse of incapacitated wards has been well-documented across all fifty states. Virginia is no exception, and this lack of oversight leaves one of our most vulnerable populations without recourse. This Note argues that by simply granting a ward the ability to bring suit in their own name, Virginia may strike a significant blow to the dysfunction that systematically infects the guardianship process. This Note highlights Virginia statute and case law …

Emergency Bylaws: An Underutilized Tool For Corporate Operation During An Emergency, Grace Myers

William & Mary Business Law Review

Emergency bylaws are an underutilized tool for corporate governance whose importance has been highlighted by COVID-19. Emergency bylaws can be included within corporations’ bylaws and only operate during an “emergency” as defined by state statutes. These provisions usually give boards more agency to act during an emergency through mechanisms such as looser quorum and notice requirements. These provisions will be increasingly important during future pandemics, wars, and global warming. However, few corporations have these bylaws, and the current hodgepodge of state statutes hinders their adoption. The current state of emergency bylaws regulation and implementation raises some questions about shareholder rights …

Recommendations To Increase The Resilience Of Wastewater Treatment In Coastal Virginia, Grace D. Molino, Forrest M. Via

Virginia Coastal Policy Center

This white paper discusses the problem of septic failures in Virginia, as infrastructure ages and previously installed systems can no longer function. Section II.A. discusses the feasibility of regulatory and other measures that the Virginia state and local governments can implement to incentivize the identification, maintenance and repair of septic systems. Among these measures is a point-of-sale inspection requirement, which would require real property sellers to have their septic system inspected upon sale. Additionally, this white paper addresses several alternative options to conventional onsite septic systems, including public information campaigns to inform septic system owners of maintenance and repair techniques; …

Displacement And Preemption Of Climate Nuisance Claims, Jonathan H. Adler

Faculty Publications

Part I begins with a brief sketch of the common law environmental protection that preceded and matured alongside the development of environmental regulation, including the rise of federal common law actions for interstate pollution. With an eye toward preemption, and its role within our federalist system, Part II sketches the system of state and local environmental regulation that served as the background for the adoption of federal environmental law. While federal environmental laws are quite comprehensive and far-reaching, they operate alongside state and local efforts, often in collaborative fashion, and rarely preempt state regulation or litigation. [...]

Parts III and …

Undue Deference To States In The 2020 Election Litigation, Joshua A. Douglas

William & Mary Bill of Rights Journal

COVID-19 has wreaked havoc on so much of our lives, including how to run our elections. Yet the federal courts have refused to respond appropriately to the dilemma that many voters faced when trying to participate in the 2020 election. Instead, the courts—particularly the U.S. Supreme Court and the federal appellate courts—invoked a narrow test that unduly defers to state election administration and fails to protect adequately the fundamental right to vote.

In constitutional litigation, a law usually must satisfy a two-part test: (1) does the state have an appropriate reason for the law and (2) is the law properly …

#Blacklivesmatter: From Protest To Policy, Jamillah Bowman Williams, Naomi Mezey, Lisa Singh

William & Mary Journal of Race, Gender, and Social Justice

We find that the protests of 2020 did indeed begin a paradigm shift in the social awareness of racialized police violence, and this important and significant social change has in turn already inspired political change and some degree of legal and policy change. However, the movement remains in a precarious position and it is uncertain how enduring these changes will be. While many state legislators and local officials have responded to the protests with policy reforms, policy action at the federal level is mostly stalled. In addition, it is unclear whether the state and local policy changes will lead to …

Toward A Virginia Ocean Plan: Lessons And Recommendations From Other States, Nathaniel Dominy, Luke Foley

Virginia Coastal Policy Center

Virginia’s ocean waters feature vast natural resources, and are used by its residents, visitors, and the military for recreation, commerce, and national security. New and intensified uses, such as offshore energy production, aquaculture, and increased shipping could impact Virginia’s ocean resources. To ensure the continued protection of these resources, while allowing them to be used sustainably, the Commonwealth is developing its first ocean management plan. Because several state agencies currently manage Virginia’s territorial sea waters, a coordinated and proactive approach is needed to effectively develop this plan. Developing a Virginia Ocean Plan can help protect the Commonwealth’s ocean resources and …