State and Local Government Law Commons^™

On Opioids And Erisa: The Urgent Case For A Federal Ban On Discretionary Clauses, Katherine T. Vukadin

University of Richmond Law Review

The American opioid epidemic cuts across all social divisions, touching the employed and unemployed. Those with private health insurance are one of the fastest-growing affected groups, but this group struggles most to get care. Despite their insured status, the privately-insured received treatment at half the rate of those with Medicaid and at even lower rates than the uninsured. This article focuses on a significant barrier to treatment for those in employer sponsored benefit plans: the discretionary clause. A discretionary clause grants the decision maker broad latitude and ensures that any federal court review is deferential. Claims processing in such a …

Of Hats And Robes: Judicial Review Of Nonadjudicative Article Iii Functions, Jeffrey L. Rensberger

University of Richmond Law Review

We are accustomed to thinking of Article III courts and judges deciding cases and controversies. But, federal judges and courts have historically also engaged in official but nonadjudicative activities. In addition to a history of federal judges serving on nonjudicial commissions, federal judges and the Supreme Court participate in the rulemaking process for the federal procedural and evidentiary rules. Although some argue to the contrary, the Supreme Court has approved such arrangements in the face of separation of powers objections. Since Article III officers and courts perform nonadjudicative duties, the question arises of how federal courts who address a challenge …

Obtaining And Enforcing A Security Interest In Local Currency Under Article 9 Of The Ucc, Marina C. Leary

University of Richmond Law Review

Community currency is known by many names including complementary currency, alternative currency, and parallel currency. Community currency operates alongside an official or national currency (e.g., dollars or euros) with the purpose of circulating within a small geographic area to facilitate the sale of goods and services. In other words, community currency refers to a privatized form of currency that is not backed by a government entity. With the increased use of community currency, it has the potential to serve as collateral for a security interest under the Article 9 of the Uniform Commercial Code. Although there are several types of …

Regulating From The Ground Up: Controlling Financial Institutions With Bank Workers’ Unions, Emma Cusumano

University of Richmond Law Review

In the Wells Fargo accounts scandal, millions of banking accounts were created for customers without their consent. The scandal cost Wells Fargo customers millions of dollars in direct and indirect charges. Investigations revealed that employees were pressured into creating these false accounts through abusive banking practices promulgated from the top. These practices are not unique to Wells Fargo; instead, they are ubiquitous in the financial services industry.

Current financial regulations do not adequately address how to mitigate banks’ harmful practices. This comment explores the premise that bank worker unionization could serve as a much-needed check on the power of financial …

Partnership Lost, Christine Hurt

University of Richmond Law Review

A century ago, two distinct business entities existed that could best be defined by describing either one of them as simply not the other. The corporation and the general partnership were mirror images of one another and opposites on a spectrum of corporate governance, limited liability, and taxation. Partnerships, seen as small, livelihood enterprises between active-owner partners, had personal liability but pass-through taxation. Corporations, seen as larger, capital-intensive enterprises with passive-owner shareholders, had limited liability but double taxation. The tax distinctions survive today, but the stereotypical partnership does not; in fact, the modern partnership is more corporation-like than partnership-like.

Today, …

Abolish Ice . . . And Then What?, Peter L. Markowitz

Articles

In recent years, activists and then politicians began calling for the abolition of the United States’s interior immigration-enforcement agency: U.S. Immigration and Customs Enforcement (ICE). Many people have misinterpreted the call to “Abolish ICE” as merely a spontaneous rhetorical device used to express outrage at the current Administration’s brutal immigration policies. In fact, abolishing ICE is the natural extension of years of thoughtful organizing by a loose coalition of grassroots immigrant-rights groups. These organizations are serious, not only about their literal goal to eliminate the agency, but also about not replacing it with another dedicated agency of immigration police. Accordingly, …

The Shadows Of Life: Medicaid's Failure Of Health Care's Moral Test, Barak D. Richman, Kushal T. Kadakia, Shivani A. Shah

Faculty Scholarship

North Carolina Medicaid covers one-fifth of the state’s population and makes up approximately one-third of the budget. Yet the state has experienced increasing costs and worsening health outcomes over the past decade, while socioeconomic disparities persist among communities. In this article, the authors explore the factors that influence these trends and provide a series of policy lessons to inform the state’s current reform efforts following the recent approval of North Carolina’s Section 1115 waiver by the Centers for Medicare and Medicaid Services. The authors used health, social, and financial data from the state Department of Health and Human Services, the …

Evaluating A Permanent Court Solution For International Investment Disputes, Emily Palombo

Law Student Publications

Despite the original objective of investor state dispute settlement (“ISDS”)—to create an unbiased arbitration mechanism to resolve conflicts between states and foreign investors—ISDS tribunals have gained the reputation of being one-sided, nontransparent, and inconsistent in decisions rendered. A major reform proposed to address the criticism of ISDS is the creation of one permanent tribunal, rather than numerous ad hoc tribunals constituted separately for each investment dispute. Discussion of ISDS reform in light of its historical context poses the question: is ISDS really a broken system, or have our global priorities and concerns changed over time? While improvements can be made, …

The Peculiar Case Of State Network Neutrality Regulation, Thomas B. Nachbar

Cardozo Arts & Entertainment Law Journal

In the wake of the FCC's recent decision to rescind federal network neutrality rules, several states have implemented their own network neutrality regulations, some in the form of procurement conditions on state contracts and others affirmative mandates requiring broadband Internet service providers to observe neutrality in providing service. The federal government and industry trade associations have challenged the state network neutrality laws as both preempted and unconstitutional under the "dormant Commerce Clause" doctrine.

This paper analyzes those state restrictions as a matter of constitutional law. The Court has recently changed dormant Commerce Clause law, liberalizing those limits with regard to …

A Common-Sense Defense Of Janus: Forthcoming Changes In The Public Sector, Maria O'Brien

Faculty Scholarship

Many scholars and others have, for some time now, been calling attention to the alarming growth in post-employment and other benefits for unionized employees in the public sector. ¹⁷ A fairly well-understood phenomenon is thought to explain the inability of state and local governments to resist outsized demands from their public unions. As ¹⁸ Is and others ¹⁹ have argued, the central problem with public sector unions is that they find it easy to capture their employers (taxpayers) in ways that private sector unions cannot. The role played by often eager and feckless elected officials in this process has also …

The Impact Of Law On The State Pension Crisis, Elizabeth S. Goldman, Stewart E. Sterk

Articles

While some state and municipal pension plans have funds sufficient to meet obligations to retirees without imposing onerous obligations on current and future taxpayers, underfunding of plans in other states has reached disastrous proportions, raising the possibility of default on pension obligations, cuts in public services, steep tax increases, or some combination of the three. The substantial differential in pension funding might be attributed to divergent political pressures, different responses to uncertainty about investment returns, or other factors. Our examination of pension funding law in ten states-five with the best-funded plans and five with the worst-funded plans-highlights the role of …

Proposed Reforms To Texas Judicial Selection: Panelist Remarks, Brian T. Fitzpatrick

Vanderbilt Law School Faculty Publications

I am going to set the stage by providing a little background about the various methods that States around the country use to select their judges. I am also going to remind us of many of the considerations that we like to think about when we are deciding which of these methods is best. And I am going to push upon you a new consideration that is sometimes not thought about in these discussions as well as share some data regarding this last consideration. But let’s start with some background about the selection methods.

There are basically four different ways …

Recent Developments: Lamone V. Lewin, Erin Cullinan

University of Baltimore Law Forum

No abstract provided.

Recent Developments: In Re Adoption/Guardianship Of C.E., Anna W.T. Deleon

University of Baltimore Law Forum

No abstract provided.

Savior Of Rural Landscapes Or Solomon's Choice? Colorado's Experiment With Alternative Water Transfer Methods For Water (Atms), Lisa Dilling, John Berggren, Jennifer Henderson, Douglas Kenney

Publications

This article focuses on the emerging landscape for Alternative Transfer Methods (ATMs) in Colorado, USA. ATMs are developing within a legal landscape of water rights governed by prior appropriation law, growing demand for water in urban centers driven by population growth, and an aging rural farm population whose most valuable asset may include senior water rights. Rural-urban water transfers in the past have been linked to the collapse of rural economies if pursued to the extreme extent of “buy-and-dry,” where water rights were purchased outright and permanently removed from agricultural land (e.g. Crowley County). This article focuses on the emerging …

Putting Accessible Expression To Bed, Jamila A. Odeh

Michigan Law Review

In 2011, the Occupy movement began. Occupiers seized space in dozens of public parks and in the American imagination, providing a compelling illustration of an inclusive format of political expression. In the courtroom, protesters sought injunctive relief on First Amendment grounds to protect the tent encampments where Occupiers slept. In 2017, the last of the Occupy litigation ended; but the ramifications the Occupy cases hold for the First Amendment and expressive conduct remain unexamined.

This Comment takes an in-depth look at the adjudication of Occupiers’ First Amendment interest in sleeping in public parks. It analyzes the adjudication of the Occupy …

Improving Employer Accountability In A World Of Private Dispute Resolution, Hope Brinn

Michigan Law Review

Private litigation is the primary enforcement mechanism for employment discrimination laws like Title VII, the Americans with Disabilities Act, and many related state statutes. But the expansion of extrajudicial dispute resolution—including both arbitration and prelitigation settlement agreements—has compromised this means of enforcement. This Note argues that state-enacted qui tam laws can revitalize the enforcement capacity of private litigation and provides a roadmap for enacting such legislation.

Administrative States: Beyond Presidential Administration, Jessica Bulman-Pozen

Faculty Scholarship

Presidential administration is more entrenched and expansive than ever. Most significant policymaking comes from agency action rather than legislation. Courts endorse “the presence of Presidential power” in agency decisionmaking. Scholars give up on external checks and balances and take presidential direction as a starting point. Yet presidential administration is also quite fragile. Even as the Court embraces presidential control, it has been limiting the administrative domain over which the President presides. And when Presidents drive agency action in a polarized age, their policies are not only immediately contested but also readily reversed by their successors.

States complicate each piece of …

Understanding The Gap Between Law And Practice: Barriers And Alternatives To Tailoring Adult Guardianship Orders, Eleanor Lanier

Scholarly Works

An overwhelming majority of state laws governing adult guardianship require an inquiry into whether less restrictive alternatives may be available/appropriate and, where guardianship is necessary, that guardianship orders be designed to maximize theindependence of the person subject to the guardianship. However, the best available data indicates that most guardianship orders are plenary," removing rights on a wholesale basis rather than individually tailoring the guardianship. To many observers, the imposition of plenary guardianship contradicts the unambiguous statutory language in most states favoring a tailored approach that implements guardianships to maximize an individual's independence and autonomy.

The literature is rife with examples …

The End Of Intuition-Based High-Crime Areas, Ben Grunwald, Jeffrey A. Fagan

Faculty Scholarship

In 2000, the Supreme Court held in Illinois v. Wardlow that a suspect’s presence in a “high-crime area” is relevant in determining whether an officer has reasonable suspicion to conduct an investigative stop. Despite the importance of the decision, the Court provided no guidance about what that standard means, and over fifteen years later, we still have no idea how police officers understand and apply it in practice. This Article conducts the first empirical analysis of Wardlow by examining data on over two million investigative stops conducted by the New York Police Department from 2007 to 2012.

Our results suggest …