State and Local Government Law Commons^™

Green Infrastructure: The Imperative Of Open Space Preservation, Janice C. Griffith

Suffolk University Law School Faculty Works

Open space preservation ranks among America's most deeply rooted traditions. The creation of green, civic open spaces was recognized as an important design concept in the formation of a number of the country's early cities. Philadelphia, Savannah, and New Haven were developed around squares of green open space. Most New England towns set aside a town common for grazing cattle and for a myriad of public uses. The first planned suburbs were also organized around protected open spaces.

The environmental movement in the 1970s brought renewed attention to the importance of open space preservation, but the cost of making it …

Who Killed The Hybrid Car? State And Local Green Incentive Programs After Metropolitan Taxicab V. City Of New York, Jonathan Skinner

Publications

Unnecessarily broad preemption ruling under the Energy Policy and Conservation Act discourages other states and municipalities from pursuing innovative, environmentally beneficial policies.

The Inefficiencies And Deficiencies Of Waste Coal, Jonathan Skinner, Michael Brown

Publications

No abstract provided.

Horizontal Erie And The Presumption Of Forum Law, Michael Steven Green

Michigan Law Review

According to Erie Railroad v. Tompkins and its progeny, a federal court interpreting state law must decide as the state's supreme court would. In this Article, I argue that a state court interpreting the law of a sister state is subject to the same obligation. It must decide as the sister state's supreme court would. Horizontal Erie is such a plausible idea that one might think it is already established law. But the Supreme Court has in fact given state courts significant freedom to misinterpret sister-state law. And state courts have taken advantage of this freedom, by routinely presuming that …

In Defense Of The Substance-Procedure Dichotomy, Jennifer S. Hendricks

Publications

John Hart Ely famously observed, "We were all brought up on sophisticated talk about the fluidity of the line between substance and procedure," but for most of Erie's history, the Supreme Court has answered the question "Does this state law govern in federal court? " with a "yes" or a "no." Beginning, however, with Gasperini v. Center for Humanities, and continuing with Semtek v. Lockheed Martin and the dissenting opinion in Shady Grove v. Allstate, a shifting coalition of justices has pursued a third path. Instead of declaring state law applicable or inapplicable, they have claimed for …

What Happened In Iowa?, David Pozen

Faculty Scholarship

Reply to Nicole Mansker & Neal Devins, Do Judicial Elections Facilitate Popular Constitutionalism; Can They?, 111 Colum. L. Rev. Sidebar 27 (2011).

November 2, 2010 is the latest milestone in the evolution of state judicial elections from sleepy, sterile affairs into meaningful political contests. Following an aggressive ouster campaign, voters in Iowa removed three supreme court justices, including the chief justice, who had joined an opinion finding a right to same-sex marriage under the state constitution. Supporters of the campaign rallied around the mantra, “It’s we the people, not we the courts.” Voter turnout surged to unprecedented levels; the national …

Legislative Intent And Legislative History In Michigan, Kincaid C. Brown

Law Librarian Scholarship

Determining legislative intent is one of the key roles that the judicial system plays in Michigan, and legislative history can be a useful tool for evaluating the intent of the legislature when enacting a law. However, legislative history resources can be difficult to gather and some resources may not be persuasive in Michigan courts. This article provides a brief description of the Michigan legislative process, the court’s view of using legislative history to determine legislative intent, and a list of Michigan legislative history resources.

The Immunity Of State Officials Under The Un Convention On Jurisdictional Immunities Of States And Their Property, David P. Stewart

Vanderbilt Journal of Transnational Law

The U.S. Supreme Court decided in Samantar v. Yousuf that claims of immunity by individual foreign officials in U.S. courts will be determined not under the Foreign Sovereign Immunities Act but instead under the common law, drawing on principles of international law. The 2004 UN Convention on the Jurisdictional Immunities of States and Their Properties represents the most recent and comprehensive international thinking on the question of jurisdictional immunities of foreign states and their officials in foreign courts. Under the Convention, individual representatives of a state acting in that capacity are entitled to the same immunities as the state itself. …

Acus 2.0 And Its Historical Antecedents, Jeffrey Lubbers

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Same-Sex Marriage, Same-Sex Cohabitation, And Same-Sex Families Around The World: Why ‘Same’ Is So Different?, Macarena Saez

Scholarly Articles in Law Reviews & Journals

This paper briefly explains the situation of same sex couples in countries that have opened marriage to individuals of the same sex, offers a summary and analysis of the status of same sex unions in several countries that have not opened marriage to same sex couples, and provides a comparative analysis of the most recurrent arguments used in the processes of recognition and denial of same sex unions in the countries reviewed.

Forty years ago, same sex couples were not legally accepted in any country. In the last thirty years, however, around 20% of the world has granted some rights …

Punctuated Equilibrium: A Model For Administrative Evolution, Mark Niles

Scholarly Articles in Law Reviews & Journals

No abstract provided.

The Proposed Texas Assignment Of Rents Act: A Legislative Escape From The Common Law Morass, Julia Patterson Forrester Rogers

Faculty Journal Articles and Book Chapters

When a loan is secured by a mortgage or deed of trust on an income-producing property, such as an office building, shopping center, or apartment complex, rents are a significant part of the security for the loan, in addition to the land and improvements.Rents provide the funds necessary to pay for operating and maintaining the mortgaged property and to make payments on the mortgage loan.After a default on the mortgage loan, a borrower, facing the possibility of losing the property to foreclosure, may apply rents to purposes unrelated to the property or the mortgage loan. The lender, on the other …

The Unsettled Nature Of The Union, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

This article is a response to Bradford R. Clark, The Eleventh Amendment and the Nature of the Union, 123 Harv. L. Rev. 1817 (2010).

In his article, The Eleventh Amendment and the Nature of the Union, Professor Bradford Clark offeres an explanation for the puzzling text of the Eleventh Amendment, which appears to preclude federal jurisdiction over suits against a state by citizens of other states but not by its own citizens. Professor Clark argues that the Amendment's text made sense to the Founders because they did not envision any suits against the states arising under federal law. …

The Case For The Repeal Amendment, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Today, a political movement has arisen to oppose what seems to be a highly discretionary and legally unconstrained federal government. Beginning in the Bush Administration during the Panic of 2008 and accelerating during the Obama Administration, the federal government has bailed out or taken over banks, car companies, and student loans. It is now preparing to vastly expand the Internal Revenue Service to help it take charge of the practice of medicine for the first time in American history. This marked and rapid increase of power has shaken many Americans who are now looking to the United States Constitution with …

Preface, Stanley W. Hammer

University of Richmond Law Review

No abstract provided.

Constitutionalizing Local Politics, Joseph Blocher, Ilan Graff

Faculty Scholarship

No abstract provided.

A Minimalist Approach To State ‘Bankruptcy’, Steven L. Schwarcz

Faculty Scholarship

Increasingly finding themselves in financial straitjackets, states have been turning to austerity measures, tax increases, privatization of services, and renegotiation of collective bargaining agreements. Absent a federal government bailout, however, states will also need debt relief if their debt burden becomes so crushing that reasonable efforts at fiscal reform will fail to avoid default. Some advocate providing this relief by, effectively, extending municipal bankruptcy law to states. That approach brings in excess baggage, however, engendering political opposition and constitutional concerns. There is a simpler solution: Enable states to work out their debt problems with their creditors. Although the main obstacle …

An Illusory Right To Appeal: Substantial Constitutional Questions At The New York Court Of Appeals, Meredith R. Miller

Scholarly Works

The jurisdiction of the New York Court of Appeals has long been shrouded in mystery. When the Court dismisses an appeal, it provides a boilerplate, one-sentence decretal entry, which gives the litigants little, if any, meaningful indication of the Court’s reasons for dismissal. In February 2010, however, the world received a rare glimpse into the Court’s jurisdiction when, in Kachalsky v. Cacace, 925 N.E.2d 80 (N.Y. 2010), Judge Robert Smith dissented from the Court’s sua sponte dismissal of the appeal. Judge Smith voted to retain the appeal, arguing that the Court was using the requirement of “substantiality” to invoke discretion …

The Political Economy Of Criminal Procedure Litigation, Anthony O'Rourke

Georgia Law Review

Criminal procedure has undergone several well-
documented shifts in its doctrinal foundations since the
Supreme Court first began to apply the Constitution's
criminal procedure protections to the states. This Article
examines the ways in which the political economy of
criminal litigation-specifically, the material conditions
that determine which litigants are able to raise criminal
procedure claims, and which of those litigants' cases are
appealed to the United States Supreme Court-has
influenced these shifts. It offers a theoretical framework
for understanding how the political economy of criminal
litigation shapes constitutional doctrine, according to
which increases in the number of indigent defense
organizations …

Vesting Title In A Murderer: Where Is The Equity In The Georgia Supreme Court's Interpretation Of The Slayer Statute In Levenson?, Mark A. Silver

Georgia Law Review

The recent Georgia Supreme Court ruling in Levenson v.
Word exposes difficult interpretative and equitable
questions posed by Georgia's slayer statute. The case
began after Debra Post inherited her husband's estate but
was then arrested for his murder. She used her husband's
life insuranceproceeds and the real property she acquired
through the murder to pay two law firms to defend her in
the murder trial before pleading guilty.
The court-appointedadministratorof the estate sued the
law firms for conversion for not returning these illegally
and immorally acquired funds. Under the Georgia slayer
statute, a murderer forfeits the right to serve as …