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Full-Text Articles in Law
The Problem With Pretext, Lynn E. Blais
The Problem With Pretext, Lynn E. Blais
Fordham Urban Law Journal
This Article examines the problems with the Supreme Court's holding in Kelo v. City of New London that the concept of public use is expansive unless the government is asserting the public use as a "mere pretext" and the true purpose is private benefit. The author examines the level of scrutiny applied in such cases, the link between pretext and motive, and the tests applied to evaluate pretext challenges: the burden-shifting motives test, the sufficiency of the plan taste, and the benefits to the public test. The author concludes that pretext is an "unworkable mechanism" for evaluating public use cases.
Gallenthin V. Kaur: A Comparative Analysis Of How The New Jersey And New York Courts Approach Judicial Review Of The Exercise Of Eminent Domain For Redevelopment, Ronald K. Chen
Fordham Urban Law Journal
This Article explores two explanations for why New Jersey and New York take different approaches to judicial review of exercises of eminent domain. Part I examines the approach of both states and their differing procedures for review of administrative agency determinations. Part II discusses how each states' courts and legislatures define "blight." Part III examines how New York's approach leaves municipal officials and redevelopers free to use the more flexible concept of "underutilization" as a proxy for "blight."
Public Use In The Dirigiste Tradition: Private And Public Benefit In An Era Of Agglomeration, Steven J. Eagle
Public Use In The Dirigiste Tradition: Private And Public Benefit In An Era Of Agglomeration, Steven J. Eagle
Fordham Urban Law Journal
Dirigisme is the "policy of state direction and control in economic and social matters. This Article examines dirigisme as it relates to state control of land use. It also analyzes the development of eminent domain law and the requirement that takings be for public use. The author argues that the New York Court of Appeals "subordinates constitutional protections for private property to centralized development," specifically examining the recent Goldstein and Kaur opinions. The Article also discusses the implications of condemnation for transfer for private redevelopment, including lack of transparency, secondary rent seeking, possibilities of corruption, and the inefficient use of …
Reconstructing The Takings Doctrine By Redefining Property And Sovereignty, John Martinez
Reconstructing The Takings Doctrine By Redefining Property And Sovereignty, John Martinez
Fordham Urban Law Journal
In 1987, the Supreme Court decided three cases involving "takings" challenges to governmental exercise of the power to control land use. This trilogy of cases affirmed the continuing validity of a three-part analytical model in addressing the takings problem: (1) is private property involved; (2) has governmental action so affected it as to require a remedy; and (3) what remedy should be provided? This Article critically examines that model and argues that the first two questions are fundamentally indistinguishable and that to treat them as distinct inquiries is unworkable. The Article then proposes a functional approach under which individuals are …
Beyond The Taking Issue: Emerging Procedural Due Process Issues In Local Landmark Preservation Programs, Samuel A. Turvey
Beyond The Taking Issue: Emerging Procedural Due Process Issues In Local Landmark Preservation Programs, Samuel A. Turvey
Fordham Urban Law Journal
In Penn Central Transportation Co. v. New York City, the United States Supreme Court accorded landmark preservation full legal status. This decision left unanswered questions, one of which is the procedural due process requirements for local designation proceedings. In Historic Green Springs, Inc. v. Bergland, a U.S. District Court set aside a designation as a violation of procedural due process. This comment examines the impact of the Historic Green Springs decision, and focuses on the administration of the New York City landmarks law specifically. The comment argues that ordinances such as New York's are inadequate, and concludes that municipal bodies …