State and Local Government Law Commons^™

Guilt By Alt-Association: A Review Of Enhanced Punishment For Suspected Gang Members, Rebecca J. Marston

University of Michigan Journal of Law Reform

This essay, written in reaction to the University of Michigan Journal of Law Reform’s 2018 Symposium entitled “Alt-Association: The Role of Law in Combating Extremism” (the Symposium), does not dispute the seriousness of gang-related violence. Rather, it examines ways in which current strategies for combating gang-related crimes are ineffective or problematic and suggests possible reforms. Part One of this essay will describe current methods used in labeling, tracking, and prosecuting gang members, which result in a cycle of enhanced punishment. Part Two will evaluate these practices and reflect on whether enhanced punishment is the best way to reduce gang-related violence, …

Protecting Local Authority In State Constitutions And Challenging Intrastate Preemption, Emily S.P. Baxter

University of Michigan Journal of Law Reform

In recent years, state legislatures have increasingly passed laws that prohibit or preempt local action on a variety of issues, including fracking, LGBTQIA nondiscrimination, and workplace protections, among others. Often, these preemption laws are a direct response to action at the local level. States pass preemption laws either directly before or directly after a locality passes an ordinance on the same subject. Scholars have seen these preemptive moves as the outcome of the urban disadvantage in state and national government due to partisan gerrymandering.

Preemption may be a feature of our governing system, but it has also become a problematic …

Texas Indian Holocaust And Survival: Mcallen Grace Brethren Church V. Salazar, Milo Colton

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

When the first Europeans entered the land that would one day be called Texas, they found a place that contained more Indian tribes than any other would-be American state at the time. At the turn of the twentieth century, the federal government documented that American Indians in Texas were nearly extinct, decreasing in number from 708 people in 1890 to 470 in 1900. A century later, the U.S. census recorded an explosion in the American Indian population living in Texas at 215,599 people. By 2010, that population jumped to 315,264 people.

Part One of this Article chronicles the forces contributing …

Skinning The Cat: How Mandatory Psychiatric Evaluations For Animal Cruelty Offenders Can Prevent Future Violence, Ashley Kunz

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

In 2017, the Texas legislature amended Texas Penal Code § 42.092, which governs acts of cruelty against non-livestock animals. The statute in its current form makes torturing, killing, or seriously injuring a non-livestock animal a third degree felony, while less serious offenses carry either a state jail felony or a Class A misdemeanor charge.

While a step in the right direction, Texas law is not comprehensive in that it fails to address a significant aspect of animal cruelty offenses: mental illness. For over fifteen years, Texas Family Code § 54.0407 has required psychiatric counseling for juveniles convicted of cruelty to …

Reforming Recidivism: Making Prison Practical Through Help, Katelyn Copperud

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

While Texas has long been recognized as “Tough Texas” when it comes to crime, recent efforts have been made to combat that reputation. Efforts such as offering “good time” credit and more liberal parole standards are used to reduce the Texas prison populations. Although effective in reducing prison populations, do these incentives truly reduce a larger issue of prison overpopulation: recidivism?

In both state and federal prison systems, inmate education is proven to reduce recidivism. Texas’s own, Windham School District, provides a broad spectrum of education to Texas Department of Criminal Justice inmates; from General Education Development (GED) classes to …

When Industry Knocks: Ohio Department Of Agriculture's Fight To Control Pollution Permits For Concentrated Animal Feeding Operations, Alexis Woodworth

Cleveland State Law Review

The Clean Water Act requires that a permit be obtained before discharging pollutants into bodies of water in the United States. In Ohio, these permits are issued by the Ohio Environmental Protection Agency. But in 2002, after growing pressure from agriculture lobbyists, the Ohio Legislature passed legislation to transfer permitting authority over industrial farms to the Ohio Department of Agriculture. To date, this transfer has not been approved by the United States Environmental Protection Agency (EPA). The U.S. EPA has demanded legislative and regulatory changes before it will grant the Ohio Department of Agriculture (ODA) permitting authority. Concerned citizens and …

Notice, Due Process, And Voter Registration Purges, Anthony J. Gaughan

Cleveland State Law Review

In the 2018 case of Husted v. A. Philip Randolph Institute, a divided United States Supreme Court upheld the procedures that Ohio election authorities used to purge ineligible voters from the state’s registration lists. In a 5-4 ruling, the majority ruled that the Ohio law complied with the National Voter Registration Act of 1993 (NVRA) as amended by the Help America Vote Act of 2002 (HAVA). This Article contends that the controlling federal law—the NVRA and HAVA—gave the Supreme Court little choice but to decide the case in favor of Ohio’s secretary of state. But this article also argues …

Sports Betting And Indian Gaming: Overcoming Barriers To Market Entry And Integration Of Sports Books Into Tribal Casinos, Steve Light

International Conference on Gambling & Risk Taking

Abstract

Even before the U.S. Supreme Court issued its decision In Murphy v. NCAA (2018) permitting states to legalize sports wagering, the biggest brand-names in gaming worldwide were positioning themselves to capitalize on the fan base for America’s most recognizable sports leagues.

Sports wagering already is up and running in five states; analysts predict that more than half the states will legalize it within five years. Many will be among the 29 states that currently have casinos owned and operated by American Indian tribes in this $32.4 billion market segment.

There is no firm sense and little data pointing to …

If A Tree Falls In A Roadway, Is Anyone Liable?: Proposing The Duty Of Reasonable Care For Virginia’S Road-Maintaining Entities, Ian J. Mcelhaney

Washington and Lee Law Review

This Note considers whether a duty for road-maintaining entities is tenable under Virginia law. It also explores the rationale for imposing differing liabilities between landowners and road-maintaining entities. Part III reviews the various duties other states use with respect to dangerous roadside trees and concludes that the duty of reasonable care is most appropriate for Virginia. Sovereign immunity is a companion issue and is addressed in Part IV. The Part provides a brief overview of the policy arguments for sovereign immunity, before reviewing immunity’s impact at the state, county, and municipal levels. The Part also addresses a government employee’s entitlement …

In Search Of A Unified Theory Of The Duties Flowing From Property Ownership In Virginia: A Response To Mcelhaney’S If A Tree Falls, E. Kyle Mcnew

Washington and Lee Law Review

In his Note, Ian McElhaney concludes that the Court got it right in Cline v. Dunlora South, LLC—that the landowner owes no duty to protect travelers on adjoining roadways from natural conditions on the landowner’s property—because the Court also got it right in Cline v. Commonwealth when it held that the Commonwealth of Virginia may have that duty instead. In the narrowest view, that is certainly a defensible position. If the case is just about natural conditions and roads, then there is intuitive appeal in saying that they are the Commonwealth’s roads; so, it is the Commonwealth’s job to make …

A Few Thoughts On “If A Tree Falls In A Roadway . . . .”, David Eggert

Washington and Lee Law Review

This Response to Ian McElhaney’s note examines (1) the background legal context that got us to where we are on falling-tree liability; (2) how this peculiar issue fits into Virginia’s general approach to the law; and (3) presents some thoughts on Mr. McElhaney’s reasoning and ultimate conclusions in urging liability for road maintainers.

Scrutinizing Anticompetitive State Regulations Through Constitutional And Antitrust Lenses, Daniel A. Crane

Articles

State and local regulations that anticompetitively favor certain producers to the detriment of consumers are a pervasive problem in our economy. Their existence is explicable by a variety of structural features—including asymmetry between consumer and producer interests, cost externalization, and institutional and political factors entrenching incumbent technologies. Formulating legal tools to combat such economic parochialism is challenging in the post-Lochner world, where any move toward heightened judicial review of economic regulation poses the perceived threat of a return to economic substantive due process. This Article considers and compares two potential tools for reviewing such regulations—a constitutional principle against anticompetitive parochialism …

When Death Becomes An Option: How Aedpa’S Opt-In Provisions Will Violate The Constitutional Rights Of Habeas Corpus Petitioners, Alexander Brock

Journal of Law and Policy

For centuries, the writ of habeas corpus has allowed imprisoned men and women to challenge the validity of their detention as the final source of relief from criminal sentences. For those convicted of the death penalty, it is the last resource standing between life and death. Despite its monumental significance in America’s legal history, the “Great Writ” was dealt a devastating blow with the introduction of the Antiterrorism and Effective Death Penalty Act (“AEDPA”) of 1996. Designed to expedite the legal processes from sentencing to execution, AEDPA drastically limited the avenues of relief sought by habeas petitioners. Yet, the law …

Congress Prescribes Preemption Of State Tort-Reform Laws To Remedy Healthcare "Crisis": An Improper Prognosis?, Jason C. Sheffield

Journal of Law and Health

Say what you want about the tort-reform debate, but it has staying power. Over the last half-century, legislators and commentators have extensively debated every aspect of tort reform and the litigation "crisis" arguably giving rise to it, without resolving much of anything. Despite this ideological stalemate, tort-reform proponents have managed to push measures through every state legislature. With fifty tries come fifty results, and for the most part, fifty failures. But have all these efforts been in vain? As of yet, no. Although the healthcare system does not appear to be improving, the numerous tort-reform measures states have adopted provide …

Solving The Opioid Epidemic In Ohio, Lacy Leduc

Journal of Law and Health

On May 31, 2017, Ohio Attorney General Mike DeWine took a step in fighting Ohio's opioid epidemic, bringing the first of many lawsuits against five top pharmaceutical companies. However, under Federal and State law, there is an exception called the Learned Intermediary Doctrine, which can absolve drug manufacturers of liability from any misconduct that might be found and transfer that liability to a treating physician. This exception is the way many drug manufacturers were able to avoid being held responsible in the past. This Note proposes that with the current pending lawsuit in the State of Ohio, an exception to …

Unintentional Irony In Landmark Decisions Of The Delaware Supreme Court Regarding Corporate Law, Steven J. Cleveland

Michigan Business & Entrepreneurial Law Review

Three landmark decisions of the Delaware Supreme Court exhibit unintentional irony: Beam v. Stewart, Smith v. Van Gorkom, and Paramount Communications Inc. v. Time Inc. In Beam, the court concluded that, regarding the decision of whether to seek remedy against Martha Stewart, her fellow directors would not have jeopardized their reputations for the minimal gain of continuing their business and personal relationships with her. Ironically, the court failed to acknowledge that Martha Stewart—in trading on material nonpublic information, which gave rise to the corporate claim against her—jeopardized her reputation (ultimately losing hundreds of millions of dollars and her freedom) for …

Board Of Pharmacy, John Lacrosse, John Mysliwiec, Bridget Fogarty Gramme

California Regulatory Law Reporter

No abstract provided.

Reconciling Police Power Prerogatives, Public Trust Interests, And Private Property Rights Along Laurentian Great Lakes Shores, Richard K. Norton, Nancy H. Welsh

Michigan Journal of Environmental & Administrative Law

The United States has a north coast along its ‘inland seas’—the Laurentian Great Lakes. The country enjoys more than 4,500 miles of Great Lakes coastal shoreline, almost as much as its ocean coastal shorelines combined, excluding Alaska. The Great Lakes states are experiencing continued shorefront development and redevelopment, and there are growing calls to better manage shorelands for enhanced resiliency in the face of global climate change. The problem is that the most pleasant, fragile, and dangerous places are in high demand among coastal property owners, such that coastal development often yields the most tenacious of conflicts between public interests …

Commencement Calls For Review Of Annual Milestones, Austen L. Parrish

Austen Parrish (2014-2022)

This weekend is a time of celebration in Bloomington, as we welcome friends and family of the Class of 2019 for our annual commencement ceremony. It’s an important milestone in our students’ lives. Commencement is also a time for looking back. The past year saw several significant milestones for the IU Maurer School of Law. I’d like to touch on just a few of them in this month’s column.

Ohio's Targeted Community Alternative To Prison Program: How A Good Idea Is Implemented Through Bad Policy, Samantha Sohl

Cleveland State Law Review

Just because a legislature can make a law doesn’t mean that they should. The Ohio General Assembly enacted the Targeted Community Alternatives to Prison (T-CAP) program to decrease the number of convicted defendants sent to state prison and to increase funding for community control efforts. While the law may be upheld under the Ohio Constitution’s Uniformity Clause, the law should still be repealed because legislative control and financial influence have no place in the judicial branch, specifically the criminal sentencing process. However, the law is rooted in good intentions, and many judges have found the additional funding useful, but the …

Local Evidence In Constitutional Interpretation, Brandon L. Garrett

Cornell Law Review

The Supreme Court frequently relies on state law when interpreting the U.S. Constitution. What is less understood is the degree and manner in which the Supreme Court and other federal courts look to local law. Although it has gone largely unnoticed, there is a robust practice of acknowledging and accounting for local law in the course of constitutional interpretation. Local evidence may inform the decision whether to recognize a constitutional right, it may inform the interpretation of the right, and it may inform the remedies for a constitutional violation. For example, the Supreme Court has examined local enforcement patterns to …

Silence Of The Liberals: When Supreme Court Justices Fail To Speak Up For Lgbt Rights, David S. Cohen

University of Richmond Law Review

In 1985, Justice Brennan did something that had never been done before and has, surprisingly, never been done again—penned a separate opinion from the Court’s left vigorously arguing for the protection of gay rights under the Constitution. Since then, even though the Court has repeatedly protected gay rights, none of the Court’s liberal Justices have said a word on the topic. Rather, the liberal Justices have ceded the territory on the issue of the Constitution and gay rights almost entirely to Justice Kennedy’s notoriously flowery but somewhat vacuous statements about the issue, as well as the pointed and often homophobic …

Eliminating Liability For Lack Of Informed Consent To Medical Treatment, Valerie Gutmann Koch

University of Richmond Law Review

The legal doctrine of informed consent, which imposes tort liability for failure to disclose the risks, benefits, and alternatives of a proposed medical intervention, is often criticized for emphasizing ritual over relationships, contributing to the deterioration of the doctor-patient relationship by encouraging the practice of defensive medicine. This article considers a rather radical response to the allegations that the tort of lack of informed consent does not serve the lofty goal of protecting patient self-determination by ensuring that treatment decisions are voluntary and informed, namely the elimination of liability for failure to provide informed consent to medical treatment. In doing …

Transitional Equality, Suzanne A. Kim

University of Richmond Law Review

Legal discussions of inequality often focus on the virtues of one legal status or regulatory structure over another, but a guarantee of the right to a particular legal status does not ensure a lived experience of equality in that status. In moments of legal change, when a person or class of persons obtain a new status or gain rights that had previously been denied to them, the path from one legal status to another becomes critically important and may itself be impacted by race, gender, age, and other factors. The process of transitioning to a new status can be complex …

Access Before Evidence And The Price Of The Fda’S New Drug Authorities, Erika Lietzan

University of Richmond Law Review

Sometimes drug innovation seems to happen in reverse. Patients enjoy a treatment for years even though the treatment has not been approved by the FDA or proven safe and effective to the FDA’s standards. (Sometimes this happens because the FDA has declined to take enforcement action.) The agency encourages companies to perform the work necessary to satisfy the United States “gold standard” for new drug approval, however, by promising exclusivity in the marketplace. When a company does this work, at considerable expense, the results are predictable. The new drug is expensive, and patients and payers (and sometimes policymakers) are outraged. …

The “Vanishing Trial”: Arbitrating Wrongful Death, The Hon. Victoria A.B. Willis, Judson R. Peverall

University of Richmond Law Review

Within the past four decades, private arbitration has spread apace across the American legal landscape. The “mass production” of arbitration clauses has pervaded modern business life, relegating a multitude of legal doctrines from the public courthouse into the private realm. The results have been both acute and invidious. Modern judicial preferences for arbitration have given way to enforcement in areas of the formerly unenforceable. Courts are now compelling new classes of claims, previously thought to be beyond the pale of any arbitration agreement.

The latest target in this expedition is the wrongful death action, with courts now shifting wrongful death …

When The Problem Is The Solution: Evaluating The Intersection Between The U Visa “Helpfulness” Requirement And No-Drop Prosecution Policies, Diane Mickelson

University of Richmond Law Review

When Congress introduced the U visa in 2000, it intended to create a program that not only protected immigrant victims of domestic violence from deportation, but also strengthened law enforcement’s ability to investigate crimes and encouraged victims to report the abuse. Traditionally, immigrant victims are particularly vulnerable to domestic violence and have been provided with few options to leave the relationship without risking their immigration status. However, while the U visa provides immigration protections to broad categories of victims, it contains a unique “helpfulness” requirement that compels victims to continually cooperate with law enforcement in order to receive the necessary …

Intellectual Property And Human Rights 2.0, Peter K. Yu

University of Richmond Law Review

Written in celebration of the seventieth anniversary of the Universal Declaration of Human Rights, this article calls for greater methodological engagement to refine existing human rights approaches to intellectual property and to devise new approaches to advance the promotion and protection of human rights in the intellectual property area. This article begins by briefly recapturing the past two decades of scholarship on intellectual property and human rights. It documents the progress scholars have made in this intersectional area. The article then draws on the latest research on human rights methods and methodology to explore whether and how we can take …

Preface, Kurt D. Lockwood

University of Richmond Law Review

We are proud to present the fourth volume of the Online Edition of the University of Richmond Law Review. In the proud tradition of our publication, we have once again sought to publish timely and relevant scholarship.

Curating Campus Speakers, Henry L. Chambers Jr.

University of Richmond Law Review

Curation—the picking and choosing of materials for pedagogical reasons—regularly occurs on college campuses both inside and outside of the classroom. This brief essay explains that curation in two contexts. Part I discusses the curation of courses inside the classroom. Part II discusses the curation of campus speakers outside the classroom. Though applied to different topics, the process of curation is similar in both contexts. Considering both forms of curation can help illuminate and resolve some of the most important issues underlying the debate regarding controversial campus speakers.