October 23, 2012

Vol. 34, No. 2, Spring 2002

The Urban Lawyer,
Vol. 34, No. 2, Spring 2002

Publication Date: June 21, 2002

Anthony Saul Alperin, Palazzolo- The Supreme Court's Decision Departs from Accepted Doctrine, 34 Urb. Law. 297 (Spring 2002).

This article discusses the most important aspects of the Supreme Court's rulings in Palazzolo: (1) its rejection of a per se rule that a takings claimant has "no right to challenge regulations predating [the date on which the claimant] succeeded to legal ownership of the property . . .," (2) the treatment of "investment-backed expectations" by the majority and Justice Sandra Day O'Connor; (3) the Court's resolution of the "total" takings claim; and (4) its avoidance of the "denominator" issue, namely the identification of the property interest against which a taking must be measured. The article does not contain an in-depth discussion of the Court's ruling concerning the ripeness of the case for adjudication because, in the author's estimation, it does not involve a change in or novel application of existing doctrine. The article also analyzes the extent to which the Justices' treatment of some of these issues is inconsistent with the Court's earlier takings jurisprudence.

Garrett Power, Palazzolo v. Rhode Island: Regulatory Takings, Investment-Backed Expectations, and Slander of Title, 34 Urb. Law. 313 (Spring 2002).

This essay reconsiders the judicial efforts to differentiate "regulation" from "taking." It concludes that the Supreme Court's attempt to deal with this question with a categorical jurisprudence of "physical invasions," "total takings," and "partial takings" has lost sight of the concerns for "fairness and justice" that gave rise to the constitutional prescription of regulatory takings in the first place. The categories have proved particularly ill-suited to deal with the question of whether a buyer who acquired property with notice of the onerous regulations is disqualified from constitutionally challenging them. The article proposes the reconceptualization of regulatory takings as occasioning a tort accruing in the seller if and when the over-regulated property is sold to a buyer who is on notice of the existing regulatory regime.


From Blueprints to Baseball:

A Survey of Current Baseball Stadium Financing Projects

David S. Caudill, Introduction, 34 Urb. Law. 331 (Spring 2002).

The Association of American Law Schools State and Local Government Law Section joined with the Law and Sports Section to present a panel at the 2002 AALS annual meeting on stadium, as well as theater district and casino, financing. Of all the issues raised, the current phenomenon of new ballpark construction and financing seemed a particularly timely one. Shortly after that presentation, Professor Robert M. Jarvis of Nova Southeastern University was able to compel the authors in this survey to engage in "snapshot" research on their hometowns. The result is a rare opportunity to see the various processes of stadium financing across the country as the new baseball season begins.

Richard M. Perlmutter, Boston, 34 Urb. Law. 335 (Spring 2002).

Phillip M. Sparkes, Cincinnati, 34 Urb. Law. 345 (Spring 2002).

Robert M. Jarvis, Miami, 34 Urb. Law. 353 (Spring 2002).

Larry Bakken & Vincent A. Thomas, Minneapolis-St. Paul, 34 Urb. Law. 363 (Spring 2002).

Ettie Ward, New York, 34 Urb. Law. 371 (Spring 2002).

Michael T. Flannery, Philadelphia, 34 Urb. Law. 381 (Spring 2002).

Steven Semeraro, San Diego, 34 Urb. Law. 389 (Spring 2002).

Joel K. Goldstein, St. Louis, 34 Urb. Law. 397 (Spring 2002).

Michael I. Krauss, Washington D.C., 34 Urb. Law. 407 (Spring 2002).


Peter D. Enrich, Business Tax Incentives: A Status Report, 34 Urb. Law. 415 (Spring 2002).

In this article, Professor Enrich discusses recent trends in the use of tax breaks by the states to influence business decisions about the location of facilities and jobs. The article documents the continuing proliferation of such corporate welfare policies and their costs to the states. It also argues that, contrary to some recent attempts to justify the economic reasonableness of such policies, they in fact do not serve to further national economic interests. While recent attempts to superimpose "accountability" measures on some tax incentive programs may mitigate some of their harmful effects, the article suggests that judicial intervention, invalidating a broad range of state location tax incentives under the Commerce Clause, offers the most promising solution to the problem of proliferating corporate welfare measures.


Janice C. Griffith, State and Local Revenue Enhancement and Taxation Policies in a Digital Age: E-Commerce Taxation, Business Tax Incentives, and Litigation Generated Revenues, 34 Urb. Law. 429 (Spring 2002).

At the American Association of Law Schools State and Local Government Law Section's program held at its 2001 annual meeting, scholars made proposals calling for: (1) the simplification of state sales and use taxes to facilitate the taxation of interstate and electronic sales, (2) the invalidation of business tax incentives as discriminatory under the Commerce Clause, and (3) public revenue enhancement from product liability litigation in the wake of the tobacco class-action settlement. This article examines these proposals.

Edward J. Sullivan & Carrie Richter, Out of the Chaos: Towards a National System of Land-Use Procedures, 34 Urb. Law. 449 (Spring 2002).

Three attempts have been made in the United States over the past eighty years of land-use regulations to standardize land-use procedures. All such attempts have been nonbinding and none have succeeded thus far. This article examines those attempts and suggests that the latest attempt has the best chance for success.

Charles E. McClure, Jr., Sales and Use Taxes on Electronic Commerce: Legal, Economic, Administrative, and Political Issues, 34 Urb. Law. 487 (Spring 2002).

This article describes the problems with the sales tax and summarizes recent efforts to simplify the tax. Because the author has described and discussed the problems in detail elsewhere, the descriptions and discussions presented in Section II are rather skeletal; the notes contain further references. The most recent effort at simplification, which is ongoing, is described in greater detail in Section III, not only for its own sake, but also to illustrate the range of complex problems that must be overcome in any effort to simplify the sales and use tax.

Laura T. Rahe, The Right to Exclude: Preserving the Autonomy of the Homeowners' Association, 34 Urb. Law. 521 (Spring 2002).

Homeowners' associations offer Americans security and a sense of community. If residents are to reap the benefits of membership, courts must uphold the associations' right to exclude the general public from their properties. Part I of this article explores the meaning of the homeowners' association in American life. Part II discusses state action as recognized by the courts, one cause of action relating to this concept, and the potential impact of the state action doctrine on the homeowners' association. Part III raises public policy reasons for upholding the homeowners' association's right to exclude.

With Cases, Statutes, and Recent Developments on:

Department of Housing & Urban Development v. Rucker, No. 00-1770 (U.S. Mar. 26, 2002).

Owasso Independent School District No. 1-011 v. Falvo, 122 S. Ct. 934 (2002).

Volume 34 Index