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Showing papers in "Fordham Urban Law Journal in 2013"


Journal Article
TL;DR: Anthony, a nine-year-old African-American boy, was asked by his teacher to write an essay about his family, and he flew into a rage and flipped a desk over as mentioned in this paper.
Abstract: Introduction I. Poor Outcomes for Students with Social, Emotional and Behavioral Challenges A. Low Achievement B. Suspensions and Expulsions C. School Dropout D. Involvement in the Juvenile Justice System E. Psychiatric Hospitalization and Institutionalization in Residential Treatment Centers II. Mapping Implementation Failures of IDEA'S Key Provisions A. Child Find and Evaluation 1. Key Child Find and Evaluation Provisions 2. Implementation Failures of Child Find and Evaluation Provisions B. The IEP Process 1. Key IEP Process Provisions 2. Implementation Failures of the IEP Process Provisions C. Related Services 1. Key Related Services Provisions 2. Implementation Failures of Related Services Provisions D. Behavior-Related Provisions 1. Key Behavior-Related Provisions. 2. Implementation Failures of Behavior-Related Provisions III. Prioritizing Implementation of Key IDEA Provisions A. Suggestions for Improving Implementation 1. Increased Teacher Training, Awareness of Disabilities and Related Social, Emotional, and Behavioral Challenges, and the Need for Ongoing Professional Development 2. Ensuring Clarity and Timeliness in the Referral Process. 3. Securing Comprehensive Evaluations that Include All Relevant Parties 4. Collaboration with Parents Prior to the IEP Meeting 5. Guaranteeing the Necessary and Relevant Parties Attend the IEP Meeting. 6. Ensuring Interpretation and Translation Are Available to Parents and Students 7. More Creative Use of Related Services 8. Empowering Parents through Meaningful Training and Information. 9. Improved Understanding and Implementation of Behavior-Related Provisions B. Addressing Some Critiques of Special Education and of IDEA 1. The Problem of Stigma 2. Overrepresentation of Minority Students 3. Low-Quality Programs.. 4. Cost Conclusion Introduction Anthony, (1) a nine-year-old African-American boy, was asked by his teacher to write an essay about his family. In addition to the frustration he felt because of his difficulty spelling and writing in complete sentences, this assignment also triggered flashbacks to an event that had occurred a year earlier--he started picturing his father viciously beating his mother and leaving her lying on the floor helpless. Anthony remembered walking over to his mother after his father left the house and finding her unresponsive. He also recalled waiting for the paramedics after he dialed 911 and the chilling feeling he had after they arrived and pronounced her dead. As these events flashed through his mind, Anthony flew into a rage. He began yelling and cursing at the teacher. He flipped a desk over. Immediately, the teacher told the students to leave the classroom and called the school resource officer. Anthony was arrested and taken to Juvenile Hall. After remaining there for several days, he was admitted to a mental health institution for a few weeks, and then released to the group home where he had been living for the previous three months. As a result of this incident, Anthony faced exclusion from school and a delinquency case that could remove him from his community for up to a year. The desk incident was not an isolated one for Anthony. On numerous occasions, he had outbursts in the classroom where he threw books, pencils or other small objects. He was routinely suspended for fights with other students or for talking back to teachers and staff. …

16 citations


Journal Article
TL;DR: In the context of obesity prevention, this paper proposed a tax on sugar-sweetened beverages (SSB) to reduce their sale and consumption, which is an important obesity prevention strategy that affects both public and private actions.
Abstract: 1. Addressing Disparities Through Obesity Prevention Policy As noted above, obesity policies generally act by prioritizing public resources, influencing private decisions, or both. Obesity policy influences disparities through these same mechanisms. For example, local governments can reverse health disparities by prioritizing public resources to support healthy behavior on the part of those experiencing the negative effects of the disparity. An example appears in the context of crossing guards. Research shows that children who walk or bike to school experience lower rates of obesity than those who do not. (154) Crossing guards can make the experience of walking or biking to school safer (155) and can increase parents' willingness to allow children to walk or bicycle to school. (156) In Florida, crossing guards at intersections near schools are currently paid for by a state fund. (157) But in larger jurisdictions, like Miami-Dade County, the fund cannot cover the entire cost of a crossing guard and schools must close the funding gap or have fewer crossing guards than they need. Lower income schools in the City of Miami have particular difficulty closing this funding gap. (158) A change in state law would authorize the city to levy a surcharge on fines for school zone traffic offenses, enabling the jurisdiction to supply additional crossing guards to low-income neighborhoods and improve safety for children walking or biking to school. (159) This change in state law would give local jurisdictions a new potential source of revenue to support safer walks to school in low-income neighborhoods. Policies that influence private decisions can also affect disparities. Such policies generally create incentives for health-promoting activities or deterrents for disease-promoting activities. These incentives or deterrents can be for businesses or individuals. New York City offers tax and zoning incentives to grocery store owners who open or expand locations in food deserts, (160) addressing inequitable access to fresh fruits and vegetables. (161) Incentives such as these are intended to make neighborhoods with limited food access more attractive to business owners by decreasing the cost of development. (162) Other policies, like labeling menus with calorie counts and nutrition information, are intended to influence the behavior of individuals. (163) Policy change can also be a hybrid of these two categories, affecting both public and private actions. Taxing sugar-sweetened beverages to reduce their sale and consumption is an important obesity prevention strategy that affects both public and private actions. (164) Such taxes generally affect private behavior by increasing prices, thereby reducing consumption. (165) Sugar-sweetened beverage (SSB) taxes also affect public resources by generating revenue for the government. (166) A proposal in Vermont, for example, would have allocated one-third of the tax revenue raised to obesity prevention initiatives for low-income residents, including subsidies for fruit and vegetable purchases. (167) These tax proposals typically generate a strong reaction. Opponents of SSB taxes criticize them for being regressive, disproportionately hurting low-income people and people of color who can least afford it. (168) A regressive tax is one for which low-income people pay a higher percentage of their income than high-income people. (169) For instance, lower-income people spend a larger share of their income on food and beverages and consume more SSBs than their higher-income counterparts. (170) African Americans are more likely to be regular SSB drinkers. (171) Thus, opponents argue that a SSB tax would affect low-income people and people of color more than people who are wealthier and white. A similar argument was raised concerning tobacco taxes, but was successfully challenged by proponents, who pointed out that low-income people have a higher prevalence of smoking-related illnesses. …

7 citations


Journal Article
TL;DR: In this article, the authors argue that the United States should allow cities and counties with populations over 50,000 to enforce the Federal Trade Commission Act (the FTC Act) and its state statutory counterparts (or little Acts).
Abstract: This Article calls on Congress and the state legislatures to grant large cities and counties standing to enforce the Federal Trade Commission Act (the FTC Act) and its state statutory counterparts (or little Acts). The FTC Act, a federal law, prohibits businesses from engaging in any "unlawful, "unfair," or "deceptive" acts or practices, and the little Acts apply similarly broad prohibitions in all fifty states. This fifty-one-statute consumer protection regime--which has been the law of the land for several decades--carries enormous promise to halt a wide range of unlawful and harmful corporate practices in their earliest stages. Unfortunately, that promise has not been fulfilled because these laws are chronically under-enforced. At present, only one federal agency--the Federal Trade Commission--has broad standing to enforce the FTC Act; while state Attorneys General and consumers typically have standing to enforce the little Acts, they cannot keep up with the rate of corporate malfeasance. This Article argues that the nation's legislatures should invite cities and counties with populations over 50,000 into consumer protection enforcement by granting them standing to seek injunctive relief and penalties under the FTC Act and little Acts. It addresses the practical benefits and barriers to disaggregating consumer protection enforcement in this way and discusses the attendant localism and federalism concerns. TABLE OF CONTENTS Introduction I. The Current Consumer Protection Enforcement Regime and Its Limitations A. The FTC Act B. The Little Acts C. Barriers to Local Legislation D. Barriers to Private Enforcement Actions E. Why Consider Local (Rather than Additional State or Federal) Consumer Protection Enforcement? II. Expanding Local Enforcement of State and Federal Consumer Protection Laws A. Municipal Right of Action Under FTC Act B. Municipal Right of Action Under the Little Acts C. Practical Barriers to Local Consumer Protection Enforcement 1. Politics 2. Money 3. Culture 4. Sophistication III. Theoretical Concerns Disaggregation Raises A. Localism Concerns: What About Local Autonomy? B. Federalism Concerns: Uniformity, Over-Enforcement, and Parochialism Conclusion Appendix INTRODUCTION The nation's consumer protection regime is broken. (1) The problem is not a lack of good law: federal and state legislatures have enacted far-reaching consumer protection statutes, most notably the expansive Federal Trade Commission Act (the FTC Act or the Act) (2) and its state statutory counterparts (the little Acts). (3) The problem is that due to insufficient funding and staffing, (4) industry capture, (5) or some combination of both, (6) these potentially powerful bodies of consumer protection law are woefully under-enforced. (7) At present, the FTC Act is enforced almost exclusively by the FTC itself. (8) The Act does not provide for a private right of action or public rights of action by state or local governments (unlike, for example, the Clean Air Act). (9) Furthermore, among the fifty little Acts, only seven permit city and county enforcement, (10) and only eleven permit district attorney enforcement. (11) This paper calls for Congress and the state legislatures to extend consumer protection enforcement standing to cities and counties with populations over 50,000. (12) For several decades, scholars and policy experts have pointed out the enormous gaps in consumer protection enforcement, and called for a more effective approach. Nearly half a century ago, Ralph Nader's book Unsafe at Any Speed spurred broad efforts to protect consumers. (13) Ten years after Mr. Nader published his book, Ann Marie Tracey pointed out that "[c]onsumer laws are not self-executing," and called for local criminal prosecution of consumer rights violations. …

4 citations


Journal Article
TL;DR: Fargo, North Dakota-Moorhead, Cedar Rapids, Iowa, and Sacramento, California as discussed by the authors are three case studies which can provide guidance to other cities around the nation.
Abstract: IV. EVALUATION OF FLOOD MANAGEMENT CASE STUDIES As local governments take on more responsibility for flood management, they will inevitably look to other local governments for successful models. This section considers three case studies which can provide guidance to other cities around the nation: (1) Fargo, North Dakota-Moorhead, Minnesota, (2) Cedar Rapids, Iowa, and (3) Sacramento, California. These regions make effective case studies because they are particularly vulnerable to flooding based on their topography and development history. More importantly, each city has advanced innovative flood management initiatives consistent with principles described in the EU Floods Directive. Fargo-Moorhead, Cedar Rapids, and Sacramento have taken steps that will help them manage floods in a more integrated manner, including the recognition of uncertainty in weather conditions and the need for better flood forecasting and the development of regional plans, and the use of some nonstructural solutions to reduce flood damage. Despite the advances in planning, however, implementation remains challenging. For instance, local governments have not consistently turned the language of integrated management into changes in land use ordinances. These local governments that have worked to develop more regional solutions have at times confronted obstacles relating to lack of coordination. These cases also demonstrate that the lack of federal requirements, substantial guidance, or consistent funding support continues to impede state and local governments from achieving optimal flood management planning. A. Background--Case Study Areas 1. Fargo, North Dakota-Moorhead, Minnesota The Red River of the North originates at the confluence of the Otter Tail and Bois de Sioux Rivers south of Fargo, North Dakota. It flows northward into Canada and forms most of the boundary between Minnesota and North Dakota. (157) The Red River's northward flow, distinctive in North America, contributes to more substantial spring floods because snow in the southern headwaters of the basin often melts before snow in the northern areas, leading to ice jams as the flow travels northward. (158) In addition, the Red River Basin is located within the broad, flat bottom valley of glacial Lake Agassiz. This topography causes the main stem and tributary rivers in the glacial lake plain area of the basin to overflow frequently onto broad floodplains. (159) The Red River Basin includes a large percentage of agricultural land, and the urban areas of Fargo, North Dakota and Moorhead, Minnesota. (160) These metropolitan areas have a combined total population of 200,000. (161) The Red River floods regularly. Flood damage has, on occasion, been catastrophic and has included severe structural damage to private and public facilities and infrastructure, extensive crop loss, major environmental degradation, and loss of life. Basin-wide flood damages (including both Canada and the U.S.) after the flood of 1997 were estimated at $5 billion. (162) Wetland destruction for farmland and climate change have increased the amount of precipitation and flooding in the region; the Red River has exceeded the National Weather Service flood stage of 18 feet in 48 of the past 109 years, and every year from 1993 through 2011. (163) The flood of record at Fargo-Moorhead was the 2009 spring flood with a stage of 40.8 feet on the Fargo gage. (164) Equivalent expected annual flood damages in the Fargo-Moorhead metropolitan area are estimated to be over $194.8 million in the future if no further action is taken. (165) 2. Cedar Rapids, Iowa Cedar Rapids, located in east-central Iowa, is the state's second largest city with a population of 125,850 and sits on both banks of the Cedar River. (166) It is located within a shallow bowl surrounded by gentle rolling slopes. Iowa's rolling prairies and hilly oak woodlands meet at Cedar Rapids. Upland water from the entire watershed flows into Cedar Rapids. …

4 citations


Journal Article
TL;DR: In this article, the authors argue that the problem of exclusionary zoning should be viewed first and foremost from the perspective of lower-income households, and that the long-standing focus on the content of local ordinances, instead of on these broader exclusionary dynamics, has defined the problem too narrowly.
Abstract: Introduction I. The Local Focus of Exclusionary Zoning II. The Spatial Dynamics of Exclusionary Zoning A. The Needs of Lower-Income Households B. The Problem of Exclusion Reassessed C. Modern Forms of Exclusion III. Rejecting an Ordinance-Centric Focus Conclusion INTRODUCTION There is a conventional narrative surrounding the term "exclusionary zoning." It describes a particular phenomenon: a suburb adopting large-lot zoning or other density controls that reduce the supply of developable land, thereby driving up prices and making housing unaffordable for lower-income households. (1) This phenomenon, in turn, generates a set of familiar worries about municipalities not bearing their fair share of lower-income households and imposing the associated costs on their neighbors and in particular on the urban core. (2) This relatively parochial frame, however, misses some of the scales at which exclusion operates, and therefore the forms that exclusionary zoning sometimes takes. Expanding the frame reveals problems of exclusion not just at the local level, but at the regional and sub-local levels as well. Exclusionary zoning in its modern form is no longer limited to low-density suburbs, but now occurs also within the urban core and region-wide. Most responses to exclusionary zoning operate only on the local scale to address the exclusion of lower-income households from suburban municipalities. (3) Most famously, the New Jersey Supreme Court, in Southern Burlington County NAACP v. Township of Mount Laurel, required municipalities to bear their fair share of affordable housing need. (4) New Jersey's legislative response has similarly focused on local governments' fair share obligations. (5) Other states also have a local focus. (6) Massachusetts, for example, gives developers an exemption from local zoning if a municipality does not meet a pre-determined affordable housing quota. (7) These are appropriate responses to the conventional concern of exclusionary zoning, which consists of a local government using particular zoning techniques to force lower-income households into neighboring municipalities. These tactics benefit the excluding government's tax rolls to the detriment of its neighbors. But an exclusive focus on municipal-level exclusionary zoning misses other important problems, namely: access by lower-income households to public services and higher wages. In contrast to the traditional focus on inter-local externalities, we argue here that the problem of exclusionary zoning should be viewed first and foremost from the perspective of lower-income households. (8) As a group, they have needs at different geographical scales. They need access to regions where employment opportunities are available and wages are high relative to costs of living. They need access to municipalities that offer an attractive mix of services and taxation. And they need housing opportunities in specific neighborhoods that are not isolated from core public services. Exclusionary zoning can operate in each of these spatial frames independently of one another. The long-standing focus of exclusionary zoning on the content of local ordinances, instead of on these broader exclusionary dynamics, has defined the problem of exclusionary zoning too narrowly. We aim to remedy that deficiency in our contribution to the Fordham Urban Law Journal's Fortieth Anniversary issue. In Part I we describe traditional accounts of exclusionary zoning. In Part II, we explore the different geographical scales at which exclusion can operate and the varied forms exclusion can take. Finally, in Part III, we discuss the need for more finely-tuned judicial interventions to comprehensively address exclusion in its many forms. I. THE LOCAL FOCUS OF EXCLUSIONARY ZONING Contemporary concerns about exclusionary zoning are intimately bound up with Twentieth Century suburbanization. …

4 citations


Journal Article
TL;DR: In this paper, the authors argue that mass surveillance is a necessary tool in deterring crime and apprehending criminals, and that the benefits of mass surveillance are too often left out of the discussion.
Abstract: We have become a surveillance state. Cameras--both those controlled by the state, and those installed by private entities--watch our every move, at least in public. For the most part, courts have deemed this public surveillance to be beyond the purview of the Fourth Amendment, meaning that it goes largely unregulated--a cause for alarm for many civil libertarians. This Article challenges these views and suggests that we must listen to communities in thinking about cameras and other surveillance technologies. For many communities, public surveillance not only has the benefit of deterring crime and aiding in the apprehension of criminals. It can also function to monitor the police, reduce racial profiling, curb police brutality, and ultimately increase perceptions of legitimacy. The question thus becomes not how we can use the Fourth Amendment to limit public surveillance, but rather: "How can we use the Fourth Amendment to harness public surveillance's full potential?" Introduction I. Watching You II. The Fourth Amendment Problem A. A Conventional Reading of the Fourth Amendment B. A Non-Conventional Reading of the Fourth Amendment III. The Fourth Amendment Solution Conclusion INTRODUCTION Quite simply, we have become a surveillance state. Cameras--both those controlled by the state, and those installed by private entities--watch our every move, at least in public. For the most part, this public surveillance is unregulated, beyond the scope of the Fourth Amendment. To many civil libertarians, the extent of public surveillance infringes upon our rights of privacy and anonymity, and as such should be cause for alarm. On the other side of the debate, law and order advocates argue that mass surveillance is a necessary tool in deterring crime and apprehending criminals. The goal of this Article is not to settle this debate, but rather to call attention to the benefits of mass surveillance that are too often left out of the discussion. This Article also urges that we listen to communities. For many communities, public surveillance not only deters crime and aids in the apprehension of criminals; it can also function to monitor the police, reduce racial profiling, curb police brutality, and ultimately increase perceptions of legitimacy. The question thus becomes not how we can use the Fourth Amendment to limit public surveillance, but rather, how can we use the Fourth Amendment to harness public surveillance's full potential? This Article proceeds as follows: Part I gives a brief overview of the extent to which we already live in a state of perpetual surveillance. Part II then turns to the Fourth Amendment and to the general consensus that surveillance cameras in public are not subject to Fourth Amendment regulation. It then offers another reading of Fourth Amendment cases, one that suggests that mass surveillance should be subject to constitutional regulation. Although my argument is one for regulation, I am in fact in favor of more surveillance, not less. I make the reasons for this stance clear in Part III. I. WATCHING YOU To say that we are now being watched is to put it mildly. Consider New York City, which recently partnered with Microsoft Corporation to roll out a new public surveillance device called the Domain Awareness System. (1) Described as something "straight out of a sci-fi novel," (2) the Domain Awareness System aggregates and analyzes information from approximately 3,000 surveillance cameras around the city and allows the police to scan license plates, cross-check criminal databases, measure radiation levels, and more. (3) Moreover, this surveillance system operates continually--twenty-four hours a day, seven days a week. (4) As New York City Mayor Michael Bloomberg said when he announced the new surveillance system--which in fact had already been in use for perhaps a year (5)--"We're not your mom-and-pop's Police Department anymore. …

4 citations


Journal Article
TL;DR: The authors examines the demographics of English Language Learners and students with special needs in public schools in the United States and examines how major metropolitan areas in California, New York, and Texas have been applying the IDEA, particularly with regard to ELLs and their families.
Abstract: English Language Learners (ELLs) and language-minority families have few promising options for receiving tailored educational services under federal law. Civil Rights era statutes like the Equal Education Opportunities Act (EEOA) designed to protect and promote ELLs' right to an education have led to few actual changes in children's education, and fewer still within reasonable time frames. For the subset of ELLs with disabilities, the Individuals with Disabilities Education Act (IDEA) holds out the promise of more direct and immediate improvements in their education. The Introduction of this Article presents the problem through a hypothetical student, Faith, and her family. Part I examines the demographics of ELLs and students with special needs in public schools in the United States. Part II discusses the EEOA's shortcomings and the promise of the IDEA'S dispute resolution procedures for language-minority families. Part III examines how major metropolitan areas in California, New York, and Texas have been applying the IDEA, particularly with regard to ELLs and their families. Finally, Part IV gleans lessons from these urban districts' practices and identifies several areas of particular concern for language-minority families, advocates, and school administrators hoping to structure their special education dispute resolution programs in the most effective way. Table of Contents Introduction I. English Language Learners and Special Education A. Definitions and Demographics 1. English Language Learners 2. Students with Disabilities B. Separating Language Learning and Learning Disability II. The Promise of the IDEA A. The IDEA Provides a Unique Framework Among Federal Education Laws B. The EEOA and NCLB Fall Short at Improving ELL Education C. Maybe Lawsuits Are Not the Answer: How the IDEA Can Help 1. The IDEA'S Dispute Resolution Procedures 2. The Benefits of Special Education Dispute Resolution III. The Use of IDEA Dispute Resolution in Urban Schools A. Procedural Safeguard Notices B. Translations and Interpreters C. Dispute Resolution Procedures 1. Mediation 2. Other Dispute Resolution Methods D. Parent Groups and Outreach E. Specific Services for ELLs in Special Education IV. Applying the IDEA to English Language Learners A. Lessons Learned B. A Tale of Two Populations: Somali and Latino C. Biases, Beliefs, and the Role of Dispute Resolution Providers Conclusion Introduction Faith (1) is a seven-year-old who loves building Legos with her older brothers and baking cookies with her mom. Her family just moved to a new city in a new state, and Faith's new teacher sent home a piece of paper called a "home language survey." (2) Some time after returning the home language survey, Faith's parents learn that she has been placed for several hours a day in a class for students who do not speak English, and they are puzzled. Even though they do not speak English at home, Faith was not in a class for English Language Learners at her old school, although she did have a special person who helped her with what her former school called a "reading disorder." Faith does not complain about her new classes. She loves being able to speak her native language with other students in the class who also speak it, but she says the math is a lot easier than at her old school. Faith's parents worry that this separate class is going to put her even further behind in school. After her mother makes several phone calls to the school, someone at Faith's new school answers the phone who speaks her native language. Once Faith's mother explains their concerns, the staff member tells her mother that the school will evaluate Faith for a disability. A couple of months later, Faith's parents are invited to a meeting at which they receive a written report, in English, saying that Faith is not eligible for special education services and that she will be kept in her current educational placement. …

3 citations


Journal Article
TL;DR: The New York City portion-cap rule as Wilsonian rulemaking as mentioned in this paper is a classic example of such a rule-making process, and it has been challenged by the Food and Drug Administration (FDA).
Abstract: Introduction I. Cities' Records of Administrative Rulemaking in Public Health II. Local Agencies' Unique Doctrinal Footing A. State or Local Source of Power B. Institutional Design 1. Massachusetts: Towns and Boston 2. New York City 3. Washington: King County-Seattle III. Local Health Agency Rulemaking as Wilsonian Rulemaking? A. Public Choice as the "Dominant" Model of Agency Action, and Other "Contenders" B. The Wilsonian Administrative State C. The New York City Portion-Cap Rule as Wilsonian Rulemaking? Conclusion INTRODUCTION Local government scholars have paid significant attention to local "innovation" in the sphere of regulatory policy. (1) And for good reason. Many of these local innovations diffuse both horizontally, to other cities and counties, and vertically, to the state and federal levels, thus profoundly impacting the nation's regulatory landscape. (2) Local government scholars have devoted less effort to analyzing the form of these regulations, (3) often presuming that local law derives from ordinances passed by the general governing (and, usually, legislative) body of a city or county. (4) As a result, to the extent that scholarship considers the actors involved in formulating local policy, it usually focuses on elected officials like city councilors and mayors. (5) This Article highlights another, increasingly important source of local regulation: administrative rulemaking. Particularly in the realm of public health, cities have adopted many high-profile and innovative regulatory policies by administrative rule rather than by council-enacted ordinance. (6) Despite the increased importance of local administrative rulemaking, scant scholarship--either in local government or administrative law--has wrestled with the doctrinal and normative questions flowing therefrom. (7) The recent litigation challenging New York City's cap on portion sizes of sugar-sweetened beverages--inaccurately called a "soda ban"--has brought the issue of local administrative rulemaking to the fore. (8) Although the city's Board of Health promulgated the portion-cap rule, it was heavily promoted by Mayor Michael Bloomberg and is therefore frequently identified with him in the popular media. (9) This article uses the New York City portion-cap rule, or the "Bloomberg soda rule," as well as public health regulations more generally, as a prism through which to analyze the distinctive characteristics of the local administrative process. Part I highlights cities' impressive record of administrative regulation in the public health realm, surveying key regulatory policies that exceeded the federal and state regulatory floors in attempting to reduce tobacco use and obesity. Part II considers the intriguing doctrinal questions that arise when an agency of a city, which itself is an agent of the state, makes rules with the force of law, and how these questions have been addressed in the New York City portion-cap litigation and elsewhere. Part III then addresses the compelling normative and theoretical questions raised by city administrative agencies' aggressive record in the public health sphere. Municipal regulation of the tobacco, food, and soda industries beyond the federal and state regulatory floors presents a challenge to the standard "public-choice" narrative of administrative action, which suggests that agencies are likely to be influenced, if not co-opted, by the powerful industries they are supposed to regulate. In addition to industry opposition, some local public health regulations, like New York City's portion-cap rule, (10) have aroused significant popular disapproval. To explain this sort of unpopular--perhaps even elitist--rulemaking, Part III turns to Woodrow Wilson's writings, as a political scientist, on administrative agencies. Wilson idealized agencies as apolitical, expert promulgators of "scientific" regulations that would benefit the public good. …

3 citations


Journal ArticleDOI
TL;DR: In the case of the Boston Marathon bombing, the authors of as discussed by the authors argued that the possibility of indefinite detention and trial by military commission fundamentally alters the implicit balance within the public safety exception.
Abstract: Introduction I. Miranda, Public Safety, and the Terrorism Interrogation Dilemma II. Miranda and Quarles. Why Public Safety Does Not Always Mean Protecting the Public III. The Indefinite Detention/Military Commission Alternative A. Authorization for Use of Military Force B. National Defense Authorization Act [section] 1021 IV. Reconciling an Expanded Quarles Exception with Miranda A. The Evolution of the Miranda Rule: Focusing on the Core Concern of the Risk of Police Calculation B. Other Indicators of the Valid Influence of the Terrorism Threat: The Special Needs Doctrine Analogy V. Tailoring a Terrorism Expansion of Public Safety to a Narrow Range of Cases Where the Confession Is Case Dispositive VI. How Expanding the Quarles Exception Is a Net Gain for Terror Suspects: Incentivizing the Article III Prosecution Option Conclusion The last thing we may want to do is read Boston [Marathon bombing] suspect Miranda Rights telling him to "remain silent.' ... It captured, I hope [the] Administration will at least consider holding the Boston suspect as enemy combatant for intelligence gathering purposes. (1) [The Boston Marathon Bombing] is Exhibit A of why the homeland is the battlefield. (2) INTRODUCTION The Boston Marathon bombing, along with the prior "shoe" (3) "underwear" (4) and "Times Square" (5) bombers, has prompted debate (6) on the applicability of traditional criminal procedure principles to counterterrorism investigations and prosecutions. Much of the discussion focuses on the efficacy and even appropriateness of applying the public safety exception to the Miranda rights warning requirement. What is missing is underscored by Senator Graham's comments--the possibility of indefinite detention and trial by military commission fundamentally alters the implicit balance within the public safety exception. In New York v. Quarles, the Supreme Court created what has come to be known as the Public Safety Exception (PSE) to the Miranda warning and waiver requirement: when a police questions a suspect in custody in response to an imminent threat of danger to the officer or the public, the confession will be admissible even if the officer failed to provide Miranda warnings and obtained a waiver. (7) In her opinion in Quarles, concurring in part and dissenting in part, Justice O'Connor reminds us that Miranda does not prohibit public safety questioning; Miranda simply restricts using the statement as evidence. (8) In essence, Miranda requires the government to make a choice--question a suspect without first advising them of the Miranda rights and obtaining a waiver of those rights in order to protect the public, or advise the subject and seek a waiver to protect a future prosecution. This Article challenges whether that choice remains valid. Implicit in that formulation is that failing to advise a suspect questioned in a custodial setting of their Miranda rights may result in the government foregoing the opportunity to incapacitate the individual. (9) This Article posits that the alternative "remedies" of indefinite detention and trial by military commission fundamentally alter the equation Justice O'Connor laid out in Quarles. This alternative option for incapacitating a suspected terrorist operative may, in certain situations (potentially even involving a U.S. citizen), eliminate the binary "warn and risk imminent danger, or don't warn and risk the ability to prosecute" choice equation that was central to the Quarles decision. Instead, the burden of risk associated with counter-terrorism questioning has substantially shifted to the terrorism suspect. Unlike the response options available to government law enforcement and prosecution agents prior to September 11, 2001, the government does not necessarily risk the ability to successfully prosecute (due to inadmissibility of the confession)--and thereby incapacitate--the terrorist suspect if a violation of Miranda results in inadmissibility of the suspect's confession. …

2 citations


Journal Article
Abstract: Introduction I. Zoning for Urban Form II. Historic Preservation III. Environmental Law Conclusion INTRODUCTION Since 1972, American cities have lost political power and federal support. Large scale federal programs to reverse urban decline, such as urban renewal, public housing, and the War on Poverty, had at best checkered outcomes and their vestiges were largely dismantled during the Reagan Administration. (1) Legal reforms proposed to strengthen the economic or political position of cities, through such approaches as regionalism and enhanced city authority, also have failed to remedy such decline. Nonetheless, many cities have experienced phenomenal population growth and economic development over the past decade. Washington, D.C. has reversed a population decline dating to 1950, (2) and many other cities, from Boston to San Diego, and from Seattle to Miami, have seen renewed investment in residential, retail, and business real estate, often in areas recently blighted with abandoned warehouses and decaying housing. (3) While such developments have not progressed evenly either within or among cities, they project a hopeful future for urban living and social justice. What has happened? There is no adequate microeconomic explanation for this development. Decline in industrial economy first drained cities of capital, but then created opportunities for reinvention and redeployment of singular assets. Macroeconomic changes eliminated urban manufacturing and other blue-collar jobs but engendered new employment in service and information industries for educated brain workers. (4) Some of this enlarged class came to seek a new residential form. People began to seek older housing in inner city areas with easier access to work and within walking distance of shops, restaurants, and cultural amenities. Many early ventures into real estate by "pioneers" depended on low prices, small loans, and self- help. Professional workers from large organizations, such as government, corporations, and universities, took over housing built long ago for tradesmen, skilled laborers, and small scale entrepreneurs. (5) In time, developers, architects, and financiers renovated multi-family housing and erected new apartment buildings, including "luxury lofts" evoking manufacturing buildings once converted to artist studios. The demand for urban housing meeting these aesthetic and lifestyle standards now often exceeds supply, pushing prices higher. (6) What are these new urban residents seeking? This Essay argues that new urban residents primarily seek a type of community properly called a neighborhood. "Neighborhood" refers to a legible, pedestrian-scale area that has an identity apart from the corporate and bureaucratic structures that dominate the larger society. Such a neighborhood fosters repeated, casual contacts with neighbors and merchants, such as while one pursues Saturday errands or takes children to activities. Dealing with independent local merchants and artisans face-to-face provides a sense of liberation from large power structures, where most such residents work. Having easy access to places of sociability like coffee shops and bars permits spontaneous "meet-ups," contrasting with the discipline of professional life. Such a neighborhood conveys an indigenous identity created by the efforts of diverse people over time, rather than marketing an image deliberatively contrived to control the perceptions of customers. At its best, a neighborhood provides a refuge from the ennui of the workplace and the idiocy of consumer culture, substituting for churches (or synagogues), labor unions, and ethnic clubs that structured earlier urban social life. What changes in land use law have contributed to or supported this transformation to neighborhood-based living? Several legal developments outside land use seem very important. Perhaps the most central legal development has been local government legal protections for gays, who often have been in the vanguard of the revival of urban neighborhoods. …

2 citations


Journal Article
TL;DR: In this paper, the authors examined the effect of fMRI images on unfair prejudice and concluded that people do not overvalue neuroscientific evidence and did not find that people were overly swayed by neuroscientific explanations and imagery.
Abstract: B. Unfair Prejudice: Will the Jury Overvalue This Evidence? The first factor that must be weighed against the potential probative value of fMRI technology is its potential for unfair prejudice. (208) Relevant and probative evidence can be barred from admission if the jury would accord such evidence with weight disproportionate to its objective value. (209) Fear of jury overvaluation lies at the heart of much of the exclusion of admittedly relevant evidence, especially expert testimony. (210) However, evidence shows that people do not overvalue neuroscientific images. (211) On the other hand, jurors have been shown in fact to overvalue other types of evidence that are heavily relied upon, especially eyewitness testimony and forensic individualization (including DNA profiling). (212) This Part examines jurors' views of this technology in more depth. 1. Jurors Will Not Overvalue Neuroimaging Evidence Initial scholarship gave credence to the idea that people were overly swayed by neuroscientific explanations and imagery. (213) Those who claim that neuroscientific evidence would have an undue influence on jury members pointed to a "Christmas tree phenomenon," (214) in that juries would be excessively persuaded by such images because they would be presented in the form of beautiful graphs with many bright colors. (215) These claims began even before the advent of fMRI technology. (216) Several studies outlined below have attempted to show how fMRI imaging would engender unfair prejudice. Almost all of these studies, however, suffer from various external and construct validity problems, (217) and none of them found the undue prejudice they sought. a. Gurley & Marcus (2008) An early study, conducted by Jessica R. Gurley and David K. Marcus, contended that jurors were more likely to return a result of "not guilty by reason of insanity" when presented with structural images of brain damage to defendants. (218) There are several reasons why this study is not applicable to fMRI lie detection. First, the experiment uses structural images, which depicts the brain at rest, (219) as opposed to the functional time-lapse images that fMRI provides when subjecting subjects to tasks, which is the subject of this Note. Second, the experiment failed to dissociate the brain images from the expert testimony; (220) thus, the question of whether it was the testimony or the images that produced the effect cannot be determined. (221) b. Weis berg et al. (2008) Another study, conducted by Deena S. Weisberg et al., asserted that people were more likely to believe explanations of events when they included neuroscientific language than the same explanations without such language. (222) However, the authors themselves recognized the major limitation of their findings, stating, "people may be responding to some more general property of the neuroscience information." (223) Most importantly, this study did not even measure the effect of brain images. (224) Further, subjects were not tested in a legal setting. (225) c. McCabe & Castel (2008) A third study, conducted by David P. McCabe and Alan D. Castel, argued that neuroscientific explanations were more influential when accompanied by brain images than when accompanied by bar graphs. (226) There were several problems with these results. First, subjects were asked to compare articles with brain images in each part of the experiment; there was no control condition in which a subject was asked to evaluate the article without a brain image altogether. (227) Second, much like the pitfall in the Gurley and Marcus study, the neuroscience language contained in the study likely already influenced subjects; (228) this Note is concerned with the effect of imaging. Moreover, critics argue that the images themselves weren't equivalent to each other. (229) Additionally, this experiment was not conducted in a legal setting. …

Journal Article
TL;DR: The Comprehensive Dental Reform Act, introduced in the 112th Congress by Senator Sanders and Representative Elijah Cummings, proposes doing what the ACA does not do: ensuring comprehensive dental coverage to a wide group of people, including the elderly and those with low incomes.
Abstract: 6. Comprehensive Dental Reform Act of 2012 The Comprehensive Dental Reform Act, (199) introduced in the 112th Congress by Senator Sanders (I-Vt.) in the Senate and Representative Elijah Cummings (D-Md.) in the House, proposes doing what the ACA does not do: ensuring comprehensive dental coverage to a wide group of people, including the elderly and those with low incomes. (200) Title I of the bill details the need for dental coverage: 47 million people have difficulty accessing dental care; 17 million low-income children do not get coverage for dental care; and the Medicaid program is not required to provide dental coverage for adults. (201) The bill described those most likely not to get adequate dental care to include "individuals with low incomes, racial and ethnic minorities, pregnant women, older adults, individuals with special needs, and individuals living in rural communities." (202) The bill, if passed, would provide dental care for Medicare recipients as well as for adults receiving care through Medicaid, (203) and for those covered by the Veterans Administration. (204) In addition, the bill would create mobile units providing dental care in places where access to dental providers is thin, and it would help fund the training of dental care professionals, including "dental therapists." (206) It would also provide funding to educate emergency room physicians in emergency dental care. (206) The bill provides for funding by imposing a tax of 0.025% on securities transactions. (207) The bill would significantly minimize disparities in dental health in the United States. The bill provides a good model for what needs to be done. However, it has virtually no chance of becoming law--at least not at this time--as it died in committee. (208) II. TEETH EVEN THE "TOOTH FAIRY" MIGHT ENVY For people with financial resources, dental care in the United States provides not only for patients' health needs, but also, often, for their aesthetic yearnings. The latter is significant in promoting a culture where people may assess each other's teeth to determine socioeconomic status. Such assessments cross class boundaries. (209) A person's dental condition can signal poverty and low socioeconomic status. For those without teeth or with visibly mangled teeth, social and economic opportunities can be significantly limited. (210) At the other end of the nation's socioeconomic hierarchy, however, teeth can signal wealth. (211) For middle- and upper-class Americans, contemporary dentistry has diverged from its counterpart of a half century ago. (212) The fluoridation of water and routine dental care for middle- and upper-class children have significantly limited the types of problems that once brought many Americans to dentists. But dentistry--once considered a has-been profession--has flourished as Americans with means have become hooked by cosmetic dentistry. (213) "Americans," reported June Thomas, have become "obsessed with teeth" (214)--a reference not to dental health, but rather to the presumptive importance of dental aesthetics. "A beaming smile," Thomas adds, "is the ultimate testament to American prosperity and self-confidence." (215) The dental profession itself has supported the presumption that one's teeth reflect one's values. This is evident, for instance, in the profession's support for the proposition that dental health is a product of individual responsibility and choice. (216) The condition of a person's teeth allows others to place that person on the nation's socioeconomic hierarchy (217) and to assess his or her moral grit. (218) In short, teeth have become a barometer of class status. Unsurprisingly, as middle- and upper-class Americans have focused more and more on the aesthetics of teeth, they have become less satisfied with the appearance of their teeth. At the start of the 1990s, 57% of people in the United States were "very satisfied" with the way their teeth looked. …

Journal Article
TL;DR: In this article, Capers argues that people should be able to expect privacy even in public, based on what he calls a "nonconventional reading" of the Fourth Amendment.
Abstract: Introduction I. Is Camera Surveillance a Search? II. When Should Camera Surveillance Be Authorized? III. Should Technology's Capacity to Deter Police Abuse Factor into Reasonableness Analysis? Conclusion INTRODUCTION In his provocative article, Crime, Surveillance and Communities, Professor I. Bennett Capers argues, contrary to Supreme Court precedent, that camera surveillance of public spaces is a Fourth Amendment search. (1) But he also argues that such surveillance should be permitted even in the absence of probable cause, so long as it is "reasonable." (2) His third contention is that reasonableness analysis in this context ought to take into account not only the extent to which cameras can prevent crime, but also the extent to which the community will benefit from the ability of the cameras to deter police brutality and document evidence of racial profiling and other abuses of discretion. (3) Professor Capers hypothesizes that this ability to monitor the police will enhance government legitimacy and thus cooperation with the police. (4) I have three observations about his article, corresponding to the three main threads of his argument. I. IS CAMERA SURVEILLANCE A SEARCH? First, Professor Capers argues that people should be able to expect privacy even in public, based on what he calls a "nonconventional reading" of the Fourth Amendment. (5) He points out that many of the Court's cases, from Katz v. United States (6) onward, suggest that surreptitious eavesdropping of conversations--even those that occur in public--is a Fourth Amendment search when none of the parties to the conversation consents to the eavesdropping and no one else is in a position to hear it with the naked ear. (7) Based on that case law, he contends, "citizens are not required to assume the risk that they will be monitored by a watching device when no duplicitous eye is actually present." (8) There are two possible problems with this analysis. First, of course, in most situations involving camera surveillance, members of the public will be able to view with the naked eye what the camera sees. Even on streets that tend to be largely abandoned, a few people are usually about, which presumably would mean that human eyes, duplicitous or not, are often present. Furthermore, the Supreme Court has been quite willing to assume that members of the public could have seen what police technology observes even when that conclusion requires a heavy dose of imagination. For instance, in its "flyover" cases, the Court has held that no search occurs even when the police use airplanes and powerful cameras to spy on curtilage, much less the public streets, on the theory that any member of the public could have done the same thing. (9) And the Court has been willing to reach this conclusion even when, in fact, members of the general public are not likely to be flying as low as the police did in these cases, hot likely to possess magnification devices of the type the police possessed, and not likely to be as interested in the particular property the police targeted. Second, even if this initial hurdle to applying the "uninvited ear" cases to camera surveillance can be overcome (perhaps on the ground that no one could possibly have seen whatever the camera captures), the analogy fails because a properly operated camera system would put pedestrians on notice that it is there. Notice is hot only a sensible aspect of a surveillance regime designed to deter, but is also constitutionally required under the Supreme Court's cases. (10) If such notice exists, neither surreptitious nor duplicitous 'Peeping Tom-ism' can occur. (11) If camera surveillance is a search, it is because, as I have previously argued, a right to anonymity in public exists even when the government gives notice of its intent to watch. (12) That right is based on a due process right to locomotion, (13) a First Amendment right to association and expression, (14) and, most importantly, a Fourth Amendment right to feel secure from unjustified government observation of daily activities (15)--the latter an interest that has been rejuvenated by the Supreme Court's recent decision in United States v. …

Journal Article
David Schleicher1
TL;DR: In this article, the authors argue that local government law has not kept up with the intellectual movements that have defined the last twenty or so years in the study of cities or politics.
Abstract: Introduction I. Local Government Law and Urban Economics II. Local Government Law and Positive Political Science . III. Local Government Law's "Law And __ "Problem More Generally: Local Government Law, Social Science and Legal Scholarship INTRODUCTION Local government law scholarship has a "law and __ "problem. It should be relatively uncontroversial to note that, over the last forty years, most fields of legal scholarship have been profoundly transformed by the incorporation of the tools and analytical methods used in economics, political science, and other social scientific disciplines. Local government law has not been immune. It is not hard to find in local government law scholarship discussions of concepts drawn from economics and political science, as well as from a host of other disciplines. What is notable, and what I will show in this Essay, is that these references are, for the most part, extremely dated. Specifically, I will argue that local government law has not kept up with the intellectual movements that have defined the last twenty or so years in the study of cities or politics. I will focus on the two areas of social science that have been among the most important influences on legal scholarship generally: economics and positive political science. But as I will discuss in the conclusion, the same point could be made with respect to other social scientific disciplines. Our field has had many successes, but it is being held back by a failure to keep up with contemporary social science. The Essay is divided into three parts. Part I addresses local government law's interaction with economics. In local government law scholarship that deals with economic issues, there is frequent discussion of the work of Charles Tiebout, who showed in the 1950s that under certain assumptions, if local governments provide purely local public services and individuals are mobile and able to choose among local governments in an area, local public services will be provided at an efficient level. (1) But, although there have been many advances in the use of the Tiebout model through the years, and useful criticisms of it, (2) it is far from the only economic model relevant to cities or local government law. But until very recently at least, scholars failed to notice a revolution in urban economics, specifically research on agglomeration economics. (3) Agglomeration economics focuses on why cities exist in the first place, given the higher rents for property in urban areas. (4) Scholars working in this field argue that urban residents pay higher rents, but receive gains from reduced shipping costs, increased market size, and information spillovers. (5) Changes in the form of these gains can explain major changes in urban form, or the gains from public policies. Agglomeration economics has become the dominant tool for understanding the effect of changes in land use and other local policies. (6) But while other fields incorporated the newest things in economic research--from antitrust's embrace of industrial organization theory to behavioral economics' influence throughout the legal academy (7)--advances in urban economics have largely been absent from local government scholarship. Part II discusses local government law's interaction with political science and finds similar problems to the ones discussed in Part I. One can find discussion in local government law scholarship of work in political science on growth machines, "city limits," regime theory, and pluralism, some of the dominant methodologies in urban politics studies since the middle of the last century. (8) But there is almost no discussion of positive political theory, rational choice models of legislative behavior, models of political party organization and competition, empirical research on voting and legislative behavior, or any of the other moves that have characterized the last few decades of political science. …