The Urban Lawyer,
Vol. 34, No. 1, Winter 2002
Publication Date:April 11, 2002
Jason B. Myers, 2001 R. Marlin Smith Student Writing Competition Award Winner: A Madness to the Method: Empirically Assessing Small Business Lending Under the Community Reinvestment Act, 34 Urb. Law. 1 (Winter 2002).
This article seeks to build upon the few available studies regarding the Community Reinvestment Act-(CRA) related lending to small businesses. Its purpose is to establish a baseline of empirical analysis using CRA data from 1999 released by the Federal Financial Institutions Examination Council. In Section II, the primary findings of several studies regarding small business lending under the CRA are reviewed. In Section III, the 1999 CRA data is examined at the national, metropolitan statistical area (MSA) and sub-MSA levels to explore further the relationships among race, economics, and CRA lending. Section IV discusses the statistical findings from Section III in terms of the public policy debate surrounding the CRA and the federal regulation implementing the Act. Finally, Section V offers some simple recommendations to improve the quality of the CRA data, thus enhancing the level of substantive discussion about the Act.
Edward J. Sullivan, The Return of the Platonic Guardians: Nollan, Dolan , and the First Prong of Agins, 34 Urb. Law. 39 (Winter 2002).
In a previous article, 33 Urb. Law. 343, both the genealogy and the wisdom of the Supreme Court's decision in Agins v. City of Tiburon were called into question. The purpose of this article is to press home the analysis of Agins by calling into question the legitimacy of the two Supreme Court decisions based on the "substantially advances legitimate state interests" test announced in Nollan v. California Coastal Commission and Dolan v. City of Tigard. To the extent the first prong of the Agins test is bad law, it is suggested that Nollan and Dolan must also fall because it is based on that prong. Moreover, it should be noted that Nollan and Dolan stand alone, and aberrant, as being the only two land-use decisions that turn solely on the first prong of the Agins test. Never before (or since) these cases has the Supreme Court seen fit to impugn a land-use ordinance as a taking on the basis that it failed to substantially advance legitimate state interests.
John W. Ragsdale, Jr ., Alternative Communities for the High Plains: An Exploratory Essay on Holistic Responses to Issues of Environment, Economy and Society, 34 Urb. Law. 73 (Winter 2002).
The economy, infrastructure, institutions, and law of the United States generally reflect a decision to follow the course of growth. Environmental law has followed the path of growth and has served as a facilitator of the growth machine rather than as a true antagonist. Americans are a growth-oriented, extractive, consuming people, dedicated to speed, profit, efficiency, and progress. Preservation and stability are not regarded as major options, but, at most, as offshoots or diversions on the mainstream of growth. The choice and course of growth and the subservient role of environmental law may have provided awesome wealth and comfort in many sectors of the society, but have begun to reach entropic futility on the high plains. Growth-oriented industrial farming and the lightly held reins of regulatory law have resulted in the deterioration of the water, soil, and environmental balance to a level where future utility, economy, and even inhabitability may be imperiled. This article suggests that it may be desirable or necessary to revisit the choices made in this area and focuses on alternative futures for the land,
George W. Liebmann , The New American Local Government, 34 Urb. Law. 93 (Winter 2002).
A century ago, Lord Bryce noted that municipal government was the "one conspicuous failure of the United States." Except for the twenty years ending with American entry into World War I, local government has attracted little interest from business and social leaders. The explanation for this is found in its extreme dependence, its vulnerability before World War II, to incursions by the state legislature and governor. One need not be an enthusiast for judicial activism to believe that the revitalization of local government requires some sense on the part of the public that there are legal limits on its destructibility. This article discusses a number of potential sources of such limits that apply in different measure and with respect to different types of local government. These limitations are reviewed in turn.
The Center for American and International Law
Terry D. Morgan, Vested Rights Legislation, 34 Urb. Law. 131 (Winter 2002).
In the context of land-use regulation, the concept of "vested" rights derives from common law and is an equitable doctrine that prohibits the government from preventing a use of land once commenced through the imposition of new regulations. This article compares the various vested rights statutes, including judicial construction of the laws, and analyzes the effect of the laws on municipalities. The Texas vested rights law is reviewed in detail.
Edward H. Ziegler, Development Exactions and Permit Decisions: Nollan, Dolan, and Del Monte Dunes , 34 Urb. Law. 155 (Winter 2002).
The Takings Clause of the Fifth Amendment prohibits the government from taking "private property . . . for public use, without just compensation." Notions of fairness and proportionality are at the heart of all regulatory taking claims. In the regulatory takings context, analysis of fundamental fairness in allocation of the burdens imposed, secures and implements the original meaning and purpose of the Fifth Amendment. Thus the existence of "the often cited maxim that 'while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking'." The Supreme Court generally has not established "any set formula" for determining when a regulatory taking occurs and has repeatedly recognized that whether a particular restriction amounts to a taking depends largely on essentially "ad hoc, factual inquiries."
H. Dixon Montague & Billy Coe Dyer , Compensability of Non-Physical Impacts of Public Works: A Game of Chance, 34 Urb. Law. 171 (Winter 2002).
No reasonable-minded person who has spent any appreciable amount of time studying takings jurisprudence would disagree that this area of law is chock full of "a mass of obtuse decisional law that is only occasionally relieved by judicial common sense, pragmatism and candor." Those decisions that address the compensability of nonphysical impacts of public works on private property are no strangers to the criticism that is voiced generally about takings law. Various legal concepts have developed in this area of the law such as "community damages," "no vested property interest," "no compensable damages" and, when all else has failed, resort to the Latin phrase damnum absque injuria as ways to protect the government coffers and skirt the constitutional "guarantee" that just compensation shall be paid if to pay just compensation will make the cost of public project prohibitively expensive. This article reviews and analyzes those cases that have addressed the compensability of nonphysical impacts of public works on private property.
Anne E. Mitchell, Comment: Nude Dancing and First Amendment Security, 34 Urb. Law. 277 (Winter 2002).
This article discusses how, in Pap's A.M. v. City of Erie, the Supreme Court came to the appropriate conclusion that the Erie ordinance did not unconstitutionally infringe on the First Amendment free speech rights of nude dancers. Section II discusses how to determine whether actions or words will be considered the type of speech that is protected under the First Amendment, and when nude dancing fits into the determination. Section III looks at the distinctions between content-neutral and content-based statutes, how they are applied to speech that is protected under the First Amendment, and which characterization the Erie ordinance falls under. Section IV discusses how the Court in Pap's left one issue, how much evidence of secondary effects must be shown by the government trying to keep the ordinance, in a large state of confusion.
Volume 34 Index