State and Local Government Law Commons^™

Plugging The School-To-Prison Pipeline By Improving Behavior And Protecting Core Judicial Functions: A Constitutional Crisis Looms., Patrick S. Metze

St. Mary's Law Journal

The consolidation of the Texas Youth Commission (TYC) and the Texas Juvenile Probation Commission (TJPC) into the Texas Juvenile Justice Department (TJJD) in 2011, produced a unified state juvenile justice agency to promote public safety first and to produce positive outcomes for youth, families, and communities second. As Professor Metze’s second paper discussing ways to effect a change in the School-to-Prison Pipeline, he first highlights the progress of TJJD’s use of Positive Behavioral Interventions and Supports (PBIS) in the Texas juvenile correctional context as continued evidence that such techniques, if effective in the correctional setting, will certainly work in the …

Texas Legislative Implications For Minors Accused Of Sexting., Mallory N. Myers

St. Mary's Law Journal

State legislation criminalizing sexting—the possession or electronic transmission of visual material capturing a minor engaged in sexual conduct—should not punish minors similarly to adults. The Adam Walsh Child Protection and Safety Act of 2006 (Walsh Act) in conjunction with the Sex Offender Registration & Notification Act (SORNA), require that any individual, including a minor, convicted of child pornography register as a sex offender. As a result, states with legislation that categorize sexting as child pornography, will require a minor with a sexting conviction to register as a sex offender. This disportionate punishment on the minor will make it difficult for …

Water Can Be For Drinking Again: Economic And Collaborative Solutions To A Texas Water Fight., Aaron Culp

St. Mary's Law Journal

Abstract Forthcoming.

The Co-Author Prenup., David A. Schlueter

St. Mary's Law Journal

Producing a book or article with co-authors is not an easy task. There are six potential issues one might consider before deciding to co-author a book or article. First, do you really want to be a co-author? Second, how many co-authors are going to be involved in the project? Having more than one co-author can make the departure of a co-author less of an issue, but each co-author needs to have a clearly defined role. Third, what role will each member of the team perform and what are those roles? Fourth, what should the co-author “marriage” look like? Multiple scenarios …

Secured Transaction History: Protecting Holmes' Notes Through The Conditional Sales Acts., George Lee Flint Jr.

St. Mary's Law Journal

The historical explanation for the adoption of the conditional sales acts is woefully lacking. How and why the first conditional sales acts arose are investigated. Grant Gilmore, when presenting his theory, confessed ignorance concerning the origins of the conditional sale transaction, first known as Holmes’ notes. The failure of traditional legal historians to explain the passage of the conditional sales acts encourages inquiry into their legislative history to find an explanation. Pre-Act American decisions provide clues regarding the ratification of the acts. The courts provided three explanations for their passage: to treat the conditional sale as a chattel mortgage, to …

The South Texas Drought And The Future Of Groundwater Use For Hydraulic Fracturing In The Eagle Ford Shale., Taelor A. Allen

St. Mary's Law Journal

Texas has undergone a succession of historic droughts, each one creating unique problems and controversies. The state is also one of the largest national producers of oil and gas with the Eagle Ford Shale fields contributing to the production boom. The technique used to extract the oil is called hydraulic fracturing, which requires large volumes of water to be injected at high pressures to “frac” and release gas from an underground formation. The amount of water required places even greater strain on the regional water supply. This Comment highlights legal issues raised by the high volumes of groundwater used for …

Religious Freedom Legislation In The 2013 Virginia General Assembly, Ellis M. West

Richmond Public Interest Law Review

This article consists of the following sections: Section one presents the content of the proposed amendment and explains the ways in which it is unclear, redundant, and otherwise poorly written. Section two addresses the issue of whether the provisions intended to protect religious expression, including prayer, are necessary and can solve the problems they are intended to solve. It also identifies the crucial challenge in cases involving religious expression - namely, determining correctly whether it is the government or a private individual or group that is expressing or promoting a religious belief or practice. This determination must be made because …

Federalism As A Preventative Measure: Avoiding State Enforcement Of Federal Anti-Gun Legislation In 2013, Brielle Hunt

Richmond Public Interest Law Review

This comment will delve into this question, seeking to answer whether or not the Constitution allows states to refuse to comply with federal law. This analysis requires the application of a constitutional principle that reaches far beyond the scope of the Right to Bear Arms; it calls into play the vertical separation of powers and the rights belonging to state sovereigns described in the Tenth Amendment. The comment will proceed as follows. Part II will address the constitutionality of House Bill 2340, compared against other kinds of legislation and in light of case law. It will be argued that the …

The All Students Initiative, Anti-Bullying And Athletics For Home-Schooled Children: Education Reform In The 2013 General Assembly Session, Ashley Allen

Richmond Public Interest Law Review

In 2012, Virginia Governor Robert F. McDonnell announced "The Governor's K-12 Education Reform Summit: Investing in Students Today, Creating the Workforce of Tomorrow. " With this announcement, the Governor praised the Commonwealth's public school system while underscoring the need for improvement by stating, "Until every child, in every zip code is guaranteed access to a quality education, we have not done our job." The Governor's summit brought legislators, education stakeholders, and policymakers into one room to discuss issues facing the K-12 education system, such as teacher pay, educational choice, technology and innovation, and workforce development." At the summit, the Governor …

The Grapes Of Wrath: Encouraging Fruitful Collaborations Between Local Governments And Farm Wineries In The Commonwealth, Andrew E. Tarne

Law Student Publications

While there is fairly substantial federal regulation in the field of wine law, this essay's scope will be limited to the interplay of Virginia's state and local laws that affect wineries close to home. Within that scope, this essay's purpose is threefold. First, it will highlight the key legislation and ordinances that affect farm wineries. Second, it will discuss the interplay between state and local level regulations, concluding that the General Assembly has intended to retain near exclusive regulatory powers over farm wineries. Third, it will briefly analyze the impact of the wine industry on three Virginia counties, concluding that …

Federalism As A Preventive Measure: Avoiding State Enforcement Of Federal Anti-Gun Legislation In 2013, Brielle Hunt

Law Student Publications

This comment will delve into the question of whether or not the Constitution allows states to refuse to comply with federal law. This analysis requires the application of a constitutional principle that reaches far beyond the scope of the Right to Bear Arms; it calls into play the vertical separation of powers and the rights belonging to state sovereigns described in the Tenth Amendment. The comment will proceed as follows. Part II will address the constitutionality of House Bill 2340, compared against other kinds of legislation and in light of case law. It will be argued that the Federal Government …

Regulating The Behavior Of Lawyers In Mass Individual Representations: A Call For Reform., Richard Zitrin

St. Mary's Journal on Legal Malpractice & Ethics

Cases in which lawyers represent large numbers of individual plaintiffs are increasingly common. While these cases have some of the indicia of class actions, they are not class actions, usually because there are no common damages, but rather individual representations on a mass scale. Current ethics rules do not provide adequate guidance for even the most ethical lawyers. The absence of sufficiently flexible, practical ethical rules has become an open invitation for less-ethical attorneys to abuse, often severely, the mass-representation problem. It is necessary to reform the current rules, but only with a solution that is both practical and attainable, …

The Litigation Privilege In Texas., Sam Johnson

St. Mary's Journal on Legal Malpractice & Ethics

Certain Texas cases have arisen where one party in litigation sues the attorney representing an opposing party. In response to such cases, Texas courts promulgated a judicial doctrine generally referred to as the litigation privilege or qualified immunity in order to protect litigants’ right to zealous representation from their attorney. The general rule is that one party to a lawsuit cannot sue the other party’s attorney. However, exceptions to this doctrine exist. This article explores the contours of the litigation privilege in Texas by analyzing the primary Texas cases where one party’s claim against the opposing party’s attorney was dismissed …

Introduction, Kathryn A. Stephens

St. Mary's Journal on Legal Malpractice & Ethics

Introduction

Guilt By Association: How “Standby Co-Counsel” Exposes Attorneys To Malicious Prosecution Liability., Colleen V. Lisowski

St. Mary's Journal on Legal Malpractice & Ethics

Attorneys should not assume that lending their name to a case is a risk-free practice. The California appellate decision, Cole v. Patricia A. Meyer & Associates, answered the question of whether non-participating, standby co-counsel could be held liable for malicious prosecution by merely being listed as counsel of record. Cole established the clear message behind being aware of “co-counsel” risks. According to the court, co-counsel cannot escape liability if they failed to know enough about the case. By rejecting the “passive counsel” defense, Cole held that associated attorneys still have a duty to research the validity of a case even …

Evidentiary Standards In The Legal Malpractice Trial-Within-A-Trial., F. Parks Brown

St. Mary's Journal on Legal Malpractice & Ethics

Like malpractice actions in general, the standards of proof required for each element of a legal malpractice claim evolved as legal malpractice claims became increasingly common. State and federal courts consequently produced a diverse range of opinions as jurisdictions continually adjust to evolving standards. The courts often seek to balance these standards of proof against their own precedent and the need to serve their particular notions of equity and justice. Perhaps the most contentious of these evolving standards of proof is the current state of the causation element, which is a critical test that must be satisfied to prevail in …

Benefit Corporations: A Challenge In Corporate Governance, Mark J. Loewenstein

Publications

Benefit corporations are a new form of business entity that is rapidly being adopted around the country. Though the legislation varies from jurisdiction to jurisdiction, most statutes are based on a model proposed and promoted by B Lab, itself a nonprofit corporation. The essence of these statutes is that, in making business judgments, the directors of a benefit corporation must consider the impact of their decisions on the environment and society. The model legislation, though, may create serious governance issues for the directors of benefit corporations that operate under these laws. This article analyzes the model legislation and identifies its …

A Hen In The Parlor: Municipal Control And Enforcement Of Residential Chicken Coops, Chris Erchull

Student Competition & Published Writings

The locavore movement and similar trends in sustainable agriculture and health are renewing interest in backyard residential chicken coops. This Article analyzes some of the regulatory approaches cities and towns have taken to address backyard residential chicken coops. The Article focuses on how regulation can support and encourage the beneficial aspects of keeping backyard chickens while mitigating the potential harmful impact of excessive or irresponsibly managed residential chicken coops. In particular, the Article examines common trends in local regulation, like limits on the number and sex of birds allowed in each residential yard, setback and structural requirements, and animal welfare …

Beinor V. Industrial Claims Appeals Office, Emma S. Blumer

NYLS Law Review

No abstract provided.

The All Students Initiative, Anti-Bullying And Athletics For Home-Schooled Children: Education Reform In The 2013 General Assembly Session, Ashley Allen

Richmond Journal of Law and the Public Interest

In 2012, Virginia Governor Robert F. McDonnell announced "The Governor's K-12 Education Reform Summit: Investing in Students Today, Creating the Workforce of Tomorrow. " With this announcement, the Governor praised the Commonwealth's public school system while underscoring the need for improvement by stating, "Until every child, in every zip code is guaranteed access to a quality education, we have not done our job." The Governor's summit brought legislators, education stakeholders, and policymakers into one room to discuss issues facing the K-12 education system, such as teacher pay, educational choice, technology and innovation, and workforce development." At the summit, the Governor …

Federalism As A Preventative Measure: Avoiding State Enforcement Of Federal Anti-Gun Legislation In 2013, Brielle Hunt

Richmond Journal of Law and the Public Interest

This comment will delve into this question, seeking to answer whether or not the Constitution allows states to refuse to comply with federal law. This analysis requires the application of a constitutional principle that reaches far beyond the scope of the Right to Bear Arms; it calls into play the vertical separation of powers and the rights belonging to state sovereigns described in the Tenth Amendment. The comment will proceed as follows. Part II will address the constitutionality of House Bill 2340, compared against other kinds of legislation and in light of case law. It will be argued that the …

In Re Gilmore, Andrew C. Thompson '13

NYLS Law Review

No abstract provided.

The Promise And Peril Of Cities And Immigration Policy, Rick Su

Journal Articles

No abstract provided.

Issue 2: Table Of Contents

University of Richmond Law Review

No abstract provided.

Ensuring Remedies To Cure Cramming, Amy J. Schmitz

Cardozo Journal of Conflict Resolution

On July 23, 2012, the Federal Trade Commission ("FTC") called wireless telephone bill cramming "a significant consumer problem," and both the FTC and Federal Communications Commission ("FCC") have been delving into the morass of concerns regarding cramming with respect to landline (or wired) telephone billing. "Cramming" occurs when a third party unaffiliated with a customer's telephone company adds charges to the telephone bills that the company sends to the customer. These charges can be for anything from horoscopes to long-distance telephone services.

Site-Specific Laws, John Copeland Nagle

Journal Articles

Congress often enacts statutes that only apply to a specific place. This essay identifies the instances in which site-specific legislation is appropriate. It recounts the uses of such legislation, the theoretical debate surrounding it, and the circumstances in which it is desirable. Site-specific legislation plays an important role in enabling Congress to prescribe its preferred policy even when agreement on broader legislation. My suggestion, therefore, is that general legislation should remain the default for congressional action, but site-specific legislation is appropriate when (a) there are convincing reasons for adopting special rules for a particular place, (b) there is no agreement …

A Research Agenda For Uncooperative Federalists, Ernest A. Young

Faculty Scholarship

No abstract provided.

“I’M Not Quite Dead Yet!”: Rethinking Anti-Lapse Redistribution Of A Dead Beneficiary’S Gift, Eloisa Rodriguez-Dod

Faculty Publications

Anti-lapse statutes create a category of substitute takers when a beneficiary prematurely dies. They are based on the legislature’s presumption of how a testator or settlor would want his property distributed in these circumstances. However, a testator’s or settlor’s intent may effectively be frustrated by this presumed intent.

This Article critically examines the tension between an individual’s autonomy and societal goals in the context of anti-lapse statutes applicable to wills and trusts. It scrutinizes the current rules of construction regarding anti-lapse statutes and identifies their deficiencies in their application to wills and trusts. This Article analyzes and identifies the deficiencies …

The Mobility Case For Regionalism, Nestor M. Davidson, Sheila R. Foster

Faculty Scholarship

In the discourse of local government law, the idea that a mobile populace can “vote with its feet” has long served as a justification for devolution and decentralization. Tracing to Charles Tiebout’s seminal work in public finance, the legal-structural prescription that follows is that a diversity of independent and empowered local governments can best satisfy the varied preferences of residents metaphorically shopping for bundles of public services, regulatory environment, and tax burden. This localist paradigm generally presumes that fragmented governments are competing for residents within a given metropolitan area. Contemporary patterns of mobility, however, call into question this foundational assumption. …

State Treason: The History And Validity Of Treason Against Individual States, J. Taylor Mcconkie

Kentucky Law Journal

No abstract provided.