Vol. 36, No. 4, Fall 2004

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Vol. 36, No. 4, Fall 2004

Publication Date : January 14, 2005

Robert H. Freilich, Ryan M. Manies & Corey J. Mertes, The Freilich Report 2003–04: The Supreme Court in an Age of Secrecy and Fear, 36 URB. LAW. 583 (Fall 2004).
In this, the year of the fiftieth anniversary of Brown v. Board of Education, the gavel of justice during the Term of the Supreme Court was struck not like a hammer of moral certainty for the nation as in that earlier landmark case, but more like a chisel aimed at sculpting limitations from arrogant assertions of executive power. Before the 2003–04 Term’s official October commencement, the Court addressed the constitutionality of the Bipartisan Campaign Reform Act in its first special argument session since Watergate. By Term’s end, the Court had issued seventy-three full opinions, ruling on everything from political gerrymandering to “under God” in the Pledge of Allegiance, from taxpayer-financed scholarships for religious colleges to a disabled man’s right to sue in state court for access to public facilities.


Michael M. Berger & Gideon Kanner, Shell Game: You Can’t Get There from Here: Supreme Court Ripeness Jurisprudence in Takings Cases at Long Last Reaches the Self-parody Stage, 36 URB. LAW. 671 (Fall 2004).
It is the overwhelming judgment of informed commentators that the procedural/remedial jurisprudence established for regulatory takings by the Supreme Court in the last twenty years is incoherent, contradictory, and, at times, impossible to apply to real cases in a rational manner or at all. It has inspired a string of epithets from usually restrained observers that range from “nonsense” to “a fraud [and] hoax on landowners.” The term “ripeness mess” has entered the lexicon of takings law on a seemingly permanent basis. But one aspect of that “mess” has now reached such heights—or, more accurately, depths—that it has literally assumed the status of legal self-parody. Somehow, the U.S. Supreme Court has drifted into a remedial regime in which American property owners who have a good Fifth Amendment cause of action for regulatory takings of their land by overreaching regulations can be said to lack any forum in which their claim can be heard on the merits, because no forum is said to have jurisdiction to deal with it. This article explores how we got into this mess, what its attributes are, and what must be done to rectify the situation and lift the pertinent law from its current depths of irrationality.


Michael Clisham, Commercial Speech, Federal Preemption, and Tobacco Signage: Obstacles to Eliminating Outdoor Tobacco Advertising, 36 URB. LAW. 713 (Fall 2004).
This article examines the effect of the Supreme Court’s decision in Lorillard Tobacco Co. v. Reilly on tobacco billboard advertising already in place throughout the United States by focusing on Baltimore, Maryland, and its efforts to restrict such advertising. Section I explores the development of the commercial speech doctrine through its varied application in Supreme Court jurisprudence. Section II reviews the Massachusetts advertising and retail sales-practice restrictions on cigarettes, smokeless tobacco, and cigars and follows the litigation challenging the restrictions that led to the Supreme Court’s decision in Lorillard Tobacco Co. Section III reviews Baltimore Ordinances 289 & 301—the model ordinances from which other state and local efforts have been based—that restrict the billboard advertising of alcoholic beverages and cigarettes and the litigation that challenged their validity prior to the Court’s decision in Lorillard Tobacco Co. Section IV analyzes whether the FCLAA preempts tobacco advertising ordinances in light of the broad scope accorded to FCLAA preemption in Lorillard Tobacco Co.. Finally, Section V offers a model ordinance for state and local governments to consider as they address issues of outdoor tobacco advertising.


Minor Myers III, A Redistributive Role for Local Government, 36 URB. LAW. 753 (Fall 2004).
After the New Deal, the redistributive burden in the United States was borne chiefly by the federal government. In 1996, sweeping welfare reforms changed that, transferring substantial authority over American redistribution from the federal government to the states. With the 1996 reforms, Congress capitulated to state pressure for more power to set their own programs and eligibility requirements, notably, work requirements for recipients. But, because Supreme Court jurisprudence restricts a state’s ability to dissuade new entrants, a problem for states is they cannot offer varying levels of redistributive benefits, lest they be overwhelmed by the needy from neighboring states. This produces the present problem, that both states and the federal government are suboptimal redistributors. This article presents an alternative solution: local governments, given their unique organizational characteristics, should bear more of the redistributive burden in the United States.


Annual Review of the Law

John H. Minan, Recent Developments in Environmental Law: Environmental Hot Topics, 36 URB. LAW. 793 (Fall 2004).
In March 2004, the U.S. Supreme Court decided “The Everglades’ Pump Case,” South Florida Water Management District v. Miccosukee Tribe of Indians of Florida. The case focuses on the proper statutory construction of the “addition of pollutants” requirement of the Federal Clean Water Act (CWA). No constitutional issues were before the Court. Based on the number of amici briefs filed with the Court, it is clear that there was broad public interest in the case. States as well as water purveyors weighed in on the larger question of whether inter-basin water transfers might be found by the Court to be subject to the permit requirements of the CWA.

Martha Harrell Chumbler, Recent Developments in Ethics: Status of State Consideration of the Ethics 2000 Changes to the ABA Model Rules of Professional Conduct, 36 URB. LAW. 799 (Fall 2004).
The American Bar Association’s House of Delegates adopted amendments to the Model Rules of Professional Responsibility in February 2002. Thereafter, in August 2003, the ABA adopted further revisions, specially addressing the responsibilities of attorneys who represent organizational clients. The majority of state bar associations, committees commissioned by the state supreme courts, or joint bar association/supreme court task forces have been conducting extensive reviews of the amendments to the Rules. This article provides an overview of the revisions to Model Rule 3.3 (Candor Toward the Tribunal, and the August 2003 amendments to the Model Rules), as well as states’ review of both the 2002 and 2003 amendments. It also looks at recent developments in case law in the area of professional conduct as it relates to ethical dilemmas in government representation.

Recent Developments in Government Operations and Liability:

David A. Basil, Introduction into the Legal Aspects of General Aviation Law, 36 URB. LAW. 813 (Fall 2004).
The federal interest in promoting civil aviation has been augmented by various legislative actions that authorize programs for granting property, funds, and other assistance to local communities for the development of airport facilities. Airport compliance is largely contractually based, and attempts to administer valuable public rights that are substantially funded through grants and binding commitments designed to assure that the public interests are served. This article summarizes the aspects of general aviation law that affect state and local governments.


Ronald J. Kramer, Wright or Wrong: Can Employers and Unions Waive an Employee’s Right to a Judicial Forum for Statutory Claims?, 36 URB. LAW. 825 (Fall 2004).
Thirty years ago, in Alexander v. Gardner-Denver Co., the U.S. Supreme Court allegedly put to rest the issue of the extent to which an employee covered by a collective bargaining agreement forfeits his right to bring discrimination claims in a judicial forum. Subsequent Supreme Court decisions, however, have thrown that question into doubt, and both private and public employers have attempted to exploit this with relatively limited success to force the arbitration of employment discrimination claims.

Ernest B. Abbott, Recent Developments in Homeland Security and Emergency Management: Homeland Security in the 21st Century: New Inroads on the State Police Power, 36 URB. LAW. 837 (Fall 2004).
Three years ago, America was shocked into awareness of the real threat Americans face from terrorism. Billions of dollars and untold man-hours are now being spent by all levels of government to try to prevent future terrorist attacks and to minimize the consequences of any attacks that do occur. But a corollary of this effort from all levels of government has been a significant centralization of power in the federal government in areas that have traditionally been the province of the states. Indeed, the Administration and Congress are imposing vast new sets of mandates on state and local governments. Many of these mandates are unfunded or underfunded and require state and local governments to change the way they exercise their constitutional responsibility to protect the public health and safety. At least at the outset, many of these mandates have been introduced through preemptive action from the federal government with only a modicum of consultation with the states, and with only begrudging sharing of the information that forms the basis of the action.

Recent Developments in Land Use, Planning and Zoning Law:

Jonathan Davidson, 2004 Land Use ADR Report: “Who Speaks for the Neighborhood?”, 36 URB. LAW. 849 (Fall 2004).
Like Louis XIV, inspired neighborhood advocates may intertwine personal interests with larger ones they claim to represent. The Colorado Supreme Court addressed such an ambiguity when a mediated developer-neighborhood association agreement failed to deter one member from continuing opposition to a project. When local governments negotiate land use concessions, additional issues arise over whether settlement discussions or agreements constitute contract zoning. Recent Utah, Georgia, and Pennsylvania decisions address these concerns. These 2003–04 cases highlight the extent to which parties may rely on negotiated settlements for future land use determinations.


Brian W. Ohm & Robert J. Sitkowski, Integrating New Urbanism and Affordable Housing Tools, 36 URB. LAW. 857 (Fall 2004).
New Urbanism continues to exert an increasing influence on new development projects. Originating largely from the design professions, New Urbanism focuses on building walkable, mixed use neighborhoods with a strong sense of place as an alternative to sprawling low-density, single-use, automobile dependent development. Despite this theoretical emphasis on providing a diverse housing stock, observers have criticized traditional neighborhood developments and other New Urbanist-influenced projects for not meeting a diversity of housing needs. Their observations raise the question: Is affordable housing one of the unfulfilled promises of New Urbanism? This article explores the relationship of New Urbanism with two tools for promoting affordable housing: local inclusionary zoning ordinances and state laws providing developers with relief from burdensome local regulations that exclude affordable housing.

Lelia B. Helms, Recent Developments in Public Education: Postsecondary Education, 2003–04, 36 URB. LAW. 867 (Fall 2004).
During this fiftieth anniversary year of the Supreme Court’s decision in Brown v. Board of Education, reaction to the Grutter and Gratz cases dominated much of the discussion about the law of higher education over the past year. Many foresee continuing litigation as institutional efforts to align their procedures with the criteria set forth in these decisions lead to new challenges. A list of candidate issues predicted to generate increasing litigation include: problems of an aging workforce and disputes over retirement benefits; privacy, identity theft, and computer security; conflicts over resources from intellectual property and technology to economic diversification and retrenchment; accountability; conflicts of interest; and diversity and access. Several of these are apparent in the litigation reported over the past year.

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