State and Local Government Law Commons^™

New York Tax Warrants: In The Strange World Of Deemed Judgments, David G. Carlson

Articles

No abstract provided.

Broadband Localism, Olivier Sylvain

Faculty Scholarship

Today, local governments are supplying broadband service to residents to fill the service gap left by major providers. Municipalities are joining forces with local anchor institutions and private providers to close the digital divide and incubate novel public-minded service models. This is the new broadband localism. Some stakeholders fear that local public participation in the broadband market will negatively impact competition. They have articulated this concern in state legislation across the country: nineteen states forbid or otherwise restrict municipal ownership or administration of broadband and three may enact similar restrictions this year. No matter the substantive policy merits of such …

The Lexington-Fayette Urban County Board Of Adjustment: Fifty Years Later, Kathryn L. Moore

Kentucky Law Journal

No abstract provided.

Remedying Wrongful Execution, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

The first legal determination of wrongful execution in the United States may very well be in the making in Texas. One of the state’s district courts is in the midst of investigating whether Cameron Todd Willingham, who was executed in 2004, was actually innocent. The court’s investigation has been interrupted by objections from Texas prosecutors, but if the court proceeds, this may very well become a bona fide case of wrongful execution. Texas, just like other jurisdictions, is ill equipped to provide any relief for such an egregious wrong, however. This Article identifies the difficulties that the heirs, families, and …

Incitement To Riot In The Age Of Flash Mobs, Margot E. Kaminski

Publications

As people increasingly use social media to organize both protests and robberies, government will try to regulate these calls to action. With an eye to this intensifying dynamic, this Article reviews First Amendment jurisprudence on incitement and applies it to existing statutes on incitement to riot at a common law, state, and federal level. The article suggests that First Amendment jurisprudence has a particularly tortuous relationship with regulating speech directed to crowds. It examines current crowd psychology to suggest which crowd behavior, if any, should as a matter of policy be subject to regulation. It concludes that many existing incitement-to-riot …

Fugitive Emissions: The Marcellus Shale And The Clean Air Act, Joseph Minott, Jonathan Skinner

Publications

No abstract provided.

The Alaska Permanent Fund Dividend And Membership In The State's Political Community, Christopher L. Griffin Jr.

Faculty Publications

Despite decades of unmitigated administrative success, the Alaska Permanent Fund Dividend (PFD) is not immune from political and legal controversy. The symbolic and financial importance that Alaskans ascribe to their annual dividend checks has generated disputes between ordinary residents and executive agencies over eligibility. Litigation concerning three dominant status requirements - minimum residency, U.S. citizenship, and felony incarceration - reveal not only the extent to which Alaskans will pursue what they believe to be valid claims on their share of natural resource wealth, but also the limits of full political membership in the state. This Comment frames a sample of …

Interstate Competition And The Race To The Top, Jonathan H. Adler

Faculty Publications

Federalism is an essential part of the Constitution’s design. The division of sovereign power between the States and the federal government helps foster interjurisdictional competition, which, in turn, checks government power. Provided a right of exit is maintained, the excessive imposition of economic burdens in one jurisdiction will cause taxpayers and businesses to flee to other jurisdictions. For this reason, federalism often is seen as a friend of the free market.

Provided states cannot externalize the costs of their own policy choices, robust interjurisdictional competition facilitates the enactment of better public policy at the state level. Rather than inducing a …

Will Contests: From Start To Finish., Joyce Moore

St. Mary's Law Journal

This Article primarily focuses on the practical problems facing attorneys and courts when evaluating and proving up a will or trust in contested cases. The focus extends further into the special procedural and evidentiary rules applicable to these actions, the use and misuse of summary judgment proceedings in these cases, and some observations regarding developing trends and strategies in will and trust contest litigation. Admittedly, this area of practice is a melting pot of presumptions, exceptions, threshold hurdles, capacity qualms, evidentiary issues, strategic clauses, and countless other headache-inducing legal issues. Yet, attorneys must diligently juggle all of them while also …

The Roles Of Attorneys As Courtroom Experts: Revisiting The Conventional Limitations And Their Exceptions., David S. Caudill

St. Mary's Journal on Legal Malpractice & Ethics

This Article examines whether attorneys should be allowed to testify as legal experts, especially in the legal malpractice context. This Article starts by addressing the unclear distinction between questions of law and fact and reviews several recent cases that prohibited expert legal testimony. Next, this Article addresses some general exceptions to the prohibition against expert legal testimony, such as questions of complex and uncertain law. Finally, this Article examines the use of legal experts in legal malpractice cases.

Reinventing The Wheel: Constructing Ethical Approaches To State Indigent Legal Defense Systems., Bill Piatt

St. Mary's Journal on Legal Malpractice & Ethics

Indigent defense remains in a state of crisis. Almost fifty years after the Supreme Court's landmark decision in Gideon v. Wainwright, lack of funding, favoritism, inefficiency, and poorly-designed indigent[1]defense plans plague the system, which can best be characterized as being in a state of disrepair. As a result, accused indigent individuals, a vulnerable population, suffer from a lack of adequate representation. This Article reviews the history and implementation of various indigent-defense systems and examines the ethical issues arising from their operation. It offers a guide to reconstructing a model system, including the suggestion that attorneys first recommit the profession to …

First, Do No Harm: The Consequences Of Advising Clients About Litigation Alternatives In Medical Malpractice Cases., Katerina P. Lewinbuk

St. Mary's Journal on Legal Malpractice & Ethics

This Article addresses whether a lawyer's possible duty to inform and advise his client of potential alternative dispute resolution (ADR) options actually leads to better results for doctors in medical malpractice cases. This Article first explains different theories supporting a potential duty and then argues that all such theories praising ADR rely on the assumption that "valuable" alternatives to litigation always exist and are available to all litigants. That notion is arguably not always true for a physician defending against malpractice complaints; thus, the duty becomes almost meaningless in such cases. With the adoption of the National Practitioner Data Bank …

Due Process And Local Administrative Hearings Regulating Public Nuisances: Analysis And Reform., Alex Cameron

St. Mary's Law Journal

Abstract Forthcoming.

A Judicial And Economic Analysis Of Attorney's Fees In Trust Litigation And The Resulting Inequitable Treatment Of Trust Beneficiaries., Charles Epps Ipock

St. Mary's Law Journal

Abstract Forthcoming.

Removal Of Independent Executors: Examining The Standard In Texas After The Addition Of Material Conflict Of Interest To Section 149c Of The Texas Probate Code., Elizabeth R. Kopecki

St. Mary's Law Journal

The State of Texas permits independent executors to operate with minimal court supervision. This allows executors to administer an estate with as little cost and delay as possible. Sometimes executors abuse this limited supervision and fail to manage estates properly. Fortunately, there are particular circumstances outlined in the Texas Probate Code which allow courts to step in and remove these harmful executors. Since the adoption of section 149C to the Texas Probate Code, grounds for removal have remained relatively specific. Recently, the legislature has added a new ground: “material conflict of interest.” Though no bright-line rule exists, there is precedent …

State Amici, Collective Action, And The Development Of Federalism Doctrine, Michael E. Solimine

Georgia Law Review

State attorneys general (SAGs) have been individually
and collectively active on many legal and regulatory fronts
in recent years. One of those activities has been the filing
of amicus curiae briefs in the United States Supreme

Court, especially in cases impacting the states and
federalism doctrine. Frequently SAGs will join in one
amicus brief, and briefs signed by forty or more states are
not uncommon. This phenomenon has been the subject of
attention by legal scholars and political scientists, but the
normative jurisprudential significance of such briefs has
not. In their opinions, the Justices vary in how much legal
weight, …

Skimming From The 2%: The Status Of Georgia's Restrictions On Shareholder Access To Corporate Information, Ruari J. O'Sullivan

Georgia Law Review

The Georgia Court of Appeals, in Mannato v. SunTrust
Banks, Inc., held that O.C.G.A. § 14-2-1602 abrogated all
common law rights to inspect corporate records. As a
result, shareholders in Georgia owning less than 2% of a
corporation'soutstandingshares suddenly lost the right to
petition a court to grant access to a corporation's books
and records. This Note argues that the Mannato decision
was incorrect. The Georgia Court of Appeals failed to
notice the significant procedural differences that existed
between the statutory and common law right of inspection
and erroneously applied Georgia's established law of
statutory abrogation. The court also brushed …

Negotiating Jurisdiction: Retroceding State Authority Over Indian Country Granted By Public Law 280, Robert T. Anderson

Articles

This Article canvasses the jurisdictional rules applicable in American Indian tribal territories-"Indian country." The focus is on a federal law passed in the 1950s, which granted some states a measure of jurisdiction over Indian country without tribal consent. The law is an aberration. Since the adoption of the Constitution, federal law preempted state authority over Indians in their territory. The federal law permitting some state jurisdiction, Public Law 280, is a relic of a policy repudiated by every President and Congress since 1970. States have authority to surrender, or retrocede, the authority granted by Public Law 280, but Indian tribal …

Rejecting Sovereign Immunity In Public Law Litigation, Howard M. Wasserman

Faculty Publications

No abstract provided.

Managing The Urban Commons, Nicole Stelle Garnett

Journal Articles

Over the past several decades, debates about the appropriate tools of commons management have played themselves out in a particularly illuminating way in the management of urban public spaces. Some commentators urge, a là Garrett Hardin, that government coercion is needed to restore order to the urban commons. Others urge the privatization or quasi-privatization of urban public-spaces. On the ground in American cities, these theoretical arguments have been translated into concrete policies, especially policing strategies (e.g., order-maintenance and community policing) and urban development strategies (e.g., business improvement districts). This is an opportune time to reexamine the commons-management questions raised by …