State Law

12 posts

Shielded from Justice: How State Attorneys General Can Provide Structural Remedies to the Criminal Prosecutions of Police Officers

By Isaac G. Lara

The recent string of police shootings involving unarmed civilians has prompted national outcry over the actions of law enforcement officials. Many state and local law enforcement agencies today are reexamining the way prosecutors handle these incidents. In most jurisdictions today, District Attorneys are responsible for investigating such cases, which is problematic given the reciprocal relationship that exists between District Attorneys and law enforcement agencies. Specifically, District Attorneys rely on police officers to make arrests, interrogate suspects and testify at trial. In turn, police officers rely on District Attorneys to translate their arrests into convictions. This relationship creates a real or perceived conflict-of-interest, which can severely undermine public confidence in the criminal justice system.

State Attorneys General, however, may provide structural solutions to this problem. To illustrate this, this Note conducts a broad survey of the five major categories of actions that State Attorneys General can use during investigations into police shootings. This Note also offers recommendations as to how State Attorneys General can improve on current practices to ensure fair investigations and outcomes. Recommendations include appointing a special prosecutor from a different district; launching a conflict-of-interest inquiry; cooperating with the federal government in devising a national database of police shootings; and reexamining the legal parameters of the use of force.

Download Article

Digital-Age Discrimination: The Voting Rights Act, Language-Minorities, and Online Voter Registration

By Morgan E. Saunders

Online Voter Registration, a new and exciting advancement in election administration, conveniently allows individuals to register to vote on the Internet. However, Online Voter Registration also highlights deficiencies within the United States election system. Specifically, many states’ Online Voter Registration websites are only available in English, despite the fact that citizens in those states have a federally guaranteed right to access all of their election materials in a different language. This right comes from the minority-language provisions of the Voting Rights Act, which require certain states and counties to provide all election materials in specific languages other than English that are common within their jurisdictions. Unfortunately, these provisions often go unenforced or under-enforced. States and counties have been especially slow to come into compliance with the minority-language provisions with regards to their online election materials, like their Online Voter Registration websites. Due to the underenforcement of this section of the Voting Rights Act, there is little legal precedent on which to base future litigation. This Note argues that all Online Voter Registration systems provided by states containing minority-language covered jurisdictions must be provided to voters in all covered languages. It also provides both a litigation and legislative strategy to ensure full compliance with the minority-language provisions on the Internet. Achieving full compliance with the VRA is critical to ensure that non-English-speaking voters have equal access to the ballot.

Download Article

Beyond the Reach of the Constitution: A New Approach to Juvenile Solitary Confinement Reform

By Abigail Q. Cooper

In the last year, the call to reform the practice of solitary confinement has come from all sides. Most of the attention has been on changes at the federal level, despite the fact that the vast majority of inmates in the United States are held at the local and state level. Additionally, the proposed reforms have centered around constitutional arguments that the use of solitary confinement is a violation of the Eighth Amendment. This Note argues that a constitutional ruling in this area is neither necessary nor sufficient to effect change. Solitary confinement is a problem beyond the reach of the Constitution. Rather, it is a byproduct of chronic underfunding, understaffing, and a pervasive culture within prisons that regards solitary confinement as a means of keeping correctional officers safe and maintaining order.

After carefully analyzing the recent settlement in Illinois, as well as a recent lawsuit in New York, this Note argues that reformers should shift their focus to the state level, and, specifically, to the office of the Attorney General. As defense counsel for the state, the Attorney General controls the course of these litigations — including the decision of if, and when, to settle. Yet, an Attorney General is also duty-bound to represent the interests of the People, even when defending the state and its officers in court. Thus, the state Attorney General must always keep an eye towards the plaintiffs — the juveniles themselves — and their interests during these lawsuits and settlement negotiations. Moreover, as the chief legal officer to the state, the Attorney General is uniquely positioned to bring together crucial stakeholders within the government and correctional facilities in order to negotiate a settlement agreement. By examining the filings and transcripts in the New York and Illinois lawsuits, which this Note does for the first time, it becomes clear how crucial state Attorneys General are to ending juvenile solitary confinement.

Download Article

Charter School Jurisprudence and the Democratic Ideal

By Tara Raam

This Note will explore the implications of recent charter school legislation on democratic principles in the context of public education. In 2015, the Washington Supreme Court held, in League of Women Voters of Washington v. State, that charter schools are not “common schools.” Thus, the court proscribed the application of state funds designated for “common schools” towards supporting charter schools. Part II provides background on the development of charter schools and describes the Washington Supreme Court’s decision in League of Women Voters, particularly the Court’s reliance on its 1909 interpretation of the Washington constitution’s “common schools” principle in School District No. 20 v. Bryan, as well as the legislative response to League of Women Voters and subsequent lawsuit. Part III argues that evolving views of school governance necessitate a reading of the Bryan requirements that is more sensitive to the democratic ideals of participation, deliberation, and accountability underlying Bryan. Recognizing the League of Women Voters interpretation of Bryan as the only appropriate means of voter control of public schools would have harmful and far-reaching effects not contemplated by the Bryan court on public schools across the United States. Part IV challenges whether a system of state-authorized charter schools can achieve the democratic ideal, and ultimately offers a portfolio of school options as one possible democratic solution.

Download Article

Embracing Federalism in Special Prosecution Models: An Analysis of Experimentation in the States

By Sabrina Singer

The main project of this Note is to use the example of police officer-involved deaths of unarmed civilians to craft and apply different special prosecution models. In Part II, this Note starts from the proposition that a special prosecutor should supersede the local prosecutor to investigate and prosecute certain cases, such as the police-involved death of unarmed civilians. This Note then identifies and addresses the criticisms made by opponents of special prosecution models.

In Part III, this Note presents and analyzes the existing special prosecution models implemented in states to address cases of police officer-involved deaths of unarmed civilians. Part IV uses the example of New York as an in-depth case study. Then, Part V distills down these complete state models to “dimensions” – areas where the models differ – to provide an analytical structure for readers to use in their own evaluation and design of special prosecution models. The dimensions also provide a structure for Part VI, which proposes and evaluates special prosecution models that seek to address incidents of police officer involved deaths of unarmed civilians. The broader utility of the dimensions will be as a framework for any future special prosecution model that seeks to address any future latent law enforcement gaps.

Download Article

Catalyzing the Separation of Black Families: A Critique of Foster Care Placements Without Prior Judicial Review

By Kathleen Simon

Although decades of efforts have realized significant progress toward the goal of eliminating racial discrimination in the child welfare system, black children continue to enter foster care at rates that exceed their level of need. This Note explores how the standard practice of removing a child without prior judicial authorization has quietly contributed to this civil rights crisis by enabling racial bias to go unchecked in the placement decision-making process.

In an attempt to understand how state legislatures can ensure that risk, rather than race, informs foster care placements, this Note introduces an original analysis comparing the racial disparity rates in foster care entries among states. Based on the study’s finding that greater racial disparities exist in jurisdictions with flexible emergency removal laws, this Note recommends that states excuse pre-deprivation hearings only when taking the time to seek an ex parte court order would jeopardize a child’s safety.

Download Article

Download Appendix

Beyond Categorical Exclusions: Access to Transgender Healthcare in State Medicaid Programs

By Samuel Rosh

This Note addresses a major barrier to care that transgender individuals face: “categorical exclusions” barring payment for healthcare related to gender transition in state Medicaid programs, along with policies prohibiting payment for such care when deemed “cosmetic.” It first argues that because the dysphoria and discrimination that transgender individuals experience affect their quality of life and mental well-being, and derive from a discord between their appearance and gender identity, those considerations should be taken into account in the legal determination of medical necessity. As medical studies and the views of major medical associations demonstrate, healthcare for gender transition has been found medically necessary for some individuals to mitigate their gender dysphoria.

This Note then describes the arguments for and against the invalidity of categorical exclusions and other policies that deny transgender individuals access to medically necessary care, focusing on Section 1557 of the Affordable Care Act as well as more general provisions of federal Medicaid law. It then examines these issues in the context of litigation regarding New York’s limitations on transgender healthcare, which ultimately culminated in a medical necessity standard. Finally, it considers the arguments that Medicaid coverage for gender transition would be too costly, and that requiring states to cover such care would undermine principles of federalism.

Download Article

The Illinois Millionaire’s Exemption and the Utility of Campaign Contribution Limits

By Nora Huppert

Illinois‘ 2014 and 2018 Gubernatorial elections raised eyebrows and drew national media attention for the astronomical amounts of money raised by the candidates in the form of direct campaign contributions, often from individual wealthy backers. These extreme campaign contributions, which in many states are strictly limited, were made possible in Illinois by operation of a unique campaign finance scheme enacted only a few years earlier. This law, meant to emulate the federal “Millionaire‘s Exemption” (or “Millionaire’s Amendment”) which had previously been held unconstitutional by the U.S. Supreme Court, lifts contribution limits completely in a given race once certain conditions are met. This was intended to level the playing field by allowing “underdog” candidates facing opponents backed by wealthy interests to raise a little more money from their supporters. In these Gubernatorial elections, however, the main beneficiaries of the law were exactly those candidates who were empowered to raise many millions from individual wealthy donors.

In the aftermath of these elections, commentators began to ask whether the Illinois law was “backfiring” by simply allowing wealth-backed candidates to raise even more money from wealthy supporters. As such, this Note examines campaign finance data in recent statewide and legislative elections in Illinois in which contribution limits were lifted to analyze whether the law operated as intended. Part II explains the constitutional backdrop against which the Illinois law was enacted and the relevant scholarly and legal views on the utility of campaign contribution limits in a universe in which independent spending cannot be meaningfully regulated. Part III estimates how much the law allowed candidates in recent statewide and legislative races to raise above campaign contribution limits and analyzes the real-world effect of the law. Part IV concludes that the limits-off law fails to serve its intended purpose in practice and that its benefits are outweighed by its “floodgates” effect on select big-money races; Part IV also proposes pathways for reform that might realign campaign finance law in Illinois with the limits-off law‘s admirable rationale.

Download Article

Settling High: A Common Law Public Nuisance Response to the Opioid Epidemic

By Michael J. Purcell

As legislatures and administrative agencies have struggled to successfully address the ongoing opioid crisis, many state attorneys general have stepped in and filed suit against major pharmaceutical manufacturers and distributors. Among the claims being made in such suits is one of “public nuisance.” Though these types of parens patriae claims have historically been a controversial means of dealing with major social issues, they also have the potential to serve an invaluable role in getting defendants to the settlement table. In order for such settlements to prove valuable, however, state attorneys general must think critically about how to structure them to ensure that they work in conjunction with ongoing legislative and administrative policies to address the full scope of the opioid epidemic.

By analyzing the strengths and weaknesses of past settlements in public health litigation, state attorneys general can structure a settlement which builds on these strengths and supports an effective response to the largely unique issues posed by the opioid crisis. Specifically, this Note argues that states should continue to pursue public nuisance causes of action against opioid manufacturers in an effort to get them to negotiate large-scale settlements that could then be used to finance immediate and ongoing legislative responses to the opioid epidemic. Part II discusses the background of the opioid crisis, explores how state and federal governments have unsuccessfully responded to it, and argues that the greatest impediment to the success of such legislative and administrative efforts has been a lack of financial resources. Part III then explores public nuisance law as it has been used in dealing with public health issues and how it might serve an invaluable role in incentivizing high settlement in the context of opioid manufacturers. Finally, Part IV draws on previous settlements to create a template for how state attorneys general in settlement negotiations with opioid manufacturers ought to structure settlements moving forward. Ultimately, the Note posits that they should turn their attention away from viewing settlements as a means to establish new substantive regulations for the industry and should instead focus their efforts on maximizing financial returns from these settlements such that they may fill the resource gap that has crippled the state’s ability to fully combat the opioid crisis.

Download Article

Gubernatorial Impoundment: An Implied Solution for a Budgeting Challenge

By Zachary Blair

In recent years, states have had to make drastic cuts to their budgets even as the economy flourished in the wake of the Great Recession. The task of balancing state budgets has always been a formidable one, but recent shifts in revenue sources and their ability to generate reliable funding have made this challenge increasingly common and difficult. Historically, states have viewed budget balancing as a fundamentally legislative obligation and prerogative, which is often delegated to the executive branch in the form of impoundment statutes because of the executive’s superior budgeting capabilities.

In several states, however, the legislature has either kept the power to balance the budget for itself or has delegated insufficient discretion to the executive, hampering the state’s ability to meet its constitutional obligation to balance the budget. Consequently, this Note presents an alternative interpretation of the power to impound. It conceives of impoundment as a shared constitutional power exercisable by either the executive or legislature that can be constrained by statute. This interpretation permits the executive to better leverage its strengths in fiscal matters to resolve budget deficits quickly and efficiently, ensuring that the state meets its constitutional obligation to balance the budget.

Download Article

Proxy War: The Role of Recent CEQA Exemptions in Fixing California’s Housing Crisis

By Annelise Bertrand

As California’s housing crisis continues to balloon, legislators are scrambling to identify its root causes and fashion fixes. One major challenge to the state’s housing fix is its existing fix for a different issue: environmental protection. The California Environmental Quality Act (CEQA) is one of the strongest state-level environmental statutes in the United States, and mandates that residential projects of a certain scale and potential impact undergo rigorous rounds of public review prior to approval. It also grants a private right of action against a project approval to any anonymous individual, and given the glacial pace of such litigation, the exercise of this right often informally functions as an injunction. Recognizing its defensive potential, prosperous communities have repurposed a law intended to preserve the environment into a weapon of exclusion that preserves property values and views by preventing the construction of new and affordable housing where most needed.

To counteract CEQA abuse in the housing domain, the California legislature has passed three bills that streamline environmental review for projects that reserve a certain portion of units for affordable housing: SB 35, SB 540, and AB 73. This Note examines each bill in turn and, after reviewing their requirements in light of inclusionary housing literature, ultimately argues that the streamlining efforts are unlikely to produce the effects hoped for due to their mismatched incentives and concessions. Finally, the Note concludes with several recommendations for improving future CEQA-based affordable housing initiatives in the Golden State.

Download Article

Socially Accountable Investing: Applying Gartenberg v. Merrill Lynch Asset Management

By Zachary Barker

In the past several years, the investment management industry has seen the tremendous growth of mutual funds that invest according to principles of socially responsible investment (SRI). What is missing from this growing sector, however, is any oversight as to whether these funds actually accomplish their socially conscious mission. With the Securities and Exchange Commission reluctant to police “social disclosure,” the unregulated promises of these SRI funds present a significant consumer protection risk.

This Note proposes that existing securities laws provide a potential avenue to effective SRI fund regulation without the need for new regulatory action. The rules of fiduciary obligation for mutual fund directors imposed by § 36(b) of the Investment Company Act and the landmark decision Gartenberg v. Merrill Lynch Asset Management, which until now have largely been applied to funds’ financial performance, could easily be adapted by SRI fund investors to ensure a modicum of oversight for those funds’ social performance. State laws governing the management of public benefit corporations, which impose on directors a duty to disclose and compare corporate social performance, can provide potential principles for evaluating social performance.

Download Article