State and Local Government Law Commons^™

Bringing Context To Legal Battles Over Trans Rights – A Reply To Professor Yeargain, Jonathan L. Marshfield

UF Law Faculty Publications

This review looks at Professor Yeargain’s findings and analysis through the lens of three important debates in constitutional theory and design.

Disability Discrimination By Clinical Algorithm, Elizabeth Pendo, Jennifer D. Oliva

Articles by Maurer Faculty

In response to America’s escalating drug poisoning crisis, the federal government has funded, incentivized, and mandated that states adopt and implement prescription drug monitoring programs (“PDMPs”) to electronically surveil controlled substances and other “drugs of concern.” State PDMPs utilize proprietary, predictive software platforms that deploy algorithms to determine whether a patient is at risk for drug misuse, drug diversion, doctor shopping, or substance use disorder. PDMPs have never been validated by a federal agency or peer review, yet states have mandated their use throughout the health care delivery system.

Research demonstrates that clinical overreliance on the risk scores generated by …

Shareholder Primacy Versus Shareholder Accountability, William W. Bratton

Seattle University Law Review

When corporations inflict injuries in the course of business, shareholders wielding environmental, social, and governance (“ESG”) principles can, and now sometimes do, intervene to correct the matter. In the emerging fact pattern, corporate social accountability expands out of its historic collectivized frame to become an internal subject matter—a corporate governance topic. As a result, shareholder accountability surfaces as a policy question for the first time. The Big Three index fund managers, BlackRock, Vanguard, and State Street, responded to the accountability question with ESG activism. In so doing, they defected against corporate legal theory’s central tenet, shareholder primacy. Shareholder primacy builds …

State Taxes And "Pike Balancing", Bradley W. Joondeph

Indiana Law Journal

For many decades, the Supreme Court has applied different doctrinal frameworks in evaluating whether state laws violate the dormant Commerce Clause depending on whether the law at issue was a regulation or a tax. For state regulations, the Court’s test has included asking whether the regulation imposes costs on interstate commerce that are “clearly excessive” relative to its local benefits. But the Court has never applied this so-called “Pike balancing test” to state taxes. In its most recent state tax decision, however—South Dakota v. Wayfair, Inc.—the Court indicated Pike offers a basis for challenging state tax schemes under the Commerce …

Interlocal Power Roulette, Daniel B. Rosenbaum

Indiana Law Journal

Local governments inhabit a crowded ecosystem. Cities, counties, and school districts—and many more—share overlapping territorial jurisdictions. Overlapping jurisdiction goes hand-in-hand with redundant local power, defined as a scenario where multiple governments hold independent authority to take the exact same action in the exact same territorial space. In Maine, for example, state law empowers three local bodies to operate the same sewer infrastructure. In Detroit, two separate entities are equally tasked with managing the city’s streetlights. And in communities across the country, local governments are broadly authorized to own the same parcels of public land, including in Oakland, California, where public …

Verses Turned To Verdicts: Ysl Rico Case Sets A High-Watermark For The Legal Pseudo-Censorship Of Rap Music, Nabil Yousfi

Seattle University Law Review

Whichever way you spin the record, rap music and courtrooms don’t mix. On one side, rap records are well known for their unapologetic lyrical composition, often expressing a blatant disregard for legal institutions and authorities. On the other, court records reflect a Van Gogh’s ear for rap music, frequently allowing rap lyrics—but not similar lyrics from other genres—to be used as criminal evidence against the defendants who authored them. Over the last thirty years, this immiscibility has engendered a legal landscape where prosecutors wield rap lyrics as potent instruments for criminal prosecution. In such cases, color-blind courts neglect that rap …

Wills & Trusts, Gerry W. Beyer

SMU Annual Texas Survey

This article discusses developments relating to the Texas law of intestacy, wills, estate administration, trusts, and other estate planning matters during the Survey period of December 1, 2022, through November 30, 2023. The reader is warned that not all newly enacted statutes or decided cases during the Survey period are presented, and not all aspects of each statute or case are analyzed. You must read and study each statute or case’s full text before relying on it or using it as precedent. The discussion of most cases includes a moral, that is, the important lesson to be learned from the …

Professional Liability, Shelby Taylor, R. Max Ward, Josh Sherman

SMU Annual Texas Survey

This Article describes and analyzes major developments in professional liability law that occurred in Texas between December 1, 2022, and November 30, 2023.

Oil, Gas, & Mineral Law, Austin W. Brister

SMU Annual Texas Survey

No abstract provided.

Franchise Law, Deborah S. Coldwell, Kristina Pierre-Louis, Sam Mallick, Wilson Miller, Chris Hamborsky

SMU Annual Texas Survey

No abstract provided.

Front Matter

SMU Annual Texas Survey

No abstract provided.

Insurance Law, J. Price Collins, Janet Tolbert, Ashley Gilmore

SMU Annual Texas Survey

This Article describes and analyzes major developments in insurance law that occurred in Texas between December 1 and November 30 of 2022.

Partnership Law, Troy Christensen, Jeff Dorrill, Matthew Schindel, Madeline Ballard, James Barnett

SMU Annual Texas Survey

This Article describes and analyzes major developments in partnership law that occurred in Texas between December 1 and November 30 of 2022.

Speaking To Maryland’S Eastern Shore: Lessons For Candidates Looking To Earn The Watermen Vote, Maryum Khwaja

CMC Senior Theses

One of the thirteen original states, Maryland is located on the East Coast. It consists of two main sections that are separated by the Chesapeake Bay: the Eastern Shore, which is east of the Chesapeake, and mainland Maryland, west of the Chesapeake. As a whole, Maryland is a blue state. The East Shore is different: it has Republican House member, Andy Harris, and holds different values from the rest of the state, and it votes differently, too. In the 2020 election, Biden won the statewide vote 65-32 percent – but Trump carried Harris’s district 56-42 percent.

The people of the …

Speed And Judgment: The Effect Of Caseload On Florida’S District Courts Of Appeal, Isabella C. Johnston

Honors Undergraduate Theses

The Florida District Courts of Appeal have undergone many changes over the last three years, including the adoption of video conferencing due to the Covid-19 pandemic, and the creation of a brand-new district for the first time since 1979. Included in this series of changes was a new rule that moves most of the circuit court’s appellate jurisdiction into the jurisdiction the District Courts of Appeals (DCAs). This change has added to the systemic pressures of the Florida DCAs. While the creation of a new district is a step in the right direction to protect the effectiveness and perception of …

Climate Risk, Insurance Retreat, And State Response, Mark P. Nevitt, Michael Pappas

Faculty Articles

Climate change is fundamentally destabilizing the private insurance industry, with many high-profile insurance companies exiting states in the face of catastrophic, climate-­induced risk. This rapid "insurance retreat" represents a major market signal in response to climate-exacerbated risks. Private businesses are making actuarial decisions, assessing that some locations are just too vulnerable to insure. At the same time, this insurance retreat also poses a policy challenge for states as they react to the mounting insurance gaps left by exiting private insurers.

This Article analyzes insurance retreat, its attendant policy challenges, and the lessons that can be drawn from state responses. It …

Applying The Public Trust Doctrine To Local Governments, Talia O. Thuet

Lewis & Clark Law Review

Under the public trust doctrine, the government holds public lands in trust for the public and cannot unreasonably restrict citizens from accessing them or otherwise breach its duties as a trustee. The public trust doctrine is often thought of as a state law doctrine. However, local governments own a significant portion of public land. Some local governments argue that the public trust doctrine does not apply to them because the state is the proper trustee under the public trust doctrine. This Comment argues that the public trust doctrine applies to local governments. State law preempts local government law on matters …

Governor Kate Brown Of Oregon’S Historic Use Of Clemency: Using Clemency Exactly As It Was Intended, Mark Cebert, Aliza B. Kaplan

Lewis & Clark Law Review

In Oregon, executive clemency is among the most expansive, yet historically underused, power a governor possesses. Yet, across her two terms as Oregon’s 38th governor, Governor Kate Brown exercised her power of executive clemency a record 61,777 times, dwarfing the clemency use of her predecessors and her contemporaries in other states. Governor Brown’s proactive approach to clemency presents a model for executive involvement in criminal justice reform and aligns with her beliefs of a redemptive and rehabilitative criminal legal system.

In this Article, we examine Governor Brown’s use of clemency, analyzing what her stated and implied rationales reveal about her …

Real Property, J. Richard White, Amanda Grainger

SMU Annual Texas Survey

No abstract provided.

An Unlikely Hero: How Pigs Will Save Minnesota's Newest Clean Energy Law From Commerce Clause Scrutiny, Marley Jones

Mitchell Hamline Law Review

No abstract provided.

Mema Matures: Minnesota Emergency Law Post-Covid, Liz Kramer

Mitchell Hamline Law Review

No abstract provided.

Are Illinois Courts Still Champions Of Fiduciary Duties?, Charles W. Murdock, Michael Huiras

Faculty Publications & Other Works

Illinois courts have departed from the corporate-law jurisprudence that traditionally served as a champion of fiduciary duties. Historically, Illinois courts have consistently protected minority shareholders and punished directors and those in control for engaging in unfaithful, abusive, and deceitful behavior. In recent years, however, the Illinois Supreme Court has taken a technical approach to fiduciary duties, resulting in wrongdoers getting away with unconscionable conduct. First, this Article will demonstrate why Illinois has historically been characterized as a “shareholder” state by comparing the Illinois and Delaware corporate statutes and examining Illinois courts’ favorable fiduciary duty jurisprudence. In the latter half of …

Survey Of Recent Mandamus Decisions Of The Texas Supreme Court, Douglas S. Lang

SMU Annual Texas Survey

No abstract provided.

Politics Before Pensions: How New Esg Rules Expose Public Pension System Vulnerabilities, Danilo Risteski

University of Colorado Law Review

As some of the largest institutional investors in the United States, public pension funds wield considerable power over investment decisions. A recent trend highlights this extraordinary power: state pension funds have started exploiting their retirees’ pensions to force investment companies to invest in accordance with their respective states’ political priorities. Nowhere is this trend more obvious than in the environmental, social, and governance field. On one hand, states like Maine have passed legislation prohibiting public pension funds from investing in fossil fuels companies. On the other hand, states like Texas have passed laws prohibiting state entities from doing business with …

Assessing State Invasive Species Schemes Through The Lens Of The Spotted Lanternfly, Susanna Clark

William & Mary Environmental Law and Policy Review

Invasive species have long presented an issue across the United States, and continue to do so. They have become more prevalent as the world has become more interconnected. Nonnative species are not always invasive, but many of them are. A somewhat recently introduced invasive species, the spotted lanternfly, has proven to be especially destructive and will put current invasive species laws to the test. The federal government does have some laws on the books regarding invasive species, but much of the legislation and subsequent regulations can be found at the state level. No two states have the same legal and …

Dark "Oro Y Plata" In Montana: The Green Amendment's Defense Of Campaign Finance Transparency, Lucas Della Ventura

William & Mary Environmental Law and Policy Review

In the post–Citizens United dark money age, state disclosure regulations are the last line of defense for citizens to learn who is behind unlimited independent expenditures and electioneering communications flooding their states. Underpinning the ability of state governments to promulgate such transparency measures are the informational benefits provided to the public. However, the Supreme Court’s decision in Americans for Prosperity Foundation v. Bonta to invalidate a California disclosure regulation on dark money groups, marks disclosure regulations—the Court’s repeated fallback when striking down more robust campaign finance regulations—with a bull’s-eye. In the face of repeated legal challenges to disclosure regulations, …

We Shall Overcome: The Evolution Of Quotas In The Land Of The Free And The Home Of Samba, Stella Emery Santana

Seattle University Law Review

When were voices given to the voiceless? When will education be permitted to all? When will we need to protest no more? It’s the twenty-first century, and the fight for equity in higher education remains a challenge to peoples all over the world. While students in the United States must deal with the increase in loans, in Brazil, only around 20% of youth between the ages of twenty-five and thirty-four have a higher education degree.

The primary objective of this Article is to conduct an in-depth comparative analysis of the development, implementation, and legal adjudication of educational quota systems within …

Pacific Islands And The U.S. Military: The Legal Borderlands Of The Environmental Movement, Sonia Lei

Seattle University Law Review

Climate change remains an urgent, ongoing global issue that requires critical examination of institutional polluters. This includes the world’s largest institutional consumer of petroleum: the United States military. The Department of Defense (DoD) is a massive institution with little oversight, a carbon footprint spanning the globe, a budget greater than the next ten largest nations combined, and overly generous exemptions to environmental regulations and carbon reduction targets. This Comment examines how this lack of accountability and oversight plays out in the context of three Pacific islands that have hosted U.S. military bases for decades. By considering the environmental impact of …

Municipal Abortion Bans: When Local Control Clashes With State Power, Laura D. Hermer

Faculty Scholarship

Anti-abortion activists are using different strategies in different states. Some focus on restricting zoning for abortion clinics. Others address the licensure of abortion providers. Some purport to create a cause of action for private individuals to sue neighbors and others in their municipality who get an abortion. Still, others seek to enforce the federal Comstock Act, alleging that it prohibits the mailing of abortifacients and preempts state abortion law to the contrary.

This Article evaluates the likely success of each of these strategies in two states in which they are currently being tried: Nebraska and New Mexico. Part I will …

American Star Chamber: Online Misinformation, Government Intervention, And The Intellectual Matrix Of The First Amendment, Emily E. Burton

Catholic University Journal of Law and Technology

Just as monarchs and clerical authorities struggled to respond to seditious and heretical writings enabled by the invention of the printing press, twenty-first century governments are experiencing a similar information revolution as a result of the digital age and a rising tide of what the United States has labeled online misinformation. Like the printing press, the Internet has enabled the spread of information at an exponentially lower cost and an exponentially higher speed as it extends the ability to publish thoughts and opinions to an increasingly diverse array of individuals. Although this was largely celebrated during the first two decades …