Scholars have long demonstrated that cities are constrained by states and the federal government in the exercise of their power. While important, the emphasis on these “vertical” constraints on cities does not account for the “horizontal” constraints on city power from private actors. This Article suggests that the emphasis on vertical constraints on city power is due to a misunderstanding of the history of local government law that describes its sole function as the vertical distribution of power between cities and different levels of government. I revise the history of Dillon’s Rule, the doctrinal cornerstone of local government law’s vertical distribution of power, by arguing that local government law also distributes public and private power, between private capital and cities. Correcting the historical misunderstanding helps to show how private power still shackles cities in their efforts to address important challenges.
The test for qualified immunity states that officers are immune from liability in the absence of clearly established law that previously condemned their conduct, but the Supreme Court has not defined exactly what “clearly established law” means. In a set of conflicting cases, the Court has both repudiated the consideration of departmental policies as clearly established law and, subsequently, cited departmental policies as evidence of clearly established law. As a result of this ambiguity, lower courts have been inconsistent—even within circuits—about whether departmental policies count as clearly established law. This Comment addresses this gap in the doctrine by proposing a solution that ameliorates the legal fiction at the heart of the clearly-established-law inquiry. Using Hope v. Pelzer’s obviousness exception to the clearly-established-law requirement, this Comment proposes incorporating departmental policies into the qualified immunity doctrine as an objective measure for determining when an officer’s rights violation was obvious.
This Comment argues that one-time land-use decisions should not be categorically excluded from disparate impact liability under the FHA for three reasons. First, one-time employment decisions may serve as the basis for disparate impact liability under two analogous civil rights statutes—Title VII and the Age Discrimination in Employment Act—indicating that the same is true for one-time land-use decisions under the FHA. Second, the distinction between a policy and a one-time decision is untenable and provides little guidance for courts. Third, seminal appellate court cases which first established disparate impact liability under the FHA involved one-time land-use decisions, indicating that such decisions constitute the heartland of disparate impact theory. The Comment concludes by providing further clarity about which particular one-time land-use decisions should enable litigants to establish successful disparate impact claims.
Using Amarin Pharma, Inc. v. Hikma Pharmaceuticals USA Inc. as a jumping off point, this Comment is the first piece of legal scholarship to examine whether, and under what circumstances, health insurers can induce infringement of a method patent by providing preferential coverage of a skinny label generic when it is distributed for a patented drug indication. An evaluation of this question requires examining the standard of causation in induced infringement cases, a subject that has received startlingly little judicial or scholarly inquiry. This Comment argues that the Delaware district court’s decision in Amarin was based on an improper theory of causation that assumed insurance companies have a duty to prevent infringement. It then establishes that the proper counterfactual baseline for evaluating inducement claims against insurers reveals that insurance companies are rarely the but-for cause of infringement in the skinny label context. Ultimately, the Comment demonstrates that adopting a loss of chance theory of the injury in future cases would force courts to conduct often-ignored causation analysis and ensure that a finding of inducement corresponds with a proportionate damages award.