State and Local Government Law | Open Access Articles

Commercial Transaction, John Krahmer

SMU Annual Texas Survey

No abstract provided.

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Survey Of Recent Mandamus Decisions Of The Texas Supreme Court, Douglas S. Lang, Rachel A. Campbell

SMU Annual Texas Survey

No abstract provided.

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Professional Liability, Debran L. O'Neil, D. Lance Currie, Alex More

SMU Annual Texas Survey

No abstract provided.

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Intellectual Property Law, David L. Mccombs, Phillip B. Philbin, Vera L. Suarez

SMU Annual Texas Survey

No abstract provided.

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Conflict Of Laws, James P. George, Susan T. Phillips

SMU Annual Texas Survey

No abstract provided.

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Taxation, Cynthia M. Ohlenfrost, Sam Megally, William J. Ledoux

SMU Annual Texas Survey

No abstract provided.

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Effects Of Clergy Reporting Laws On Child Maltreatment Report Rates, Frank E. Vandervort, Vincent J. Palusci

Articles

Child maltreatment (CM) reporting laws and policies have an important role in the identification, treatment, and prevention of CM in the United States (U.S. Department of Health and Human Services [US DHHS], 2012). Abuse by a member of the clergy “is not only a personal and emotional betrayal, but [also] a spiritual betrayal, with secrecy amplified by the unprecedented and systemic cover-up committed by the Church hierarchy” (Coyne, 2011, p. 15). Recent controversies have resulted in the consideration of changes in mandated U.S. reporting laws that include increasing requirements for clergy and extension to additional professions (Freeh, Sporkin, & Sullivan, …

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Sovereignty, Citizenship, And Public Health In The United States, Polly J. Price

Faculty Articles

Sovereign boundaries, state borders, and distinctions between citizens and non-citizens undermine public health in the United States in a number of ways. For historical reasons, we are prone to view immigration and public health as separate interests, but they are in fact convergent. Historically, federal authority over immigration alleviated costs otherwise borne by state and local governments. Today, however, states are primarily responsible for the prevention and control of communicable disease acquired outside U.S. borders. The federal and state governments confront a stark division of authority with respect to non-citizens: The federal government decides which non-citizens to admit into the …

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Veteran's Law Symposium: Keynote Address Delivered November 8, 2013, Tim Kaine

Richmond Public Interest Law Review

U.S. Senator Tim Kaine delivered this keynote address at the 2013 Journal of Law and the Public Interest Symposium. In this transcript of his speech, Senator Kaine discusses the importance of improving service for veterans disability claims, how the changing nature of society affects military and veterans issues, fundamental questions about 21st century warfare, and concludes by answering questions form the audience.

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An Analysis Of The Political And Legal Debates Concerning Medicaid Expansion In Virginia, Rick Mayes Ph.D, Benjamin Paul

Richmond Public Interest Law Review

The Supreme Court's historic June 2012 ruling regarding the Affordable Care Act (ACA) in National Federation of Independent Business v. Sebelius set the stage for a massive federalism battle over Medicaid expansion in the United States. The original language of the Act was intended to nationalize Medicaid by having every state expand their program's eligibility to all individuals up to 138% of the federal poverty level. This would have significantly reshaped Medicaid, a joint federal-state health insurance program, into a universal entitlement for all low-income citizens. Currently, Medicaid eligibility varies dramatically from state to state. The Court held that the …

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The Contractualization Of Family Law In The United States, Fernanda Nicola, Adrienne Hunter Jules

Scholarly Articles in Law Reviews & Journals

No abstract provided.

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Good Will Hunting: How The Supreme Court's Hunter Doctrine Can Still Shield Minorities From Political-Process Discrimination, Kerrel Murray

Faculty Scholarship

When the Sixth Circuit struck down Michigan’s anti-affirmative-action Proposal 2 in 2012, its reasoning may have left some observers hunting for their Fourteenth Amendment treatises. Rather than applying conventional equal protection doctrine, the court rested its decision on an obscure branch of equal protection jurisprudence known as the Hunter doctrine, which originated over forty years ago. The doctrine, only used twice by the Supreme Court to invalidate a law since its creation, purports to protect the political-process rights of minorities by letting courts invalidate laws that work nonneutrally to make it more difficult for them to “achieve legislation that is …

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Partisan Federalism, Jessica Bulman-Pozen

Faculty Scholarship

Among the questions that vex the federalism literature are why states check the federal government and whether Americans identify with the states as well as the nation. This Article argues that partisanship supplies the core of an answer to both questions. Competition between today’s ideologically coherent, polarized parties leads state actors to make demands for autonomy, to enact laws rejected by the federal government, and to fight federal programs from within. States thus check the federal government by channeling partisan conflict through federalism’s institutional framework. Partisanship also recasts the longstanding debate about whether Americans identify with the states. Democratic and …

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Unbundling Federalism: Colorado's Legalization Of Marijuana And Federalism's Many Forms, Jessica Bulman-Pozen

Faculty Scholarship

This short Essay argues that various attributes we associate with federalism should not be deemed necessary components of federalism as a definitional or normative matter. Using Colorado’s recent legalization of marijuana as a case study, it shows how two such attributes – an autonomous realm of state action and independent state officials with distinctive interests – can be pulled apart. State officials often further their interests and effectively oppose federal policy when they participate in the same statutory scheme as federal actors instead of operating in a separate, autonomous sphere. At the same time, state officials frequently rely on the …

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Exit, Voice, And Loyalty As Federalism Strategies: Lessons From The Same-Sex Marriage Debate, Ernest A. Young

Faculty Scholarship

No abstract provided.

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Milk And Other Intoxicating Choices: Official State Symbol Adoption, Ryan A. Valentin

Law Faculty Scholarly Articles

Although the practice of adopting official state symbols is widespread, little has been written on what legislators, when tasked with choosing a state symbol, should take into consideration. An examination of select official state symbols of the Commonwealth of Kentucky will contribute to an understanding of what official state symbols are, the purpose they serve, the qualities they should reflect, and how the value of symbols adopted may be improved through the application of standard best practices.

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Fiduciary Principles And The Jury, Ethan J. Leib, Michael Serota, David L. Ponet

Faculty Scholarship

This Essay argues that because jurors exercise state power with wide discretion over the legal and practical interests of other citizens, and because citizens repose trust and remain vulnerable to jury and juror decisions, juries and jurors share important similarities with traditional fiduciary actors such as doctors, lawyers, and corporate directors and boards. The paradigmatic fiduciary duties – those of loyalty and care – therefore provide useful benchmarks for evaluating and guiding jurors in their decision-making role. A sui generis public fiduciary duty of deliberative engagement also has applications in considering the obligations of jurors. This framework confirms much of …

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Who May Hire Teachers: How Mutual Consent Fits Into The Current Colorado Hiring Framework, Amanda R. Levin

University of Colorado Law Review

In 2010, the Colorado General Assembly passed the Ensuring Quality Instruction through Education Effectiveness Act (S.B. 191). The law ties teachers' job security to the performance of their students, among other things, and changes the way that teachers and principals are evaluated. One crucial aspect of the law, and the subject of this Comment, is the mutual consent provision. This provision provides principals with the power to ensure the effectiveness of their teachers within their own schools by means of allowing them to oversee the hiring process of teachers. The mutual consent provision states that teachers can only be hired …

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Won't You Be My Neighbor? The Fallout From The Colorado Supreme Court's Decision In Cogcc V. Gvca, Luke Mecklenburg

University of Colorado Law Review

This Casenote asserts that the Colorado Supreme Court's decision in COGCC v. GVCA, while legally adequate, condones a harmful public policy that necessitates legislative correction. The case pitted two landowners whose property was adjacent to a proposed well that would drill down within a three-mile radius of an underground nuclear detonation site known as the Rulison blast zone, as well as a citizens'group from the Rulison area, against the Colorado Oil and Gas Conservation Commission (COGCC). Using different canons of statutory interpretation, the Colorado Court of Appeals and the Colorado Supreme Court reached opposite decisions, but in the end a …

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"Whiffs Of Federalism" In United States V. Windsor: Power, Localism, And Kulturkampf, Marc R. Poirier

University of Colorado Law Review

No abstract provided.

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Unbundling Federalism: Colorado's Legalization Of Marijuana And Federalism's Many Forms, Jessica Bulman-Pozen

University of Colorado Law Review

This short Essay argues that various attributes we associate with federalism should not be deemed necessary components of federalism as a definitional or normative matter. Using Colorado's recent legalization of marijuana as a case study, it shows how two such attributes-an autonomous realm of state action and independent state officials with distinctive interests-can be pulled apart. State officials often further their interests and effectively oppose federal policy when they participate in the same statutory scheme as federal actors instead of operating in a separate, autonomous sphere. At the same time, state officials frequently rely on the autonomous lawmaking and executive …

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Cooperative Federalism And State Marijuana Regulation, Sam Kamin

University of Colorado Law Review

No abstract provided.

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Exit, Voice, And Loyalty As Federalism Strategies: Lessons From The Same-Sex Marriage Debate, Ernest A. Young

University of Colorado Law Review

No abstract provided.

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Charitable Giving, Tax Expenditures, And Direct Spending In The United States And The European Union, Lilian V. Faulhaber

Georgetown Law Faculty Publications and Other Works

This Article compares the ways in which the United States and the European Union limit the ability of state-level entities to subsidize their own residents, whether through direct subsidies or through tax expenditures. It uses four recent charitable giving cases decided by the European Court of Justice (ECJ) to illustrate the ECJ’s evolving tax expenditure jurisprudence and argues that, while this jurisprudence may suggest a new and promising model for fiscal federalism, it may also have negative social policy implications. It also points out that the court analyzes direct spending and tax expenditures under different rubrics despite their economic equivalence …

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Taxation Of Series Llcs In Texas: Bigger Isn't Always Better In The Lone Star State., Alyson Outenreath

St. Mary's Law Journal

Series Limited Liability Companies (series LLCs) are not yet widely popular as an entity of choice; but just as it took many years for traditional LLCs to become widely used, there could also come a day when series LLCs are the “go-to” entity of choice. One development in the law that will aid in this process is greater certainty in state taxation of series LLCs. Texas has provided some guidance with respect to the taxation of series LLCs for Texas franchise tax purposes after the comptroller’s issuance of Comptroller Private Letter Ruling 201005184L. In this ruling, the comptroller concluded that …

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Power Play: An Examination Of Texas's Anti-Slapp Statute And Its Protection Of Free Speech Through Accelerated Dismissal., Dena M. Richardson

St. Mary's Law Journal

Abstract Forthcoming.

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The Texas Anti-Indemnity Act., Taylor R. Beaver

St. Mary's Law Journal

Owners, general contractors, and subcontractors enter into agreements to ameliorate risk amongst those exercising control. Some of these include hold-harmless agreements, indemnity agreements, releases, and agreements conferring additional insured status to others. Typically, parties enjoy freedom to contract as they wish. Texas has long recognized, as a matter of public policy, a party’s right to draft contracts however it sees fit. Historically, risk-shifting agreements were enforceable if they passed the fair notice requirements, meaning the express negligence rule and the conspicuousness test. The trend in recent years, however, has been to limit exculpatory clauses. In 2011, the Texas Legislature effectively …

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Texas Remedies In Equity For Breach Of Fiduciary Duty: Disgorgement, Forfeiture, And Fracturing., George P. Roach

St. Mary's Law Journal

The remedy of fee forfeiture against lawyer fiduciaries has been marginalized. Following Burrow v. Arce, Texas trial courts have frequently applied a no-fracturing rule that effectively bars a claim for breach of fiduciary duty against an attorney. Although the court in Burrow held actual damages were not a prerequisite for fee forfeiture, many Texas trial courts have not followed that precedent. Most Texas trial courts require the plaintiff to prove actual damages to survive a summary judgment motion. Others have openly asserted that not all legitimate claims for breach of fiduciary duty should be allowed as an alternative claim to …

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The Dual Role Of A Chief Justice., Catherine Stone

St. Mary's Law Journal

Notwithstanding the growing trend of high-dollar judicial election campaigns, many citizens do not know what appellate judges and appellate courts do. Faced with the reality of obscurity and the ever-present potential of failed reelection campaigns, appellate judges work each day to fulfill the mission of appellate courts: to efficiently resolve the legal disputes presented in appeals from lower court decisions with written opinions that are well reasoned, thoroughly researched, and intellectually honest. It is the responsibility of the Chief Justice to promote that core mission with all justices on the court, thereby working to best serve the legal needs of …

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The Aftermath Of Mexico's Fuel-Theft Epidemic: Examining The Texas Black Market And The Conspiracy To Trade In Stolen Condensate., Luke B. Reinhart

St. Mary's Law Journal

Organized crime has infiltrated the oil patch, creating a theft network with an annual value of $2–$4 billion. Over the past decade, Mexican drug cartels have plundered mass amounts of natural gas condensate produced by Petróleos Mexicanos (Pemex)—the governing Mexican agency for production and export of hydrocarbons. The Mexican government has not sat by idly. Pemex’s production losses have skyrocketed from $300 million, between 2006 and 2011, to an estimated $585 million in 2013 alone. Considering derivative costs associated with these thefts, Pemex’s annual losses reach into the billions. Diversified and driven by profits derived from the United States black …

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Full-Text Articles in State and Local Government Law

Commercial Transaction, John Krahmer

SMU Annual Texas Survey

Survey Of Recent Mandamus Decisions Of The Texas Supreme Court, Douglas S. Lang, Rachel A. Campbell

SMU Annual Texas Survey

Professional Liability, Debran L. O'Neil, D. Lance Currie, Alex More

SMU Annual Texas Survey

Intellectual Property Law, David L. Mccombs, Phillip B. Philbin, Vera L. Suarez

SMU Annual Texas Survey

Conflict Of Laws, James P. George, Susan T. Phillips

SMU Annual Texas Survey

Taxation, Cynthia M. Ohlenfrost, Sam Megally, William J. Ledoux

SMU Annual Texas Survey

Effects Of Clergy Reporting Laws On Child Maltreatment Report Rates, Frank E. Vandervort, Vincent J. Palusci

Articles

Sovereignty, Citizenship, And Public Health In The United States, Polly J. Price

Faculty Articles

Veteran's Law Symposium: Keynote Address Delivered November 8, 2013, Tim Kaine

Richmond Public Interest Law Review

An Analysis Of The Political And Legal Debates Concerning Medicaid Expansion In Virginia, Rick Mayes Ph.D, Benjamin Paul

Richmond Public Interest Law Review

The Contractualization Of Family Law In The United States, Fernanda Nicola, Adrienne Hunter Jules

Scholarly Articles in Law Reviews & Journals

Good Will Hunting: How The Supreme Court's Hunter Doctrine Can Still Shield Minorities From Political-Process Discrimination, Kerrel Murray

Faculty Scholarship

Partisan Federalism, Jessica Bulman-Pozen

Faculty Scholarship

Unbundling Federalism: Colorado's Legalization Of Marijuana And Federalism's Many Forms, Jessica Bulman-Pozen

Faculty Scholarship

Exit, Voice, And Loyalty As Federalism Strategies: Lessons From The Same-Sex Marriage Debate, Ernest A. Young

Faculty Scholarship

Milk And Other Intoxicating Choices: Official State Symbol Adoption, Ryan A. Valentin

Law Faculty Scholarly Articles

Fiduciary Principles And The Jury, Ethan J. Leib, Michael Serota, David L. Ponet

Faculty Scholarship

Who May Hire Teachers: How Mutual Consent Fits Into The Current Colorado Hiring Framework, Amanda R. Levin

University of Colorado Law Review

Won't You Be My Neighbor? The Fallout From The Colorado Supreme Court's Decision In Cogcc V. Gvca, Luke Mecklenburg

University of Colorado Law Review

"Whiffs Of Federalism" In United States V. Windsor: Power, Localism, And Kulturkampf, Marc R. Poirier

University of Colorado Law Review

Unbundling Federalism: Colorado's Legalization Of Marijuana And Federalism's Many Forms, Jessica Bulman-Pozen

University of Colorado Law Review

Cooperative Federalism And State Marijuana Regulation, Sam Kamin

University of Colorado Law Review

Exit, Voice, And Loyalty As Federalism Strategies: Lessons From The Same-Sex Marriage Debate, Ernest A. Young

University of Colorado Law Review

Charitable Giving, Tax Expenditures, And Direct Spending In The United States And The European Union, Lilian V. Faulhaber

Georgetown Law Faculty Publications and Other Works

Taxation Of Series Llcs In Texas: Bigger Isn't Always Better In The Lone Star State., Alyson Outenreath

St. Mary's Law Journal

Power Play: An Examination Of Texas's Anti-Slapp Statute And Its Protection Of Free Speech Through Accelerated Dismissal., Dena M. Richardson

St. Mary's Law Journal

The Texas Anti-Indemnity Act., Taylor R. Beaver

St. Mary's Law Journal

Texas Remedies In Equity For Breach Of Fiduciary Duty: Disgorgement, Forfeiture, And Fracturing., George P. Roach

St. Mary's Law Journal

The Dual Role Of A Chief Justice., Catherine Stone

St. Mary's Law Journal

The Aftermath Of Mexico's Fuel-Theft Epidemic: Examining The Texas Black Market And The Conspiracy To Trade In Stolen Condensate., Luke B. Reinhart

St. Mary's Law Journal