State and Local Government Law Commons^™

Professional Liability, Sven Stricker, Jordan Brownlow, Tania Sethi

SMU Annual Texas Survey

No abstract provided.

Is The Shipwreck I Found In Lake Michigan Mine? Great Lakes Shipwreck Legal Research Basics And Sources, Kincaid C. Brown

Law Librarian Scholarship

There have been approximately 6,000 shipwrecks claiming an estimated 30,000 lives in the Great Lakes and new shipwrecks continue to be located, such as the recently discovered Atlanta. There are many opportunities for divers, boaters, and other users of the Great Lakes to come across found and new shipwrecks. This article discusses the basic framework of federal, state, and other law governing these shipwrecks.

Recent Case Law, Disparate Impact, And Restrictive Zoning, Michael Lewyn

Touro Law Review

The Fair Housing Act (“FHA”) prohibits housing discrimination, including the refusal to sell or rent housing based on race, color, religion, sex, familial status or national origin,and any policy or conduct that “otherwise make[s] unavailable or den[ies], a dwelling [based on these impermissible factors].”In 2015, the Supreme Court interpreted the “otherwise make unavailable” language of the Act to mean that the FHA includes not only claims for intentional discrimination, but also claims for disparate impact. Under the disparate impact doctrine, a defendant may be liable for facially neutral rules or policies that disproportionately favor one racial group over another.

Zoning …

Access To Counsel For Defendants In Lower Criminal Courts, Alyssa M. Clark, Andrew L. B. Davies, Karise M. Curtis

Other Publications

Criminal defendants unable to afford an attorney are entitled to one for free in the United States, but how and when they obtain access to that lawyer is another question. We examine judicial attitudes and behavior in granting access to counsel in areas where logistics are particularly forbidding. Based on survey responses from 1,091 magistrate judges presiding in lower criminal courts in suburban and rural jurisdictions in upstate New York, we describe both the procedures used to determine defendants' financial eligibility for free counsel, and the logistical challenges that surround securing the physical presence of a lawyer at the first …

“No Skateboarding Allowed”: Municipal Bylaws, Urban Common And Public Property, And The Regulation Of “Undesirable” Or “Disruptive Use", Sara Gwendolyn Ross

Articles, Book Chapters, & Popular Press

The mechanics of daily local inequality and marginalization can be readily observed within the language of local bylaws that govern urban spaces and places and their use — whether these govern the hours and types of use that can be made of local “public” parks, spaces where loitering is identified as unwelcome, or how and where certain activities can take place. While affinity spaces can be, on the one hand, welcomed and celebrated for the mentorship of youth, extracurricular activity, environmentally friendly transportation, or as a skill-building goal-oriented endeavour, the language of bylaws creates an ecosystem equally predisposed to prohibiting …

Protecting State Constitutional Rights From Unconstitutional Conditions, Kay L. Levine, Jonathan R. Nash, Robert A. Schapiro

Faculty Articles

The unconstitutional conditions doctrine limits the ability of governments to force individuals to choose between retaining a right and enjoying a government benefit. The doctrine has primarily remained a creature of federal law, with neither courts nor commentators focusing on the potentially important role of state doctrines of unconstitutional conditions. This omission has become especially significant during the COVID-19 pandemic, as actions by state and local governments have presented unconstitutional conditions questions in a range of novel contexts. The overruling of Roe v. Wade and the resulting focus on state constitutional rights to abortion will offer additional new settings for …

Requiring Majority Winners For Congressional Elections: Harnessing Federalism To Combat Extremism, Edward B. Foley

Lewis & Clark Law Review

Congress should enact a law requiring a candidate for a seat in Congress to receive a majority of votes in order to win the election. Congress should let states determine what particular procedure to use to determine whether a candidate wins a majority, as there are significantly different methods of identifying a majority winner. While this simple piece of legislation might seem inconsequential—many Americans assume, erroneously, that elections already require majority winners—it in fact would cause states to undertake a form of experimentation in the details of electoral system design that would have the effect of counteracting the threat that …

Undue Deference To States In The 2020 Election Litigation, Joshua A. Douglas

Lewis & Clark Law Review

This Article provides the first comprehensive analysis of the numerous election law cases that the Supreme Court and the federal appellate courts decided in the lead up to the 2020 election. The picture is bleak. Instead of protecting the constitutional right to vote, the Supreme Court and lower federal appeals courts unduly deferred to state legislatures in how to run the election, with little concern for the difficulties voters faced during a pandemic. If the courts do not alter their jurisprudence, then the only solution may be robust federal legislation or a constitutional amendment that enshrines the right to vote …

Criminal Disenfranchisement In State Constitutions: A Marker Of Exclusion, Punitiveness, And Fragile Citizenship, Nora V. Demleitner

Lewis & Clark Law Review

Many states prominently include criminal disenfranchisement provisions in their constitutions, which powerfully, and more permanently than state laws, convey the states’ values. These provisions also underscore the ease with which the protected status of citizenship, most pronounced in the right to vote, can be lost. Using the debate in Virginia over how to change the state’s constitution to limit disenfranchisement as a starting point, this Article highlights the need for inclusive voting provisions in state constitutions to reflect a broad conception of citizenship rights and the expansion of the franchise over the last century. Reform demands must be seen in …

One Step Further For Protection: Why Oregon Should Adopt Additional Requirements For The Appointment Of Counsel To Youths Accused Of Crime, Ivy-Rose Kramer

Lewis & Clark Law Review

Current procedures for interrogating and investigating youths accused of crime do not provide sufficient protection for youths and their rights. Oregon should follow the example of other states that have adopted greater protections for youths—beyond what the Constitution currently requires. Specifically, Oregon should enact legislation that would provide counsel to youths who are (1) detained and being investigated based on probable cause of criminal activity; (2) undergoing custodial interrogation; and (3) in possession of property law enforcement wishes to search. This consultation with counsel should not be waivable. Such a law would counteract the harmful effects of disparate treatment and …

Cities, Preemption, And The Statutory Second Amendment, Joseph Blocher

Faculty Scholarship

Although the Second Amendment tends to dominate the discussion about legal limits on gun regulation, nothing has done more to shape the state of urban gun law than state preemption laws, which fully or partially limit cities’ ability to regulate guns at the local level. The goals of this short Essay are to shed light on this “Statutory Second Amendment” and to provide a basic framework for evaluating it.

Front Matter

SMU Annual Texas Survey

No abstract provided.

Civil Procedure: Pre-Trial & Trial, Amanda Sotak, Don Colleluori, Andrew C. Whitaker

SMU Annual Texas Survey

No abstract provided.

Partnership Law, Troy Christensen, Jeff Dorrill, Matthew Schindel, Chelsea Abii, Madeline Ballard

SMU Annual Texas Survey

No abstract provided.

From Zero-Sum To Economic Partners: Reframing State Tax Policies In Indian Country In The Post-Covid Economy, Pippa Browde

Faculty Law Review Articles

The disparate impact COVID-19 has had on Indian Country
reveals problems centuries in the making from the legacy of
colonialism. One of those problems is state encroachment in
Indian Country, including attempts to assert taxing authority
within Indian Country. The issue of the reaches of state taxing
authority in Indian Country has resulted in law that is both
uncertain and highly complex, chilling both outside investment
and economic development for tribes.
As the United States emerges from COVID-19, to focus only on the
toll exacted on tribes and their peoples ignores the tremendous
opportunities for states to right these historical …

The Status Of California's Pay-For-Delay Legislation And Litigation, Jordan Paradise

Faculty Publications & Other Works

Pay-for-delay settlements arise when the brand drug company compensates the generic in some form to delay entry to market, thereby effectively eliminating the 180-day exclusivity on the market the generic is entitled to under law. At the federal level, the Supreme Court has established factors to determine whether such agreements violate antitrust law, policymakers have introduced legislation to curb the practice, and the Federal Trade Commission continues to actively police such deals. At the state level, California Attorney General Xavier Becerra made headlines for securing legal settlements in July 2019 with several pharmaceutical companies accused of participating in pay-for-delay agreements. …

Franchise Law, Deborah S. Coldwell, Sally Dahlstrom, Taylor Rex Robertson, Wes Dutton, Alicia Pitts, Alexander Clark, Wilson Miller

SMU Annual Texas Survey

No abstract provided.

Sex, Money, And Free Speech: The Many Harms Of Fosta/Sesta, Desmond Mantle

CMC Senior Theses

This thesis tracks the development of the Fight Online Sex Trafficking Act/Stop Enabling Sex Traffickers Act, or FOSTA/SESTA, which became federal law in 2018. The law's passage followed as a natural consequence of popular concerns about human trafficking. Congress passed the legislation by large margins in both houses given bipartisan opposition to sex trafficking. This thesis identifies plausible reasons for the only two Senate votes against the bill: those of Senators Rand Paul and Ron Wyden. Though these senators came from opposite sides of the aisle, they shared concerns about the future of free speech online and the potential failure …

Expanding Medicaid In The Postpartum Period, Madison P. Harrell

Law Student Publications

This Comment will discuss how the current Medicaid law is insufficient to address the issue of disappointing maternal health outcomes in the United States and how the federal government should begin to remedy the problem. First, I will shed light on the maternal health crisis in the United States, before discussing the history of pregnancy and postpartum Medicaid coverage. Then, I will outline the enactment of the Affordable Care Act, the subsequent court battle over its constitutionality, and the effects of that decision on the current landscape of pregnancy and postpartum Medicaid coverage. Finally, I will detail my proposal for …

Copyright Takes To The Streets: Protecting Graffiti Under The Visual Artists Rights Act, Michaela S. Morrissey

Law Student Publications

Artists who choose the streets as their canvas—whether to beautify neighborhoods, spark political protest, or merely mark their territory—are faced with uncertainties when it comes to questions of copyright protection for their work. Prior to Castillo v. G&M Realty L.P., the rights granted to street artists had generally been uncharted territory. However, a verdict that pitted the rights of street artists against the rights of property owners finally gave street art the credibility many felt it long deserved. In Castillo, the United States Court of Appeals for the Second Circuit recognized graffiti as a work of visual art, thus …