State and Local Government Law Commons^™

In Defense Of The Substance-Procedure Dichotomy, Jennifer S. Hendricks

Publications

John Hart Ely famously observed, "We were all brought up on sophisticated talk about the fluidity of the line between substance and procedure," but for most of Erie's history, the Supreme Court has answered the question "Does this state law govern in federal court? " with a "yes" or a "no." Beginning, however, with Gasperini v. Center for Humanities, and continuing with Semtek v. Lockheed Martin and the dissenting opinion in Shady Grove v. Allstate, a shifting coalition of justices has pursued a third path. Instead of declaring state law applicable or inapplicable, they have claimed for …

Qualified Immunity Dissonance In The Sixth Circuit: Why We Must Return To Reasonableness, Matt Chiricosta

Cleveland State Law Review

The Sixth Circuit's inconsistent jurisprudence threatens the delicate balance that the defense aims to strike between protecting citizens from having their constitutional rights violated on the one hand and protecting government officials from undue interference with their official duties on the other. This Note critiques the medical emergency-law enforcement response capacity the Sixth Circuit has set forth to help adjudicate qualified immunity claims and suggests improvements the court can make to its qualified immunity jurisprudence.In Part II, I briefly trace the Supreme Court's development of the doctrine and outline the doctrine's policy goals. In Part III, I develop my thesis …

Legislative Control Of The Menhaden Fishery, Nicole M. Rovner, Matthew G. Curtis

Richmond Journal of Law and the Public Interest

This year, six menhaden- related bills were introduced in the Virginia General Assembly. Delegate John Cosgrove (RChesapeake) introduced legislation in the House of Delegates that was identical to Senate Bill 765, a bill that proposed to shift oversight of the menhaden fishery to the VMRC. This article aims to highlight the unique stance taken by Virginia's legislature and explain why this management is better left to the commission responsible for managing every other fishery in the Commonwealth. While there may not be a conclusive link between reduction industry practices and a decline in water quality, Virginia's legislators should recognize the …

Top Jobs Act Higher Education Reform Legislation, Mark E. Rubin

Richmond Journal of Law and the Public Interest

The most important piece of legislation affecting higher educa- tion passed by the 2011 Virginia General Assembly was Governor McDonnell's higher education reform bill. The title of the bill is quite expressive-"Preparing for the Top Jobs of the 21st Century: The Virginia Higher Education Opportunity Act of 2011," or "TJ21.", It is significant because of its breadth, its innovative ap- proach to funding, and the government relations strategy utilized to assure its passage.

Federalism And Criminal Law: What The Feds Can Learn From The States, Rachel E. Barkow

Michigan Law Review

Criminal law enforcement in the United States is multijurisdictional. Local, state, and federal prosecutors all possess the power to bring criminal charges. An enduring question of criminal law is how authority should be allocated among these levels of government. In trying to gain traction on the question of when crime should be handled at the federal level and when it should be left to local authorities, courts and scholars have taken a range of approaches. Oddly, one place that commentators have not looked for guidance on how to handle the issue of law enforcement allocation is within the states themselves. …

Coercion's Common Threads: Addressing Vagueness In The Federal Criminal Prohibitions On Torture By Looking To State Domestic Violence Laws, Sarah H. St. Vincent

Michigan Law Review

Under international law, the United States is obligated to criminalize acts of torture and cruel, inhuman, or degrading treatment. However, the federal criminal torture laws employ several terms whose meanings are so indeterminate that they inhibit the statutes' effectiveness and fail to provide adequate guidance regarding precisely which forms of mistreatment may result in prosecution. These ambiguous terms have given rise to serious and prolonged controversies within the executive branch regarding what torture is-controversies that confirm, and may further compound, the uncertainty of liability under the laws in question.

In order to solve this problem of vagueness and provide definitive …

Police Discretion And Local Immigration Policymaking, Rick Su

Journal Articles

Immigration responsibilities in the United States are formally charged to a broad range of federal agencies, from the overseas screening of the State Department to the border patrols of the Department of Homeland Security. Yet in recent years, no department seems to have received more attention than that of the local police. For some, local police departments are frustrating our nation’s immigration laws by failing to fully participate in federal enforcement efforts. For others, it is precisely their participation that is a cause for concern. In response to these competing interests, a proliferation of competing state and federal laws have …

Preface, Stanley W. Hammer

University of Richmond Law Review

No abstract provided.

Collective Action And The Urban Commons, Sheila R. Foster

Faculty Scholarship

Urban residents share access to a number of local resources in which they have a common stake. These resources range from local streets and parks to public spaces to a variety of shared neighborhood amenities. Collectively shared urban resources suffer from the same rivalry and free-riding problems that Garrett Hardin described in his Tragedy of the Commons tale. Scholars have not yet worked up a theory about how this tragedy unfolds in the urban context, particularly in light of existing government regulation and control of common urban resources. This Article argues that the tragedy of the urban commons unfolds during …

Localism And Capital Punishment, Stephen F. Smith

Journal Articles

Professor Adam Gershowitz presents an interesting proposal to transfer from localities to states the power to enforce the death penalty. In his view, state-level enforcement would result in a more rationally applied death penalty because states would be much more likely to make capital charging decisions based on desert, without the distorting influence of the severe resource constraints applicable to all but the wealthiest of localities. As well conceived as Professor Gershowitz’s proposal is, however, I remain skeptical that statewide enforcement of the death penalty would be preferable to continued local enforcement. First, Professor Gershowitz underestimates the benefits of localism …

See The Mojave!, John Copeland Nagle

Journal Articles

This article examines how the law is being asked to adjudicate disputed sights in the context of the Mojave Desert. The Mojave is the best known and most explored desert in the United States. For many people, though, the Mojave is missing from any list of America’s scenic wonders. The evolution in thinking about the Mojave’s aesthetics takes places in two acts. In the first act, covering the period from the nineteenth century to 1994, what began as a curious voice praising the desert’s scenery developed into a powerful movement that prompted Congress to enact the CDPA. The second act …

Restoring Lost Connections: Land Use, Policing, And Urban Vitality, Nicole Stelle Garnett

Journal Articles

Justice William Brennan rightfully reminded all of us that state constitutional law is too often neglected in our courtrooms and our classrooms. State constitutions, to borrow from the late Chief Justice William Rehnquist, ought not to be "relegated to the status of a poor relation" in our constitutional legal structure. They differ in important ways from the federal law Constitution-and those differences provide the space within which our democratic experiment flourishes. And I am sure if Justice Brennan were here with us today, he would agree that we also should not neglect the study of the state and local policies …

The New Second Circuit Local Rules: Anatomy And Commentary, Jodi Balsam

Faculty Scholarship

No abstract provided.

The Immunity Of State Officials Under The Un Convention On Jurisdictional Immunities Of States And Their Property, David P. Stewart

Vanderbilt Journal of Transnational Law

The U.S. Supreme Court decided in Samantar v. Yousuf that claims of immunity by individual foreign officials in U.S. courts will be determined not under the Foreign Sovereign Immunities Act but instead under the common law, drawing on principles of international law. The 2004 UN Convention on the Jurisdictional Immunities of States and Their Properties represents the most recent and comprehensive international thinking on the question of jurisdictional immunities of foreign states and their officials in foreign courts. Under the Convention, individual representatives of a state acting in that capacity are entitled to the same immunities as the state itself. …

A Capital Gains Anomaly: Commissioner V. Banks And The Proceeds From Lawsuits., Stephen T. Black, Katherine D. Black, Michael D. Black

St. Mary's Law Journal

When a litigant receives an award of damages or agrees to a settlement of a lawsuit for which the litigant and her attorney have agreed to a contingent fee, a portion of those damages or the settlement is paid to the attorney. For income tax purposes, there is a question of whether the litigant should include the portion paid to her attorney as her own income. The question is not merely academic. In a tax system that does not always allow the litigant to deduct her attorney's fees, the litigant may end up paying tax on money that she never …

The Proposed Texas Assignment Of Rents Act: A Legislative Escape From The Common Law Morass, Julia Patterson Forrester Rogers

Faculty Journal Articles and Book Chapters

When a loan is secured by a mortgage or deed of trust on an income-producing property, such as an office building, shopping center, or apartment complex, rents are a significant part of the security for the loan, in addition to the land and improvements.Rents provide the funds necessary to pay for operating and maintaining the mortgaged property and to make payments on the mortgage loan.After a default on the mortgage loan, a borrower, facing the possibility of losing the property to foreclosure, may apply rents to purposes unrelated to the property or the mortgage loan. The lender, on the other …

The Case For The Repeal Amendment, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Today, a political movement has arisen to oppose what seems to be a highly discretionary and legally unconstrained federal government. Beginning in the Bush Administration during the Panic of 2008 and accelerating during the Obama Administration, the federal government has bailed out or taken over banks, car companies, and student loans. It is now preparing to vastly expand the Internal Revenue Service to help it take charge of the practice of medicine for the first time in American history. This marked and rapid increase of power has shaken many Americans who are now looking to the United States Constitution with …

Unforgiving Of Those Who Trespass Against U.S.: State Laws Criminalizing Immigration, Karla M. Mckanders

Vanderbilt Law School Faculty Publications

Since around 2005, states and localities have been using criminal trespass laws to target undocumented immigrants for unlawful presence. Specifically, in April 2010, Arizona passed SB 1070: Support Our Law Enforcement and Safe Neighborhoods Act. SB 1070 creates crimes involving trespassing by “illegal aliens” and harboring or concealing unlawful aliens. This paper argues that state trespass laws that criminalize unlawful presence of immigrants are unconstitutional regulations of immigration and are a preempted exercise of state power. In evaluating the constitutionality of state trespass laws that criminalize immigration status, this paper proceeds in three parts. The first part of the paper …

Green Infrastructure: The Imperative Of Open Space Preservation, Janice C. Griffith

Suffolk University Law School Faculty Works

Open space preservation ranks among America's most deeply rooted traditions. The creation of green, civic open spaces was recognized as an important design concept in the formation of a number of the country's early cities. Philadelphia, Savannah, and New Haven were developed around squares of green open space. Most New England towns set aside a town common for grazing cattle and for a myriad of public uses. The first planned suburbs were also organized around protected open spaces.

The environmental movement in the 1970s brought renewed attention to the importance of open space preservation, but the cost of making it …

The Unsettled Nature Of The Union, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

This article is a response to Bradford R. Clark, The Eleventh Amendment and the Nature of the Union, 123 Harv. L. Rev. 1817 (2010).

In his article, The Eleventh Amendment and the Nature of the Union, Professor Bradford Clark offeres an explanation for the puzzling text of the Eleventh Amendment, which appears to preclude federal jurisdiction over suits against a state by citizens of other states but not by its own citizens. Professor Clark argues that the Amendment's text made sense to the Founders because they did not envision any suits against the states arising under federal law. …

Who Killed The Hybrid Car? State And Local Green Incentive Programs After Metropolitan Taxicab V. City Of New York, Jonathan Skinner

Publications

Unnecessarily broad preemption ruling under the Energy Policy and Conservation Act discourages other states and municipalities from pursuing innovative, environmentally beneficial policies.

The Inefficiencies And Deficiencies Of Waste Coal, Jonathan Skinner, Michael Brown

Publications

No abstract provided.

Same-Sex Marriage And The New Judicial Federalism: Why State Courts Should Not Consider Out-Of-State Backlash, Neal Devins

Faculty Publications

No abstract provided.

Horizontal Erie And The Presumption Of Forum Law, Michael S. Green

Faculty Publications

According to Erie Railroad v. Tompkins and its progeny, a federal
court interpreting state law must decide as the state’s supreme
court would. In this Article, I argue that a state court interpreting
the law of a sister state is subject to the same obligation. It must
decide as the sister state’s supreme court would.

Horizontal Erie is such a plausible idea that one might think it is
already established law. But the Supreme Court has in fact given
state courts significant freedom to misinterpret sister-state law. And
state courts have taken advantage of this freedom, by routinely presuming
that …

Horizontal Erie And The Presumption Of Forum Law, Michael Steven Green

Michigan Law Review

According to Erie Railroad v. Tompkins and its progeny, a federal court interpreting state law must decide as the state's supreme court would. In this Article, I argue that a state court interpreting the law of a sister state is subject to the same obligation. It must decide as the sister state's supreme court would. Horizontal Erie is such a plausible idea that one might think it is already established law. But the Supreme Court has in fact given state courts significant freedom to misinterpret sister-state law. And state courts have taken advantage of this freedom, by routinely presuming that …

Probing The Legitimacy Of Mandatory Mediation: New Roles For Judges, Mediators, And Lawyers., Tracy Walters Mccormack, Susan Schultz, James Mccormack

St. Mary's Journal on Legal Malpractice & Ethics

This Article probes the fundamental assumptions behind the use of mandatory or court-ordered mediation. The authors question the predominant use of standing rules or judicial practices referring cases to mediation. These referrals are inconsistent with the traditional roles of judges and courts, exclude the public from the justice system, and allow repeat players to develop a private justice system with little to no oversight. The Article questions why judges allow and encourage mandatory mediation and calls for all participants to take a more active role in the process. Based on surveys of judges, mediators, and lawyers, the Article exposes troublesome …

An Article We Wrote To Ourselves In The Future: Early 21st Century Views On Ethics And The Internet., David Hricik, Prashant Patel, Natasha Chrispin

St. Mary's Journal on Legal Malpractice & Ethics

Written from the viewpoint of the year 2050, this Article discusses the clash between legal ethics and the technological revolution of the early twenty-first century. As a result of ethics rules being applied to new technologies in ways never contemplated under traditional circumstances, lawyers had to be overly cautious when they used the Internet to correspond with or seek out clients, or otherwise promote their legal services. The lesson learned is that the legal community should reflect on the harm caused by over zealous regulation and take a more reasoned approach to the use of technology for the benefit of …

Shifting The Burden Of Proof On Causation In Legal Malpractice Actions., Jeffrie D. Boysen

St. Mary's Journal on Legal Malpractice & Ethics

Legal malpractice suits, like any negligence claim, require the plaintiff to meet all of the elements of the malpractice claim. Texas malpractice claims are based on professional negligence. In Texas, the elements a plaintiff must prove in a legal malpractice claim are: "(1) the attorney owed the plaintiff a duty; (2) the attorney breached that duty; (3) the breach proximately caused the plaintiffs injuries; and (4) damages occurred." Most jurisdictions, including Texas, place the burden on the plaintiff to meet all elements of the claim, including causation. However, a significant minority of jurisdictions allow the burden to shift to the …

Customary International Law As U.S. Law: A Critique Of The Revisionist And Intermediate Positions And A Defense Of The Modern Position, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

In a recent referendum, the citizens of Oklahoma overwhelmingly approved a State constitutional amendment providing that the courts of the State "shall not consider international law or Sharia law" in rendering their decisions. The amendment's exclusion of Sharia law has garnered most of the media attention, but more consequential by far is the measure's directive to the State courts to disregard international law. Similar measures have been proposed in other States, some of them merely barring consideration of Sharia law or foreign law, but others barring consideration of international law as well. These measures are clearly unconstitutional insofar as they …

From Oglethorpe To The Overthrow Of The Confederacy: Habeas Corpus In Georgia, 1733-1865, Donald E. Wilkes Jr.

Georgia Law Review

This Article provides, for the first time, a comprehensive
account of the writ of habeas corpus in Georgia not

primarily focused on use of the writ as a post conviction
remedy. The Article covers the 132-year period stretching
from 1733, when the Georgia colony was established, to
1865, when the American Civil War came to a close. Part
II of this Article, which examines the writ of habeas corpus
in colonial Georgia, begins by briefly summarizing the
history and development of the writ in England, and then
analyzes the reception and availability in the colony of the
common law writ …