State and Local Government Law Commons^™

Extreme Risk Protection Orders In The Post-Bruen Age: Weighing Evidence, Scholarship, And Rights For A Promising Gun Violence Prevention Tool, Andrew Willinger, Shannon Frattaroli

Faculty Scholarship

Extreme Risk Protection Orders (ERPOs) are civil court orders that temporarily prohibit gun purchase and possession by people who are behaving dangerously and at risk of committing imminent violence. As of September 2023, ERPOs are available in 21 states and the District of Columbia. This Article presents an overview of ERPO laws, the rationale behind their development, and a review and analysis that considers emerging constitutional challenges to these laws (under both the Second Amendment and due process protections) in the post-Bruen era. This Article notes that the presence of multiple constitutional challenges in many ERPO-related cases has confused judicial …

Judicial Resistance To New York's 2020 Criminal Legal Reforms, Angelo Petrigh

Faculty Scholarship

Scholars have examined judiciaries as organizations with their own culture and considered how this organizational culture can form a significant impediment to the implementation of reforms.²² There is a strong connection between judicial culture and a reform’s ability to accomplish its stated goals. Some go so far as to state that most reforms will fail because of the difficulty in altering judicial culture.²³ These studies sometimes focus on legislators misunderstanding the actual effects of legislation when it was drafted, or on the failure to account for particularities in a law’s implementation by undervaluing the fragmentation, adversarial nature, and …

States Of Emergency: Covid-19 And Separation Of Powers In The States, Richard Briffault

Faculty Scholarship

No event in recent years has shone a brighter spotlight on state separation of powers than the COVID-19 pandemic. Over a more than two-year period, governors exercised unprecedented authority through suspending laws and regulations, limiting business activities and gatherings, restricting individual movement, and imposing public health requirements. Many state legislatures endorsed these measures or were content to let governors take the lead, but in some states the legislature pushed back, particularly — albeit not only—where the governor and legislative majorities were of different political parties. Some of these conflicts wound up in state supreme courts.

This Essay examines the states’ …

State Constitutional Rights And Democratic Proportionality, Jessica Bulman-Pozen, Miriam Seifter

Faculty Scholarship

State constitutional law is in the spotlight. As federal courts retrench on abortion, democracy, and more, state constitutions are defining rights across the nation. Despite intermittent calls for greater attention to state constitutional theory, neither scholars nor courts have provided a comprehensive account of state constitutional rights or a coherent framework for their adjudication. Instead, many state courts import federal interpretive practices that bear little relationship to state constitutions or institutions.

This Article seeks to begin a new conversation about state constitutional adjudication. It first shows how in myriad defining ways state constitutions differ from the U.S. Constitution: They protect …

Inconceivable Families, Malinda L. Seymore

Faculty Scholarship

Basic biology tells us that each child has no more than two biological parents, one who supplies the egg and one who supplies the sperm. Adoption law in this country has generally followed biology, insisting only two parents be legally recognized for each child. Thus, every adoption begins with loss. Before a child can be adopted, that child must first be cut off from their family of birth, rendering the equation of adoption one of subtraction, not addition. This Article examines the biological model of adoption that insists on mimicking the nuclear family—erasing one set of parents and replacing them …

No-One Receives Psychiatric Treatment In A Squad Car, Judy A. Clausen, Joanmarie Davoli

Faculty Scholarship

No abstract provided.

Civil Procedure Update 2022 (Handout And Slide Deck), Verónica C. Gonzales, Julio C. Romero

Faculty Scholarship

This presentation aims to 1) review recent amendments to the state and federal rules of civil procedure; 2) help you understand the impact of recent federal and state published opinions interpreting and applying the rules of civil procedure; and 3) assess your understanding of the updates.

Evaluating Legal Needs, Luz E. Herrera, Amber Baylor, Nandita Chaudhuri, Felipe Hinojosa

Faculty Scholarship

This article is the first to explore legal needs in the Rio Grande Valley of Texas––a region that is predominantly Latinx and has both rural and urban characteristics. There are few legal needs assessments of majority Latinx communities, and none that examine needs in areas that are also U.S. border communities. Access to justice studies often overlook this area of the U.S. and this segment of the population despite their unique qualities. Latinos are projected to constitute the largest ethnic group in the country by 2060, making it imperative that we study access to justice-related assets, needs, opportunities, and barriers …

Sheriffs, State Troopers, And The Spillover Effects Of Immigration Policing, Huyen Pham, Pham Hoang Van

Faculty Scholarship

As the Biden Administration decides whether to continue the 287(g) program (the controversial program deputizing local law enforcement officers to enforce federal immigration laws), our research shows that the program has broader negative effects on policing behavior than previously identified. To date, debate about the 287(g) program has focused exclusively on the policing behavior of law enforcement agencies like sheriff’s offices that sign the agreements, and on concerns that these signatory local enforcement agencies (“LEAs”) engage in racial profiling. Our research shows that the agreements also negatively affect the behavior of nearby, nonsignatory law enforcement agencies. Using 18 million traffic …

Latinxs Reshaping Law & Policy In The U.S. South, Luz E. Herrera, Pilar M. Hernández-Escontrías

Faculty Scholarship

This article addresses the key law and policy levers affecting Latinxs in what the U.S. Census Bureau designates as the South. Since the rise of the Latinx population from the 1980s onward, few legal scholars and researchers have participated in a sustained dialogue about how law and policy affects Latinxs living in the South. In response to this gap in legal research, this article provides an overview of the major law and policy challenges and opportunities for Latinxs in this U.S. region. Part II examines the geopolitical landscape of the South with special focus on the enduring legacy of Jim …

Cities, Preemption, And The Statutory Second Amendment, Joseph Blocher

Faculty Scholarship

Although the Second Amendment tends to dominate the discussion about legal limits on gun regulation, nothing has done more to shape the state of urban gun law than state preemption laws, which fully or partially limit cities’ ability to regulate guns at the local level. The goals of this short Essay are to shed light on this “Statutory Second Amendment” and to provide a basic framework for evaluating it.

How Federalism Built The Fbi, Sustained Local Police, And Left Out The States, Daniel C. Richman, Sarah Seo

Faculty Scholarship

This Article examines the endurance of police localism amid the improbable growth of the FBI in the early twentieth century when the prospect of a centralized law enforcement agency was anathema to the ideals of American democracy. It argues that doctrinal accounts of federalism do not explain these paradoxical developments. By analyzing how the Bureau made itself indispensable to local police departments rather than encroaching on their turf, the Article elucidates an operational, or collaborative, federalism that not only enlarged the Bureau’s capacity and authority but also strengthened local autonomy at the expense of the states. Collaborative federalism is crucial …

America's Lawyerless Courts: Legal Scholars Work To Recommend Large-Scale Changes In Lawyerless Civil Courts, Anna E. Carpenter, Colleen F. Shanahan, Jessica K. Steinberg, Alyx Mark

Faculty Scholarship

At approximately 9:00 on most weekday mornings, thousands of state civil courts open their doors and begin hearing cases. These cases involve hundreds of thousands of people acrossthe country. State civil courts are the core of America's civil justice system, whether measured by a raw number of cases or courts'impact on ordinary people's lives. These courts handle 98% of all civil matters filed each year – around 20 million cases.

Many people are pulled into civil court because they cannot pay their rent or debts. Many more come to court for help with intimate and family relationships, including those seeking …

Election Law Localism And Democracy, Richard Briffault

Faculty Scholarship

American federal and state elections are largely run by local officials. Although election law is almost entirely determined by the federal government and the states, elections are actually conducted by thousands of different county and city elections offices. This decentralization of election administration has often, and fairly, been criticized as resulting in undesirable interlocal variation in the application of election rules, inefficiency, and racial discrimination. Yet, in 2020, local election administration, particularly in large urban areas, was a source of strength. Local officials proved to be resilient, innovative, and attentive to local conditions. The record-high turnout in the face of …

Whose Water? Corporatization Of A Common Good, Vanessa Casado-Pérez

Faculty Scholarship

This chapter encourages readers to think of agricultural communities in the era of climate change-induced droughts and population growth similar to when western Pennsylvania’s steel industry collapsed in the 1980s. If water must flow uphill to money, it should not leave a dust bowl behind. While this chapter’s proposals to address the effects on community build on examples of water reallocation where those effects have been addressed, both the just-transition literature and the experiences of some of the towns successfully adapting to abrupt changes in their economic tissue can offer lessons for areas suffering big water losses. In addition, privatization …

Regulating Mobility Limitations In The Franchise Relationship As Dependency In The Joint Employment Doctrine, Andrew Elmore

Faculty Scholarship

Franchisors often impose exhaustive operational standards on franchisees, and enforce those standards by restricting the mobility of their franchisees and their franchisees' employees. But courts often ignore mobility limits when applying joint employer doctrine. This Article argues that courts and agencies should be more likely to find, and presume, that franchisors and their franchisees are joint employers under federal and state employment law based on proof that a franchisor restricts the mobility of franchisees or their employees. In so doing, this Article traces how the Chicago School's efficiency arguments in favor of relaxing antitrust law enforcement of vertical restraints developed …

Labor's New Localism, Andrew Elmore

Faculty Scholarship

Millions of workers in the United States, disproportionately women, immigrants, and people of color, perform low-paid, precarious work. Few of these workers can improve their workplace standards because the National Labor Relations Act ("NLRA") does not sufficiently protect their right to form unions and collectively bargain. Lacking sufficient influence in federal and state government to strengthen labor and employment law, unions and worker centers have increasingly sought to build power in cities. The shift to local labor lawmaking has delivered local minimum wage, paid sick leave, and fair scheduling ordinances covering millions of low-wage workers, as well as groundbreaking unionization …

State Joint Employer Liability Laws And Pro Se Back Wage Claims In The Garment Industry: A Federalist Approach To A National Crisis, Andrew Elmore

Faculty Scholarship

The garment industry, one of the largest manufacturing bases in the United States, withholds millions of dollars annually from its employees in unpaid minimum wages. However, courts have not clearly addressed the question of whether the Fair Labor Standards Act, which establishes federal wage and hour laws, makes garment manufacturers and retailers liable for the minimum wage violations of their contractors. The U.S. Department of Labor (DOL), the federal agency that enforces wage and hour laws, investigates few garment contractors, and collects little of the total owed back wages. Further, the DOL's relationship with the INS compromises its ability to …

Civil Procedure Update 2021: New Mexico Annual Judicial Conclave, Verónica C. Gonzales

Faculty Scholarship

These materials are part of a presentation on civil procedure given to magistrate, district, appellate, and tribal court judges, justices, and staff attorneys in New Mexico courts. These materials include the language of approved and proposed amendments to the state and federal rules of civil procedure as well as summaries of relevant appellate cases issued by the New Mexico Supreme Court and Court of Appeals, the Supreme Court of the United States, and the Supreme Court of the Navajo Nation between May 1, 2021 to September 1, 2021.

Reclaiming The Streets, Vanessa Casado-Pérez

Faculty Scholarship

Pedestrians have been getting the short end of the stick in street policies and regulations. Drivers and cars dominate our streets even though automobiles’ externalities kill thousands of people every year. Given the environmental, health, safety, and community effects of cars, municipalities should embrace a policy that puts pedestrians at the center and produces more miles of wider, well-maintained sidewalks. Sidewalks make communities greener, healthier, safer, more socially connected, and even, wealthier. COVID-19 lockdowns have shown both the relevance of sidewalks, as well as the possibility of pedestrians regaining space currently allocated to cars by widening sidewalks.

This Essay identifies, …

Visible Policing: Technology, Transparency, And Democratic Control, Hannah Bloch-Wehba

Faculty Scholarship

Law enforcement has an opacity problem. Police use sophisticated technologies to monitor individuals, surveil communities, and predict behaviors in increasingly intrusive ways. But legal institutions have struggled to understand—let alone set limits on—new investigative methods and techniques for two major reasons. First, new surveillance technology tends to operate in opaque and unaccountable ways, augmenting police power while remaining free of meaningful oversight. Second, shifts in Fourth Amendment doctrine have expanded law enforcement’s ability to engage in surveillance relatively free of scrutiny by courts or by the public. The result is that modern policing is not highly visible to oversight institutions …

Civil Procedure Update 2021 (Handout And Slide Deck), Verónica C. Gonzales, Julio C. Romero

Faculty Scholarship

This presentation aims to 1) review recent amendments to the state and federal rules of civil procedure; 2) help you understand the impact of recent federal and state published opinions interpreting and applying the rules of civil procedure; and 3) assess your understanding of the updates.

Takings Localism, Nestor M. Davisdson, Timothy M. Mulvaney

Faculty Scholarship

Conflicts over “sanctuary” cities, minimum wage laws, and gender-neutral bathrooms have brought the problematic landscape of contemporary state preemption of local governance to national attention. This Article contends that more covert, although equally robust, state interference can be found in property, with significant consequences for our understanding of takings law.

Takings jurisprudence looks to the states to mediate most tensions between individual property rights and community needs, as the takings federalism literature recognizes. Takings challenges, however, often involve local governments. If the doctrine privileges the democratic process to resolve most takings claims, then, that critical process is a largely local …

The Democracy Principle In State Constitutions, Jessica Bulman-Pozen, Miriam Seifter

Faculty Scholarship

In recent years, antidemocratic behavior has rippled across the nation. Lame-duck state legislatures have stripped popularly elected governors of their powers; extreme partisan gerrymanders have warped representative institutions; state officials have nullified popularly adopted initiatives. The federal constitution offers few resources to address these problems, and ballot-box solutions cannot work when antidemocratic actions undermine elections themselves. Commentators increasingly decry the rule of the many by the few.

This Article argues that a vital response has been neglected. State constitutions embody a deep commitment to democracy. Unlike the federal constitution, they were drafted – and have been repeatedly rewritten and amended …

Preemption: The Continuing Challenge, Richard Briffault

Faculty Scholarship

The decade of the 2010s witnessed the emergence and rapid spread of aggressive state preemption of local government actions. This “new preemption” consists of intentional, extensive, and sometimes punitive state efforts to block local action across a wide range of domains—from firearms regulation to the treatment of immigrants, workplace equity to environmental protection, the scope of anti-discrimination laws to the regulation of the sharing economy. This new preemption has roots going back to the turn of this century, and began to build decades ago, but it took off most dramatically after the Republican takeover of many state governments in 2010, …

State-Local Litigation Conflicts, Margaret H. Lemos

Faculty Scholarship

No abstract provided.

School "Safety" Measures Jump Constitutional Guardrails, Maryam Ahranjani

Faculty Scholarship

In the wake of George Floyd’s murder and efforts to achieve racial justice through systemic reform, this Article argues that widespread “security” measures in public schools, including embedded law enforcement officers, jump constitutional guardrails. These measures must be rethought in light of their negative impact on all children and in favor of more effective—and constitutionally compliant—alternatives to promote school safety. The Black Lives Matter, #DefundthePolice, #abolishthepolice, and #DefundSchoolPolice movements shine a timely and bright spotlight on how the prisonization of public schools leads to the mistreatment of children, particularly children with disabilities, boys, Black and brown children, and low-income children. …

Design Justice In Municipal Criminal Regulation, Amber Baylor

Faculty Scholarship

This article explores design justice as a framework for deeper inclusion in municipal criminal court reform. Section I provides a brief summary of a typical litigant’s path through modern municipal courts. Then, section I explores the historic role of municipal courts, the insider/outsider dichotomy of municipal criminal regulation, and the limitations of past reform efforts. Section II shifts into an overview of participatory design and discusses the new emergence of design justice. Within the discussion of design justice, the article focuses on three precepts of design justice: excavating the history and impact of the courts, creating tools for participation, and …

The City’S Second Amendment, Dave Fagundes, Darrell A. H. Miller

Faculty Scholarship

Cities are increasingly common sites of contestation over the scope and meaning of the Second Amendment. Some municipalities have announced their opposition to firearm restrictions by declaring themselves Second Amendment sanctuaries. Others have sought to curtail gun violence by passing restrictive local regulations. Still others have responded to police violence by moving to demilitarize, disarm, or even disband their police forces. The burgeoning post-Heller legal literature, though, has largely overlooked the relationship between cities, collective arms bearing, and the Second Amendment. In sum, to what extent do cities themselves have a right to keep and bear arms? This Article tackles …

Walling Out: Rules And Standards In The Beach Access Context, Timothy M. Mulvaney

Faculty Scholarship

The overwhelming majority of U.S. states facially allocate exclusionary rights and access privileges to beaches by categorically deciding whom to wall in and whom to wall out. In the conventional terms of the longstanding debate surrounding the design of legal directives, such “rules” are considered substantively determinant ex ante and, in application, analogically transparent across similarly situated cases. Only a small number of jurisdictions have adopted “standards” in the beach access context, which—again, on the conventional account—sacrifice both determinacy and transparency for the ability to accommodate ex post the complexities of individual cases. This Article contends that beach access policy …