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The twenty-fifth anniversary of the passage of the Fair Housing Act Amendments occurred in 2013. Although the Fair Housing Act (FHA) has existed since 1968, protection for people with disabilities was added in 1988. In the 1980s, when the FHAA was passed, the medical, psychological, and sociological fields were in the process of recognizing that smaller, more intimate housing arrangements dispersed throughout the community were the most appropriate living arrangements for persons with disabilities. These developments triggered unforeseen levels of community conflict, and ultimately, much litigation surrounding local government regulations, particularly zoning. Long-standing social fears and biases directed against persons with disabilities have come to the fore as local governments seek to carry out their obligations under the law and housing developments for persons with disabilities make efforts to locate in established residential neighborhoods. And in some cases, local governments and their officials have been the driving force behind community fears and biases. Although litigation is seldom the best way to resolve conflicts, one of the positive outcomes of litigation over community-based housing for persons with disabilities and the FHAA has been a significant evolution and, ultimately, clarification of the law relating to land use regulations and housing for this population. With a quarter-century of legal developments in the area of fair housing as a guide, local governments and lawyers can gain a much more informed understanding of the meaning and requirements of the FHAA.
This article focuses on the United States District Court for the District of Hawai‘i’s decision regarding state preemption of local GMO regulation in Syngenta Seeds, Inc. v. County of Kauai, and that decision’s reaffirmation in Hawai‘i Floriculture and Nursery Ass’n v. City of Hawai‘i. The Hawai‘i GMO decisions are important on at least two levels. First, the rise of GMOs in agriculture is a substantive topic that is controversial and divisive. Lurking beneath this emotional dialogue on GMOs, however, is an equally important national debate involving the proper relationship between state and local governments. This article is concerned with the second subject matter; the law of state preemption of local action is essential to understanding not only local control of GMOs, but local governments’ authority in general. The article attempts to situate the groundbreaking Syngenta decision within the broader debate over local authority and preemption. Part II provides a brief survey of state and local GMO regulation around the country. Part III puts the GMO debate in context by discussing local government authority and preemption generally. Part IV discusses the current preemption framework in Hawai‘i, in order to provide the necessary legal background for the recent preemption of local GMO ordinances within the state. Part V analyzes the Federal District Court for the District of Hawai‘i’s preemption decision in Syngenta and its reaffirmation in Hawai‘i Floriculture. Part V also explores the ongoing litigation and appeals to the Ninth Circuit. Finally, Part VI concludes that only by becoming familiar with the doctrines at play can judges, practitioners, and the public thoroughly engage with the deceptively simple question at the heart of the debate—what level of government should regulate GMOs and other issues of local concern?
Deteriorating infrastructure conditions in the United States beg for an increase in funding, which, due to the current economic conditions, would be difficult to attain without the help of the private sector. Public-Private Partnerships (“PPPs” or “P3s”) are a way for federal, state, and local governments to fund infrastructure projects that they may not otherwise be able to afford. PPPs, however, are not likely to solve the problem of funding infrastructure on the scale that is needed until there is a statutory definition and regulatory framework for PPPs, clarifying the nature of these agreements and the associated legal ramifications. When implementing PPPs, the following questions arise: (1) are PPPs subject to procurement laws; (2) are PPPs subject to prevailing wage laws; (3) are PPPs subject to § 1983 claims; and (4) are PPPs subject to bonding requirements. To answer these questions, this article explores the deficiencies in governmental regulations regarding PPPs and the associated legal ramifications. Part II lays the foundation for understanding PPPs by defining the term and providing a historical overview of their development. Part III serves to explain the difference between PPPs and privatization, clarifying a common misconception––PPPs are not a form of privatization. Part IV explores the infrastructure crisis facing the United States, explaining why this crisis is the driving factor responsible for the increase in PPPs across the nation. Part V examines the various legal issues that arise out of the federal government’s lack of regulation in the area of PPPs, including the conflict between PPPs and procurement law, the effect of prevailing wage laws and other laws on PPPs, and the applicability of bonding requirements. Finally, this article provides a solution to the legal issues discussed, recommending that the federal government enact PPP-friendly legislation that defines the term and sets certain parameters in order to serve as a framework for future PPP agreements.
Can a city include a prayer in its governmental sessions without violating the Establishment Clause? The United States Supreme Court recently faced this question in Town of Greece v. Galloway. The outcome of the case was not easy to predict due to the multitude of Establishment Clause tests the Court could have employed. Ultimately, the Court upheld the Town’s practice of beginning its monthly meetings with prayer in a five-four decision. However, the five in the majority split on their reasoning for upholding the practice, leaving uncertainty about the appropriate use and meaning of several Establishment Clause tests. Part II of this paper discusses the endorsement test originally proposed by Justice O’Connor. Part III discusses the coercion test proposed by Justice Kennedy. Part IV discusses Marsh v. Chambers and the historical approach. Part V explores the analysis the Supreme Court used in Town of Greece and what that analysis tells us about the vitality of the endorsement test, the coercion test, and the historical approach. Finally, Part VI discusses the practical consequences of Town of Greece for municipalities.
Occupy Nashville v. Haslam; Palmer v. Dist. of Columbia; Kroll v. White Lake Ambulance Auth.; Nordstrom v. Ryan; Cox v. Onondaga Cnty. Sheriff’s Dep’t; El Dorado Estates v. Fillmore; City of Baton Rouge/Parish of East Baton Rouge v. Meyers; Lopez-Valenzuela v. Arpaio; Doe v. Galster; Ollier v. Sweetwater Union High Sch. Dist.; Alvarez v. Ercole; United States v. Katzin; State v. Devens; Underwood v. City of Moultrie