State and Local Government Law Commons^™

Unintended Consequences: Why Congress Should Tread Lightly When Entering The Field Of Family Law, Elizabeth G. Patterson

Faculty Publications

No abstract provided.

Reforming Our Wasteful Hazardous Waste Policy, Jonathan H. Adler

Faculty Publications

Federal hazardous waste regulation and cleanup programs suffer from poor prioritization, insufficient flexibility, high costs, and questionable benefits. Many of these problems are a result of excessive regulatory centralization. The federal government has assumed primary responsibility for hazardous waste policy, placing states in a secondary role, even though the environmental threats posed by hazardous waste are generally quite localized. Hazardous waste itself is not a form of pollution, but rather a “precursor to pollution.” It only becomes an environmental problem when mismanaged, and allowed to contaminate land or water. Properly managed, however, hazardous waste is not a particularly pressing environmental …

When Is Two A Crowd? The Impact Of Federal Action On State Environmental Regulation, Jonathan H. Adler

Faculty Publications

Despite the extensive scholarly literature assessing the proper role of federalism in environmental law, there has been relatively little analysis of why states adopt given environmental policies. There is even less consideration of how federal regulatory choices influence state environmental policy, and how a change in federal policy could influence states' willingness to adopt more environmental protections of their own. This Article seeks to address this gap by describing some of the factors that are likely to influence state environmental policy decisions and delineating how federal environmental policies can affect state policy choices. Specifically, this Article seeks to further the …

The Case Against Smoking Bans, Thom Lambert

Faculty Publications

In recent months, numerous localities and states have banned smoking in public places (i.e., privately owned places to which members of the public are invited). Such sweeping bans are typically justified on grounds that they alleviate externalities, shape individuals' preferences in a desirable manner, and reduce risks. This essay rebuts the externality, preference-shaping, and risk-reduction arguments for smoking bans and contends that such bans are unnecessary and, on the whole, utility-reducing.

Katrina And The Rhetoric Of Federalism, Christina E. Wells

Faculty Publications

The public's desire to assign blame for government's inadequate response to Hurricane Katrina has largely focused on the federal government's slow and seemingly inept response to the storm. In their own defense, federal officials cast federalism--the system that divides power among federal, state, and local governments--as the main culprit underlying their inadequate response to hurricane victims. Had power and authority not been split among three different units of government, the argument goes, the federal government might have been able to act more quickly to save lives and prevent suffering. In effect, federal authorities claim to have been hamstrung by a …

State Sentencing Policy And New Prison Admissions, Ben L. Trachtenberg

Faculty Publications

As the academy's focus has turned to sentencing in the wake of Blakely v. Washington and United States v. Booker, most commentators have continued their benign neglect of actual sentencing practices as they occur in state courts, not to mention whether and how such policies are effective in achieving the goals of criminal justice.This note examines trends in state sentencing policies and prison populations from the perspective of a would-be state reformer hoping to decrease her state's prison budget. Economic pressures, efficiency arguments, and social justice claims have combined to cause some states to desire lower prison populations, but few …

Jurisdictional Mismatch In Environmental Federalism, Jonathan H. Adler

Faculty Publications

Jurisdictional mismatch plagues contemporary environmental law and policy. The division of authority and responsibility for environmental protection between the federal and state governments lacks any cohesive rationale or justification. The federal government regulates in many areas where there is no clear analytical basis for federal involvement. At the same time, the federal government is relatively absent where a stronger federal presence could be justified. Conversely, states are precluded, discouraged, or otherwise inhibited from adopting environmental protections where state efforts would be worthwhile. In addition, state intervention seeps into areas where a dominant federal role would be more defensible. This jurisdictional …

The Fable Of Federal Environmental Regulation: Reconsidering The Federal Role In Environmental Protection, Jonathan H. Adler

Faculty Publications

Cleveland was the site of one of the seminal events in environmental history. On the morning of June 22, 1969, a stray spark ignited oil and debris on the surface of the Cuyahoga River. The resulting fire attracted relatively little local attention in Cleveland, but became a national event. Subsequently, Time, National Geographic, and The New York Times all wrote about the fire. It even inspired a song by Randy Newman. By many accounts, it lit the spark that led to the passage of the Federal Clean Water Act.

There are some problems with the traditional story of the Cuyahoga …

Terminating Calder: "Effects" Based Jurisdiction In The Ninth Circuit After Schwarzenegger V. Fred Martin Motor Co., A. Benjamin Spencer

Faculty Publications

In Calder v. Jones, the Supreme Court clearly and succinctly determined that personal jurisdiction is appropriate over a defendant whose only contact with the forum state is its intentional actions aimed at and having harmful "effects" in the forum state. Illustrating the extent to which the law of personal jurisdiction had been relaxed from the time of Pennoyer v. Neff and International Shoe Co. v. Washington, Calder also extended the reach of state courts by permitting jurisdiction over out-of-state defendants on the strength of the plaintiffs' connections with the forum state. Although Calder provided a welcome and much …

The Trouble With Shadow Government, Howard M. Wasserman

Faculty Publications

No abstract provided.

Structural Principles And Presidential Succession, Howard M. Wasserman

Faculty Publications

No abstract provided.

Court Administration As A Tool For Judicial Reform, Christie S. Warren

Faculty Publications

This paper focuses on court administration as a component of judicial branch reform in the United States and other countries.

Over the past fifty years, state and federal court systems in the United States have undergone a process of significant change. At the beginning of the twentieth century, courts were largely dependent upon the executive branch of government for administrative support and were for the most part externally dominated, disorganized, and poorly managed. By the end of the century, they had undergone a process of administrative innovation and improvement that changed the way they were managed. In other countries, judicial …

Estates & Trusts: 2001 Survey Of Florida Law, Eloisa Rodriguez-Dod

Faculty Publications

This article discusses relevant changes in Florida probate and trust statutes and regulations through mid-2001, updating a prior survey published in 1998. The article highlights and summarizes, some aspects of the elective share provisions and other legislative changes to the Florida Probate Code and Trust Administration Statutes. Amendments to the Florida Probate Rules are also highlighted. Lastly, the article highlights some significant cases decided during mid-2001 that affected this area of the law.

The Quiet Demise Of Deference To Custom: Malpractice Law At The Millenium, Philip G. Peters Jr.

Faculty Publications

According to conventional wisdom, tort law allows physicians to set their own standard of care. While defendants in ordinary tort actions are expected to exercise reasonable care under the circumstances, physicians traditionally have needed only to conform to the customs of their peers. However, judicial deference to physician customs is eroding. Gradually, quietly and relentlessly, state courts are withdrawing this legal privilege. Already, a dozen states have expressly rejected deference to medical customs and another nine, although not directly addressing the role of custom, have rephrased their standard of care in terms of the reasonable physician, rather than compliance with …

Two Degrees Of Speech Protection: Free Speech Through The Prism Of Agricultural Disparagement Laws, Howard M. Wasserman

Faculty Publications

In the wake of a 1989 national television broadcast reporting the alleged cancer risk of a chemical applied to apples on trees, many states passed agricultural product disparagement (APD) statutes. These statutes grant civil causes of action to the growers and sellers of perishable food products, against anyone who speaks negatively or disparagingly, without basis in scientific evidence, about the product's safety. In this Article, Howard M Wasserman explores the interplay between the APD statutes and the First Amendment. First, Mr. Wasserman discusses the three categories of restrictions on the freedom of speech, focusing primarily on private civil tort actions …

The Changing Tradition Of Constitutional Review Of Sign And Billboard Regulation, Ronald H. Rosenberg

Faculty Publications

No abstract provided.

Institutional Analysis Of Municipal Liability Under Section 1983, Michael J. Gerhardt

Faculty Publications

No abstract provided.

Daubert In The States, Paul C. Giannelli

Faculty Publications

No abstract provided.

Romer V. Evans And The Permissibility Of Morality Legislation, S. I. Strong

Faculty Publications

In the late 1950s and early 1960s, two of England's most respected jurists engaged in an on-going debate that would take the legal world by storm. The debate concerned whether and to what extent morality should be reflected in the law and was instigated by the publication of the Wolfenden Report, a study presented to Parliament as it considered whether to repeal certain antisodomy laws in Great Britain. On the one hand was Lord Patrick Devlin, a Lord of Appeal in Ordinary later elevated to the House of Lords, Britain's highest court. Devlin opposed the conclusions contained in the Wolfenden …

Child Care Policy And The Welfare Reform Act, Peter R. Pitegoff

Faculty Publications

This article sketches the 1996 Welfare Reform Act's major changes with particular attention to federally subsidized child care for low-income families.

Urban Revitalization And Community Finance: An Introduction, Peter R. Pitegoff

Faculty Publications

"In his 1933 poem Burn the Cities, Nathanael West, the iconoclastic American novelist and urban radical, portrays the city as a focal point of discontent and of anguish for the world's predicament.2 From Jerusalem to Paris and finally to London, the poem winds through distressing urban imagery with scant opportunity for escape. The implicit modicum of hope is an overthrow of the present order. From older cities abroad, West imports an apocalyptic vision of cities at home."

Criminal Discovery In Oklahoma: A Call For Legislative Action, Rodney J. Uphoff

Faculty Publications

This article first explores the Allen decision and the extent to which Allen changed the law of criminal discovery in Oklahoma. Next, the article examines some of the theoretical and practical problems with the Allen procedures as well as the efforts of the Oklahoma Court of Criminal Appeals to address some of the troublesome questions generated by Allen. Finally, the article discusses the need to replace the Allen provisions with a legislative framework that facilitates pretrial access to information and minimizes “trial ambush,” but without compromising the fair and efficient operation of the adversary system.

Equitable Estoppel Against The Government - The Missouri Experience: Time To Rethink The Concept, Kenneth D. Dean

Faculty Publications

The purpose of this article is to examine the Missouri cases to determine if there are patterns which provide guidance in understanding what constitutes “exceptional” circumstances or “manifest injustice,” to determine if there is a coherent theory underlying the application of the *68 doctrine, and, finally, to propose modifications to the traditional approach.

An Improved Choice: The Virginia Limited Liability Company, James J. Wheaton

Faculty Publications

When the General Assembly adopted the Virginia Limited Liability Company Act (the "Act")' in 1991, Virginia joined just four other states in recognizing the potential of a relatively obscure business entity, the limited liability company ("LLC"). The LLC concept has spread rapidly since the adoption of the Virginia Act early last year. Three other states enacted LLC legislation in 1991, and in just the first few months of 1992, six more states followed the trend.

[...]

Although the number of LLCs formed in Virginia since the Virginia Act took effect last July displays the willingness of Virginia attorneys to recommend …

Legislative Veto Of Administrative Rules In Missouri: A Constitutional Virus, Kenneth D. Dean

Faculty Publications

The purpose of this Article is to examine the constitutionality of the legislative veto as it exists in Missouri, specifically the powers of the JCAR. Part II of the Article traces the history of the JCAR and the various types of powers given to it. Part III of the Article examines the experiences of the United States government and other states to determine their applicability to Missouri. Part IV examines the various grants of power to determine whether they comply with the Missouri constitution.

The New Criminal Discovery Code In Oklahoma: A Two Way Street In The Wrong Direction, Rodney J. Uphoff

Faculty Publications

This article first examines criminal discovery in Oklahoma prior to the Allen decision. Next, section II of the article explores Allen and the court’s justifications for creating a reciprocal discovery system. The article reviews the Allen procedures and similar pre-trial discovery provisions contained in the American Bar Association’s Standards for Criminal Justice and questions whether Allen’s new discovery system will achieve the desired results. Section II also focuses on the constitutionality of the defendant’s disclosure obligations and the adverse effects of mandating such disclosures on the adversary system. Finally, section III of the article proposes an alternative discovery code based …

The State's Interest In The Preservation Of Life: From Quinlan To Cruzan, Philip G. Peters Jr.

Faculty Publications

This article considers the kinds of limits on withholding that each of these policies might plausibly support, compares these limits to the judicial approaches taken in the refusal of treatment cases, and explores how apparent conflicts between these state goals and the interests of the patients might be resolved. Because this article focuses exclusively on the state's interests, however, it necessarily isolates and considers only one portion of a complex problem involving the interests of patients, families, providers, and others. No comprehensive examination of the nature and weight of the patient's interests or those of other involved parties is attempted. …

State Constitutional Protection For Defendants In Criminal Prosecutions, Paul Marcus

Faculty Publications

No abstract provided.

Dialectical Federalism: A Tribute To The West Virginia Supreme Court Of Appeals, Gene R. Nichol

Faculty Publications

No abstract provided.

Eighth Amendment Challenges To The Length Of A Criminal Sentence: Following The Supreme Court “From Precedent To Precedent”, Thomas E. Baker, Fletcher N. Baldwin Jr

Faculty Publications

Defendant A was convicted twice previously of felonies and sentenced to prison for fraudulent use of a credit card ($80.00) and for passing a forged check ($28.36). Upon his third felony conviction for obtaining money by false pretenses ($120.75), he received a mandatory life sentence under a state recidivist statute.