State and Local Government Law Commons^™

“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 …

Language Access Laws And Legal Issues: A Local Official's Guide, David Jung, Noemí O. Gallardo

Faculty Scholarship

No abstract provided.

State Wars - The Empire Strikes Back: The Federal/State Constitutional Power Confrontation, Steven Ferrey

Suffolk University Law School Faculty Works

A significant pending case will carve the contours of United States constitutional governance for the nation regarding our most important technology and its implementation and "will probably be determined by the U.S. Supreme Court.... 'These are the kind of issues that the Supreme Court likes. It's a federal preemption case; it's a landmark case.' " The attorney general concurs that he would "be surprised" if the case if not destined for the Supreme Court. This matter defines Constitutional federalism and the application of two important clauses of the United States Constitution: - The Constitution's Supremacy Clause, with specific application of …

The Case For Public Pension Reform: Early Evidence From Kentucky, Maria O'Brien

Faculty Scholarship

Kentucky has managed to effect major changes to some of its pension plans in the face of poor funding ratios that threatened to swamp other budget priorities. At this point it is unclear whether the reforms are deep enough to bring the plans funding levels in line with those of “healthy” states like Wisconsin. It is also unclear whether there is the political will in other jurisdictions to curb costs by moving to defined contribution or hybrid cash balance vehicles. Transparency combined with a fear that pension obligations would soon swamp all other state budget priorities appears to have been …

The History Of Texas Civil Procedure, William V. Dorsaneo Iii

Faculty Journal Articles and Book Chapters

The promulgation of rules of court by the Texas Supreme Court has been the principal mechanism for the regulation of proceedings in Texas courts. This article provides a historical overview of the development of these rules, the rule-making process, the impact of procedural rule-making on the administration of justice in Texas courts, and the continuing need for revision and reorganization of the Texas Rules of Civil Procedure. This article also acknowledges the enormous debt that is owed to the Texas judges, lawyers, and professors who have participated in the rule-making process, mostly without plaudits or even public recognition. In a …

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

Kentucky Law Journal

No abstract provided.

Specialty Juvenile Courts In Texas: Using The Rehabilitative Juvenile Justice Approach To Reform Texas's Youngest Gang Members., Drew Darnell

St. Mary's Law Journal

Abstract Forthcoming.

Civil Liability Approaches To The Stolen Valor Epidemic., Lauren A. Valkenaar

St. Mary's Law Journal

Over the years, civilians and members of the military have falsely claimed honors “stealing” the valor, reputation and benefits bestowed upon actual medal recipients. Lawmakers have historically addressed this problem of stolen valor with criminal prosecution. In 2005, Congress passed the Stolen Valor Act, making it illegal for an individual to lie about receiving military awards. However, the constitutionality of the Stolen Valor Act of 2005 was challenged in United States v. Alvarez. The Supreme Court of the United States found that the act violated the First Amendment because it was a content-based restriction on speech regarding military service. Therefore, …

The Strange Case Of Lieutenant Waddell: How Overly Restrictive Rules Of Engagement Adversely Impact The American War Fighter And Undermine Military Victory., Jeffrey F. Addicott

St. Mary's Law Journal

A rules of engagement (“ROE”) Review Board should be created in order to provide an impartial review process for service members facing adverse administrative action for violations of ROE. Politicians defining the ROE, rather than military experts, create rules that are so restrictive and confusing that they ultimately run counter to the military objective of victory. A violation of a ROE can be a criminal offense under the Uniform Code of Military Justice, but violations are issued arbitrarily, and often the military does not charge the service member with a crime, instead using adverse administrative measures to impose punishment. While …

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.

A Next, Big Step For The West: Using Model Legislation To Create A Water-Climate Element In Local Comprehensive Plans, Michelle Bryan

Faculty Law Review Articles

The West is witnessing early, important efforts to join water supply and land use planning, and the reality of climate change makes this convergence all the more critical. Local comprehensive planning presents itself as an existing and indispensable tool for unifying important planning efforts in the areas of land use, water, and climate change. As the primary regulators of land use, local governments are at the front line of regulating a myriad of environmental concerns. They are also integral partners in planning and implementing water-related initiatives alongside tribal, state, federal, and private partners. The West’s potential for broad-based action is …

International Law For American Courts: Why The “American Laws For American Courts” Movement Is A Violation Of The United States Constitution And Universal Human Rights, Maria Surdokas

University of Baltimore Journal of International Law

In recent years, the “American Laws for American Courts” movement has swept across the country in an attempt to ban international law from U.S. state courts. This article specifically examines the Oklahoma Save Our State Amendment and the Arizona Foreign Decisions Act. In doing so, it addresses both the constitutional and policy problems with these attempts, observing that what the states have been trying to do is neither legal nor practical. It analyzes the inability of individual states to unilaterally avoid compliance with the United States’ international law obligations. It notes the absurdity in outlawing international law in order to …

The Collective Bargaining Chips Are Down: How Wisconsin’S Collective Bargaining Restrictions Place The U.S. In Violation Of International Labor Laws, Amanda Webster

University of Baltimore Journal of International Law

On the surface, the United States serves as an international advocate and supporter of the basic principles of the International Labor Organization, which are to promote social justice and human rights through globally humane working conditions. Yet, on a deeper level, there exists a strained and contradictory relationship between the U.S. and the ILO. Despite being the largest ILO member state and a principal policymaker, the U.S. continues to refrain from ratifying key international labor law treaties. This inaction enables U.S. state and federal bodies to enact and uphold legislation that directly violate existing international labor law obligations. U.S. laws …

Human Trafficking Law And Resources, Kincaid C. Brown

Law Librarian Scholarship

The U.S. State Department estimates as many as 27 million men, women, and children are global human trafficking victims at any given time. In 2012, only 46,570 new victims were identified. Globally, there were only 7,705 prosecutions and 4,746 convictions for human trafficking crimes in 2012. In the United States, there were 2,515 suspected incidents of human trafficking investigated between January 2008 and June 2010. Of these, more than 80 percent of the victims of sex trafficking were U.S. citizens or nationals, and more than 90 percent of the victims of labor trafficking were undocumented or qualified aliens.

California Dreaming: The California Secure Choice Retirement Savings Trust Act, Edward A. Zelinsky

Articles

Half of American workers are not covered by employer-sponsored retirement arrangements. The recently passed California Secure Choice Retirement Savings Trust Act seeks to solve this problem by mandating retirement savings arrangements for California employers, coupled with a public investment vehicle for investing these private retirement savings. The Act is important because of California’s size and status as a trendsetter for other states.

This Article is the first to examine the important legal questions the Act raises under the Internal Revenue Code and ERISA. Contrary to the drafters’ intent, the savings accounts authorized under the Act do not qualify as individual …

Hitching Our Wagon To A Dim Star: Why Outmoded Water Codes And "Public Interest" Review Cannot Protect The Public Trust In Western Water Law, Michelle Bryan Mudd

Faculty Law Review Articles

This article examines the interrelationship between the public trust and water rights as it is emerging in western states.

Part I of this article describes the traditional public trust principles that apply to waters, as well as the modern judicial trend of extending those principles to water use permitting in the West.

Focusing on an area of particular concern in water codes, Part II analyzes the risky implications of supplanting the public trust doctrine with existing public interest review provisions.

Finally, Part III advances a water use permitting framework that better fulfills the states' public trust responsibilities. Drawing on the …

'Simple' Takes On The Supreme Court, Robert Tsai

Scholarly Articles in Law Reviews & Journals

This essay assesses black literature as a medium for working out popular understandings of America’s Constitution and laws. Starting in the 1940s, Langston Hughes’s fictional character, Jesse B. Semple, began appearing in the prominent black newspaper, the Chicago Defender. The figure affectionately known as “Simple” was undereducated, unsophisticated, and plain spoken - certainly to a fault according to prevailing standards of civility, race relations, and professional attainment. Butthese very traits, along with a gritty experience under Jim Crow, made him not only a sympathetic figure but also an armchair legal theorist. In a series of barroom conversations, Simple ably critiqued …

The Referendum Process In Maryland: Balancing Respect For Representative Government With The Right To Direct Democracy, Steven G. Shapiro

Scholarly Articles in Law Reviews & Journals

This article will examine the Maryland referendum petition process to determine whether any changes in the current law should or could be made. This includes whether the legislature should reverse the holding in Whitley, whether it should add additional requirements to and restrictions on the signature gathering process, and whether the percentage of voters needed for a successful challenge should be increased.

First, as a matter of policy, should the law be changed? For example, does it strike the proper balance between respect for the legislative process and allowing for more voices in legislative matters by the public at large? …

Fracking And Federalism Choice, Michael Burger

Sabin Center for Climate Change Law

In response to David B. Spence's "Federalism, Regulatory Lags, and the Political Economy of Energy Production," I offer a set of constructive challenges to his article. In Part I, I argue that fracking’s federalism-choice question has already been answered, and that but for the outdated and underjustified exemptions mentioned above, fracking is already under the jurisdiction of federal regulators. In Part II, I conduct an alternative federalism-choice analysis that adds to Professor Spence’s analysis in three ways. First, I balance his analysis by examining rationales commonly used to justify decentralization, rather than federalization, of environmental law. Second, I argue that …