State and Local Government Law Commons^™

Removing Recalcitrant County Clerks In Kentucky, Shawn D. Chapman

Kentucky Law Journal

Events in 2015 surrounding Rowan County Clerk Kim Davis showed how removing county clerks from office is not a simple task in Kentucky. At present, removal can be accomplished only by the same dfficult means required to remove a state-wide executive offlcer, meaning the county clerk has the same tenure as the governor and attorney general. Historically, however, the county clerk was removable by other, lesser means, as were all other county officers. Today, the other county offcers are still removable by those lesser means, but the county clerk is not, resulting in a removal gap. That gap first appeared …

Predictors Of Municipal Bankruptcies And State Intervention Programs: An Exploratory Study, Laura N. Coordes, Thom Reilly

Kentucky Law Journal

Why do some struggling cities file for bankruptcy while others, facing simiar circumstances, do not? This Article builds on the literature examining the causes and consequences ofmunicipal fiscal distress by exploring specific factors that lead municipalities to seek help from the state and federal government. Viewing municipal opportunities and constraints through political, economic, and legal lenses, this Article helps to explain the nuances ofmunicival decision making.

After identifiing eight factors that may serve as predctors of municipal insolvency, the authors studied cities in Fiscal distress with an eye toward uncovering the circumstances that led each of these cities into and—if …

Social Bargaining In States And Cities: Toward A More Egalitarian And Democratic Workplace Law, Kate Andrias

Faculty Scholarship

A well-documented problem motivates this symposium: The National Labor Relations Act (NLRA) does not effectively protect workers’ rights to organize, bargain, and strike. Though unions once represented a third of American workers, today the vast majority of workers are non-union and employed “at will.” The decline of organization among workers is a key factor contributing to the rise of economic and political inequality in American society. Yet reforming labor law at the federal level – at least in a progressive direction – is currently impossible. Meanwhile, broad preemption doctrine means that states and localities are significantly limited in their ability …

Why The State?, Joseph Raz

Faculty Scholarship

I offer two questions for the price of one: Why do so many jurisprudential theories focus on the state? And what is it about the State that gives it a special place in our social arrangements? I do not mean these to address all aspects of states. They are questions about the law or legal systems of states.

We have to be open to a negative answer to the second question, thus being critical of jurisprudential theories that focus more or less exclusively on the state. That need not deny that states have their own legal systems. It could merely …

Custom In Our Courts: Reconciling Theory With Reality In The Debate About Erie Railroad And Customary International Law, Nikki C. Gutierrez, Mitu Gulati

Faculty Scholarship

One of the most heated debates of the last two decades in U.S. legal academia focuses on customary international law’s domestic status after Erie Railroad v. Tompkins. At one end, champions of the “modern position” support customary international law’s (“CIL”) wholesale incorporation into post-Erie federal common law. At the other end, “revisionists” argue that federal courts cannot apply CIL as federal law absent federal legislative authorization. Scholars on both sides of the Erie debate also make claims about the sources judges reference when discerning CIL. They then use these claims to support their arguments regarding CIL’s domestic status. Interestingly, neither …

Regulatory Competition And The Market For Corporate Law, Ofer Eldar, Lorenzo Magnolfi

Faculty Scholarship

This article develops an empirical model of firms’ choice of corporate laws under inertia. Delaware dominates the incorporation market, though recently Nevada, a state whose laws are highly protective of managers, has acquired a sizable market share. Using a novel database of incorporation decisions from 1995- 2013, we show that most firms dislike protectionist laws, such as anti-takeover statutes and liability protections for officers, and that Nevada’s rise is due to the preferences of small firms.Our estimates indicate that despite inertia, Delaware would lose significant market share and revenues if it adopted protectionist laws. Our findings support the hypothesis that …

In Defense Of California's Mandatory Child Vaccination Law: California Courts Should Not Depart From Established Precedent, Stephanie Awanyai

Loyola of Los Angeles Law Review

In the wake of the 2015 measles outbreak in California, California Senate Bill 277 (S.B. 277) was enacted. S.B. 277 repeals the personal belief exemption to California’s immunization requirement for children in public and private educational or child care facilities in the State. While S.B. 277 was enacted to prevent the spread of contagious diseases through mandatory vaccinations of school-aged children, there are objections to this approach. Parents who oppose S.B. 277 contend that S.B. 277 violates their federal and state constitutional rights to make medical decisions on behalf of their child, and infringes on their child’s fundamental state interest …

Identity Crisis: The Misclassification Of California Uber Drivers, Benjamin Powell

Loyola of Los Angeles Law Review

The Uber ridesharing service is synonymous with the rise of mobile application-based services. This business model has spurred a number of novel legal questions, particularly surrounding the proper identification of Uber drivers. Are they employees, guaranteed the ample protections and workers' rights under California law? Or independent contractors, less subject to employer control, but without the same protections the State provides to employees? With the proliferation of these types of services, answering this question is of critical importance, both to current Uber drivers as well as the countless others who will enter this rapidly-developing field in the coming years. This …

The Craft Brewing Boom And Minnesota's Three-Tier System: The Case For Change, Jeffrey C. O'Brien

Mitchell Hamline Law Review

No abstract provided.

Public Stand-Off: The Wisconsin State Legislature V. Milwaukee Public Schools And Takings Of Public Property By Public Entities, Corey R. Hoze

Mitchell Hamline Law Review

No abstract provided.

To Catch A Catfish: A Statutory Solution For Victims Of Online Impersonation, Colleen M. Koch

University of Colorado Law Review

Though popular MTV reality show Catfish makes online impersonation seem like a lighthearted and incredible harm, it is actually an undesirable cyber behavior that carries potentially serious consequences. Despite the seriousness of the problem, social networking sites have few incentives to stop the problem, largely due to the broad immunity they are granted by Section 230 of the Communications Decency Act, which holds them entirely immune for the content posted by users of their sites. Moreover, few state statutes currently exist to address the problem, and those that do are largely ineffective. While civil liability could be a solution to …

U.S. State Copyright Laws: Challenge And Potential, Marketa Trimble

Scholarly Works

With copyright law in the United States lying primarily in the realm of federal law, the laws of the U.S. states concerning copyright do not typically attract significant attention from scholars, practitioners, and policy makers. Some recent events have drawn attention to state copyright laws – for example, litigation against a satellite radio provider for infringement of state common-law public performance rights in pre-1972 sound recordings. However, in general, state copyright laws remain largely in the shadow of federal copyright law, and state law is typically not viewed as a particularly useful vehicle for pursuing the policies that copyright law …

A New Remedy For Junk Science: Article 11.073 And Texas's Response To The Changing Landscape In The Forensic Sciences., Trevor Rosson

St. Mary's Law Journal

Abstract Forthcoming.

No Appropriation Without Compensation: How Per Se Takings Of Personal Property Check The Power To Regulate Commerce., William Sumner Macdaniel

St. Mary's Law Journal

Abstract Forthcoming.

Pipe(Line) Dreams Post-Denbury Green., Nicholas Laurent, Christopher Oddo

St. Mary's Law Journal

In Denbury Green Pipeline-Texas, LLC v. Texas Rice Land Partners, the Beaumont Court of Appeals articulated the test that should be applied when considering whether the condemnation of private property, which would result favorably for pipeline companies, should be allowed. In Denbury, the Beaumont Court of Appeals balanced the protection of private property rights against the need for true common carrier pipeline companies to condemn private property. The court held that in order to condemn private property, a substantial public interest must exist to justify such condemnation. The Texas Supreme Court, however, reversed the decision of the Beaumont Court of …

Tx Rice V. Denbury., Thomas Alan Zabel

St. Mary's Law Journal

Abstract Forthcoming.

Ballot Selfies: Balancing The Right To Speak Out On Political Issues And The Right To Vote Free From Improper Influence And Coercion, Isidora Koutsoulias

Journal of Law and Policy

Courts and legislatures face the difficult task of balancing individual First Amendment rights with other basic freedoms, a task that has become increasingly challenging with the advent of new technology. The emergence of the ballot selfie has caused a legal uproar due to the perception that it may compromise the sanctity of the electoral process and the secret ballot process by facilitating vote buying and coercion. Consequently, several states have enacted laws that prohibit most or all ballot selfies. However, many individuals have rightfully protested these laws as an unreasonable restraint on freedom of speech. This Note argues that although …

A Legal And Policy Analysis Of Driver's Licenses For Undocumented Rhode Islanders, Deborah Gonzalez, Peter Margulies

Law Faculty Scholarship

No abstract provided.

The Texas Supreme Court Retreats From Protecting Texas Students, Albert Kauffman

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

This Article criticizes the 2016 Texas Supreme Court school finance decision, the latest of seven decisions starting in 1989, for its disregard of both the record in the case and the realities of the Texas Constitution and Texas politics. The Article also focuses on how standards for reviewing legislation have changed and the Texas Supreme Court's irrational and unfounded retreat to the "money doesn't make a difference" theory of school finance. Finally, the Article recommends a return to an objective, comprehensible, enforceable and constitutional system of review, and concludes with a prayer for holdings that recognize the inequities of the …

Blue Lives Have Always Mattered: The Usurping Of Hate Crime Laws For An Unintended And Unnecessary Purpose, Lisa M. Olson

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

Abstract forthcoming.

The Persistence Of Memory: The Continuing Influence Of Antebellum Missouri Laws Regarding African Americans, Roy Dripps

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

Abstract forthcoming.

The English Rule - It Ain't English, And Ought Not Be American., Timothy M. Mulligan

St. Mary's Law Journal

Abstract Forthcoming.

The Demise Of Anti-Panhandling Laws In America., Natie Pilgram Neidig

St. Mary's Law Journal

Abstract Forthcoming.

The Exclusionary Rule And The Dueling Legacies Of Utah V. Streiff: Which Will Be Suppressed., Marcos Herrera

St. Mary's Law Journal

Abstract Forthcoming.

Force Majeure: How Lessees Can Save Their Leases While The War On Fracking Rages On., Allison R. Ebanks

St. Mary's Law Journal

Abstract Forthcoming.

Driverless Seattle: How Cities Can Plan For Automated Vehicles, Matthew Bellinger, Ryan Calo, Brooks Lindsay, Emily Mcreynolds, Mackenzie Olson, Gaites Swanson, Boyang Sa, Feiyang Sun

Tech Policy Lab

The advent of automated vehicles (AVs)—also known as driverless or self-driving cars—alters many assumptions about automotive travel. Foremost, of course, is the assumption that a vehicle requires a driver: a human occupant who controls the direction and speed of the vehicle, who is responsible for attentively monitoring the vehicle's environment, and who is liable for most accidents involving the vehicle. By changing these and other fundamentals of transportation, AV technologies present opportunities but also challenges for policymakers across a wide range of legal and policy areas. To address these challenges, federal and state governments are already developing regulations and guidelines …

Race, Rhetoric, And Judicial Opinions: Missouri As A Case Study, Brad Desnoyer, Anne Alexander

Faculty Works

This Essay studies the relationship between race, rhetoric, and history in three twentieth century segregation cases: State ex rel. Gaines v. Canada, Kraemer v. Shelley, and Liddell v. Board of Education. Part I gives a brief overview of the scholarship of Critical Race Theory, majoritarian narratives and minority counter-narratives, and the judiciary’s rhetoric in race-based cases. Part II analyzes the narratives and language of Gaines, Kraemer, and Liddell, provides the social context of these cases, and traces their historical outcomes.

The Essay contends that majoritarian narratives with problematic themes continue to perpetuate even though court opinions have evolved to use …

Sex Offender Registration In New York: The Dangers Of State Law Preemption Of Local Residency Restriction Laws And Its Implications For Communities And Sex Offenders Alike, Megan Forbes

Touro Law Review

No abstract provided.

The Stakes Are High: The Professional And Amateur Sports Protection Act Is Constitutionally Vulnerable And Reflects Bad Policy, Stephen Weinstein

Touro Law Review

No abstract provided.

Report And Recommendations Concerning Environmental Aspects Of The New York State Constitution, New York State Bar Association Environmental And Energy Law Section, Mary L. Lyndon

Faculty Publications

The purpose of the Report is to inform and enrich understanding of environmental issues which may be considered at a Constitutional Convention (should one occur) or with respect to proposals to amend the Constitution through the legislative process.