Lyle Kossis

There is little certainty among the federal courts as to how the tort of malicious prosecution and 42 U.S.C. § 1983 interact.  In Albright v. Oliver, the Supreme Court suggested that the Fourth Amendment was the proper vehicle for analyzing malicious prosecution claims in Section 1983 actions.  But the continuing confusion among the lower courts is some evidence that the Court’s answer was unsatisfactory.  This Note hopes to provide some clarity to this muddied area of the law and explain why the Court’s decision in Albright was wrong.  Part I surveys the history of malicious prosecution and Section 1983, as well as the Supreme Court’s opinion in Albright and the subsequent circuit split among the Courts of Appeals.  Part II then proceeds to explain why the Court’s decision to use the Fourth Amendment to incorporate malicious prosecution made little sense, and why the Fifth and Fourteenth Amendments provide better alternatives.  It also examines the implications of using the different amendments, and whether it matters if these questions are resolved by federal courts.  Finally, Part III analyzes two distinct claims made in the literature which rest on the premise that Albright was correct, and explains why there are critical flaws in each of these arguments. 

This Note seeks to examine the relationship between municipal receivership and local autonomy. Because few have explored this relationship in great detail, it is unclear whether municipal receivership is an appropriate tool for economically struggling cities. This Note argues that it is not. I begin by examining both the history of municipal receivership and local government law. This is necessary because local government law provides the framework for how to think about municipal receivership. I then analyze some of the legal arguments against municipal receivership. Based on specific home rule provisions in state constitutions, as well as a reading of the history of the home rule movement, I argue that home rule should provide cities with some protection against municipal receivership. Additionally, federal law may also be able to protect some cities from the loss of local voting rights that municipal receivership entails.

This Note then transitions into an evaluation of the extralegal arguments against municipal receivership. This reveals that municipal receivership is problematic because of the effect it has on democratic governance and the political incentives of local residents. Moreover, by defining success narrowly and misunderstanding how local financial crises arise, I argue that municipal receivership represents bad policy in that it fails to provide a long-term solution for the causes that generated the fiscal instability in the first place. This Note concludes with a review of some alternatives to municipal receivership, and discusses why they are superior.