State and Local Government Law Commons^™

Judicial Review Of Arbitration Awards In The Fifth Circuit., Christopher D. Kratovil

St. Mary's Law Journal

In the wake of a defeat in arbitration, trial lawyers seek appellate counsel looking for some method to escape the arbitrator’s decision. Most leave such offices disappointed after having been informed arbitration awards will be set aside by the courts “only in very unusual circumstances.” The Federal Arbitration Act (FAA) fully endorses arbitration and liberally encourages its use as an alternative to traditional litigation. Consistent with Congress’ focus on speed, efficiency, and cost reduction, a critical goal of arbitration is to establish “finality” at the earliest possible point. Unfortunately, early finality is antithetical to robust appellate proceedings. Yet, the FAA …

The Storm Between The Quiet: Tumult In The Texas Supreme Court, 1911-21., Michael S. Ariens

St. Mary's Law Journal

The Texas Supreme Court from 1911–1921 is best known not for the law it made or the opinions it wrote, but for its failure to decide cases. Although the supreme court’s difficulty in clearing its docket existed before 1911, the number of outstanding cases exploded during the second decade of the twentieth century. Arguably, the issue of statewide prohibition and the divergent views held on that issue by members of the Texas Supreme Court was the driving force behind the disharmony and dysfunctionality of the court during this decade. Statewide prohibition explains why elections of candidates to the court were …

Setting The Limits In Texas Construction Law: A Look At The Surety's Limitations Under Indemnity Agreements And Equitable Subrogation Comment., John C. Warren

St. Mary's Law Journal

To clarify divergent case law, Texas courts should adopt good faith as the necessary standard governing indemnity agreements. Texas court decisions limiting settlement of bond claims by sureties can be split into three categories: (1) those cases where indemnity agreements fail to vest authority in the indemnitee to settle claims or require a good faith standard; (2) those expressly stating indemnitees have authority to settle claims in good faith; and (2) those expressly vesting a surety with exclusive rights to determine which bonded claims should be settled. Under the first line of cases courts apply common law indemnity principles requiring …

"Failure To Pay Any Poll Tax Or Other Tax": The Constitutionality Of Tax Felon Disenfranchisement, Sloan G. Speck

Publications

If the government convicts a citizen under the tax evasion provisions of the Internal Revenue Code, some state disenfranchisement laws preclude that citizen — now a felon — from voting. In this sense, the right to vote depends on the payment of federal income taxes. The Constitution's Twenty-Fourth Amendment, however, guarantees that the federal franchise “shall not be denied or abridged... by reason of failure to pay any poll tax or other tax.” If “other tax” includes income taxes, the text of the Twenty-fourth Amendment appears to prohibit the disenfranchisement of citizens convicted of tax felonies. This Comment argues that …

Communicating During Emergencies: Toward Interoperability And Effective Information Management, Philip J. Weiser

Publications

The suboptimal state of communications technology used by public safety agencies has emerged as a high profile political issue. In most cases, public safety agencies are able only to communicate using antiquated networks, engineered solely for providing voice communications and unable to interoperate beyond a select number of users. This type of system fails to provide the type of economies of scale, network flexibility, or the broader functionalities routinely used by the military and private sector enterprises. The challenge facing policymakers is thus how to develop a next generation architecture for public safety and spur adoption of a new set …

Back To The Future: Is Form-Based Code An Efficacious Tool For Shaping Modern Civic Life?, Lolita Buckner Inniss

Publications

This Essay serves as a critique of the New Urbanism in general and of form-based code in particular as a tool of the New Urbanism. It may be true that form-based code offers more flexibility than traditional zoning schemes and thus may offer some respite from acknowledged ills such as social and racial divisions created by exclusionary zoning and other tools, and from the relative inutility of single or limited use districts. However, I will argue that these benefits are eclipsed by some of the problems of form-based code. Form-based code is frequently hailed as a back to the future …

Journal Of The House Of Representatives Of The Commonwealth Of Kentucky, 2007, Extraordinary Sessions, Kentucky. General Assembly. House Of Representatives.

Journals of the General Assembly of the Commonwealth of Kentucky

No abstract provided.

Journal Of The House Of Representatives Of The Commonwealth Of Kentucky, 2007, Volume 1, Kentucky. General Assembly. House Of Representatives.

Journals of the General Assembly of the Commonwealth of Kentucky

No abstract provided.

A Necessary And Proper Role For Federal Courts In Prison Reform: The Benjamin V. Malcolm Consentdecrees, Harold Baer Jr., Arminda Bepko

NYLS Law Review

No abstract provided.

Guiry V. Goldman, Sachs & Co., Adam B. Hahn

NYLS Law Review

No abstract provided.

The Core Plan Or How I Learned To Stop Worrying And Love The Central City: Shifting Control Of Regional Mass Transit To The Central City, Jeffrey Baltruzak

The University of New Hampshire Law Review

[Excerpt] “Mass transit in the United States is moribund: it plays a meaningful transportation role in only a handful of American regions. It is clear that the status quo—where state-created special-purpose districts (SPDs) provide limited regional mass transit options and new mass transit construction progresses at a glacial pace—is a colossal failure. This failure necessitates a new model of mass transit ownership and management. It is time for the region’s central city to own and operate the region’s mass transit system extraterritorially, free from significant control by the outer cities (the suburbs) and the state. This article calls this arrangement …

Issue 2: Table Of Contents

University of Richmond Law Review

No abstract provided.

Rescuing The Rescued: Stemming The Tide Of Foreclosure Rescue Scams In Washington, Zachary E. Davies

Seattle University Law Review

While foreclosure rescue scam (FRS) victims have many remedies under existing statutes, remedies are inadequate because they fail to holistically address the FRS problem. A successful statutory approach to combating the spread of this insidious scam must rest on three legs: education, enforcement, and litigation. First, homeowners facing foreclosure need timely warnings regarding the existence and prevalence of the FRS before the onslaught of FRSA solicitations begins. Next, in addition to education,homeowners need effective enforcement of the statutes that are supposed to protect them. Finally, homeowners wronged by FRSAs need to be able to seek civil relief that both adequately …

The Historical Race Competition For Corporate Charters And The Rise And Decline Of New Jersey: 1880-1910, Charles M. Yablon

Articles

No abstract provided.

School Choice And States' Duty To Support Public Schools , Aaron J. Saiger

Faculty Scholarship

The education clauses of state constitutions require states to support schools that not only educate children adequately and equitably, but that are "public" or "common." This Article argues that state-supported school choice can be consistent with these latter requirements. Individual choices, about where to live and whether to educate children privately, have long shaped traditional "public" schooling arrangements. The more direct role choice plays in school voucher and charter programs is also consistent with the requirement that schools be "public." Such programs must ensure, however, that parents' choices among schools are "genuine and independent." This criterion, developed by the U.S. …

Cooperative Localism: Federal-Local Collaboration In An Era Of State Sovereignty , Nestor M. Davidson

Faculty Scholarship

Contemporary debates about federalism and localism often proceed with, at best, a glancing reference to each other.' Commentators portray parallel, largely disconnected worlds in which the federal government relates only to the states, and the states, in turn, hermetically encompass local governments. In practice, however, numerous federal regulatory, spending, and enforcement policies actively rely on the participation of local governments independent from the states. Indeed, direct relations between the federal government and local governments-what this Article calls "cooperative localism"-play a significant role in areas of contemporary policy as disparate as homeland security, law enforcement, disaster response, economic development, social services, …

Addressing The Incoherency Of The Preemption Provision Of The Copyright Act Of 1976, Joseph P. Bauer

Journal Articles

Section 301 of the Copyright Act of 1976 expressly preempts state law actions that are within the "general scope of copyright" and that assert claims that are "equivalent to" the rights conferred by the Act. The Act eliminated the previous system of common law copyright for unpublished works, which had prevailed under the prior 1909 Copyright Act. By federalizing copyright law, the drafters of the statute sought to achieve uniformity and to avoid the potential for state protection of infinite duration.

The legislative history of § 301 stated that this preemption provision was set forth "in the clearest and most …

Finding Room For State Class Actions In A Post-Cafa World: The Case Of The Counterclaim Class Action, Jay Tidmarsh

Journal Articles

In this Article, I wish to suggest one place in which state courts can continue to have an impact on class-action practice: the adjudication of counterclaim class actions. A counterclaim class action arises when a non-class complaint is filed by a plaintiff against a defendant, who turns around and asserts against the plaintiff, on behalf of a class of similarly situated individuals, a counterclaim for relief. In Part II, I explain the factual, jurisdictional, and legal dynamics of such state-court counterclaim class actions. In Part III, I argue that counterclaim class actions, when filed in state court, are not removable …

Les Papiers De La Liberté: Une Mère Africaine Et Ses Enfants À L'Époque De La Révolution Haïtienne, Rebecca Scott, Jean M. Hebrard

Articles

During the Louisiana Constitutional Convention of 1867-1868, the young Edouard Tinchant proposed measures to protect the civil rights of women. He suggested that the State adopt legal measures to allow all women, regardless of race or color, to more easily bring complaints in the event of a breach of a marriage promise. He also proposed additional measures to prevent women from being forced into “concubinage” against their will. While that constitutional Convention was open to men of color and guaranteed a number of the rights for which Tinchant and his friends were fighting, the assembly did not adopt his propositions …

Procedural Injustice: How The Practices And Procedures Of The Child Welfare System Disempower Parents And Why It Matters, Vivek Sankaran, Itzhak Lander

Articles

Many of us appear surprised when families involved in the child protective system do not reunify. A parent’s path to reunification seems straightforward. Upon a finding of neglect, the court prescribes a basic regimen, typically consisting of parenting classes, counseling, drug testing, and a psychological evaluation, that a parent must fulfill prior to having the child returned to his/her custody. If a parent successfully completes these seemingly minimal requirements, the law requires reunification unless the return poses a “substantial risk of harm” to the child. With such high stakes involved, a clearly defined path for success, and the prospect of …

When Worlds Collide: Federal Construction Of State Institutional Competence, Marcia L. Mccormick

All Faculty Scholarship

The federal courts routinely encounter issues of state law. Often a state court will have already analyzed the law at issue, either in a separate case or in the very situation before the federal court. In every one of those cases, the federal courts must decide whether to defer to the state court analysis and, if so, how much. The federal courts will often defer, but many times have not done so, and they rarely explain the reasons for the departures they make. While this lack of transparency gives the federal courts the greatest amount of discretion and power, it …

The Trans-Texas Corridor Plan: Will Best Value Highway Contract Procurement Under Comprehensive Development Agreements Leave The Lowest Competitive Bidder In The Dust Comment., Jason C. Petty

St. Mary's Law Journal

Abstract Forthcoming.

Foreword, Richard B. Collins

Publications

No abstract provided.

Colorado Ethics Opinion 115: Next Steps For Colorado's Collaborative Lawyers, Scott R. Peppet

Publications

No abstract provided.

The Revision Of The Colorado Trademark Registration Statute, Arthur H. Travers

Publications

No abstract provided.

When Is Two A Crowd? The Impact Of Federal Action On State Environmental Regulation, Jonathan H. Adler

Faculty Publications

Despite the extensive scholarly literature assessing the proper role of federalism in environmental law, there has been relatively little analysis of why states adopt given environmental policies. There is even less consideration of how federal regulatory choices influence state environmental policy, and how a change in federal policy could influence states' willingness to adopt more environmental protections of their own. This Article seeks to address this gap by describing some of the factors that are likely to influence state environmental policy decisions and delineating how federal environmental policies can affect state policy choices. Specifically, this Article seeks to further the …

Alaska Initiatives And Referenda, Tina Ching

Faculty Articles

This article is intended to be used as a starting point for those researching initiative and referendum issues for the state of Alaska. A brief history of I&R in Alaska is followed by an overview of the process. Thepiece concludes with an annotated list of resources to begin research into Alaska I&R.

Chinks In The Armor: Municipal Authority To Enact Shoreline Permit Moratoria After Biggers V. City Of Bainbridge Island, Ryan M. Carson

Seattle University Law Review

Why would a relatively mundane dispute over what amounts to a few cubic yards of concrete warrant the extensive discussion encom passed in this Note? This dispute gives rise to a fundamental question about power: What is the scope of municipal power under one of Washington's most important environmental protection laws? Additionally, questions arise about competing normative values within environmental protection, property rights, and responsible land use and development. Placed against a backdrop of growing contentiousness surrounding these issues in Washington politics, the relevance and timeliness of these questions cannot be doubted.

Brother's Keeper: The Legal Ethics Of Representing Family Members The Sixth Annual Symposium On Legal Malpractice And Professional Responsibility: Comment., Jason W. Whitney

St. Mary's Law Journal

This Comment seeks to provide practical guidance in evaluating ethical issues for Texas attorneys considering representing a relative. Attorneys must always look to the relevant rules of professional conduct, advisory opinions, and case law to evaluate whether or not representation adheres to ethical guidelines. The primary sources of guidance are the Texas Disciplinary Rules of Professional Conduct (Texas Disciplinary Rules), advisory opinions from the Supreme Court of Texas Professional Ethics Committee (Texas Professional Ethics Committee), and Texas case law. Part II of this Comment discusses the history of professional responsibility, characteristics of representing family members, and common ethical problems arising …

Threading The Eye Of The Erisa Needle: Erisa Preemption And Alternative Legal Schemes To Fill The Regulatory Vacuum., Bernard D. Reams Jr.

St. Mary's Law Journal

Popular consensus suggests that the Employee Retirement Income Security Act (“ERISA”) is a mess, and one of historic proportions. ERISA’s comprehensive reach to protect employer-provided benefits has in practice produced unintended, if not contradictory, results. Congress passed ERISA over thirty years ago to protect the rights of employees who benefit from employer pension and welfare benefit plans. It did so with a series of regulations that promote uniformity in litigation across the various states through “strong preemption language.” The goal of uniformity arguably benefits workers by imposing regular standards of conduct which lend predictability to the scope of litigation, or …