Law Commons^™

Pretextual Takings: Of Private Developers, Local Governments, And Impermissible Favoritism, Daniel B. Kelly

Journal Articles

Since Kelo v. City of New London, the preferred litigation strategy for challenging a condemnation that benefits a private party is to allege that the taking is pretextual. This Article contends that, although pretextual takings are socially undesirable, the current judicial test for identifying such takings is problematic. Yet an alternative, intent-based test might be impracticable, as well as underinclusive: condemnors often have mixed motives, particularly when confronted with a firm's credible threat to relocate. Instead, the Article develops a framework that emphasizes informational differences between local governments and private developers. When the government lacks information regarding the optimal site …

Agenda: Managing Oil And Gas Development In Colorado: The New Cogcc Rules, University Of Colorado Boulder. Natural Resources Law Center

Managing Oil and Gas Development in Colorado: The New COGCC Rules (December 16)

NRLC Hot Topic held on December 16, 2008 from 12:00 noon to 1:30 p.m. at the offices of Hogan and Hartson, Denver, Colorado.

Panelists from COGCC, the oil & gas industry, and environmental community, will present their perspectives on the soon-to-be-issued rules on oil and development in Colorado. Discussion and questions from attendees will follow.

Slides: Linking Growth, Land Use And Water, Jim Holway

Shifting Baselines and New Meridians: Water, Resources, Landscapes, and the Transformation of the American West (Summer Conference, June 4-6)

Presenter: Jim Holway, Global Institute of Sustainability, Civil and Environmental Engineering, Arizona Water Institute, Arizona State University

29 slides

Bridging The Governance Gap: Strategies To Integrate Water And Land Use Planning, Sarah Bates Van De Wetering, University Of Montana (Missoula). Public Policy Research Institute

Shifting Baselines and New Meridians: Water, Resources, Landscapes, and the Transformation of the American West (Summer Conference, June 4-6)

16 pages.

Includes bibliographical references

"2007"

"Collaborative Governance Report 2"

When Voters Make Laws: How Direct Democracy Is Shaping American Cities, Elizabeth Garrett, Mathew D. Mccubbins

Faculty Scholarship

No abstract provided.

Slides: Forests And Grasslands, Federico Cheever

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

Presenter: Professor Federico Cheever, University of Denver Sturm College of Law

30 slides

Slides: The Future Of Oil And Gas Development On Federal Lands, Mike Chiropolos

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

Presenter: Mike Chiropolos, Lands Program Director, Western Resource Advocates

44 slides

Squaring The Circle On Sprawl: What More Can We Do?: Progress Towards Sustainable Land Use In The States, Patricia E. Salkin

Scholarly Works

With almost ten years of nationwide dialogue and experimentation with the legal implementation of smart growth concepts at the state and local levels, this paper pauses to consider whether and to what extent success has been realized. The one certainty in this dynamic intersection of land development and conservation is that there is no one best model adaptable to all fifty states. Rather, to accommodate national diversity in local government structure, cultural relationships of people to the land, and differences in geography and a sense of place, the best lesson learned is that advocates and lawmakers alike must shape and …

Putting The "Public" Back Into Public-Private Partnerships For Economic Development, Audrey Mcfarlane

All Faculty Scholarship

Public-Private Partnerships are viewed quite positively. In the context of working with local government for economic development, the interests and concerns of the private appear to dominate the development decision-making. This Essay explores eminent domain decisions and community benefits agreements for standards for measuring the efficacy of these partnerships. It suggests ways in which we can begin to think about public accountability and public benefits to be derived from these partnerships.

Legal Indeterminacy Made In America: American Legal Methods And The Rule Of Law, James Maxeiner

All Faculty Scholarship

The thesis of this Article is that the indeterminacy that plagues American law is "Made in America." It is not inherent in law. Rather, it is a product of specific choices of legal methods and of legal structures made in the American legal system.

The New Inner-City: Class Transformation, Concentrated Affluence And The Obligations Of The Police Power, Audrey Mcfarlane

All Faculty Scholarship

This article examines the role of local government in the process of urban spatial restructuring (gentrification). In light of the disparate needs and competing interests of different racial and socioeconomic groups seeking a place in the city, there are limits to local government's ability to facilitate redevelopment projects that deliberately aim to accomplish class transformation and exclusively reconfigure the inner city for the affluent. These limits exist by virtue of implied obligations of the police power.

Federalism And Antitrust Reform, Herbert J. Hovenkamp

All Faculty Scholarship

Currently the Antitrust Modernization Commission is considering numerous proposals for adjusting the relationship between federal antitrust authority and state regulation. This essay examines two areas that have produced a significant amount of state-federal conflict: state regulation of insurance and the state action immunity for general state regulation. It argues that no principle of efficiency, regulatory theory, or federalism justifies the McCarran-Ferguson Act, which creates an antitrust immunity for state regulation of insurance. What few benefits the Act confers could be fully realized by an appropriate interpretation of the state action doctrine. Second, the current formulation of the antitrust state action …

Agenda: Energy Field Tour 2003, University Of Colorado Boulder. Natural Resources Law Center

Energy Field Tour 2003 (August 11-16)

Congressional staff tour held August 11-16, 2003

Summary: Binder of assorted articles, maps, brochures and other materials prepared for participants of the tour

Contents:

MONDAY, AUGUST 11, 2003: BLUE SPRUCE PEAKER PLANT: University of Colorado Natural Resources Law Center : congressional staff tour of Blue Spruce Energy Center / Peggy Duxbury -- 'Power Struggle', National Journal, June 27, 2003 / Margaret Kritz -- 'Calpine's Blue Spruce Energy Center begins commercial operation', Calpine press release, April 17, 2003 -- NATIONAL RENEWABLE ENERGY LAB: NREL at a glance -- NREL technologies -- SHOSHONE HYDROELECTRIC PLANT: 'River District Board supports spring Shoshone call …

Planning For Conflicts Of Interest In Land Use Decisionmaking: The Use Of Alternate Members Of Planning And Zoning Boards, Patricia E. Salkin

Scholarly Works

No abstract provided.

U.S. Supreme Court Hands Two Big Wins To Municipal Governments In 2001-2002 Term, Patricia E. Salkin

Scholarly Works

No abstract provided.

The "Race-Neutral" Option For Local Government Contracting Programs, Alan C. Weinstein

Law Faculty Articles and Essays

Despite the dismal record cities have compiled of late in defending their race-conscious contracting programs, this article seeks "to dispel the notion that strict scrutiny is 'strict in theory but fatal in fact.'" If a local government follows the course outlined above, and combines the ability to monitor and analyze all relevant contracting data with the enactment and implementation of a multi-faceted race-neutral program, it has laid a sound foundation for the subsequent enactment of race-conscious remedies that are narrowly-tailored to address statistically valid disparities in utilization of specific categories of MBEs that remain after the race-neutral program has been …

Localism And Regionalism, Richard Briffault

Faculty Scholarship

Localism and regionalism are normally seen as contrasting, indeed conflicting, conceptions of metropolitan area governance. Localism in this context refers to the view that the existing system of a large number of relatively small governments wielding power over such critical matters as local land use regulation, local taxation, and the financing of local public services ought to be preserved. The meaning of regionalism is less clearly defined and proposals for regional governance vary widely, but most advocates of regionalism would shift some authority from local governments, restrict local autonomy, or, at the very least, constrain the ability of local governments …

Smart Growth At Century’S End: The State Of The States, Patricia E. Salkin

Scholarly Works

No abstract provided.

The Rise Of Sublocal Structures In Urban Governance, Richard Briffault

Faculty Scholarship

The dominant law and economics model of local government, based on the work of Charles M. Tiebout, assumes that decentralization of power to local governments promotes the efficient delivery of public goods and services. In his seminal article, A Pure Theory of Local Expenditures, Tiebout contended that the existence of a large number of local governments in any given area permits a "market solution" to the question of how to determine the level and mix of government services that people desire. The multiplicity of local governments in an area means that, as long as each locality is free to …

Local Government And The New York State Constitution, Richard Briffault

Faculty Scholarship

On November 4, 1997, the question "Shall there be a convention to revise the [state] constitution and amend the same?" will be submitted to the New York state electorate pursuant to the provision in the state constitution requiring that every twenty years the voters be given the opportunity to call for a constitutional convention. A longstanding constitutional concern in New York is local government and the relations between local governments and the State. With an eye to the upcoming vote on whether to hold a constitutional convention, this paper examines the place of local government and state-local relations in the …

Why We’Re Unhappy? [Synopsis], Louise Liston

Challenging Federal Ownership and Management: Public Lands and Public Benefits (October 11-13)

2 pages.

Betting On Open Space: The Great Outdoors Colorado Trust Fund, Will Shafroth, Rick Hum, University Of Colorado Boulder. Natural Resources Law Center

Betting on Open Space: The Great Outdoors Colorado Trust Fund (February 9)

17 pages.

Includes illustrations, maps, and biographical information for Will Shafroth and Rick Hum.

In 1992 Colorado voters approved the dedication of a portion of lottery proceeds to a trust fund for parks, wildlife, trails and open spaces. The fund will produce over $30 million during the next five years, and $35 million annually thereafter that will be dedicated to these purposes. Will Shafroth, Director, State Board of the Great Outdoors Colorado Trust Fund, will discuss the first 18 months of GOCO and future challenges. Rick Hum, Summit County Commissioner, will comment on the program from the perspective of local …

Agenda: Regulatory Takings And Resources: What Are The Constitutional Limits?, University Of Colorado Boulder. Natural Resources Law Center, Byron R. White Center For The Study Of American Constitutional Law

Regulatory Takings and Resources: What Are the Constitutional Limits? (Summer Conference, June 13-15)

Sponsored by the University of Colorado's Natural Resources Law Center and the Byron R. White Center for American Constitutional Study.

Conference organizers, faculty and/or moderators included University of Colorado School of Law professors David H. Getches, Lawrence J. MacDonnell, Gene R. Nichol, Jr. and Mark Squillace.

Governmental regulation for environmental protection and other important public purposes can affect the manner in which land and natural resources are developed and used. The U.S. constitution (and most state constitutions) prohibit the government from "taking" property without payment of compensation. Originally intended to apply to situations where the government physically seized private property …

Introduction (Symposium On Municipal Liability), Patricia E. Salkin

Scholarly Works

No abstract provided.

Regional Planning In New York State: A State Rich In National Models, Yet Weak In Overall Statewide Planning Coordination, Patricia E. Salkin

Scholarly Works

No abstract provided.

Who Rules At Home: One Person/One Vote And Local Governments, Richard Briffault

Faculty Scholarship

Twenty-five years ago, in Avery v Midland County, the United States Supreme Court extended the one person/one vote requirement to local governments. Avery and subsequent decisions applying federal constitutional standards to local elections suggested a change in the legal status of local governments and appeared to signal a shift in the balance of federalism. Traditionally, local governments have been conceptualized as instrumentalities of the states. Questions of local government organization and structure were reserved to the plenary discretion of the states with little federal constitutional oversight. In contrast, Avery assumed that local governments are locally representative bodies, not simply …

The Remedial Problems Of Stallone V. United States And Jenkins V. Missouri, Candace Kovacic-Fleischer

Articles in Law Reviews & Other Academic Journals

INTRODUCTION: The remedies section of the Association of American Law Schools decided to hold a panel discussion at its annual meeting in January 1991 on two 1990 Supreme Court cases, Spallone v. United States' and Missouri v. Jenkins, because these cases raise some troubling questions about the implementation of constitutional remedies. Not surprisingly, the State and Local Government Section was also planning a panel discussion about the same cases because they involve federal courts in local governmental decisions. Thus, the two Sections combined their programs into a double, joint session, the proceedings of which are printed here. This article introduces …

Washington Instream Resources Protection: In Transition, Hedia Adelsman

Innovation in Western Water Law and Management (Summer Conference, June 5-7)

45 pages.

Contains references.

Two Sides Of The Same Coin: The Potential Normative Power Of American Cities And Indian Tribes, Kevin J. Worthen

Faculty Scholarship

People do not normally associate cities with Indian reservations. The mental images typically conjured by each term are radically different. Perhaps for that reason, few think of city governments and tribal governments in similar terms.

However, the two forms of government - cities and Indian reservations - have many things in common. Both are excluded from the federal constitutional framework. Both are subject to the plenary power of one of the constitutionally recognized governments - cities to the state government, tribes to the federal government. Both are the most intimate form of government with which most of their residents are …

Home Rule, Majority Rule, And Dillon's Rule, Richard Briffault

Faculty Scholarship

Clayton Gillette's In Partial Praise of Dillon's Rule, or, Can Public Choice Theory Justify Local Government Law? is an ambitious attempt to breathe new life into an old local government law chestnut through the analytical tools of modern political economy. Gillette asserts that because the Rule permits state judges to invalidate local legislation that results from "one-sided lobbying," Dillon's Rule increases the allocational efficiency of local decision making and reduces the deadweight losses attendant on special interest pursuit of rent-seeking ordinances. According to Gillette, Dillon's Rule checks the danger of special interest abuse of local politics by constraining local …