State and Local Government Law Commons^™

Public Nuisance Claims Against Gun Sellers: New Insights And Challenges, Jean Macchiaroli Eggen, John G. Culhane

University of Michigan Journal of Law Reform

Gun violence continues unabated. Regulation of these deadly instruments is woefully inadequate, and legislatures are compounding the problem by barring or restricting access to the courts for the death and injuries that guns cause. In short, Congress and state legislators have repeatedly acquiesced to the demands of the gun lobby.

During the past several years, cities have struck back by filing public nuisance claims against those gun sellers whose practices pose a risk to the public's health and safety. After a slow start, public nuisance claims have recently gained traction in state appellate courts, which are increasingly coming to realize …

Foster Care Placement: Reducing The Risk Of Sibling Incest, David J. Herring

University of Michigan Journal of Law Reform

The Westermarck theory maintains that incest avoidance arises from the physical proximity of siblings during a critical period of early childhood. This proximity gives rise to an inhibiting effect on post childhood sexual interest. Two recent studies of sibling relationships have verified and refined the Westermarck theory, indicating that the critical period extends through the first four years of childhood. The theory and the studies have implications for child welfare laws, policies and practices surrounding the placement of siblings in foster care. Namely, the findings provide powerful reasons for placing siblings together during the critical period in order to minimize …

To Elect Or Not To Elect: A Case Study Ofjudicial Selection In New York City 1977-2002, Steven Zeidman

University of Michigan Journal of Law Reform

This Article examines the process of judicial selection in New York State in light of the recent court decisions in White and Spargo, which have paved the way for increased campaign speech in judicial elections. Relying on empirical data to compare judicial elections and appointments in New York City between 1977 and 2002, the Article finds that elections produce a judiciary that is more beholden to interest groups than one generated through appointments. The consequence of this greater special interest involvement is an erosion of public trust and confidence in the judiciary. Moreover while elections arguably have increased diversity in …

Democratizing The American Dream: The Role Of A Regional Housing Legislature In The Production Of Affordable Housing, Thomas A. Brown

University of Michigan Journal of Law Reform

Economic, ethnic and racial residential segregation are ubiquitous across United States metropolitan regions. As a result, the majority of affordable housing is located in central cities or inner-ring suburbs, generally in areas of highly concentrated poverty. Outer suburbs are often exempt from providing significant housing for the economically disadvantaged regional citizens. This should not be. If housing policy in metropolitan regions were established in a democratic fashion, the give-and-take of the political process would create strong incentives for regional cooperation in the creation of affordable housing. Drawing together scholarship in the fields of local government law, administrative law, and housing …

Federalism And Foreign Affairs: How To Remedy Violations Of The Vienna Convention And Obey The U.S. Constitution, Too, Joshua A. Brook

University of Michigan Journal of Law Reform

This Note discusses various ways to bring the United States into better compliance with the 1963 Vienna Convention on Consular Relations The introduction to this Note discusses how violations of the Vienna Convention are currently treated in the United States. In particular, the introduction discusses the unsuccessful attempts to prevent the execution of Karl and Walter LaGrand, two German nationals sentenced to death in Arizona. The LaGrands were convicted after a violation of their rights under the Vienna Convention because they were not informed without delay of their right to consular notification and assistance. In later appeals, United States courts …

Vanishing Vaccinations: Why Are So Many Americans Opting Out Of Vaccinating Their Children?, Steve P. Calandrillo

University of Michigan Journal of Law Reform

Vaccinations against life-threatening diseases are one of the greatest public health achievements in history. Literally millions of premature deaths have been prevented, and countless more children have been saved from disfiguring illness. While vaccinations carry unavoidable risks, the medical, social and economic benefits they confer have led all fifty states to enact compulsory childhood vaccination laws to stop the spread of preventable diseases. Today, however, vaccines are becoming a victim of their success-many individuals have never witnessed the debilitating diseases that vaccines protect against, allowing complacency toward immunization requirements to build. Antivaccination sentiment is growing fast in the United States, …

Main Street Multidisciplinary Practice Firms: Laboratories For The Future, Susan Poser

University of Michigan Journal of Law Reform

This Article examines the debate over multidisciplinary practice in the wake of the collapse of Enron and Arthur Andersen. Part I addresses the history of the scholarly debate about multidisciplinary practice in the United States. It discusses the focus on large multidisciplinary firms, feared threats to independent professional judgment, and the current rule concerning lawyers and multidisciplinary practice.

Part II examines the reasons for allowing multidisciplinary practice. The author argues that client demand, lawyer demand, and policy reasons all provide valid reasons for permitting "one-stop" shopping. Part I also discusses existing forms of multidisciplinary practice. The author argues that the …

The Effect Of Expungement On Removability Of Non-Citizens, James A.R. Nafziger, Michael Yimesgen

University of Michigan Journal of Law Reform

For most of the twentieth century, a non-citizen was generally not subject to removal on the basis of a criminal conviction which had been expunged by the state that rendered the conviction. During that time, the definition of a "conviction" for purposes of immigration law was borrowed from the law of the state which rendered the criminal conviction. In the Illegal Immigration Reform and Immigrant Responsibility Act (IRIRA) of 1996 Congress sought to provide a more uniform definition of the term "conviction" sufficient to justify an order of removal under the immigration law. The IIRIRA does not mention expungement, however. …

Voter Education: The Key To Election Reform Success Lessons From Florida, Susan A. Macmanus

University of Michigan Journal of Law Reform

Over a dozen national task forces and commissions have analyzed the 2000 presidential election and concluded that electoral system reforms are imperative not just in Florida, but nationwide. Among the common recommendations are elimination of punch card ballots, enhancement of registration procedures and outreach, provision of more accurate voter lists, clear delineation of appeals processes, establishment of voter rights and responsibilities, clarification of recount rules and procedures, securing of accessible polling places, better facilitation of voting and proper counting of absentee ballots, and ensuring provisional ballots available at each precinct. For these reforms to be most effective, the reports say, …

Federal Preemption Of Tort Claims Under Fifra: The Erosion Of A Defense, Valerie Watnick

University of Michigan Journal of Law Reform

With the growth of federal regulation in the last century, federal preemption of state law has been an evolving issue in the area of toxic torts litigation. The preemption doctrine occupies a particularly prominent place in the area of pesticide-related litigation as the judiciary has struggled to decide what, if any, tort claims are preempted by the Federal Insecticide Fungicide and Rodenticide Act of 1972 ("FIFRA "), the federal statute governing the sale and labeling of pesticides in the United States. In Etcheverry v. Tri-Ag Serv. Inc., 22 Cal. 4th 316, 93 Cal. Rptr2d 36 (2000), a case heard by …

Race, Class, And Suburbia: The Modern Black Suburb As A 'Race-Making Situation', Mary Jo Wiggins

University of Michigan Journal of Law Reform

In her Article, Professor Wiggins discusses the complex social phenomenon of "Black suburbanization, " focusing on the commercial "disinvestment" in and around predominately Black suburbs. She traces the historical relationship between Black Americans and the suburbs, and describes in detail the commercial disinvestment in two contemporary Black suburbs, Prince George's County, Maryland, and south DeKalb, Georgia. In her Article, she offers possible explanations for disinvestment, including the application of protective zoning; inefficient zoning laws and practices; prior investment decisions; demographic explanations; and independent effects .of race. Wiggins analyzes some of the resulting negative social and economic consequences, including a sense …

Difficulties In Achieving Coherent State And Local Fiscal Policy At The Intersection Of Direct Democracy And Republicanism: The Property Tax As A Case In Point, Mildred Wigfall Robinson

University of Michigan Journal of Law Reform

Professor Robinson explores the uneasiness present when acts of "direct democracy" through means of voter referenda and ballot initiatives conflict with the ideals of representative government, using fiscal matters, such as the property tax, as an example.

Part I explores the changes that have taken place in the last two decades in voter strategy and in patterns of judicial interpretation, briefly reviewing the history of the property tax focusing on taxpayer reaction to long overdue attempts at administrative reform, and showing how that effort indirectly contributed to the "taxpayer revolt. "It further examines how and why broad-scale attempts to utilize …

The United Mall Of America: Free Speech, State Constitutions, And The Growing Fortress Of Private Property, Jennifer Niles Coffin

University of Michigan Journal of Law Reform

Scholars have called the shopping mall the modern replacement for the traditional town square, a claim that is supported by both public investment in infrastructure through municipal and state bond issues and by the presence of public services and events in many malls. Mall owners and tenants have exploited this quasi public character by inviting government agencies to become tenants in the malls ("City Hall at the Mall") despite claiming that malls are private property where constitutionally protected freedoms do not apply. After an initial and shortlived ruling that mall visitors do indeed have free speech rights, the Supreme Court …

Before It's Too Late: Neuropsychological Consequences Of Child Neglect And Their Implications For Law And Social Policy, Janet Weinstein, Ricardo Weinstein

University of Michigan Journal of Law Reform

Recent developments in the neurosciences have led to dramatic breakthroughs in the area of brain development and the understanding of consequences of neglect. Because this process was heretofore not understood, legislators have been wary of drafting child protection statutes that afforded the possibility for arbitrary interference with families. Strict statutory standards have been adopted that allow coercive intervention only in cases where the child is at substantial risk of imminent physical harm, or after some of the most severe consequences of neglect have been identified. These laws do not consider developmental harm because it does not present an imminent danger …

Financing Plaintiffs' Lawsuits: An Increasingly Popular (And Legal) Business, Susan Lorde Martin

University of Michigan Journal of Law Reform

In the late eighties and early nineties there were a few publicized cases in which the plaintiffs invited investors to finance their litigation in exchange for a share of the awards if the plaintiffs won. This kind of arrangement provides access to the justice system which might otherwise be denied impecunious plaintiffs with meritorious claims. The problem with this kind of arrangement is that it is champerty, which is prohibited in most states. This Article discusses Massachusetts' recent rejection of the champerty prohibition, the expansion of exceptions to the prohibition in this country and others, and the emergence of firms …

Clearing The Way For An Effective Federal-State Partnership In Health Reform, Eleanor D. Kinney

University of Michigan Journal of Law Reform

At century's end, states have assumed a very different role in the design, implementation, and operation of health service programs than they did twenty-five years ago. In the current volatile political atmosphere particularly at the federal level, states have taken up the mantle of healthcare reform in the final years of the 1990s. Yet there remain problems and difficulties with the current federal-state relationship in health reform. The critical question is whether states can successfully accomplish genuine reform given its politically charged, complex and costly nature. This question takes on particular significance for the most important reform-expanding coverage to the …

Adverse Possession Of Municipal Land: It's Time To Protect This Valuable Asset, Paula R. Latovick

University of Michigan Journal of Law Reform

The laws of several states regarding adverse possession of municipal land vary widely from providing no protection to granting complete immunity from such loss. Generally, states that permit adverse possession of municipally owned land do so without articulating a rationale for allowing such a loss of a valuable municipal asset. In this Article, Professor Latovick describes why the current state of the law is unsatisfactory. She then considers the public policies raised by the issue of adverse possession of municipal land. Professor Latovick concludes by proposing that states should adopt legislation expressly protecting all municipal land from adverse possession and …

Proposition 215: De Facto Legalization Of Pot And The Shortcomings Of Direct Democracy, Michael Vitiello

University of Michigan Journal of Law Reform

In 1996, California voters passed Proposition 215, officially titled The Compassionate Use Act of 1996, and popularly known as the "medical marijuana" initiative. This initiative allows qualifying people and their caregivers immunity from criminal prosecution when the state attempts to charge them with possession or cultivation of marijuana. Professor Vitiello uses the medical marijuana initiative as a case study illustrating flaws in California's ballot initiative process He examines the history of the initiative process in California, misleading aspects of the campaign for Proposition 215, and ambiguities in the proposition's language. Concluding that the initiative process as it now stands fosters …

Local Government Anti-Discrimination Laws: Do They Make A Difference?, Chad A. Readler

University of Michigan Journal of Law Reform

During the past decade, local governments have expanded their role protecting individuals from discrimination in private employment. Although federal and state laws already protect individuals from employment discrimination based on race, sex, color, religion, national origin, age, and disability, local anti-discrimination ordinances protect an even wider range of characteristics such as sexual orientation, marital status, military status, and income level. The author details the results of a survey indicating that the agencies and dispute resolution processes mandated by local anti-discrimination ordinances are seldom used to protect this wider range of characteristics He argues that effective, uniform anti-discrimination protection should come …

Restating The Law: The Dilemmas Of Products Liability, Robert L. Rabin

University of Michigan Journal of Law Reform

Tracing products liability law from its origins to present day developments, Professor Rabin discusses the long-standing presence of interwoven strands of contract and tort ideology, as well as the perennial tensions between strict liability and negligence. These themes are evident both in the distinctly influential California case law and in the two Restatement efforts to systematize the doctrine that has emerged nationally. Rabin identifies the manner in which foundational ideological precepts of consumer expectations and enterprise liability have contributed to a continuously dynamic, if often unsettled, debate over the appropriate regime for resolving product injury claims.

We Know Better Than We Do: A Policy Framework For Child Welfare Reform, Donald N. Duquette, Sandra K. Danzinger, Joan M. Abbey, Kristin S. Seefeldt

University of Michigan Journal of Law Reform

The need for comprehensive reform of child welfare policies and systems has long been evident. This Article reports observations from the WK Kellogg Foundation-sponsored Families for Kids Initiative that seeks to expand services and support to families and reduce the time children spend in temporary care. The authors first provide an overview of the need for reforms such as those proposed by this initiative, suggesting that many child welfare studies, critiques, and proposed reforms have had similar objectives. The authors highlight lessons learned from how these reform goals are being developed, implemented, and practiced in ongoing programs across the nation …

Family Group Conferences As A Form Of Court Approved Alternative Dispute Resolution In Child Abuse And Neglect Cases, Jolene M. Lowry

University of Michigan Journal of Law Reform

The problems associated with long-term foster care of children have escalated over the past decade as more abused and neglected children enter the already overworked and underfunded state child protective system& The recent Personal Responsibility and Work Opportunity Reconciliation Act of 1996 mandates giving preference to placement within the extended family for children who cannot be returned to their parents. Compliance with this law requires substantial changes in the policies and procedures of human services agencies in most states. This Article discusses "family group conferencing,' a new model for working with families within the system. Family Group Conferencing originated in …

Crafting An Advocate For A Child: In Support Of Legislation Redefining The Role Of The Guardian Ad Litem In Michigan Child Abuse And Neglect Cases, Albert E. Hartmann

University of Michigan Journal of Law Reform

Michigan's current statutory system leaves the role of the child's attorney unclear. In this Note, Hartmann advocates the adoption of a legislative proposal that will redefine the role of the child's attorney. The proposal specifies that the child's primary legal representative should be a guardian ad litem who will represent the best interests of the child. Hartmann begins by describing the current system and then analyzes how the proposal will modify the role of the child's attorney. Hartmann argues that the proposed changes would be highly beneficial and identifies specific points of improvement. Hartmann concludes by suggesting several reforms to …

The New "Pick-Your-Own" Statutes: Delineating Limited Immunity From Tort Liability, Terence J. Centner

University of Michigan Journal of Law Reform

Over the past several years, state legislatures have been asked to provide immunity from liability for members of certain interest groups including providers of horses, risky sport activities, and "pick-your-own" produce. This Article reports on statutory provisions providing tort immunity for producers who allow the public to come onto their property to harvest crops. Provisions allowing profit-making businesses to qualify for tort immunity are not new, but the expansion to cover pick-your-own operators signifies a significant policy change regarding personal liability. The pick-your-own provisions may indicate a policy shift imposing greater responsibility for persons engaging in activities to use care …

Adverse Possession Against The States: The Hornbooks Have It Wrong, Paula R. Latovick

University of Michigan Journal of Law Reform

The hornbook rule is that adverse possession statutes do not run against land owned by state governments. Yet, in practice, the land of many states is subject to loss by adverse possession. Few states have statutes that simply and explicitly protect all state land from adverse possession. This Article describes the variety of ways in which states protect or fail to protect their land from adverse possession. It concludes with the recommendation that, given increasing development pressures and limited state enforcement budgets, state legislatures should protect completely all state land from adverse possession.

A Mere Youthful Indiscretion? Reexamining The Policy Of Expunging Juvenile Delinquency Records, T. Markus Funk

University of Michigan Journal of Law Reform

Recent studies by the U.S. Department of Justice have found that, while adult violent crime rates continue to drop, today's juvenile offenders are the fastest growing segment among violent criminals. The unprecedented increase in juvenile criminality is expected to result in a dramatic increase in the overall rate of violent crime as these juveniles approach majority. Funk argues that most states have not adapted to the troubling reality that the juvenile offenders of today are not the hubcap-stealing youths of days gone by, and that chronic adult criminality is predicated on violent and repeated acts of juvenile delinquency. These jurisdictions …

Timeliness In The Unemployment Compensation Appeals Process: The Need For Increased Federal Oversight, Sharon M. Dietrich, Cynthia L. Rice

University of Michigan Journal of Law Reform

Anecdotal evidence suggests that during the recession of 1989-1992, unemployment insurance claimants suffered unprecedented delays in the receipt of their benefits. Advocates reported that claimants who were initially denied benefits suffered delays of months, and even years, before the state administrative appeals process resolved their claims. Although federal law establishes timeliness standards for processing appeals, many states did not meet those standards. In this Article, the Authors discuss and analyze the results of a nationwide review of state compliance with federal timeliness standards. They then assess the state and federal responses to the increased number of unemployment insurance claims and …

Are Non-English-Speaking Claimants Served By Unemployment Compensation Programs? The Need For Bilingual Services, Mary K. Gillespie, Cynthia G. Schneider

University of Michigan Journal of Law Reform

This Article examines the need for interpreters and translated written materials in unemployment compensation programs for those claimants who do not read, understand, or speak English well or at all. Thousands of employable persons in the United States do not read, understand, or speak English. These persons may be unable to receive unemployment compensation benefits or may receive delayed benefits solely because they are unable to comprehend English. The authors examine how ten states with substantial populations of limited-English-proficient speakers have provided these persons access to their state's unemployment compensation programs. The authors find varying practices among the states in …

Direct Democracy And Bioethical Choices: Voting Life And Death At The Ballot Box, Judith F. Daar

University of Michigan Journal of Law Reform

Direct democracy, the political process that enables citizens to draft, circulate, and enact laws, has become the refuge for grassroots organizations seeking statutory validation in a legislative arena perceived to be unresponsive or unfriendly to their concerns. One group of citizens, advocates for physician-aid-in-dying, has recently emerged on the national scene, sponsoring state ballot initiatives in three states and pledging to continue their quest for legalization of physician-assisted death throughout the country. In this Article, Professor Daar examines the interplay between direct democracy and regulation of end-of-life decision making. This examination reveals that lawmaking by initiative, as seen through the …

Electronic Mail And Michigan's Public Disclosure Laws: The Argument For Public Access To Governmental Electronic Mail, Daniel F. Hunter

University of Michigan Journal of Law Reform

This Note explores the potential for citizens to request electronic mail (e-mail) records from government agencies using public disclosure laws, with emphasis on the Michigan Freedom of Information Act (FOIA). E-mail is a medium that has come to replace both telephone calls and paper documents for many purposes. The applicability of public disclosure laws to e-mail, however, is less than clear. Telephone conversations by public employees for most purposes are confidential, while paper records created by those same employees can be requested under the FOIA. Thus, should public e-mail remain private and confidential or should it be subject to FOIA …