Spring 2011
Articles
Competing for the Next Hundred Million Americans: The Uses and Abuses of Tax Increment FinancingMany communities across the country include tax increment financing among their means of financing public improvements, such as stadiums, museums, plazas, and promenades. After illustrating the beneficial use of tax increment financing, this article describe six major criticisms often leveled against tax increment financing (TIF). These six criticisms are divided into three pairs: the questionable, the contingent, and the convincing. The first two criticisms are objectionable because they overestimate what TIF can realistically achieve. The second pair of criticisms are contingent because their validity depends on a comparison of a project’s success in adding net present value to the tax base greater than the local tax revenues that would have been generated had the TIF-funded project not been built. The last two criticisms, calling for greater TIF accountability and fiscal transparency, merit serious attention. While some localities make responsible fiscal disclosures, many others are so secretive about how they raise and spend public funds on redevelopment projects as to threaten popular support for such programs.
Articles
Will Green Building Contracts Transform Construction and Design Law?
Construction law evolves in response to broader changes in the law and advances within the design and construction industries. Some developments appear as subtle nuances or incremental steps; others transform construction law or the specialized practice of the construction bar. This article asks whether the sustainable construction movement will eventually transform construction law and practice or, instead, will simply be absorbed into the existing fabric of construction contracting.
The Many Faces of Iqbal
On May 18, 2009, the Supreme Court handed down Ashcroft v. Iqbal. Within a matter of months, literally thousands of federal district courts and appellate courts had cited to the case. It has been called the most significant Supreme Court decision in a decade for day-to-day litigation in federal courts. Justice Ginsburg lamented that the Court “messed up the federal rules” governing civil litigation.
Supervisory Liability After Iqbal: Misunderstood But Not Misnamed
In Iqbal, where the underlying constitutional claim alleged discriminatory treatment of detainees based on race, religion, or national origin, the Court rejected the argument that high-level supervisory officials could be held individually liable in a Bivens action based on “mere knowledge of [a] subordinate’s discriminatory purpose.” Justice Kennedy proclaimed that “[i]n a § 1983 suit or a Bivens action-where masters do not answer for the torts of their servants-the term ‘supervisory liability’ is a misnomer. Absent vicarious liability, each Government official, his or her title notwithstanding, is only liable for his or her own misconduct.” Thus, according to the Court, when plaintiffs allege a claim that requires the showing of discriminatory purpose, plaintiffs must allege and prove that a supervisor himself had the impermissible purpose, not just knowledge of a subordinate’s discriminatory purpose, in order to impose liability under § 1983 or Bivens.
The Impact of Ashcroft v. Iqbal on pleading
This paper will attempt to cover a fair amount of ground, examining first the impact that the pleading standard articulated in Ashcroft v. Iqbal has had in lower courts, moving to why it has proved so troublesome, then to why it matters, and concluding with some thoughts on how to resolve some of the difficult interpretive issues presented by Iqbal. The author proceeds as follows. First, he provides a brief description of Iqbal, a case that at this point is familiar to all. Second, he describes how the case is being applied in lower courts. Third, he takes a brief historical detour to offer some thoughts as to why the case is being subjected to such widely varying interpretations, within and without the circuits. Fourth, he introduces some empirical data suggestive of the impact that Iqbal is having and will have in the area of civil rights litigation. And finally he offers some modest suggestions as to how best to resolve some of the tensions that have arisen as Iqbal has percolated through the lower courts.
27th Smith-Babcock_Williams Student Writing Competition Winner: The Constitutionality of Community Benefits Agreements: Addressing the Exactions Problem
Given their brief history, several issues regarding CBAs remain controversial and unresolved. Among these is the question of whether CBAs are legally enforceable, a question yet to be addressed by the judiciary. While commentators have noted several potential obstacles to their enforceability, one of the most pressing and commonly cited is whether CBAs violate the Takings Clause. This article argues that when the government is sufficiently involved in the CBA negotiation process, Nollan and Dolan should apply. In practice, this would lead to the invalidation of many promised community benefits contained in existing CBAs.
