State and Local Government Law Commons^™

Urban Growth: A Global Challenge, Janet Stearns

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No abstract provided.

Why The Proposal To Legalize Physician-Assisted Suicide In Michigan Failed, Yale Kamisar

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Some commentators and participants in the national debate over physician-assisted suicide (PAS) made much of the fact that in 1997 Oregon voters reaffirmed their support for assisted suicide by a much larger margin than the initial 1994 vote. The state legislature had put the initiative (which had initially passed by a 5149% vote) back on the ballot for an unprecedented second vote. This time the initiative was reaffirmed overwhelmingly, 60-40%. Barbara Coombs Lee, Executive Director of Compassion in Dying (an organization that counsels people considering PAS and one of the plaintiffs in Washington v. Glucksberg, 1997), hailed the second Oregon …

Justification By Faith, Carl E. Schneider

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In June 1997 a sixteen-year-old girl named Shannon Nixon began to feel ill. Her parents belonged to the Faith Tabernacle Church, one of a number of American sects which believe that illness should be treated spiritually rather than medically. Accordingly, the Nixons prayed for Shannon and took her to be anointed at their church. Shannon reported that she felt better and that the spiritual treatment had gained her her victory-her recovery. Before long, however, Shannon again felt ill. She became weaker and weaker and then fell into a coma. A few hours later she died. An autopsy revealed that she …

Why Did Voters Reject Michigan's Physician-Assisted Suicide Initiative?, Yale Kamisar

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In November 1997, when Oregon voters reaffirmed their support for doctor-assisted suicide, some commentators called it a turning point for the "right to die" movement. But the lopsided defeat of a similar proposal in Michigan is a better barometer: in general, assisted suicide continues to fare badly in the political arena.

Family Law And Gay And Lesbian Family Issues In The Twentieth Century, David L. Chambers, Nancy D. Polikoff

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Over these thirty years, lesbians and gay men have increasingly challenged conventional definitions of marriage and the family. In this brief article, we tell the story of gay people and family law in the United States across this period. We divide our discussion into two sections: issues regarding the recognition of the same-sex couple relationship and issues regarding gay men and lesbians as parents. These issues overlap, of course, but since family law discussions commonly treat adult-adult issues of all sorts separately from parent-child issues, we believe it convenient and helpful to do so as well.

Against Free-Form Formalism, David M. Golove

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Article II, Section 2 of the Constitution provides that the President shall have the power to make treaties by and with the consent of two-thirds of tie Senate. Yet, most of the international agreements into which the United States has entered over the last fifty years, including NAFTA and the WTO Agreement, have been concluded as congressional-executive agreements-a procedure by which the President submits an agreement to both houses of Congress for simple majority approvaL In an article in the Harvard Law Review entitled "Is NAFTA Constitutional?," Professors Bruce Ackerman and David Golove attempted to provide this practice with constitutionalfoundations. …

Metropolitanism, Progressivism, And Race, Edward A. Zelinsky

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Professor Zelinsky examines three books on local government. Two of these, Cities Without Suburbs, by David Rusk, and Citistates, by Neal Peirce, call for metropolitanizing the governance of urban areas. Our Town, by David L. Kirp, John P. Dwyer, and Larry A. Rosenthal, explores the Mt. Laurel litigation and its aftermath and suggests that the land use authority of local governments be diminished through court-ordered zoning for low-income housing.

Professor Zelinsky is skeptical of these well-intentioned proposals. The metropolitan governments advocated by Rusk and Peirce would be less responsive than the smaller localities they would replace and less likely to …

The Sovereign Immunity Of States In Their Own Courts, Richard Henry Seamon

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No abstract provided.

On The Meaning And Impact Of The Physician-Assisted Suicide Cases. (Symposium: Physician-Assisted Suicide: Facing Death After Glucksberg And Quill), Yale Kamisar

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I read every newspaper article I could find on the meaning and impact of the U.S. Supreme Court's June 1997 decisions in Washington v. Glucksberg' and Vacco v. Quill.2 I came away with the impression that some proponents of physician-assisted suicide (PAS) were unable or unwilling publicly to recognize the magnitude of the setback they suffered when the Court handed down its rulings in the PAS cases.

The Securities Litigation Uniform Standards Act Of 1998: The Sun Sets On California's Blue Sky Laws, David M. Lavine, Adam C. Pritchard

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It is often said that California sets the pace for changes in America's tastes. Trends established in California often find their way into the heartland, having a profound effect on our nation's cultural scene. Nouvelle cuisine, the dialect of the Valley Girl and rollerblading all have their genesis on the West Coast. The most recent trend to emerge from California, instead of catching on in the rest of the country, has been stopped dead in its tracks by a legislative rebuke from Washington, D.C. California's latest, albeit short-lived, contribution to the nation was a migration of securities fraud class actions …

Physician-Assisted Suicide: The Problems Presented By The Compelling, Heartwrenching Case, Yale Kamisar

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Now that the U.S. Supreme Court has upheld New York and Washington state laws prohibiting the aiding of another to commit suicide,2 the spotlight will shift to the state courts, the state legislatures and state referenda. And once again proponents of physician-assisted suicide (PAS) will point to a heartwrenching case, perhaps the relatively rare case where a dying person is experiencing unavoidable pain (i.e., pain that not even the most skilled palliative care experts are able to mitigate), and ask: What would you want done to you if you were in this person's shoes?

The Unsolved Problem Of The Unfunded Mandate, Edward A. Zelinsky

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No abstract provided.

Form Contracts Under Revised Article 2 (Symposium: Consumer Protection And The Uniform Commercial Code), James J. White

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The current draft of section 2-206 in Revised Article 2 of the Uniform Commercial Code ("UCC") entitled "Consumer Contract: Standard Form"1 presents a unique and threatening challenge to the drafters of consumer form contracts. In earlier drafts, one part of the section applied to both to commercial contracts and consumer contracts. It required that "one manifest assent" to any form contract, commercial or consumer, in order for it to be binding.2 Bowing to commercial opposition in the most recent version, the drafters have omitted all reference to commercial contracts. As the section stands, it applies only to consumer contracts.

Cheaters, Not Criminals: Antitrust Invalidation Of Statutes Outlawing Sports Agent Recruitment Of Student Athletes, Ricardo J. Bascuas

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No abstract provided.

The Uniform Probate Code Extends Antilapse-Type Protection To Poorly Drafted Trusts, Lawrence W. Waggoner

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The Uniform Law Commission' promulgated a revised version of Article II of the Uniform Probate Code (UPC or Code) in 1990, and approved a set of technical amendments in 1993. As Director of Research and Chief Reporter for the Joint Editorial Board for the Uniform Probate Code (Board)2 and reporter for the UPC Article II drafting committee, I was privileged to serve as the principal drafter of these provisions. UPC Article II deals with the substantive rules governing donative transfers - intestacy; spouse's elective share; execution, revocation, and revival of wills; rules of construction for wills and other donative transfers; …

Judicial Selection In Michigan - Time For A Change?, John W. Reed

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How are we to choose those who judge us? To whom do we entrust the responsibility of protecting our liberties and the power to determine our rights and liabilities? We look for men and women of integrity, diligence, legal ability, and judicial temperament, chosen by methods that balance judicial independence and public accountability.1

Children's Task Force Reports, Donald N. Duquette, Cd Stephens

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When the public thinks of children and the law, high-visibility cases like Baby Jessica and Baby Richard come to mind. The human drama of a small child caught up in a titanic custody struggle attracts unrelenting media attention and triggers cries for law reform. Yet for every Baby Jessica and Baby Richard, thousands of children pass through our courts with little public attention but with consequences to them just as momentous and life altering as those cases featured on the national news shows. In 1991 State Bar of Michigan leadership began to ask whether our profession and Michigan's courts are …

Judging Girls: Decision Making In Parental Consent To Abortion Cases, Suellyn Scarnecchia, Julie Kunce Field

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Judges make determinations on a daily basis that profoundly affect people's lives. On March 28, 1991, the Michigan legislature enacted a statute entitled The Parental Rights Restoration Act (hereinafter "the Michigan Act" or "the Act"). This statute delegated to probate court judges the extraordinary task of deciding whether a minor girl may have an abortion without the consent of a parent. Nothing in law school and little in an average judge's experience provide a meaningful framework for making such a decision. Although many commentators, including the authors, argue that decisions about abortion should be left to the woman regardless of …

Imagining Children's Rights, Suellyn Scarnecchia

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Today, I will tell you some stories about real, live children, whose futures have been determined by our legal system. To speak of children's rights hypothetically, raises images of children suing to go live with their rich uncle or suing to demand a Nintendo system from their parents. I hope that by bringing you stories of the legal system's treatment of real children, you will have a better understanding of what I mean by children's rights and why they must be recognized. Although children's rights have been recognized in limited ways in the areas of free speech, criminal law and …

The 'Right To Die': A Catchy But Confusing Slogan, Yale Kamisar

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Some 30 years ago an eminent constitutional law scholar Charles L. Black, Jr., spoke of "toiling uphill against that heaviest of all argumental weights-the weight of a slogan. I am reminded of that observation when I confront the slogan the "right to die." Few rallying cries or slogans are more appealing and seductive than the "right to die." But few are more fuzzy, more misleading, and more misunderstood.

Assisted Suicide And Euthanasia: The Cases Are In The Pipeline, Yale Kamisar

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When I first wrote about this subject 36 years ago, the chance that any state would legalize assisted suicide or active voluntary euthanasia seemed minuscule. The possibility that any court would find these activities protected by the Due Process Clause seemed so remote as to be almost inconceivable. Not anymore. Before this decade ends, at least several states probably will decriminalize assisted suicide and/or active voluntary euthanasia. [Editor's note: In November, Oregon became the first state to legalize physician-assisted suicide, allowing doctors to prescribe lethal medication for competent, terminally ill adults who request it.] A distinct possibility also exists that …

Responding To Gender Bias In The Courts: Progress Without Accountability, Suellyn Scarnecchia

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On December 19, 1989, we received the final report of the Michigan Supreme Court Task Force on Gender Issues (task force report). The task force made 91 recommendations, plus an additional 18 joint recommendations with the Task Force on Racial/Ethnic Issues in the Courts. The Michigan Supreme Court, the State Bar of Michigan and other individuals and organizations have made much progress in responding to the recommendations, with one glaring omission-Although jointly recommended by both task forces as "essential to the realization of the goals envisioned in the goals envisioned in the reports," the Supreme Court has failed to appoint …

Unfunded Mandates, Hidden Taxation, And The Tenth Amendment: On Public Choice, Public Interest, And Public Services, Edward A. Zelinsky

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Few contemporary issues concern state and local policymakers as intensely as unfunded mandates. Mayors, county executives, city councilmen, and the professional associations representing them routinely argue that the federal and state governments have, in recent years, imposed at an accelerating rate expensive requirements on municipalities without granting corresponding funds for compliance, thereby irresponsibly straining the fiscal capacity of municipalities, hampering their ability to provide essential services, and improperly infringing upon the scope of local control. The complaints of municipal policymakers have provoked a variety of proposals for restraining unfunded mandates: obligatory disclosure of the projected costs of proposed mandates, requirements …

State Responses To Task Force Reports On Race And Ethnic Bias In The Courts, Suellyn Scarnecchia

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While several states have embarked on studies of race and ethnic bias in their courts, Minnesota is only the sixth to publish its report to date. As Minnesota joins the ranks of states with published reports, it is worthwhile to assess the impact of the five earlier published reports from other states. Final reports have been published in Michigan (1989), Washington (1990), New York (1991), Florida (1991) and New Jersey (1992). The published reports make findings and provide several specific recommendations for change. This article will review the published findings and recommendations of the task forces and will discuss the …

Active V. Passive Euthanasia: Why Keep The Distinction?, Yale Kamisar

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In the past two decades, we have witnessed a "sea change in public, medical, and legislative judgments" about "letting die" and the "right to die." But it is no less true today than it was 35 years ago, when I first wrote about this subject, that in Anglo-American jurisprudence active euthanasia (what used to be called "mercy killing") is murder.

Defining "Disability": The Approach To Follow, Theodore J. St. Antoine

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The definition of "disability" has once again become a central issue in workers' compensation law. I am partly responsible. A decade ago I served as the Governor's Special Counselor on Workers' Compensation. In my Reportto the Cabinet Council on Jobs and Economic Development, I stated: "If I could write on a clean slate, I would prefer to see the Michigan definition brought even closer into the mainstream of American law by declaring that 'disability' means a 'limitation of an employee's wage earning capacity in work suitable to his or her qualifications and training resulting from a personal injury or work …

Are Laws Against Assisted Suicide Unconstitutional?, Yale Kamisar

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On 15 February of this year, shortly after the number of people Dr. Jack Kevorkian had helped to commit suicide swelled to fifteen, the Michigan legislature passed a law, effective that very day, making assisted suicide a felony punishable by up to four years in prison. The law, which is automatically repealed six months after a newly established commission on death and dying recommends permanent legislation, prohibits anyone with knowledge that another person intends to commit suicide from "intentionally providing the physical means" by which the other person does so or from "intentionally participat[ing] in a physical act" by which …

Competition Among Municipalities As A Constraint On Land Use Exactions, Stewart E. Sterk

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The article examines the limitations of competition among municipalities in constraining the abuse of land use exactions and impact fees, arguing that while competition provides some checks, it is insufficient to prevent distortions in land markets. It critiques the Tiebout hypothesis, which assumes that intermunicipal competition leads to efficient allocation of public goods, and highlights how monopoly power in certain land uses undermines this theory. The analysis emphasizes the need for legal constraints to address the exploitation of landowners and ensure exactions align with the external costs of development.

The Model Employment Termination Act: Fairness For Employees And Employers Alike, Theodore J. St. Antoine

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The Model Employment Termination Act (META), which state legislatures are expected to consider in the near future aims to prevent the unfair firing of Amer~ ican workers. At the same time, the Act aims to prevent devastating financial blows to American business. For both employees and employers, META offers streamlined dispute resolution procedures that would be simpler, less costly, and less time-consuming than the civil courts. The essence of the proposal is compromise-not as a matter of political expediency but as a practical, balanced accommodation of the competing worthwhile interests of employers and employees. Workers are entitled to be free …

Marital Property Rights In Transition, Lawrence W. Waggoner

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The subject of "marital property rights" is very timely because those rights are in a state of transition. The term "marital property rights" covers a vast multitude of rights or interests conferred by law on persons who occupy the status of spouse. This lecture is divided into four discrete, yet related segments. The first segment addresses how the law allocates original ownership between spouses in a marriage. The second segment turns to the intestate share of the surviving spouse. This is not a topic that high-powered estate planners get involved in very much because intestate estates are usually fairly small. …