State and Local Government Law Commons^™

The Right To Trial By Jury Shall Remain Inviolate: Jury Trials In Civil Actions In Georgia’S Courts, David E. Shipley

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Trials, though rare, “shape almost every aspect of procedure,” and the jury trial is a distinctive feature of civil litigation in the United States. The Seventh Amendment of the U.S. Constitution ‘preserves’ the right to jury trial “[i]n suits at common law, where the value in controversy shall exceed twenty dollars.” Even though this amendment does not apply to the states, courts in the states “honor the right to the extent it is created in their constitutions or local statutes.”

The Georgia Constitution provides that “[t]he right to trial by jury shall remain inviolate,” and Georgia’s appellate courts have shown …

Incomplete Streets, Michael Lewyn

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Over 1700 complete streets policies have been adopted by state and local government; these policies typically provide that streets shall be designed to benefit all users, not just motorists. This article analyzes some complete streets policies, and concludes that even above-average policies are often too vague and underfunded to significantly change the status quo. The article suggests a variety of reforms that might make complete streets policies more effective.

A Graphic Novel About Housing Policy, Michael Lewyn

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A review of Build, Baby, Build by Bryan Caplan

Can State Legislatures Strip Federal Courts Of Jurisdiction To Review State Laws?, Matthew I. Hall, Eliza K. Hall

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For more than a century, federal courts have relied on the Ex parte Young doctrine to provide authority to protect individual constitutional rights against state infringement. Ex parte Young provides the primary mechanism for federal judicial review of allegedly unconstitutional state laws, permitting persons whose federal rights are affected by state law to seek an injunction in federal court against the state officials charged with enforcing the law. By some accounts, the Ex parte Young doctrine is an exception to sovereign immunity; by others, it is merely an example of the “traditional tool of equity” known as the anti-suit injunction. …

See That In A Small Town: Visual Rhetoric, Race, And Legal History In Tennessee, Becky L. Jacobs

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When it comes to racism and the law, visual rhetoric has played and still plays an outsized role. Jason Aldean’s music video for “Try That in a Small Town” aptly illustrates this thesis. The video shows Aldean and his band performing in front of the Maury County Courthouse in Columbia, Tennessee, the same location where, in 1918, a white mob violently lynched a young Black man. To some (white) viewers, the Maury County Courthouse might symbolize justice. In combination with the song’s lyrics, however, the courthouse conjures up visuals of the lynching that occurred outside its doors, reminding viewers that …

Commentary: Dan Mandelker—A Land-Use Legacy Unlike Any Other, Patricia E. Salkin

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It is an honor to share thoughts about the importance of Professor Daniel Mandelker’s legacy to the field of land-use and zoning law. The word “legacy” means, among other things, “something that is part of your history or that remains from an earlier time.” At ninety-two, he was the longest actively teaching land use law professor in the United States. His academic career began in 1949 when he was appointed an Assistant Professor at Drake Law School, with relatively short stints at the University of Indiana Law School and Columbia Law School, followed by his appointment at Washington University School …

New York’S Professor John R. Nolon: A National Leader In Land Use Law With A Large Impact Across The Hudson Valley And The State Of New York, Patricia E. Salkin, Samuel Stewart

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As Professor John R. Nolon steps down from active law teaching, this article reflects not only on his contributions as a national thought leader in the field, but also on how he has a hand in changing the land use and conservation patterns in New York while promoting affordable housing and combating discrimination.

Using Youtube To Explain Housing, Michael Lewyn

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In 2021, the author ran for Borough President of Manhattan, New York. The author tried to his scholarship into his campaign by producing over twenty Youtube videos, most of which addressed land use and housing policy. The article describes the videos, and evaluates their usefulness.

State Constitutional Law: Standing To Litigate Public Rights In Georgia Courts, Randy Beck

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State courts interpreting state constitutions face the recurring issue of how much weight to afford Supreme Court of the United States precedent addressing comparable questions under the United States Constitution. At one end of the spectrum, many state courts routinely engage in what federal Judge Jeffrey Sutton calls “lockstepping,” importing federal doctrine wholesale into state decisional law. For a court engaged in lockstepping, concepts like freedom of speech or equal protection of the laws under a state constitution mean whatever the U.S. Supreme Court interprets them to mean under the federal Constitution, even if the state provision differs in potentially …

The Color Of Local Government: Observations Of A Brown Buffalo On Racial Impact Statements In The Movement For Water Justice, Tom I. Romero Ii

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This Article advocates for the adoption of racial impact statements ("RIS") in local government decision making, particularly among water utilities. Situated in the larger history of water and climate injustice in Colorado and the arid American West, this Article examines ways that racially minoritized communities engage and contest legal and political water regimes. The Article then explores how water utilities could use RISs in the acquisition, treatment, and delivery of drinking water. If made a part of the everyday work of water utilities, RISs provide a useful tool to center the history and lived experiences of racially minoritized communities battling …

The Limits Of Equity, Michael Lewyn

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"Equity" is a common buzzword in urban planning circles. However, nearly any land use decision can be justified as more equitable than the alternatives.

The Nature Of Standing, Matthew I. Hall, Christian Turner

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Standing to raise a claim before a judicial tribunal is notoriously contested. Federal courts during the last century developed an increasingly rule-like and rigid doctrine around the concept of private injury to govern access to the federal forum. Some states followed the federal lead. Others have created important exceptions, and even in federal courts, issues like organizational standing, legislative standing, and standing of qui tam relators have proved controversial. We describe a broader taxonomy of agenda control rules, of which standing rules are a special case, to understand why and how courts and other institutions govern their choices of what …

The Fate Of State Investor Protection, Benjamin P. Edwards

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In June 2019, the Securities & Exchange Commission made significant changes to the regulation of investment advice, issuing regulations and new interpretations of the Investment Advisers Act of 1940. Industry advocates have argued that states lack power to enact their own regulations on the theory that various federal statutes and regulations combine to preempt and sharply limit state authority. This article examines the current state of reforms around the country and the policy and legal arguments for and against limiting state efforts to raise the standards for investment advice.

Diploma Privilege And The Constitution, Patricia E. Salkin, Claudia Angelos, Sara J. Berman, Mary Lu Bilek, Carol L. Chomsky, Marsha Griggs, Joan W. Howarth, Eileen Kaufman, Deborah Jones Meritt, Judith Wegner, Andrea Curcio

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The COVID-19 pandemic and resulting shutdowns are affecting every aspect of society. The legal profession and the justice system have been profoundly disrupted at precisely the time when there is an unprecedented need for legal services to deal with a host of legal issues generated by the pandemic, including disaster relief, health law, insurance, labor law, criminal justice, domestic violence, and civil rights. The need for lawyers to address these issues is great but the prospect of licensing new lawyers is challenging due to the serious health consequences of administering the bar examination during the pandemic.

State Supreme Courts are …

Death Need Not Part Owners And Their Pets: Regulating Pet Cemeteries Through Zoning Regulation, Patricia E. Salkin, Sydney Gross

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Pet ownership in the United States has grown substantially over the years. In the past, when a family pet died, it was typically buried in the back yard or cremated by the local veterinarian who might return the ashes to the owner if requested. Today the relationship between people and their pets is different. In many cases pets are treated like members of the family, and a growing number of people wish to be buried alongside their pet either in a burial ground for human remains or for animal remains. Others wish to inter their pets in a specially designated …

The Law Of The Eruv, Michael Lewyn

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Describes case law governing municipal regulation of the eruv (an artificial enclosure designed to allow observant Jews to carry on the Jewish Sabbath). The article focuses on First Amendment case law, and concludes that a municipality may prohibit eruvin only pursuant to a regulation that is enforced against comparable secular signs.

A Euclid Dissent, Michael Lewyn

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In Euclid v. Ambler Realty, the Supreme Court upheld the constitutionality of zoning, including zoning that excluded apartment houses and retail businesses. Although the decision was not unanimous, the Euclid minority did not write a formal dissent. The purpose of this article is to show what such a dissent should have looked like.

Mitigating Climate Change Through Transportation And Land Use Policy, Alejandro E. Camacho, Melissa L. Kelly, Nicholas J. Marantz, Gabriel Weil

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A number of U.S. state and local governments have adopted strategies for reducing greenhouse gas (GHG) emissions from transportation and land development. Although some have made significant progress in reducing GHG emissions from the power sector, transportation emissions in most states continue to rise. This Article details the range of existing and proposed state interventions to reduce transportation sector GHG emissions, analyzes the trade offs of these strategies, and offers recommendations to improve and supplement such initiatives, including strategic use of planning mandates and funding and technical assistance. Additionally, regulating land use, shifting transportation spending, removing barriers to implementing road …

Understanding The Gap Between Law And Practice: Barriers And Alternatives To Tailoring Adult Guardianship Orders, Eleanor Lanier

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An overwhelming majority of state laws governing adult guardianship require an inquiry into whether less restrictive alternatives may be available/appropriate and, where guardianship is necessary, that guardianship orders be designed to maximize theindependence of the person subject to the guardianship. However, the best available data indicates that most guardianship orders are plenary," removing rights on a wholesale basis rather than individually tailoring the guardianship. To many observers, the imposition of plenary guardianship contradicts the unambiguous statutory language in most states favoring a tailored approach that implements guardianships to maximize an individual's independence and autonomy.

The literature is rife with examples …

Incentive Compatible Climate Change Mitigation: Moving Beyond The Pledge And Review Model, Gabriel Weil

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Climate change represents a global commons problem, where individuals, businesses, and nation-states all lack sufficient incentives to reduce their greenhouse gas emissions to levels consistent with meeting their collectively agreed upon mitigation goals. The current "pledge and review" paradigm for global climate change mitigation, which many see as a major breakthrough, relies primarily on moral pressure, reputational incentives, and global public opinion to foster cooperation on mitigation efforts over and above those driven by maximization of narrow conceptions of national interests. Given the scale of the emissions reductions required to meet stated mitigation goals, the substantial economic costs of deep …

U.S. State Copyright Laws: Challenge And Potential, Marketa Trimble

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With copyright law in the United States lying primarily in the realm of federal law, the laws of the U.S. states concerning copyright do not typically attract significant attention from scholars, practitioners, and policy makers. Some recent events have drawn attention to state copyright laws – for example, litigation against a satellite radio provider for infringement of state common-law public performance rights in pre-1972 sound recordings. However, in general, state copyright laws remain largely in the shadow of federal copyright law, and state law is typically not viewed as a particularly useful vehicle for pursuing the policies that copyright law …

Droit De Suite, Copyright’S First Sale Doctrine And Preemption Of State Law, David E. Shipley

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The primary focus of this article is whether California’s forty-year old droit de suite statute; the California Resale Royalty Act (CRRA), is subject to federal preemption under the Copyright Act. This issue is now being litigated in the Ninth Circuit, and this article concludes that the CRRA is preempted under section 301(a) of the Copyright Act and under the Supremacy Clause because it at odds with copyright’s well-established first sale doctrine.

The basic idea of droit de suite is that each time an artist’s work is resold by a dealer or auction house, the artist is entitled to a royalty, …

The Criminalization Of Walking, Michael Lewyn

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The simple act of walking is sometimes criminalized in the United States. Anti-jaywalking statutes and ordinances—originally motivated by auto-industry lobbyists in the 1920s—call for fines and, sometimes, imprisonment for crossing the street. Additionally, some localities have interpreted statutes against “child neglect” to encompass a parent’s decision to let their kid walk outside alone. The result of this criminalization? Such policies have reduced pedestrian liberty, increased automobile traffic and pollution, and created a disincentive for physical activity in the midst of an obesity and diabetes epidemic. In addition to discussing these effects, this Article argues that the purported safety benefits of …

The Middle Class, Urban Schools, And Choice, Michael Lewyn

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It is common knowledge that middle- and upper-class parents tend to disfavor urban public schools, and often move to suburbs in order to avoid having to send their children to those schools. Thus, the condition of urban public schools contributes to suburban sprawl- that is, the movement of people and jobs from city to suburb.  This article discusses a variety of possible solutions to the unpopularity of urban schools among middle-class parents.  Part I of the Article suggests that this problem is a cause as well as a result of middle-class flight: that is, urban schools have poor reputations because …

Does The Threat Of Gentrification Justify Restrictive Zoning?, Michael Lewyn

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Historically, progressives have opposed restrictive zoning, arguing that by restricting the housing supply to high-end housing, zoning reduces the supply of housing available to lower-income Americans. But recently, some progressives have suggested that new market-rate housing facilitates gentrification and displacement of lower-income renters. This article critically examines that theory.

The Middle Class, Urban Schools And Choice, Michael Lewyn

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Urban schools tend to be less attractive to middle-class parents than suburban schools; as a result, the public school system generates suburban sprawl.  This talk discusses both egalitarian and market-oriented means of making cities more attractive to parents.

Is An Apartment A Nuisance?, Michael Lewyn

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In an ongoing Texas lawsuit, some homeowners allege that a nearby apartment building will constitute a nuisance. This article asserts that courts should generally reject nuisance claims against multifamily housing, based on the public interest in favor of increased housing supply and infill development.

Further Developments In Land Use Ethics, Patricia E. Salkin, Darren Stakey

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Ethical considerations continue to play a fundamental role in shaping the course of land use and developmental regulatory proceedings throughout the country. From an innocuous donation by one public official to his alma mater, to the outright bribery of a former mayor, the past year has been rife with a range of conduct implicating professional responsibility and land use.

Climate Change Adaptation And Mitigation: A Local Solution To A Global Problem, Sarah J. Adams-Schoen

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Local land use laws offer powerful tools for climate change adaptation and mitigation. However, notwithstanding New York municipalities’ many impressive efforts, local laws are not yet being utilized sufficiently to create disaster-resilient or disaster-adaptive communities. New York City has done substantially more than many other cities, including, critically, setting specific CO2 emissions reduction targets and amending zoning and building codes. But, in light of the evidence of climate change and its impacts, local decision makers, resource managers, and planners throughout the state must ask whether we are doing enough. Failure to do so will continue to be costly in terms …

The Executive And The Environment: A Look At The Last Five Governors In New York, Patricia E. Salkin

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Gubernatorial leadership is the single most important indicator of how sustainable New York will be when it comes to issues of environmental protection and conservation. In preparing for the Kerlin Lecture, one of the things that struck (the author) is that New York governors for at least the last thirty years have consistently identified the critical economic, social, and environmental challenges facing this state. Is it simply political rhetoric to decry that the state is in terrible fiscal shape, that programs need to be funded to help those is need, and that we must pay attention to stewarding the environment …