|The Urban Lawyer,|
Vol. 29, No. 4, Fall 1997
Publication Date: January 23, 1998
Robert H. Freilich, Kimberly A. Baxter & Deborah J. Blakely, State and Local Government at the Crossroads: An Analysis of Judicial and Statutory Policy Directions at Century's End, 29 Urb. Law. 615 (Fall 1997).
This year-end review of decisions, statutes, and trends highlights developments affecting state and local governments. The written version of Professor Robert H. Freilich's presentation to the Section of State and Local Government Law during the ABA Annual Meeting in San Francisco in August 1997, the review touches on First, Fourth, Tenth, Eleventh, and Fourteenth Amendment jurisprudence, and developments in civil rights, § 1983, voting rights, and environmental litigation, among others.
Recent Developments in Environmental Law
Richard G. Opper, Jo-Christy Texas Brown, Julie R. Domike & Ronda L. Sandquist, Recent Developments of Environmental Law, 29 Urb. Law. 725 (Fall 1997).
This year the Environmental Committee report overviews three areas of continuing interest related to environmental law and its implications to the municipal practitioner. Developments during the past year concerning the Clean Air Act, the Clean Water Act, and international issues continue to interest and challenge the environmental practitioner and the casual observer.
Recent Developments in Government Liability Law
Anita R. Brown-Graham & Michael Williams, Board of County Commissioners of Bryan County, Oklahoma v. Brown: Virtual Reality in Single-Incident Municipal Liability Cases?, 29 Urb. Law. 749 (Fall 1997).
In Board of the County Commissioners of Bryan County, Oklahoma v. Brown, the U.S. Supreme Court was asked to determine whether a single hiring decision, made by a policymaking official, could give rise to municipal liability under Title 42, § 1983, of the United States Code. The Court answered in the affirmative but stressed that, unless the hiring decision itself is unconstitutional, liability can only exist if the decision amounts to "deliberate indifference" to a substantial risk that the particular violation of federal law complained of will result. This article discusses the surprising holding in this case.
Benjamin E. Griffith, Defense Strategies in Voting Rights Litigation After Shaw and Miller, 29 Urb. Law. 757 (Fall 1997).
A wave of change in defense strategies in Voting Rights Act litigation is underway following the U.S. Supreme Court's curtailment of race-based districting in Shaw v. Reno and Miller v. Johnson. Local government defendants hailed into federal court amidst claims of discriminatory electoral systems are now achieving significant victories by using cutting-edge defense strategies that go beyond election results to explore the causes of those results. This report discusses defense strategies that focus on the current impact of electoral participation and access rather than historical discrimination.
Mary A. Marshall, Howard Protter, Osborne Reynolds, Jr. & Suzanne K. Schalig, Draft It-Defend It: A Sampling of Cases Involving Ordinances, State Legislation, and Administrative Regulations, 29 Urb. Law. 779 (Fall 1997).
This report focuses on cases involving ordinances, state legislation, and administrative regulations. The cases reported on deal with issues involving dress codes for taxicab drivers, vehicle odometer regulations, solid waste, selective enforcement, land-use and property rights, zoning and planning, and taxing authority.
Phillip E. Friduss & Ellen Gendernalik, Justices Give the War on Drugs a Significant Boost: The Year in the Fourth Amendment, 29 Urb. Law. 787 (Fall 1997).
Through the vehicle of traffic-stop cases, the U.S. Supreme Court did its best to breathe life into the barely-making-its-way War on Drugs. Further solidifying the sanctity of the objective standard, confirming the reasonableness test for consent searches, and pronouncing flexible rules surrounding what officers can and cannot do during the course of traffic stops, the Court gave more muscle to the continually strengthening arm of law enforcement. At the same time, the Court gave lip service to the protection of individual rights, striking mandatory drug testing for political candidates, and rejecting a per se rule allowing for no-knock entries based upon probable cause to search a residence for contraband. This report summarizes activity in the U.S. Supreme Court's Fourth Amendment jurisprudence.
Gordon P. Williams, Jr., Municipal Regulation of Telecommunications and the Telecommunications Act of 1996 II, 29 Urb. Law. 795 (Fall 1997).
This year's report follows up on predictions made in the subcommittee's 1996 report. At that time, the FCC's role pursuant to section 253 of the Telecommunications Act was yet to be determined. It was expected that disputes between telephone companies and local governments would increase and that scrutiny of state law in these disputes would also intensify. The analytical lines were predicted to be drawn along proprietary versus public trust distinctions. Much has happened over the course of the last year, and the report discusses what has been accomplished.
John H. Gibbon, The Sturgis Decision: A Small Town Has a Big Impact on Cable TV Franchise Negotiations, 29 Urb. Law. 801 (Fall 1997).
For municipalities engaged in negotiating with a cable operator for renewal of a cable television franchise under the formal procedures of the Cable Communications and Policy Act of 1984, the U.S. Courts of Appeals for the Sixth Circuit provided some peace of mind when it released its decision in Union CATV v. City of Sturgis. This article discusses the Sturgis decision, which reinforces the traditional deference due local governments acting in their legislative function by recognizing the "critical role" they play in identifying their community's needs and interests and assuring that those needs are met in a franchise renewal.
Barry Abrams, Girard Fisher, Stephanie P. McDonald & Darry Gene Sands, Annual Update on Public Official Immunities, 29 Urb. Law. 809 (Fall 1997).
Following up on last year's report on qualified immunity doctrines recognized and applied in federal civil rights litigation, this year's report notes subsequent Supreme Court and circuit court developments in this ever-evolving area. It discusses significant absolute immunity decisions, including the Supreme Court's recent decision in Clinton v. Jones; addresses developments in the area of qualified immunity, including the Supreme Court's recent decision in Johnson v. Fankell; and considers the argument that privately employed prison guards can avail themselves of qualified immunity from suit, rejected in Richardson v. McKnight.
Recent Developments in Public Education Law
James C. Hanks, Elizabeth A. Grob & Lelia B. Helms, Recent Developments in Public Education Law, 29 Urb. Law. 837 (Fall 1997).
This article summarizes developments in public education law affecting school districts and secondary education. Special attention is given to federalism issues in school regulation and management in light of the Umbehr and O'Hare Truck Service decisions.
Recent Developments in Public Finance Law
Howard Zucker & Roy J. Koegen, Recent Developments in Public Finance Law, 29 Urb. Law. 885 (Fall 1997).
The Committee on Public Finance report reviews the committee's efforts this year to monitor proposed regulatory and voluntary curbs to alleged pay-to-play practices as such curbs purport to affect public finance lawyers. In particular, the committee's Subcommittee on Public Securities sought and received formal clarification from the Securities and Exchange Commission (SEC) on several issues regarding Rule 15c2-12. The text of the SEC's response is reprinted in its entirety. The committee also reviewed the National Association of Bond Lawyers engagement letter project, and NABL's "Exposure Draft" is also reprinted in full.
James A. Kushner, Growth for the Twenty-First Century-Tales from Bavaria and the Vienna Woods: Comparative Images of Planning in Munich, Salzburg, Vienna, and the United States, 29 Urb. Law. 911 (Fall 1997).
The experience of European and American cities teaches that economic development, job development, and the prevention of job loss, are central to urban survival. The cities of Vienna, Salzburg, and Munich offer three disparate approaches in addressing these concerns. This article contrasts these different approaches to economic growth and compares these cities efforts in developing the physical city, including transportation, open space, and housing policy, contrasting those policies with urban initiatives in the United States. A comparison of these different experiences provides valuable lessons both for European cities and the United States.
With Cases, Statutes, and Recent Developments covering:
Agostini v. Felton, 117 S. Ct. 1997 (1997).
Suitum v. Tahoe Regional Planning Agency, 117 S. Ct. 1659 (1997).
United States v. State of Alaska, 117 S. Ct. 1888 (1997).
Bennet v. Spear, 117 S. Ct. 1154, L. Ed. 2d 281 (1997).
Government Liability/§ 1983
Board of County Commissioners of Bryan County Oklahoma v. Brown, 118 S. Ct. 1392 (1997).
Richardson v. McNight, 117 S. Ct. 2100 (1997).
Fourth Amendment SearchChandler v. Miller, 117 S. Ct. 1295 (1997).
Printz v. United States, 117 S. Ct. 2365 (1997).
And Books of Note reviewing:The Lusk Review, Salano Press Books, Point Arena, California 95468.