State and Local Government Law Commons^™

Issue 2: Table Of Contents

University of Richmond Law Review

No abstract provided.

Rescuing The Rescued: Stemming The Tide Of Foreclosure Rescue Scams In Washington, Zachary E. Davies

Seattle University Law Review

While foreclosure rescue scam (FRS) victims have many remedies under existing statutes, remedies are inadequate because they fail to holistically address the FRS problem. A successful statutory approach to combating the spread of this insidious scam must rest on three legs: education, enforcement, and litigation. First, homeowners facing foreclosure need timely warnings regarding the existence and prevalence of the FRS before the onslaught of FRSA solicitations begins. Next, in addition to education,homeowners need effective enforcement of the statutes that are supposed to protect them. Finally, homeowners wronged by FRSAs need to be able to seek civil relief that both adequately …

When Worlds Collide: Federal Construction Of State Institutional Competence, Marcia L. Mccormick

All Faculty Scholarship

The federal courts routinely encounter issues of state law. Often a state court will have already analyzed the law at issue, either in a separate case or in the very situation before the federal court. In every one of those cases, the federal courts must decide whether to defer to the state court analysis and, if so, how much. The federal courts will often defer, but many times have not done so, and they rarely explain the reasons for the departures they make. While this lack of transparency gives the federal courts the greatest amount of discretion and power, it …

The Trans-Texas Corridor Plan: Will Best Value Highway Contract Procurement Under Comprehensive Development Agreements Leave The Lowest Competitive Bidder In The Dust Comment., Jason C. Petty

St. Mary's Law Journal

Abstract Forthcoming.

Procedural Injustice: How The Practices And Procedures Of The Child Welfare System Disempower Parents And Why It Matters, Vivek Sankaran, Itzhak Lander

Articles

Many of us appear surprised when families involved in the child protective system do not reunify. A parent’s path to reunification seems straightforward. Upon a finding of neglect, the court prescribes a basic regimen, typically consisting of parenting classes, counseling, drug testing, and a psychological evaluation, that a parent must fulfill prior to having the child returned to his/her custody. If a parent successfully completes these seemingly minimal requirements, the law requires reunification unless the return poses a “substantial risk of harm” to the child. With such high stakes involved, a clearly defined path for success, and the prospect of …

Foreword, Richard B. Collins

Publications

No abstract provided.

Colorado Ethics Opinion 115: Next Steps For Colorado's Collaborative Lawyers, Scott R. Peppet

Publications

No abstract provided.

The Revision Of The Colorado Trademark Registration Statute, Arthur H. Travers

Publications

No abstract provided.

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 …

Alaska Initiatives And Referenda, Tina Ching

Faculty Articles

This article is intended to be used as a starting point for those researching initiative and referendum issues for the state of Alaska. A brief history of I&R in Alaska is followed by an overview of the process. Thepiece concludes with an annotated list of resources to begin research into Alaska I&R.

Chinks In The Armor: Municipal Authority To Enact Shoreline Permit Moratoria After Biggers V. City Of Bainbridge Island, Ryan M. Carson

Seattle University Law Review

Why would a relatively mundane dispute over what amounts to a few cubic yards of concrete warrant the extensive discussion encom passed in this Note? This dispute gives rise to a fundamental question about power: What is the scope of municipal power under one of Washington's most important environmental protection laws? Additionally, questions arise about competing normative values within environmental protection, property rights, and responsible land use and development. Placed against a backdrop of growing contentiousness surrounding these issues in Washington politics, the relevance and timeliness of these questions cannot be doubted.

Brother's Keeper: The Legal Ethics Of Representing Family Members The Sixth Annual Symposium On Legal Malpractice And Professional Responsibility: Comment., Jason W. Whitney

St. Mary's Law Journal

This Comment seeks to provide practical guidance in evaluating ethical issues for Texas attorneys considering representing a relative. Attorneys must always look to the relevant rules of professional conduct, advisory opinions, and case law to evaluate whether or not representation adheres to ethical guidelines. The primary sources of guidance are the Texas Disciplinary Rules of Professional Conduct (Texas Disciplinary Rules), advisory opinions from the Supreme Court of Texas Professional Ethics Committee (Texas Professional Ethics Committee), and Texas case law. Part II of this Comment discusses the history of professional responsibility, characteristics of representing family members, and common ethical problems arising …

Threading The Eye Of The Erisa Needle: Erisa Preemption And Alternative Legal Schemes To Fill The Regulatory Vacuum., Bernard D. Reams Jr.

St. Mary's Law Journal

Popular consensus suggests that the Employee Retirement Income Security Act (“ERISA”) is a mess, and one of historic proportions. ERISA’s comprehensive reach to protect employer-provided benefits has in practice produced unintended, if not contradictory, results. Congress passed ERISA over thirty years ago to protect the rights of employees who benefit from employer pension and welfare benefit plans. It did so with a series of regulations that promote uniformity in litigation across the various states through “strong preemption language.” The goal of uniformity arguably benefits workers by imposing regular standards of conduct which lend predictability to the scope of litigation, or …

Liability Insurance And Punitive Damages: Does Texas Public Policy Detest This Union Comment., Anthony H. Castillo

St. Mary's Law Journal

There is a nationwide debate on whether punitive damages should be insurable. Insuring punitive damages causes courts concern regarding whether a wrongdoer escapes punishment by having the insurer pay for damages attributable to the wrongdoer’s egregious conduct. The United States Court of Appeals for the Fifth Circuit noted Texas’ public policy does not justify interference with private insurance contracts. The Court determined Texas allows liability insurance contracts to cover punitive damages and declared the inquiry ended. But, in the years since this determination, many Texas appellate courts have contracted the Fifth Circuit’s holding. The shifting discussion among Texas appellate courts …

Texas's Attempt To Mitigate The Risks Of Contracts For Deed - Too Much For Sellers - Too Little For Buyers Recent Development., Shelayne Clemmer

St. Mary's Law Journal

Abstract Forthcoming.

The Colorado Constitution In The New Century, Richard B. Collins

Publications

TABOR, gay marriage, pit bulls, guns, redistricting, ethics in government, school vouchers, and minimum wage have been on Colorado's constitutional agenda for the past seven years. Dale Oesterle and I authored a book-length study of the Colorado Constitution through 2001. This article reviews amendments and judicial decisions arising since. It should surprise no one that TABOR has generated by far the most decisions.

Journal Of The House Of Representatives Of The Commonwealth Of Kentucky, 2007, Volume 2, Kentucky. General Assembly. House Of Representatives.

Journals of the General Assembly of the Commonwealth of Kentucky

No abstract provided.

Supplementing State Workers' Compensation Laws With Causes Of Action Under State Common Law Regimes For Employee Third-Party Sexual Harassment Suits Against Employers, Anik A. Shah

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Addressing The Incoherency Of The Preemption Provision Of The Copyright Act Of 1976, Joseph P. Bauer

Journal Articles

Section 301 of the Copyright Act of 1976 expressly preempts state law actions that are within the "general scope of copyright" and that assert claims that are "equivalent to" the rights conferred by the Act. The Act eliminated the previous system of common law copyright for unpublished works, which had prevailed under the prior 1909 Copyright Act. By federalizing copyright law, the drafters of the statute sought to achieve uniformity and to avoid the potential for state protection of infinite duration.

The legislative history of § 301 stated that this preemption provision was set forth "in the clearest and most …

Finding Room For State Class Actions In A Post-Cafa World: The Case Of The Counterclaim Class Action, Jay Tidmarsh

Journal Articles

In this Article, I wish to suggest one place in which state courts can continue to have an impact on class-action practice: the adjudication of counterclaim class actions. A counterclaim class action arises when a non-class complaint is filed by a plaintiff against a defendant, who turns around and asserts against the plaintiff, on behalf of a class of similarly situated individuals, a counterclaim for relief. In Part II, I explain the factual, jurisdictional, and legal dynamics of such state-court counterclaim class actions. In Part III, I argue that counterclaim class actions, when filed in state court, are not removable …

Ensuring Continuing Community Amenities Through Golf Course Redevelopment, Patricia E. Salkin

Scholarly Works

This article examines some of the issues faced by municipalities hoping to preserve their golf courses or to ensure their strategic redevelopment and focuses on how local governments can most effectively employ planning and zoning techniques to ensure that community amenities, including affordable housing and recreational areas, are an important part of golf course redevelopment projects.

Federalism And Accountability: State Attorneys General, Regulatory Litigation, And The New Federalism, Timothy Meyer

Faculty Scholarship

No abstract provided.

Five Myths About Sprawl, Michael Lewyn

Scholarly Works

In Sprawl: A Compact History, Robert Bruegmann, an art historian, has painted a superficially convincing case for the status quo, asserting that sprawl is "a natural result of affluence that occurs in all urbanized societies." Bruegmann's book has generated glowing media publicity. This article suggests that Bruegmann overestimates the universality of sprawl, by overlooking the differences between pedestrian-friendly cities with some sprawling development and cities in which automobile-dependent sprawl is the only choice available to most consumers. In addition, Bruegmann understates the harmful social effects of sprawl, especially the effect of automobile-dependent development upon non-drivers. Bruegmann also consistently underestimates the …

You Can Have It All: Less Sprawl And Property Rights Too, Michael Lewyn

Scholarly Works

Some commentators believe that smart growth and property rights are at loggerheads - and to be sure, these theories do lead to differing positions on a few issues (most notably urban growth boundaries and similar anti-sprawl regulations). But as to a wide variety of issues, smart growth advocates and property rights theorists can find common ground. Both groups can support eliminating zoning regulations that mandate automobile-dependent, sprawling development, such as single-use zoning, minimum parking requirements and minimum lot size requirements.

Squaring The Circle On Sprawl: What More Can We Do?: Progress Towards Sustainable Land Use In The States, Patricia E. Salkin

Scholarly Works

With almost ten years of nationwide dialogue and experimentation with the legal implementation of smart growth concepts at the state and local levels, this paper pauses to consider whether and to what extent success has been realized. The one certainty in this dynamic intersection of land development and conservation is that there is no one best model adaptable to all fifty states. Rather, to accommodate national diversity in local government structure, cultural relationships of people to the land, and differences in geography and a sense of place, the best lesson learned is that advocates and lawmakers alike must shape and …

How Government Regulation Forces Americans Into Their Cars: A Case Study, Michael Lewyn

Scholarly Works

No abstract provided.

Of Frivolous Litigation And Runaway Juries: A View From The Bench, Thomas A. Eaton

Georgia Law Review

Tort reform has been largely driven by the executive and legislative branches of government. Governors have proposed and legislatures have enacted statutes that, for the most part, scale back on the ability of injured persons to recover from purported wrongdoers. Both the public perception and political rhetoric of tort reform are grounded in the images of runaway juries and frivolous litigation. The voices of politicians and interest groups shape the terms of the popular debate. Largely absent from the policy discussions are the voices of the one group of public officials who are in the best position to observe the …

There Is A Land In The Far Off West, Michael Maben

Articles by Maurer Faculty

No abstract provided.

Cooperative Federalism And Healthcare Reform: The Medicare Part D 'Clawback' Example, Elizabeth Weeks Leonard

Scholarly Works

This symposium article recounts recent litigation by several states over a provision of the Medicare Modernization Act Part D prescription drug benefit: The clawback, which requires states to pay the a potentially substantial portion of new federal program. I then examine the unique federalism implications of the clawback for ongoing state and federal health reform initiatives.

In spring 2006, several states petitioned the United States Supreme Court for original jurisdiction to hear a challenge to one provision of the new Medicare Part D prescription drug law. The federal government, while taking over prescription drug coverage for dually eligible beneficiaries, required …

The Historical Race Competition For Corporate Charters And The Rise And Decline Of New Jersey: 1880-1910, Charles M. Yablon

Articles

No abstract provided.