Vol. 35, No. 2, Spring 2003

The Urban Lawyer

Vol. 35, No. 2, Spring 2003

Publication Date : September 30, 2003

ARTICLES

Edward J. Sullivan & Nicholas Cropp, Making It Up-"Original Intent" and Federal Takings Jurisprudence, 35 Urb. Law. 203 (Spring 2003).

When studying particular approaches to the takings issue, a general question arises as to the nature of the principles that guide the Supreme Court when interpreting the Constitution. Several of the most persuasive judges ever to sit on the Supreme Court have powerfully asserted that it is the plain meaning of the constitutional language, and the original intent of the Framers, that should determine the proper interpretation of the Constitution in any given case. This article explores the difficulties and challenges faced by these proponents of a methodology based on original intent in the context of federal takings jurisprudence. It also examines the ways in which stare decisis and other basic principles of judging may compromise the theory of original intent. In support of this analysis, the article traces the Supreme Court's taking jurisprudence in some detail. Throughout the authors ask whether the Justices possess some special degree of skill or knowledge that enables them to determine what words in the Constitution are supposed to mean, whether they possess some form of divining rod for constitutional interpretation, or whether the Justices are, in truth, simply creating makeshift rules to fit the facts and to fit their own political, social, or moral convictions, or in other words, whether they are simply making it up as they go.

Patricia E. Salkin, Beware: What You Say to Your [Government] Lawyer May Be Held Against You-The Erosion of Government Attorney-Client Confidentiality, 35 Urb. Law. 283 (Spring 2003).

It is a basic rule of evidence, so common that the American public watching "made for TV lawyering" knows it is true; conversations between lawyers and clients are afforded the privilege of confidentiality. During the last five years, however, this notion has not only been challenged, but, to some extent, it is has been turned upside down for conversations between government lawyers and their clients. Although many see this as a legacy of the Whitewater investigation and the Clinton White House, the phenomenon has manifested itself at the state and local levels and has resulted in decisions in the Sixth, Seventh, Eighth, and Ninth Circuit Courts of Appeals. The privilege extended to attorney-client relationships in the government setting is confusing and not as clear-cut as the privilege in other attorney-client settings. In fact, one reporter has commented that in the area of government attorney-client privilege, "government attorneys are in a legal no-man's land." The pattern emerging in cases involving government lawyers and their government clients is a different set of rules for the applicability of the attorney-client privilege in the criminal activity arena. This article discusses these decisions, as well as the reasons for and against recognizing a privilege for government attorney-client conversations.

Audrey G.. McFarlane, Local Economic Development Incentives in an Era of Globalization: The Exploitation of Decentralization and Mobility, 35 Urb. Law. 305 (Spring 2003).

In its spring 2002 issue, The Urban Lawyer printed a series of articles from the AALS State and Local Government Section Annual Meeting Panel, "New Developments in State and Local Tax: E-Commerce, Tax Incentives for Business and Litigation-Generated Revenues." At the time local governments were beginning to feel the financial pinch of revenue shortfalls. Now, two years later, the situation is even graver. Since the beginning of 2003, local newspapers have been filled with articles evaluating the wisdom of cities large and small that have mortgaged their financial well being by offering large incentive packages to lure corporations to come to their communities or stay within their communities. This article responds to this panel discussion and provides a closer examination of the realities of business tax incentives.

Joseph G. Lauber, HIPAA Administrative Simplification: How the Privacy Rule Affects Municipal Ambulance Service Providers, 35 Urb. Law. 317 (Spring 2003).

A police officer who assisted in the cleanup of the 1993 Catoosa, Oklahoma tornados explained that several fatalities occurred because one of the tornados was so large that motorists did not recognize what it was and simply drove into it. Similarly, the sheer size of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) may cause those entities that must comply with its provisions to blindly enter the HIPAA compliance period without taking precautions to protect against HIPAA liability. This article is designed to serve as a warning siren to municipalities that have not yet taken steps to become HIPAA compliant, and as a "HIPAA-safety action plan" for those that have. Special emphasis is placed on the privacy rule requirements for municipal ambulance service providers.

Michael J. Podolsky, Palazzolo v. Rhode Island: Revival of Penn Central and Implications for Environmental Regulation, 35 Urb. Law. 353 (Spring 2003).

This article analyzes the implications of Palazzolo v. Rhode Island and provides analytical recommendations for courts to apply in evaluating reasonable investment-backed expectations in future land use regulatory takings cases. In so doing, it considers the differences in Justice O'Connor's and Scalia's instructions on how courts may consider reasonable investment-backed expectations. Part I reviews key regulatory takings cases decided by the Court with respect to reasonable investment-backed expectations. Part II provides a detailed review of the facts, the Court's opinion, and the concurring opinions of Justices O'Connor and Scalia, focusing on the Court's reversal of the Rhode Island Supreme Court's holding. Part III evaluates the Court's position that post-enactment purchasers have reasonable investment-backed expectations in light of scholarly commentary. Part IV outlines the post- Palazzolo role of reasonable investment-backed expectations. Part V reviews existing models for assessing reasonable investment-backed expectations. Part VI recommends an improved method for evaluating a landowner's expectations as a function of both general and regulation specific factors. Part VII summarizes Parts I-VI and highlights important conclusions discussed throughout the article.

BOOK REVIEW

Suing and Defending Cities for Federal Constitutional Violations: A Treatise for City Attorneys and Public Interest Litigators , 35 Urb. Law. 379 (Spring 2003).

Reviewed by Peter W. Salsich, Jr.

Professor David Gelfand has returned a third time to a subject dear to his heart, the extent to which the federal Constitution holds local governments and their officials responsible for decisions that harm private citizens. His one volume book, Suing and Defending Cities for Federal Constitutional Violations, has been dressed up in a loose-leaf binder format with a new title, but remains the "up-to-date, readable, and thoroughly researched assessment of the federal Constitution and its relationship to local government" that the author found the previous edition to be.

With Books of Note on :

Taking Sides on Takings Issues: The Impact of Tahoe Sierra . 387

Protecting Free Speech and Expression-The First Amendment and Land Use Law . 391

And Case Notes on :

Brown v. Legal Foundation of Washington . 393

Cook County, Ill. v. United States . 394

Virginia v. Black . 395

State ex rel. R.T.G., Inc. v. State . 396

Rukab v. City of Jacksonville Beach . 397

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