Summer 2011
Articles
The Supreme Court and the New Old Public Finance: A New Old Defense of the Court's Recent Dormant Commerce Clause JurisprudenceThis Article is both descriptive and normative. On the one hand, it describes the Supreme Court’s Dormant Commerce decisions as reaching towards the natural monopoly-inspired reasoning discussed herein. But the author admits that the Court has been less than pellucid in explaining this reasoning and so the Court should explicitly adopt this Article’s analysis. In the meantime, practitioners should avail themselves of this Article’s reasoning because, even if the Court never adopts this reasoning explicitly, this reasoning is to be found throughout the Court’s precedents and these cases are therefore available to justify state and local government programs. That is, a local attorney need not rely on this Article’s interpretation of United Haulers, but can ground herself in a natural monopoly line of cases that remains good law, a line of cases to which United Haulers belongs. In arriving at its proposed approach, this Article brings economic analysis and antitrust law to bear on traditional Dormant Commerce Clause doctrine. Accordingly, the author introduces his argument in terms of traditional Dormant Commerce Clause doctrine, economics, and antitrust law.
Annual Review of the Law
Recent Developments in Education Law: Regulating Student Speech in Cyberspace
The recent developments in education law article reviews litigation involving cyberspeech and cyberbullying at the secondary level of public educational institutions. An analysis of the regulation by public school districts of the cyber activities of students begins with the applicable constitutional principles governing such regulation. Following a review of the leading constitutional cases relevant to the governance of student conduct, this article discusses the litigation that considers the extent to which a public school district may discipline students for their cyber activity.
Robber Barons, Back-Stabbers and Extortionists: How Far Does Anti-SLAPP Protection Go?
Since the mid-1990s twenty-seven states have enacted some form of so-called Anti-SLAPP (Strategic Lawsuit Against Public Participation) legislation, and the courts of two additional states have recognized an “Anti-SLAPP” doctrine even though their legislatures have not enacted statutes. These laws are meant to provide citizens who “petition” public bodies with protection from lawsuits meant to stifle their speech. The Anti-SLAPP movement has sent reverberations throughout trial courts and courts of appeals—state and increasingly federal, as discussed in this article—for at least the past decade.
Failure to Articulate Clear Ethics Rules and Standards at the Local Level Continues to Haunt Local Land Use Decision Makers
Allegations of improper conflicts of interest continue to capture the headlines on an almost daily basis. Part of the reason for the constant debate over ethics and land use is that many localities across the country fail to enact specific local ethics laws that cover the types of disclosures and recusals that may be appropriate and warranted in the land development process. Lack of clarity in state and local ethics laws has resulted in the U.S. Supreme Court reviewing an ethics case this term arising from Nevada and the actions of a city council member who voted on a proposed development project in which his campaign manager had represented the applicant in an advisory and lobbying capacity. What follows is an annual review of reported decisions focused on allegations of unethical conduct in the land use decision making process.
Green Transportation: Roadblocks and Avenues for Promoting Low-Impact Transportation Choices
Given the connection between land use and transportation, local government’s zoning authority is perhaps its most effective tool for promoting “green” transportation. Local governments can use zoning and land use controls to connect higher density residential areas, commuter-oriented commercial areas, and mass transportation stations—a planning principle known as “transit-oriented development.” Transit-oriented development manages and structures residential and commercial growth to maximize the convenience and efficiency of mass transportation options (i.e., local buses, light rail, or regional commuter rail).
Like a Martian Machine: Recent Developments in Land Use Regulation of Cellular Telecommunication Facilities under the Telecommunications Act of 1996
Section 704 of the Telecommunications Act of 1996 (TCA) gives courts the authority to review a local zoning authority’s denial of an application for a wireless telephone tower or facility. Since 1996, wireless telephone providers have brought actions under § 332(c)(7) to challenge local authorities’ denials of individual applications for the siting of a wireless facility. Faced with these challenges, courts have worked to “strike[] a balance between [the TCA’s] two competing aims—to facilitate nationally the growth of wireless telephone service and to maintain substantial local control over siting of towers.” In 2010, courts continued to struggle with these competing objects.
Turning Vacant Properties into Community Assets Through Land Banking
While plenty has been written about efforts to mitigate or minimize foreclosures, there is often little discussion of the potential opportunities that are created in the current foreclosure crisis. This article focuses on the use of land banking as a redevelopment tool for communities.
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Waterfront property boundaries—whether on a beach, river, or lake—are ever changing. Sometimes the change is slow and barely noticeable, while at other times the shift is extreme and abrupt. The result of these changes is either an increase or decrease in submerged land that brings the actual water line closer to or further away from ocean front property. The courts are redefining the changed property interests that result from this new physical landscape. In doing so, they are attempting to balance the public access to beaches with littoral property rights.
Recent Developments in Comprehensive Planning Law
This annual report discusses court decisions involving the status of the comprehensive plan in the land use regulatory process and addresses cases for the year ending on September 30, 2010. In addition, this report reviews judicial decisions related to interpretations and amendment decisions relating to such plans for that same period.
Gaining Ground in the Final Frontier: Surveying Legal Issues Raised by New England's Form-Based Codes
Publicly adopted form-based codes have gradually gained acceptance over the last fifteen years as an alternative to the principally use-based local zoning ordinances and bylaws that have dominated land use regulation in the United States since the 1920s. This article discusses in detail three of the adopted codes in New England and three specific legal issues raised by those codes, starting with a review of form-based codes’ recent history and concluding that form-based codes are poised to enjoy wider acceptance in the region, which for the time being remains the nation’s “final frontier” for this alternative approach to land development regulation.
The Religious Land Use and Institutionalized Persons Act -- Recent Developments
The commentary, litigation, and discussion concerning the application of the Religious Land Use and Institutionalized Persons Act of 2000, commonly known as RLUIPA, continues to perplex professionals in the planning and legal worlds as the contours of the law have yet to be firmly established. Cases over the past year present fact patterns that shed some light on how to litigate and defend these challenging issues.
Recent Developments in Condemnation Law: Public Use, Private Property
This article summarizes recent cases in which the issue was the power of condemnors to take property, including challenges under the Public Use Clause, as well as other challenges to the power to take.
Blight Makes Right: Utilization as Public Use
This paper examines how social need transforms legal understandings concerning economic development takings. This paper discusses the Columbia University campus expansion project, which will displace present commercial uses by expropriation. The paper indirectly asks whether the case is truly about promoting the collective social welfare. The displaced uses are not as economically efficient as the planned uses, but is that sufficient cause to expropriate? The developers were careful and wise to target only commercial and not residential property owners for expropriation. Still, the proposed taking has been vigorously contested. This paper is a reflection on how law is applied to excuse and achieve capital accumulation expropriation enclosures euphemized as land use improvements.
