Search

The article identifies the goals being pursued by local governments in the U.S. today through zoning. Topics covered include the costs and benefits of this zoning objectives, the divergence in the purposes of land use regulations of local governments, and the minimization of the conflicting uses of property by separating residential, commercial and industrial uses.

This is a Response to Bethany R. Berger's recent Article, The Illusion of Fiscal Illusion in Regulatory Takings. In that Article, Professor Berger argues against the view that governments should be forced to compensate for regulatory burdens because they suffer from fiscal illusion and will only internalize the costs that they, in fact, have to pay. She demonstrates that property taxes already provide a mechanism through which governments internalize both the costs and benefits of their property regulations, and that compensation for regulatory takings is therefore unnecessary and even perverse for creating efficient regulatory incentives. This Response argues that she is correct and that her criticism joins many others before it. However, despite these significant criticisms, fiscal illusion continues to inform takings theory. This Response ultimately demonstrates that even if Professor Berger is correct, her proposed responses do not entirely address the problem that compensation will over-deter government regulations, and so this Response proposes both municipal insurance and liability for regulatory inaction as potential interventions. [ABSTRACT FROM AUTHOR]

Municipal insurance policies inevitably contain a curious exclusion of coverage for regulatory takings claims. Many courts have interpreted this exclusion broadly, applying it to all land-use litigation. Other courts have interpreted the exclusion narrowly. Both interpretations are problematic. The former is at odds with policy language and the normal rule that insurance policies are to be construed against the insurer. The latter creates an opportunity for plaintiffs to craft their pleadings explicitly to trigger or to avoid triggering the municipality's insurance coverage. Plaintiffs seeking a quick settlement are well advised to plead around the exclusion so as to settle with the insurer. But plaintiffs seeking to have the local government capitulate should avoid the insurance coverage, forcing the local government to bear its own litigation costs and the risk of an adverse judgment. The possibility of such pleading arbitrage is problematic, and this Article argues that states should find ways to extend insurance to cover Fifth Amendment regulatory takings claims. [ABSTRACT FROM AUTHOR]

"[W]e must never forget, that it is a constitution we are expounding." If there was such a danger when Chief Justice John Marshall wrote those words, there is none today. Americans regularly assume that the Constitution is special, and legal professionals treat it differently from other sources of law. But what if that is wrongheaded? In this Article, we identify and question the professional practice of constitutional exceptionalism. First, we show that standard arguments from text, structure, and history work differently in constitutional law. Second, we examine the possible justifications for such distinctive interpretation among lawyers, and we find them mostly unconvincing. Neither entrenchment, nor supremacy, nor democratic legitimacy sets the Constitution apart from other sources of law in a way that supports interpretive exceptionalism. In fact, the best argument for the practice is simply that the Constitution is regarded as unique--that it occupies a privileged place in American culture and political mythology. But even if that status can justify applying some specialized methods to the document, it cannot explain every markedly divergent practice that we see among contemporary legal professionals. In the conclusion, we reveal one normative motivation for the project. All too often, constitutional argument is deployed in ordinary politics as a kind of trump, with the purpose and effect of shutting down policy debate. Legal professionals contribute to this tactic when they craft rarified interpretive methods without justification. Demythologizing constitutional law undercuts its use as a political blunderbuss. [ABSTRACT FROM AUTHOR]

The purpose of the Fifth Amendment's Takings Clause is to protect property owners from the most significant costs of legal transitions. Paradigmatically, a regulatory taking involves a government action that interferes with expectations about the content of property rights. Legal change has therefore always been central to regulatory takings claims. This Article argues that it does not need to be and that governments can violate the Takings Clause by failing to act in the face of a changing world. This argument represents much more than a minor refinement of takings law because recognizing governmental liability for failing to act means that, in at least some circumstances, the Constitution compels the government to protect property. Such liability runs counter to conventional understandings of constitutional law in which the Constitution primarily enshrines negative liberties. And yet this liability follows surprisingly naturally from leading takings and property theory. The Takings Clause, then, can serve as a previously unrecognized basis for affirmative governmental obligations. The Article ultimately illustrates this new category of passive takings with the example of sea-level rise, arguing that ecological threats may compel the government either to respond or pay compensation for the damages resulting from this ecological change. [ABSTRACT FROM AUTHOR]

An essay is presented on the understanding of property and the state's obligations to property owners in U.S. Topics discussed include U.S. Constitution which conveys rights to be free from the interference of government, recognition of affirmative constitutional obligations for property protection, and property rights in U.S. Also mentioned are violations of the Fifth Amendment Takings Clause, property theorists Gregory Alexander, Eduardo Peñalver, and Hanoch Dagan, and safe harbor.

An introduction is presented in which the authors discuss various reports within the issue on topics including zoning laws in the U.S., alternative forms of public land use controls, and an analysis of the impact of gentrification on an American community.

Anti-entrenchment rules prevent governments from passing unrepealable legislation and ensure that subsequent governments are free to revisit the policy choices of the past. However, governments-and local governments in particular—have become increasingly adept at using private law mechanisms like contracts and property conveyances to make binding precommitments into the future. Simultaneously, courts and state legislatures in recent years have reduced the availability of core de-entrenching tools, like eminent domain, that have traditionally allowed governments to recapture policymaking authority from the past. These changes threaten to shift democratic power intertemporally. This Article develops a typology of mechanisms for public entrenchment through private law and private rights, as well as core anti-entrenchment protections embedded in the law. It then develops a framework for evaluating entrenchment concerns, comparing the costs of decreased flexibility against the benefits of increased reliance. Viewed through this framework, some recent changes in the law appear particularly problematic, from restrictions on eminent domain, to the rise of development rights, and creative forms of municipal finance like selling assets instead of incurring debt. [ABSTRACT FROM AUTHOR]

Assesses the value of compensations for an owner of a private property taken by the U.S. government for public use under the Taking Clause of the Fifth Amendment of the Constitution. Specific valuation mechanisms used to measure compensation; Theories of the Takings Clause; Role of the judiciary courts in the valuation of the property right.

Discusses the interpretation of the indictment requirement of the United States Congress. Why the Comprehensive Drug Abuse Prevention and Control Act of 1970 was enacted by the Congress; Rationales that courts have employed to resolve whether an offense is present or prior; Information on Affirmative interpretations.

We live in an era of widening geographic inequality. Around the country, the spread between economically and culturally thriving places and those that are struggling has been increasing. "Superstar" cities like New York, San Francisco, Boston, and Atlanta continue to attract talent and grow, while the economies of other cities and rural areas are left behind. Troublingly, escalating geographic inequality in the United States has arrived hand in hand with serious economic, social, and political problems. Areas that are left behind have not only failed to keep up with their thriving peers; in many ways, they have stagnated and seen opportunities evaporate. At the same time, superstar cities are running up against extreme housing affordability problems, rendering middleclass life all but unsustainable. To make matters worse, the widening gulf between dynamic and stagnant places increasingly feeds into a democratic crisis of unrepresentative government at the federal level. The dominant explanations for widening geographic inequality focus largely on inexorable economic trends. Forces like "agglomeration effects" and globalization have reshaped the economy, benefitting some areas and harming others. We think these explanations leave out a crucial factor: the effects of specific regulatory choices on economic geography. The Progressive Era and New Deal regulatory order in the United States promoted geographic dispersion of economic activity. The unraveling of this regulatory order around 1980 coincided with the reversal in geographic convergence and the beginning of an era of growing divergence. More specifically, regulatory policies in the areas of transportation, communications, trade, and antitrust helped construct an era of geographic convergence in the mid-twentieth century, and deregulation in those same areas contributed to the rise of geographic inequality over the last generation. Though the COVID-19 pandemic has produced unprecedented awareness of and interest in remote work--raising the possibility of greater economic dispersion--the extent to which this potential can be realized will likely also depend upon regulatory choices. To combat geographic inequality and its attendant downsides, we make the case for reincorporating geographic factors into federal regulatory policymaking in transportation, communications, trade, antitrust, and other domains. [ABSTRACT FROM AUTHOR]