The Case For A State-Level Debt-Financing Authority,
2013
Indiana University Maurer School of Law
The Case For A State-Level Debt-Financing Authority, David Gamage, Darien Shanske
Articles by Maurer Faculty
In this essay, we argue for the adoption of state-level debt-financing authorities as part of a broader package for reforming local government borrowing.
Wireless Localism: Beyond The Shroud Of Objectivity In Federal Spectrum Administration,
2013
Fordham University School of Law
Wireless Localism: Beyond The Shroud Of Objectivity In Federal Spectrum Administration, Olivier Sylvain
Faculty Scholarship
Recent innovations in mobile wireless technology have instigated a debate between two camps of legal scholars about how policymakers should structure federal administration of the electromagnetic spectrum. The first argues that the Federal Communications Commission should define spectrum use rights more clearly and give spectrum licensees near fee-simple property rights in frequencies that they can use and sell in secondary markets as they wish. The second camp argues that, rather than award exclusive licenses to the highest bidder, the FCC ought to open much if not most of the spectrum to unlicensed use by smartphones and tablets equipped with the …
Changes Spark Interest In Sustainable Urban Places: But How Do We Identify And Support Them?,
2013
Elisabeth Haub School of Law at Pace University
Changes Spark Interest In Sustainable Urban Places: But How Do We Identify And Support Them?, John R. Nolon
Elisabeth Haub School of Law Faculty Publications
Changes in climatic and demographic trends are sparking renewed interest in cities generally and sustainable communities particularly. On the one hand, residents and workers in denser, mixed-use neighborhoods served by transit have half the carbon footprint of those in spread-out suburban areas. On the other hand, many of the smaller households that characterize the nation’s growing population prefer to live in precisely those compact, mixed-use neighborhoods. In New York, these changes align with several new state policies that encourage cities and towns to reduce carbon emissions, reduce vehicle travel, create sustainable buildings and neighborhoods, and preserve the landscapes that sequester …
Localist Statutory Interpretation,
2013
Fordham University School of Law
Localist Statutory Interpretation, Ethan J. Leib
Faculty Scholarship
This paper argues for more attention to citizens’ point of contact with our legal system within local courts – and makes an effort to conceptualize local judges as parts of local governments. Once the paper highlights the role of local courts within the constellation of local government, it offers an argument for why certain forms of "localist judging" are appropriate postures for local judges to take when confronted with hard cases of statutory interpretation. The paper explores the virtues of a type of "intrastate judicial federalism."
A General Defense Of Erie Railroad Co. V. Tompkins,
2013
Duke Law School
A General Defense Of Erie Railroad Co. V. Tompkins, Ernest A. Young
Faculty Scholarship
Erie Railroad Co. v. Tompkins was the most important federalism decision of the Twentieth Century. Justice Brandeis’s opinion for the Court stated unequivocally that “[e]xcept in matters governed by the Federal Constitution or by acts of Congress, the law to be applied in any case is the law of the state. . . . There is no federal general common law.” Seventy-five years later, however, Erie finds itself under siege. Critics have claimed that it is “bereft of serious intellectual or constitutional support” (Michael Greve), based on a “myth” that must be “repressed” (Craig Green), and even “the worst decision …
War Of The Words: Why False Statements Should Be Guaranteed First Amendment Protection,
2013
University of Georgia School of Law
War Of The Words: Why False Statements Should Be Guaranteed First Amendment Protection, Virginia R. Priddy
Georgia Law Review
In Haley v. State, the Georgia Supreme Court upheld
the conviction of Andrew Scott Haley for making a false
statement. Haley created a username and posted videos to
the Internet in which he claimed to have committed a
series of murders, goading his audience to try to solve the
"mysteries." Haley was convicted under a Georgia statute
that proscribes the making of a false statement within the
jurisdiction of an agency or department of state of Georgia.
After discussing the historical legal and philosophical
underpinnings of the First Amendment right to free
speech, this Note argues that the Georgia statute …
Searching For Truth In The American Law Of Evidence And Proof,
2013
Seton Hall University School of Law
Searching For Truth In The American Law Of Evidence And Proof, D. Michael Risinger
Georgia Law Review
The ideology of the trial process puts discovery of truth
at center stage. This is made clear by the language of
Federal Rule of Evidence 102, upon which New Georgia
Rule of Evidence 24-1-1 is obviously based. Both of these
rules make the ascertainment of truth one of the two goals
of the trial (just determination being the other). However,
the term "truth" has been used in many ways in many
different contexts and traditions. What notion of truth did
the drafters have in mind?
This Article answers that question by reference to what
has come to be known as …
The Problem With The Bureau Of Land Management's Delegation Of Wildlife Management In Wilderness,
2013
University of Georgia School of Law
The Problem With The Bureau Of Land Management's Delegation Of Wildlife Management In Wilderness, Lindsay S. Jones
Georgia Law Review
Congress passed the Wilderness Act of 1964 "to secure for
the American people of present and future generations the
benefits of an enduring resource of wilderness." When it
passed the Act, Congress preserved over 9 million acres of
federal lands; and since then, the National Wilderness
Preservation System has been expanded by more than 100
million acres. The Act requires the federal agencies to
manage the wilderness areas to preserve their wilderness
character and to leave the lands unimpaired for future
generations.
Wildlife is an integral part of what makes wilderness
worth preserving. Despite the vital role wildlife plays in …
Taking A Toll On The Equities: Governing The Effect Of The Plra's Exhaustion Requirement On State Statutes Of Limitations,
2013
University of Georgia School of Law
Taking A Toll On The Equities: Governing The Effect Of The Plra's Exhaustion Requirement On State Statutes Of Limitations, Keri E. Mccrary
Georgia Law Review
If prisoners are required by federal law to exhaust
institutional remedies before they may file suit in federal
court, should a prisoner with a legitimate claim suffer
dismissal by the federal court if the statute of limitations
lapses during the time the prisoner spends exhausting
administrative remedies? The Prisoner Litigation Reform
Act (PLRA) of 1996 offers no guidance. Federal courts
may choose to apply equitable tolling to a prisoner's claim
should this predicament arise, saving it from dismissal
based on tardiness, but nothing requires the court to do so.
The PLRA's enigmatic exhaustion requirement has
engendered much litigation, and the …
Safe Haven No Longer: The Role Of Georgia Courts And Private Probation Companies In Sustaining A De Facto Debtors' Prison System,
2013
University of Georgia School of Law
Safe Haven No Longer: The Role Of Georgia Courts And Private Probation Companies In Sustaining A De Facto Debtors' Prison System, Sarah D. Bellacicco
Georgia Law Review
Georgia was specifically established as a colony for debtors-a haven where they could be safe from imprisonment. It is a haven no longer. Georgia courts are regularly imprisoning people for failing to pay debts, often through probation revocation of probationers who have failed to pay a fine or fee imposed as a condition of probation. Some of these probationers are on probation solely because they could not pay a fine on the day of sentencing, a practice which greatly increases the amount they owe due to the additional probation fees imposed. In Bearden v. Georgia, the Supreme Court held that …
The Mobility Case For Regionalism,
2013
Fordham University School of Law
The Mobility Case For Regionalism, Nestor M. Davidson, Sheila R. Foster
Faculty Scholarship
In the discourse of local government law, the idea that a mobile populace can “vote with its feet” has long served as a justification for devolution and decentralization. Tracing to Charles Tiebout’s seminal work in public finance, the legal-structural prescription that follows is that a diversity of independent and empowered local governments can best satisfy the varied preferences of residents metaphorically shopping for bundles of public services, regulatory environment, and tax burden. This localist paradigm generally presumes that fragmented governments are competing for residents within a given metropolitan area. Contemporary patterns of mobility, however, call into question this foundational assumption. …
The Omnipresent Specter Of Omnicare,
2013
Fordham University School of Law
The Omnipresent Specter Of Omnicare, Sean J. Griffith
Faculty Scholarship
In this Article, written for a symposium commemorating the tenth anniversary of the Delaware Supreme Court’s opinion in Omnicare, Inc. v. NCS Healthcare, Inc., I argue, notwithstanding reports to the contrary, that Omnicare is still very much with us. Although there is a line of cases that qualifies the narrow holding of the opinion, the strong reading of Omnicare, which requires a fiduciary out in every merger agreement and elevates the “unremitting” duty to remain “fully informed” to an absolute jurisprudential principle, lives on in Delaware law, animating the Court of Chancery’s controversial rulings in the recent standstill cases. Shifting …
Site-Specific Laws,
2013
Notre Dame Law School
Site-Specific Laws, John Copeland Nagle
Journal Articles
Congress often enacts statutes that only apply to a specific place. This essay identifies the instances in which site-specific legislation is appropriate. It recounts the uses of such legislation, the theoretical debate surrounding it, and the circumstances in which it is desirable. Site-specific legislation plays an important role in enabling Congress to prescribe its preferred policy even when agreement on broader legislation. My suggestion, therefore, is that general legislation should remain the default for congressional action, but site-specific legislation is appropriate when (a) there are convincing reasons for adopting special rules for a particular place, (b) there is no agreement …
No Seat At The Water Table: Colorado's New Groundwater Basin Statute Leaves Senior Surface Rights In The Lurch,
2013
University of Colorado Law School
No Seat At The Water Table: Colorado's New Groundwater Basin Statute Leaves Senior Surface Rights In The Lurch, Ari J. Stiller-Shulman
University of Colorado Law Review
Wells that pump water from underground aquifers deplete water flowing in nearby rivers and streams. Colorado farmers in certain parts of the state use wells to pump large quantities of underground water for irrigation. However, other users who had pre-existing surface-water rights on nearby streams have complained that these wells drain the river and injure their prior vested water rights. Normally, surface water users with prior rights can require more junior users to stop appropriating until the senior user has diverted her full right. However, Colorado presumes that wells in certain districts-called designated basins-do not injure nearby surface streams. Still, …
Drone Federalism: Civilian Drones And The Things They Carry,
2012
University of Colorado Law School
Drone Federalism: Civilian Drones And The Things They Carry, Margot E. Kaminski
Publications
Civilian drones are scheduled to be permitted in the national airspace as early as 2015. Many think Congress should establish the necessary nationwide regulations to govern both law enforcement and civilian drone use. That thinking, however, is wrong. This Essay suggests drone federalism instead: a state-based approach to privacy regulation that governs drone use by civilians, drawing on states’ experience regulating other forms of civilian-on-civilian surveillance. This approach will allow necessary experimentation in how to best balance privacy concerns against First Amendment rights in the imminent era of drone-use democratization. This Essay closes by providing some guidance to states as …
Making Out The Monell Claim Under Section 1983,
2012
Touro University Jacob D. Fuchsberg Law Center
Making Out The Monell Claim Under Section 1983, Karen M. Blum
Touro Law Review
No abstract provided.
Discrimination In The Marcellus Shale: The Dormant Commerce Clause And Hydraulic Fracturing Waste Disposal,
2012
Chicago-Kent College of Law
Discrimination In The Marcellus Shale: The Dormant Commerce Clause And Hydraulic Fracturing Waste Disposal, Eric Michel
Chicago-Kent Law Review
The environmentally controversial process of hydraulic fracturing (commonly referred to as "fracking") has led to a recent explosion in the supply and sale of natural gas in the United States. However, every fracking operation creates a sizable amount of toxic wastewater that requires disposal, and drillers in Pennsylvania have increasingly been shipping their waste across the border to Ohio because of Pennsylvania's inadequate internal disposal options. In response, Ohio has passed legislation that taxes out-of-state fracking waste at a greater rate than waste derived from natural gas drilling within its borders. This Note examines whether Ohio's taxing scheme violates the …
The Nursing Standard Of Care In Illinois: Rethinking The Wingo Exception In The Wake Of Sullivan V. Edward Hospital,
2012
Chicago-Kent College of Law
The Nursing Standard Of Care In Illinois: Rethinking The Wingo Exception In The Wake Of Sullivan V. Edward Hospital, Emily Chase-Sosnoff
Chicago-Kent Law Review
This note analyzes the current circuit split among Illinois courts over whether the same-license requirement for medical expert testimony applies to testimony about the standard of care for nurse-doctor communications. Part I traces the history of the problem by explaining the original same-license requirement, the Wingo exception for nurse-doctor communications, and the Illinois Supreme Court's decision in Sullivan, which cast doubt on Wingo's continued survival. Part II illustrates the nature of the circuit split by describing the lower courts' three distinct interpretations of Sullivan. Finally, Part III argues that courts should apply Sullivan strictly and abandon the Wingo exception because …
Immigration And Civil Rights: Is The "New" Birmingham The Same As The "Old" Birmingham,
2012
William & Mary Law School
Immigration And Civil Rights: Is The "New" Birmingham The Same As The "Old" Birmingham, Kevin R. Johnson
William & Mary Bill of Rights Journal
No abstract provided.
Local Government Law,
2012
Mercer University School of Law
Local Government Law, Kirk Fjelstul, James E. Elliott Jr.
Mercer Law Review
This was another active year of litigation by, for, against, within, and between local governments. The Article that follows includes appellate decisions with unique, new, or instructive issues.
