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Determining Ripeness Of Substantive Due Process Claims Brought By Landowners Against Local Governments, David S. Mendel
Determining Ripeness Of Substantive Due Process Claims Brought By Landowners Against Local Governments, David S. Mendel
Michigan Law Review
Landowners who sustain economic harm from arbitrary and capricious applications of land use regulations may sue the local government entities responsible for applying those regulations under 42 U.S.C. § 1983, alleging that the local government entities deprived them of substantive due process in violation of the Fourteenth Amendment. A landowner who brings this claim - an "as-applied arbitrary and capricious substantive due process" claim - may in appropriate cases seek declaratory and injunctive relief, damages, and attorney's fees. Despite controversy among courts and commentators over both the definition of property interests protected by the Due Process Clause and the standard …
The First Amendment Comes Of Age: The Emergence Of Free Speech In Twentieth-Century America, G. Edward White
The First Amendment Comes Of Age: The Emergence Of Free Speech In Twentieth-Century America, G. Edward White
Michigan Law Review
As the number of issues perceived as having First Amendment implications continues to grow, and the coterie of potential beneficiaries of First Amendment protection continues to widen - including not only the traditional oppressed mavericks and despised dissenters but some rich and powerful members from the circles of political and economic orthodoxy - alarms have been sounded. Another period of stocktaking for free speech theory appears to be dawning, and some recent commentators have proposed a retrenchment from the long twentieth- century progression of increasingly speech-protective interpretations of the First Amendment. At the heart of the retrenchment literature lies the …
Affirmative Duties, Systemic Harms, And The Due Process Clause, Barbara E. Armacost
Affirmative Duties, Systemic Harms, And The Due Process Clause, Barbara E. Armacost
Michigan Law Review
Part I of the article lays out the major academic criticisms of DeShaney v. Winnebago County Department of Social Services. Part II describes the contours of liability for failure to protect in tort. Part III offers a positive explanation for the strong presumption against governmental liability in failure-to-protect cases: permitting broad liability for failure to protect would involve the courts in second-guessing political decisions about the use of limited community resources. This explanation has two parts. First, as a matter of institutional competence, budgetary decisions about the appropriate level and distribution of public services are better suited to political rather …