State and Local Government Law Commons^™

State Control Of Great Lakes Water Diversion, J. David Prince

Faculty Scholarship

This article focuses on the law relevant to the issue of interbasin diversion of Great Lakes water, the policies reflected in that law, and the limitations of the law on such diversions and on the ability of the Great Lakes states to control proposed diversions. It concludes with an argument for regional as opposed to national or state-by-state decision making on the issue of diversions and a suggested mechanism for facilitating such regional decision making.

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 …

Our Localism: Part I – The Structure Of Local Government Law, Richard Briffault

Faculty Scholarship

Two themes dominate thejurisprudence of American local government law: the descriptive assertion that American localities lack power and the normative call for greater local autonomy. The positive claim of local legal powerlessness dates back to the middle of the nineteenth century and continues to be affirmed by treatises and commentators as a central element of state-local relations. The argument for local selfdetermination has a comparably historic pedigree and broad contemporary support. The scholarly proponents of greater local power – what I will call "localism" – make their case in terms of economic efficiency, education for public life and popular political …

Our Localism: Part Ii – Localism And Legal Theory, Richard Briffault

Faculty Scholarship

A central theme in the literature of local government law is that local governments are powerless, incapable of initiating programs on behalf of their citizens or of resisting intrusions by the state. How can scholars make this claim when under state legislation and federal and state judicial decisions local autonomy plays a critical role in the law of school finance, land-use regulation and local government formation and preservation? As we have seen, a partial response turns on the varying assessments of the nature of power. But much of the answer also has to do with differing assumptions about the underlying …

Introduction: Third Abraham L. Pomerantz Lecture: The First Amendment And Government Regulation Of Economic Markets, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

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 …

Vanessa Redgrave V. Boston Symphony Orchestra, Inc.: A Breach Of Constitutional Dimension, Maria O'Brien

Faculty Scholarship

In Vanessa Redgrave v. Boston Symphony Orchestra, Inc., 399 Mass. 93 (1987), the Supreme Judicial Court (SJC) issued an important ruling on the parameters of the Commonwealth's relatively new Civil Rights Act (MCRA)' by answering two questions certified to it by the United States Court of Appeals for the First Circuit. The SJC held that MCRA is essentially the state equivalent of 42 U.S.C. §1983 without the federal "state action" requirement.' This article briefly examines the SJC's decision in Redgrave in light of Massachusetts precedent and the vast federal experience with §1983 actions (Section I) and then considers the …

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 …

Some Reflections On State Constitutions, Joseph R. Grodin

Faculty Scholarship

No abstract provided.

State-Local Relations And Constitutional Law, Richard Briffault

Faculty Scholarship

A persistent theme in the literature on state-local relations has been the plenary power of state governments and the legal powerlessness of local governments. The "black letter" rules of state-local relations are that the state governments enjoy complete hegemony over their political subdivisions, that local governments are mere "creatures" of the states, with only those powers that the states delegate to them, and there is no such thing as an "inherent right" of local self-government.

The Dual State - Federal Regulation Of Financial Institutions - A Policy Proposal, Tamar Frankel

Faculty Scholarship

In 1983 South Dakota passed an Act permitting its chartered banks to sell and underwrite insurance.¹ The issue that I address is whether states should have the power to pass such a law. I am not concerned here with interpretation of positive law but with public policy implications.

The issue is a matter of congressional policy. Like most financial intermediaries banks are regulated by both state and federal laws,² but it is clear that the federal government has the power to preempt state laws that regulate banks. Therefore, whether South Dakota can pass the statute is not a …

Revolutionary Constitutionalism In The Era Of The Civil War And Reconstruction , Robert J. Kaczorowski

Faculty Scholarship

The meaning and scope of the fourteenth amendment and the Civil Rights Act of 1866 remain among the most controversial issues in American constitutional law. Professor Kaczorowski contends that the issues have generated more controversy than they warrant, in part because scholars analyzing the legislative history of the amendment and statute have approached their task with preconceptions reflecting twentieth century legal concerns. He argues that the most important question for the framers was whether national or state governments possessed primary authority to determine and secure the status and rights of American citizens. Relying on records of the congressional debates as …

The Constitutional Vulnerability Of American Local Government: The Politics Of City Status In American Law, Joan C. Williams

Faculty Scholarship

No abstract provided.

The Invention Of The Municipal Corporation: A Case Study In Legal Change, Joan C. Williams

Faculty Scholarship

No abstract provided.

Federal Jurisdiction Over Preemption Claims: A Post-Franchise Tax Board Analysis, Ronald J. Mann

Faculty Scholarship

As Congress uses the commerce power to regulate areas of the economy previously controlled by the states, federal statutes conflict with state law with increasing frequency. When such conflicts occur, federal law "preempts" the state law under the supremacy clause of the United States Constitution. Litigants who foresee a preemption issue often seek a declaratory judgment of preemption or nonpreemption in order to clarify their rights and duties. This Note addresses the scope of federal question jurisdiction over declaratory judgment actions in which preemption is the only federal question raised.

Regulatory Reform: Assessing The California Plan, Marsha N. Cohen

Faculty Scholarship

No abstract provided.

Pretrial Procedure Under The Massachusetts Rules Of Criminal Procedure, Eric D. Blumenson, Eva Nilsen

Faculty Scholarship

The Massachusetts Rules of Criminal Procedure became effective on July 1, 1979. While many of their provisions helpfully codify previously existing practice and case law, the Rules have in some areas effected a major transformation of criminal procedure. This article examines the changes wrought by the Rules in the pretrial arena, with emphasis on those areas that remain somewhat unfamiliar to the practitioner or untested against constitutional challenge in the courts. While the Rules appear to have done an admirable job of simplifying and rationalizing the criminal trial process, their emphasis on mutuality and reciprocity have in some cases created …

Multistate Conflict-Of-Law Rules: Continuing The Dialogue With Professors Trautman And Sedler, Aaron Twerski, R. Mayer

Faculty Scholarship

No abstract provided.

The Burger Court, "State Action," And Congressional Enforcement Of The Civil War Amendments, Larry Yackle

Faculty Scholarship

There is an uncertainty abroad in the land. At its root, to speak boldly, lies the fear that the fate of individual liberty in this Nation is in the hands of a Supreme Court whose newest members, cast in the intellectual likeness of a disgraced Executive, lack sufficient sensitivity to libertarian ideals to preserve the American democracy as we know it. Particularly for those who found in the Warren Court the moral leadership necessary to move the country toward a just resolution of the perplexing social problems that plague us all, the skies seem dark. Our constitutional system has always …

Environmental Law And Construction Project Management, Michael S. Baram

Faculty Scholarship

Construction project management generally proceeds through sequential stages of project conception, planning, site acquisition, design and construction. Traditionally, citizens and public officials have relied on various elements of American common law to prevent, abate or get compensation for injuries resulting from the final construction stage of project management. Common law concepts of nuisance, negligence and trespass have been applied by the courts to situations where essentially private rights have been infringed by debris, runoff, noise, vibrations, structural damage and other byproducts of the construction process. The common law has therefore indirectly served as an environmental control on construction activities in …

To Where Does One Attach The Horses?, Aaron Twerski

Faculty Scholarship

No abstract provided.

Common Sense And Conflict Of Laws: A Welcome Change, Aaron Twerski

Faculty Scholarship

No abstract provided.

Enlightened Territorialism And Professor Cavers: The Pennsylvania Method, Aaron Twerski

Faculty Scholarship

No abstract provided.

The Governor's Private Eyes, Tamar Frankel

Faculty Scholarship

In his inaugural speech on January 3, 1967, Florida Governor Claude Kirk declared a War on Crime. For this purpose he announced the creation of a unique War on Crime Program. Its activities were to include a Citizen's Awareness Program, but its main function was directed to the investigation of crimes. As the Program's director, the Governor appointed Mr. George Wackenhut, the president of the Wackenhut Corporation, a large private investigation firm. Mr. Wackenhut agreed to provide his services for one dollar a year; his corporation was simultaneously retained to supply the Program with the necessary administrative facilities and investigative …

The Corporate Principal Place Of Business: A Resolution And Revision, J. Clifton Fleming Jr.

Faculty Scholarship

No abstract provided.