State and Local Government Law Commons^™

10th Annual Pegalis Law Group Health Law Colloquium, New York Law School

Health Law Society Publications

Federalism, ERISA, and State Single-Payer Health Care. How to Make Sense of Future Legislation and the Impact on Population Health

(CLE Presentation on Oct. 24th 2019)

Moderator:

Adam S. Herbst, Esq., Senior Vice President, Chief Legal and Strategic Planning Officer of Blythedale’s Children Hospital; Adjunct Professor at New York Law School teaching Health Law and Policy; Co-director of the NYLS Health Law and Patient Safety Project; Lecturer, Mailman School of Public Health at Columbia University

Panelists:

Honorable Richard N. Gottfried, New York State Assembly (District 75) & Chairman of the Assembly's Committee on Health and Sponsor of …

Latino Education In Texas: A History Of Systematic Recycling Discrimination, Albert H. Kauffman

St. Mary's Law Journal

Abstract forthcoming

Can God Create A Rock So Heavy That He Cannot Lift It? Outlawing Pensions Under State Constitutions, Chad J. Pomeroy

University of Arkansas at Little Rock Law Review

No abstract provided.

Re(Writing) The Rules Of The Road: Reflections From The Journal Of Law And Mobility's 2019 Conference, Raphael Beauregard-Lacroix

Journal of Law and Mobility

On March 15th, 2019, the Journal of Law and Mobility, part of the University of Michigan’s Law and Mobility Program, presented its inaugural conference, entitled “(Re)Writing the Rules of The Road.” The conference was focused on issues surrounding the relationship between automated vehicles (“AVs”) and the law. In the afternoon, two panels of experts from academia, government, industry, and civil society were brought together to discuss how traffic laws should apply to automated driving and the legal person (if any) who should be responsible for traffic law violations. The afternoon’s events occurred under a modified version of the Chatham House …

Expanding Third-Party Standing In Custody Actions: How The Opioid Crisis Has Impacted Lgbtq Parental Rights In Pennsylvania, Jill C. Gorman

Dickinson Law Review (2017-Present)

Declared a public health emergency by the federal government, the opioid crisis often places children in foster care when parents fatally succumb to their addictions. To unburden the foster care system and to accommodate family members who want to care for these children, Pennsylvania enacted Act No. 21 on July 3, 2018, to expand custody standing to include certain third parties. However, because the legislature has not expanded the legal definition of “parent,” Act No. 21 poses a threat to the legal rights of nonbiological LGBTQ parents.

This Comment begins by explaining how the opioid crisis motivated the Pennsylvania legislature …

Physical Presence Is In No Wayfair!: Addressing The Supreme Court’S Removal Of The Physical Presence Rule And The Need For Congressional Action, Claire Shook

Dickinson Law Review (2017-Present)

The Commerce Clause of Article I grants Congress the power to regulate commerce. In the past, an entity had to have a physical presence in a state for that state to impose taxes on the entity. Due to the changing landscape of online businesses, the U.S. Supreme Court decided in South Dakota v. Wayfair in June 2018 to remove the physical presence rule as it applied to the Commerce Clause analysis of state taxation. The Wayfair decision’s ramification is that states can now impose taxes on businesses conducting sales online without having any physical presence in those states. While the …

Death Be Not Strange. The Montreal Convention’S Mislabeling Of Human Remains As Cargo And Its Near Unbreakable Liability Limits, Christopher Ogolla

Dickinson Law Review (2017-Present)

This article discusses Article 22 of the Convention for the Unification of Certain Rules for International Carriage by Air (“The Montreal Convention”) and its impact on the transportation of human remains. The Convention limits carrier liability to a sum of 19 Special Drawing Rights (SDRs) per kilogram in the case of destruction, loss, damage or delay of part of the cargo or of any object contained therein. Transportation of human remains falls under Article 22 which forecloses any recovery for pain and suffering unaccompanied by physical injury. This Article finds fault with this liability limit. The Article notes that if …

Texas, The Death Penalty, And Intellectual Disability, Megan Green

St. Mary's Law Journal

Abstract forthcoming

Researching And Keeping Up To Date With Real Estate Law In Virginia, Frederick W. Dingledy

Library Staff Publications

No abstract provided.

Rethinking Emergency Legislation In Washington State, Eva Sharf

Washington Law Review

The people’s right to referendum in Washington State is substantively limited in only one way: the people cannot block through referendum “such laws as may be necessary for the immediate preservation of the public peace, health or safety, support of the state government and its existing public institutions.” This emergency exception to the referendum power must be explicitly invoked by the Washington State Legislature in what is called an “emergency clause.” Washington courts are willing to review emergency clauses to determine if a bill is, in fact, “necessary for the immediate preservation of the public peace, health or safety.” However, …

Challenging Voting Rights And Political Participation In State Courts, Irving Joyner

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming

Distressed Watershed: A Designation To Ease The Algae Crisis In Lake Erie And Beyond, Kenneth K. Kilbert

Dickinson Law Review (2017-Present)

Algae pose a severe problem in many waterbodies nationwide, but the algae crisis is perhaps most acute in Lake Erie. Harmful algal blooms choke the lake every year, causing economic and ecologic damage and threatening public health. Solving the algae crisis in Lake Erie depends on reducing the amount of nutrients entering the lake, especially from agricultural stormwater runoff. Ohio’s recent designation of Lake Erie as “impaired” under the Federal Clean Water Act is a positive step, and the resulting Total Maximum Daily Load (“TMDL”) should be a useful planning tool in the fight against algae. But because the Clean …

The State Of Exactions, Timothy M. Mulvaney

William & Mary Law Review

In Koontz v. St. Johns River Water Management District, the Supreme Court slightly expanded the range of land use permitting situations in which heightened judicial scrutiny is appropriate in a constitutional “exaction” takings case. In crafting a vision of regulators as strategic extortionists of private property interests, though, Koontz prompted many takings observers to predict that the case would provide momentum for a more significant expansion of such scrutiny in takings cases involving land use permit conditions moving forward, and perhaps even an extension into other regulatory contexts, as well.

Five years on, this Article evaluates the extent to which …

Not Everybody Loves Raymond: How The Case Of Raymond V. Raymond Made A Shambles Of Interspousal Gift Presumptions And The Parol Evidence Rule In Matters Of Texas Community Property, Pamela E. George

St. Mary's Law Journal

Abstract forthcoming

Managed Retreat And The Life Estate: A Practical Path Forward For Coastal Communities, Sam Gross

Virginia Coastal Policy Center

This paper focuses on a frequently discussed but rarely implemented solution to sea level rise: “managed retreat” away from at-risk and overdeveloped coastal areas. The paper begins by examining the threat posed by sea level rise through the lens of two contrasting municipalities: Miami, Florida and Nags Head, North Carolina. It then outlines the concept of managed retreat as well as the controversies surrounding this approach. Specifically, it examines the widespread voter hostility to condemnation efforts, the deterrent effect of inevitable legal challenges, and the financial burden of such efforts on cash-strapped municipalities.

After analyzing these hurdles, the paper assesses …

A Wall Runs Through It: Comparing Mexican And Californian Legal Regimes In The California Floristic Province, Joseph E. Farewell

Loyola of Los Angeles International and Comparative Law Review

Habitats are often divided by international borders, leaving ecosystems in varying states of protection, development, and danger. The California Floristic Province, which traverses the United States-Mexico border, is one such example. This border, which divides a once-continuous ecological region, not only represents an international crossing, but also a shift in legal, land, and conservation regimes. These differences reveal particular vulnerabilities for California Floristic Province habitat on the Mexican side of the border region, showing that the ecosystem is in danger because of rapid real estate development pressures and unfavorable environmental laws. Accordingly, this note recommends three main changes to Mexican …

The State Of Texas Recognizes The 50th Anniversary Of The St. Mary’S Law Journal, Greg Abbott

St. Mary's Law Journal

The Honorable Greg Abbott, Governor of the State of Texas, issued a certificate in 2019 recognizing the 50th Anniversary of the St. Mary's Law Journal and their contribution to the legal profession.

Climate Change And Dam Owner Liability In Rhode Island, Read Porter, James Philopena Jr., Cory Lee

Sea Grant Law Fellow Publications

Increasing precipitation associated with climate change is affecting dam operation and hazards in Rhode Island. Flooding caused by increased precipitation or extreme weather events can cause dam failure or upstream or downstream flooding, resulting in loss of life and property. These losses can result in liability, which may vary based on the dam owner and its purpose. This study assists dam owners and the public in understanding the potential liabilities that may arise as a result of flooding from extreme weather events. Section one provides a background of dam hazards in Rhode Island in the context of climate change. Section …

Defining A State-Owned Enterprise In International Investment Agreements, Mark Mclaughlin

Research Collection Yong Pung How School Of Law

The objective of this article is to establish a unified conceptual framework for State-owned enterprises in international investment law. I hope to furnish drafters and negotiators with the tools to define such enterprises in accordance with their policy concerns. The central thesis is that five definitional criteria must be considered: (i) separate legal personality; (ii) extent and form of control; (iii) eligible governmental units; (iv) nature of activity; and (v) purpose of activity. While variations within each criterion can reflect the policy choices of contracting parties, failure to adequately delimit the boundaries of all five will confer discretion on arbitrators …

When Protest Is The Disaster: Constitutional Implications Of State And Local Emergency Power, Karen Pita Loor

Faculty Scholarship

The President’s use of emergency authority has recently ignited concern among civil rights groups over national executive emergency power. However, state and local emergency authority can also be dangerous and deserves similar attention. This article demonstrates that, just as we watch over the national executive, we must be wary of and check on state and local executives — and their emergency management law enforcement actors — when they react in crisis mode. This paper exposes and critiques state executives’ use of emergency power and emergency management mechanisms to suppress grassroots political activity and suggests avenues to counter that abuse. I …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.

Protecting Natural Resources - Forever: The Obligations Of State Officials To Uphold "Forever" Constitutional Provisions, Rachel E. Deming

Pace Environmental Law Review

This Article analyzes the attacks on a state constitutional conservation lands program since the election of a governor and state legislature opposed to environmental regulation in 2010 – a precursor to current happenings at the federal level under the Trump administration. Former Florida Governor Rick Scott and his administration have spent an average of over $40 million a year in taxpayer money to defend and, in most cases, pay judgments, in lawsuits challenging mandates of the Florida Constitution.

I examine this issue of ignoring or deliberately violating constitutional requirements through the lens of state constitutional provisions that protect natural resources, …

No Treatment, No Hope, No Future: Decriminalization Of Heroin And Creation Of A Medical Dependent Standard, Alexander Mangano

Journal of Civil Rights and Economic Development

(Excerpt)

This Note will analyze the current ways heroin users are treated, stigmatized, and left with very little options upon recovery to support themselves and live a normal, productive life. Specifically, this Note will focus on how New York handles heroin users and their experiences with the criminal justice system. This Note proposes the decriminalization, not legalization, of only heroin use. To help addicts with recovery, diversionary courts and programs should be removed from the criminal justice system and instead act as a civil court. Additionally, the creation of a “medical dependent” classification will allow families to effectively force the …

Protecting The Expecting: A Proposal To Include Pregnancy As An Aggravating Circumstance, Nicole Atlak

Journal of Civil Rights and Economic Development

(Excerpt)

This Note brings attention to the New York Legislature’s failure to consider the unique vulnerability and harms of pregnant victims of domestic violence and proposes a statutory amendment. This Note proposes that Section 827(a)(vii) of New York’s Family Court Act be amended to include an additional aggravating circumstance with language to the effect of “any physical injury or psychological, emotional or sexual abuse to a pregnant woman.” This addition is necessary to ensure the list of aggravating circumstances is thorough, and more complete in encompassing all serious and heinous domestic abuse.

Part II of this Note will offer a …

Spousal Support And Domestic Violence: What Happens When The Dependent Spouse Is The Abuser?, Maria Stamatelatos

Journal of Civil Rights and Economic Development

(Excerpt)

Therefore, this Note proposes that New York and other states enact legislation similar to that of the California Family Code, which enacted statutes that prevent someone from obtaining spousal support if they attempted to murder their spouse, committed a violent sexual felony against their spouse, or were convicted of a domestic violence offense against their spouse. The reformed legislation would prohibit judges from awarding spousal support to individuals convicted of attempting to murder their spouse, and would require courts to look carefully at the facts surrounding each case where a spouse has been indicted or convicted of a violent …

Forbidden Flower: How Allowing Medical Cannabis Flower In West Virginia Helps Heal Patients And The State Economy, Jordan Maddy

West Virginia Law Review

No abstract provided.

Federal Land Use Intervention As Market Restoration, Stewart E. Sterk

Articles

Although most land-use regulation in the United States remains local, the federal government has played an increasing role. Some federal intervention, particularly in the environmental area, has involved affirmative federal regulation superimposed on the local regulatory scheme. But other federal intervention operates differently by overriding local regulation to permit markets to operate. In addition to the Takings Clause, examples include the Religious Land Use and Institutionalized Persons Act, the Telecommunications Act, the Fair Housing Act, and the First Amendment's adult-use jurisprudence. In each of these areas, local regulation survives only if it leaves intact a sufficiently thick market for the …

Rethinking Police Rulemaking, Maria Ponomarenko

Northwestern University Law Review

For more than sixty years, prominent policing scholars have argued that the way to address the many problems of policing is to treat police departments like all other agencies of government—and to require that they set policy through something like notice-and-comment rulemaking. This paper argues that despite its intuitive appeal, rulemaking is not a particularly apt solution to policing’s various ills. Although policing scholars have been right to look to administrative law for ideas on how to govern policing, they have been focused on the wrong set of administrative tools. Instead of looking to the public to regulate the police …

Forgotten Limits On The Power To Amend State Constitutions, Jonathan L. Marshfield

Northwestern University Law Review

There seem to be no limits on what can pass through state constitutional amendment procedures. State amendments have targeted vulnerable minorities, deeply entrenched specific fiscal strategies, and profoundly restructured institutions. The malleability of state constitutions is significant because in many states there are legitimate fears that special interests dominate amendment politics, and that fundamental change is occurring with minimal opportunities for constructive deliberation or inclusive participation. The state doctrine of “referendum sovereignty” is a key condition fueling this dynamic. The doctrine holds that there are no substantive limits on any state amendment processes so long as amendments comply with federal …

The Character Of Law: A Normative Critique Of Social-Emotional Learning Laws, Meredith R. Aska Mcbride

Northwestern University Law Review

This Note examines a widespread but barely acknowledged phenomenon within education law: the recent enactment, in all fifty states, of statutes and standards regarding students’ social and emotional learning within public schools. Despite significant empirical evidence that curricular and disciplinary interventions targeting students’ social and emotional skills are effective at building these skills and, in turn, enhancing students’ academic and long-term outcomes, this Note argues that social and emotional learning should not be legislated. Drawing on James Scott’s seminal critique of processes of state rationalization and Jal Mehta’s application of this critique to education policy, this Note shows that the …