State and Local Government Law Commons^™

Abandoned But Not Forgotten: Improperly Plugged And Orphaned Wells May Pose Serious Concerns For Shale Development, Bret Wells, Tracy Hester

Michigan Journal of Environmental & Administrative Law

This Article addresses the intersection of oil and gas law and environmental law on a topic that has profound significance for the nation’s oil industry and for the environment. In this regard, the Permian Basin is experiencing a renaissance that has fundamentally impacted oil production in the United States. Horizontal drilling and hydraulic fracturing now allow the industry to produce in the Permian Basin’s unconventional shale formations in ways that were unimaginable a decade ago. But, the hot shale plays within the Permian Basin exist above conventional fields that are littered with a century’s worth of abandoned wells. Fracturing new …

Beyond Localism: Harnessing State Adaptation Lawmaking To Facilitate Local Climate Resilience, Sarah J. Adams-Schoen

Michigan Journal of Environmental & Administrative Law

Notwithstanding the need for adaptation lawmaking to address a critical gap between climate-change related risks and preparedness in the United States, no coherent body of law exists that is aimed at reducing vulnerability to climate change. As a result of this gap in the law, market failures, and various “super wicked” attributes of hazard mitigation planning, local communities remain unprepared for present and future climate-related risks. Many U.S. communities continue to employ land-use planning and zoning practices that, at best, fail to mitigate these hazards, and, at worst, increase local vulnerability. Even localities that have implemented otherwise robust adaptation plans …

Coinsensus: The Need For Uniform National Virtual Currency Regulations, Anisha Reddy

Dickinson Law Review (2017-Present)

Google search volume for bitcoin and bitcoin-related keywords increased by as much as 1000 percent in 2017 from previous years. This increased interest comes hand-in-hand with increased regulatory and legislative scrutiny. Currently, there is disparate regulation for virtual currencies across national and state borders alike. States’ promulgation of various and incongruous virtual currency regulations have forced service providers to withdraw from different states within the country. However, transactions are not contained within state lines, and disparate state-by-state regulation is impracticable.

The Uniform Law Commission recognized the need for uniform guidance for those entering the North American market and drafted the …

Applying The Pennsylvania Environmental Rights Amendment Meaningfully To Climate Disruption, Robert B. Mckinstry Jr., John C. Dernbach

Michigan Journal of Environmental & Administrative Law

The Pennsylvania Constitution contains a unique Environmental Rights Amendment (ERA), which recognizes an individual right to “clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment.” The ERA also includes a public trust element that makes “Pennsylvania’s public natural resources . . . the common property of all the people, including generations yet to come.” It makes the Commonwealth the “trustee of these resources,” requiring it to “conserve and maintain them for the benefit of all the people.” Recent decisions by the Pennsylvania Supreme Court (the Court) in Robinson Township v. …

Post-Accountability Accountability, Nicole Stelle Garnett

University of Michigan Journal of Law Reform

Over the past few decades, parental choice has exploded in the United States. Yet, despite early proponents’ hopes that parental choice would eliminate the need to regulate school quality—since parents’ choices would serve an accountability function—demands to use the law to hold chosen schools accountable for their academic performance are central features of education-reform debates today. This is an opportune time to consider the issue of academic accountability and parental choice. Parental choice has gained a firm foothold in the American educational landscape. As it continues to expand, debates about accountability for chosen schools will only intensify. The questions of …

Urban Decolonization, Norrinda Brown Hayat

Michigan Journal of Race and Law

National fair housing legislation opened up higher opportunity neighborhoods to multitudes of middle-class African Americans. In actuality, the FHA offered much less to the millions of poor, Black residents in inner cities than it did to the Black middle class. Partly in response to the FHA’s inability to provide quality housing for low-income blacks, Congress has pursued various mobility strategies designed to facilitate the integration of low-income Blacks into high-opportunity neighborhoods as a resolution to the persistent dilemma of the ghetto. These efforts, too, have had limited success. Now, just over fifty years after the passage of the Fair Housing …

Is Groton The Next Evenwel?, Paul H. Edelman

Michigan Law Review Online

In Evenwel v. Abbott the Supreme Court left open the question of whether states could employ population measures other than total population as a basis for drawing representative districts so as to meet the requirement of "one person, one vote" (OPOV). It was thought that there was little prospect of resolving this question soon as no appropriate instances of such behavior were known. That belief was mistaken. In this Essay I report on the Town of Groton, Connecticut, which uses registered voter data to apportion seats in its Representative Town Meeting and has done so since its incorporation in 1957. …

Competing With Noncompetes: Increasing Restrictions On The Use Of Employment Noncompetition Agreements In New York, Michael A. E. Neville

Brooklyn Journal of Corporate, Financial & Commercial Law

The New York City Council and the former New York State Attorney General recently proposed legislation restricting the use of noncompetition agreements by employers with low-wage employees. While this proposed legislation demonstrates a step following other progressive states that have already restricted the use of noncompetition agreements, recent federal litigation has revealed the loopholes that New York employers may unfairly utilize, such as garden leave provisions, if restrictions are not placed on both employers of low-wage and high-wage employees. This Note recommends that pending legislation be passed only after a thorough revision that focuses on both low-wage and high-wage employees …

Single Subject Rules And Civil Rights: Using Legislative-Process Restrictions To Facially Challenge Constitutionally Suspect Laws, Annie Melton

Journal of Law and Policy

This Note argues that the single subject rule, a procedural restriction, can be used to facially challenge certain insidious laws. By giving courts an opening to review a law in its most elemental form—a deliberated-over means of adequately implementing a new, or remedying an existing, policy—the single subject rule tests it for characteristics like clarity, practicality, and predictability. The rule is rarely litigated in many states, but doing so draws attention to a fundamental philosophy of the legislative process, which is especially compelling in light of the ideological battles that are dominating statehouses across the country and giving rise to …

Reconciling Brady And Pitchess: Association For Los Angeles Deputy Sheriffs V. Superior Court, And The Future Of Brady Lists, Ryan T. Cannon

San Diego Law Review

In 2014, the Los Angeles County Sherriff’s Department (LASD) joined a growing number of law enforcement agencies utilizing “Brady lists”; a system by which prosecutorial agencies are notified of potential Brady/Giglio material in a police officer’s personnel file. These lists enable prosecutors to comply with their constitutional Brady disclosure obligations—to turn over all evidence material to guilt or punishment, including impeachment material. However, in 1978 California made the contents of police officer personnel files confidential with the passage of the Pitchess statutes. Since that time, California courts have wrestled with the extent of allowable disclosure under the Pitchess statutes, including …

What Does Law Have To Do With It? The Jury's Role In Cases Alleging Violations Of Law, Custom And Standards, Barbara Kritchevsky

Arkansas Law Review

Rules telling people how to act come from many sources. Statutory law governs a wide range of conduct—driving an auto-mobile, operating a business, building a home. Non-governmental standards reach just as far. Individuals run their businesses in accordance with the law, but also by observing professional standards and industry customs. A hotel owner might look to state or local law to determine how to fence the hotel pool or whether to have a lifeguard on duty. The owner might also decide what to do by looking to industry customs or non-govern-mental safety guidelines, such as those a private body has …

When Borders Dissolve, Laura N. Coordes

Chicago-Kent Law Review

Scholars have long sought to apply principles from U.S. bankruptcy law to sovereign debt restructurings. Chapter 9 of the U.S. Bankruptcy Code, used to adjust the debts of municipalities, has been a particular source of inspiration, and several proposals currently exist to adapt chapter 9 to address the challenges of sovereign debt restructuring.

The difficulties of applying chapter 9 in practice, however, have demonstrated the limitations of a one-size-fits-all solution to municipal distress. Similarly, attempts to adapt chapter 9 to apply uniformly to a broad range of sovereign states may be ineffective. A recurring problem lies in the fact that …

The Question For Another Day: Hooker V. Illinois State Board Of Elections And Its Effect On The Vitality Of Citizen Ballot Initiatives And Redistricting Reform In Illinois, Thomas Q. Ford

Chicago-Kent Law Review

Like most states, Illinois is no stranger to political gerrymandering. Since 2010, redistricting reformers have made repeated efforts to change the way Illinois's political maps are drawn, essentially by minimizing or eliminating the role lawmakers play in the process. Polls show the vast majority of Illinoisans support such a change. Reformers have chosen Illinois's citizen ballot initiative as their vehicle to amend the redistricting process, but every proposed initiative has been struck down in court before reaching voters. Most recently, the Illinois Supreme Court rejected a proposed initiative in Hooker v. Illinois State Board of Elections. This Note argues …

Limiting State Flexibility In Drug Pricing, Nicholas Bagley, Rachel E. Sachs

Articles

Throughout the United States, escalating drug prices are putting immense pressure on state budgets. Several states are looking for ways to push back. Last year, Massachusetts asked the Trump administration for a waiver that would, among other things, allow its Medicaid program to decline to cover costly drugs for which there is limited or inadequate evidence of clinical efficacy. By credibly threatening to exclude such drugs from coverage, Massachusetts hoped to extract price concessions and constrain the fastest-growing part of its Medicaid budget.

The (Dunkin') Donut Hole: Fixing The Llc Loophole In State Campaign Finance Laws—A New Hampshire Exemplar, Brendan O'Neill

Seattle University Law Review

The campaign finance laws of New Hampshire (and other states) permit direct contributions to gubernatorial candidates from individuals or corporations of up to $7,000 per campaign cycle. However, no state campaign finance statutes discuss, define, or even mention LLCs. Each LLC is its own individual donor for the purpose of direct campaign contributions, regardless of who controls it. Thus, a wealthy individual can max out the $7,000 direct contribution to his or her preferred candidate through every LLC under his or her control, limited only by imagination and the ability to set up as many LLCs as legally feasible. A …

Murr And Wisconsin: The Badger State's Take On Regulatory Takings

Marquette Law Review

None.

Book Review: 51 Imperfect Solutions: States And The Making Of American Constitutional Law, By Hon. Jeffrey S. Sutton, Steven H. Steinglass

Law Faculty Articles and Essays

The Hon. Jeffrey S. Sutton, a judge on the United States Court of Appeals for the Sixth Circuit, has written an excellent book on the importance of state constitutions as bulwarks against state abuse and the source of protections of individual rights. The book, 51 Imperfect Solutions: States and the Making of American Constitutional Law, argues that individual rights are more secure when both federal and state constitutional protections are strong. And our system of federalism and the quality of state and federal judicial decisions are improved when there are state constitutional safeguards.

The Plot To Overthrow Genocide: State Laws Mandating Education About The Foulest Crime Of All

Marquette Law Review

This Article shines a light on a little noticed phenomenon in American law: the promulgation of ten state statutes and one state regulation, each requiring education about genocide in elementary and/or secondary schools. The mandates, adopted from 1989 through 2018, appear to be only the beginning inasmuch as in 2017 another nineteen states publicly pledged to pass such mandates as well.

The Article describes each of the existing mandates and compares them to each other, including an analysis of the laws’ respective strong and weak points. This exposition, of interest in itself, also sets the stage for proposals to improve …

Appeals By The Prosecution, Nancy J. King, Michael Heise

Vanderbilt Law School Faculty Publications

Scholarly and public debates about criminal appeals have largely taken place in an empiri- cal vacuum. This study builds on our prior empirical work exploring defense-initiated criminal appeals and focuses on criminal appeals by state and federal prosecutors. Exploit- ing data drawn from a recently released national sample of appeals by state prosecutors decided in 2010, as well as data from all appeals by federal prosecutors to the U.S. Courts of Appeals terminated in the years 2011 through 2016, we provide a detailed snapshot of noncapital, direct appeals by prosecutors, including extensive information on crime type, claims raised, type of …

Interlocutory Appeals In New York-Time Has Come For A More Efficient Approach, David Scheffel

Pace Law Review

Currently, the appellate division must decide an enormous number of appeals every year.7 In light of this caseload crisis, New York must reevaluate its generous approach to interlocutory appeals.8 This Comment discusses how the appellate division can deal most efficiently with interlocutory appeals. Part II describes the history of interlocutory appeals in New York, since the creation of the appellate division. Part III explains how other jurisdictions treat interlocutory appeals. Part IV presents the current caseload crisis in the appellate division. Part V describes the controversy over unlimited interlocutory appealability. Part VI evaluates how New York can streamline its approach …

Commercial Litigation In New York State Courts (Robert L. Haig, Editor-In-Chief), Joseph P. Sullivan

Pace Law Review

No abstract provided.

The Unconstitutionality Of Consolidated Planning Boards: Interlocal Planning Under New York Law, Albert J. Pirro Jr.

Pace Law Review

This Article will examine the nature and constitutionality of consolidated planning boards in light of the broad powers actually granted them. The issues surrounding the constitutionality of consolidated planning boards begs, yet again, Chief Justice Marshall's question respecting the extent of the power granted to the state governments. The question is whether a municipality may abdicate its power to regulate land within its own boundaries by delegating it to a separate planning entity.

Taxing & Zapping Marijuana: Blockchain Compliance In The Trump Administration Part 5, Richard Thompson Ainsworth, Brendan Magauran

Faculty Scholarship

This is the fifth part of a five-part series dealing with the rescission by U.S. Attorney General Jeff Sessions of the Obama-era policy that discouraged federal prosecutors from bringing charges in all but the most serious marijuana cases.

This article focuses on the back-end leakage in the state’s obligation to control both the physical flows of legalized marijuana, as well as the related fiscal flows (the proceeds of legalized marijuana sales). These flows intersect dramatically in retail-level frauds.

There are very few new proposals on how to solve the physical flow problems with consumer re-sales into the black market. Traditional …

Taxing & Zapping Marijuana: Blockchain Compliance In The Trump Administration Part 2, Richard Thompson Ainsworth, Brendan Magauran

Faculty Scholarship

Legalization of marijuana burdens the States with the responsibility of (a) monitoring the physical flows of marijuana through the supply chain (making sure the marijuana does not enter inter-state commerce; making sure it stays out of the hands of minors, etc.), and (b) monitoring the fiscal flows (making sure the proceeds of marijuana production do not end up in criminal hands).

The type of controls favored by the states are track and trace (TAT), or seed-to-sale (STS) systems. These systems are reasonably complex, as well as technology-intensive. Nevertheless, there are questions about whether they are adequate to the enforcement needs. …

Taxing & Zapping Marijuana: Blockchain Compliance In The Trump Administration Part 4, Richard Thompson Ainsworth, Brendan Magauran

Faculty Scholarship

This is the fourth of a five-part series dealing with the rescission by U.S. Attorney General Jeff Sessions of the Obama-era policy that discouraged federal prosecutors from bringing charges in all but the most serious marijuana cases.

This article focuses on retail-level frauds. It proposes a limited purpose crypto currency. At the retail level the MJ Freeway or METRC software essentially functions as a marijuana-industry-specific point of sale (POS) system. It is common in retail for different industry sectors (restaurants, hotels, convenience stores, or gasoline stations) to have market-specific POS systems that are molded to fit the unique characteristics of …

Taxing & Zapping Marijuana: Blockchain Compliance In The Trump Administration Part 3, Richard Thompson Ainsworth, Brendan Magauran

Faculty Scholarship

This is the third of a five-part series dealing with the rescission by U.S. Attorney General Jeff Sessions of the Obama-era policy that discouraged federal prosecutors from bringing charges in all but the most serious marijuana cases.

This article focuses on cyber-attacks on the main commercial chain, and the use of a private blockchain using HyperLedger Fabric as a platform.

This fraud is a direct, criminal attack; an attack designed to destroy/corrupt records of marijuana inventory and plant tags throughout the supply chain. The attack allows legalized marijuana to escape the system and be sold on the black market. A …

Appeal No. 0956: Ms. Kelly M. Rahach, Trustee, Rahach Revocable Trust, V. Division Of Oil & Gas Resources Management, Ohio Oil & Gas Commission

Ohio Oil & Gas Commission Decisions

Review of Chief's Orders 2018-45, 2018-87 & 2-18-88 (Old Farm Units; Chesapeake Exploration, LLC)

Appeal No. 0957: Ms. Kelly M. Rahach, Trustee, Rahach Revocable Trust, V. Division Of Oil & Gas Resources Management, Ohio Oil & Gas Commission

Ohio Oil & Gas Commission Decisions

Review of Chief's Orders 2018-45, 2018-87 & 2-18-88 (Old Farm Units; Chesapeake Exploration, LLC)

Appeal No. 0955: Ms. Kelly M. Rahach, Trustee, Rahach Revocable Trust, V. Division Of Oil & Gas Resources Management, Ohio Oil & Gas Commission

Ohio Oil & Gas Commission Decisions

Review of Chief's Orders 2018-45, 2018-87 & 2-18-88 (Old Farm Units; Chesapeake Exploration, LLC)

State Bar Of California, Edith Jimenez, Andrew J. Van Arsdale, Bridget Fogarty Gramme

California Regulatory Law Reporter

No abstract provided.