Law Commons^™

Conflict Preemption: A Remedy For The Disparate Impact Of Crime-Free Nuisance Ordinances, Meredith Joseph

University of Michigan Journal of Law Reform

Thousands of municipalities across the country have adopted crime-free nuisance ordinances—laws that sanction landlords for their tenants’ behaviors, coercing them to evict tenants for actions as innocuous as calling 9-1-1 in an emergency. These facially neutral ordinances give wide discretion to municipal officials, leading to discriminatory enforcement of evictions. As a result, these ordinances have a devastating impact on victims of domestic violence and are used as a tool to inhibit integration in majority-white municipalities. Many plaintiffs have brought lawsuits alleging violations of the U.S. Constitution and the Fair Housing Act. However, bringing lawsuits under various anti-discrimination protections presents many …

A New Urban Front For Shareholder Primacy, Anne Choike

Michigan Business & Entrepreneurial Law Review

The hundredth anniversary of Dodge v. Ford marks an occasion to reflect upon what, if anything, has changed about shareholder primacy in a century. Seizing this opportunity, in this Article I analyze new local laws and ordinances that promote stakeholder governance and engagement, which seek to protect the interests of non-shareholder constituencies such as workers, the environment, and the communities in which corporations operate, among others. In doing so, I argue that such local laws meaningfully differ from traditional stakeholder protections, most significantly in the way that they weaken managerial accountability to shareholders. The emergence of these city laws challenges …

Dismantling The Master’S House: Toward A Justice-Based Theory Of Community Economic Development, Etienne C. Toussaint

University of Michigan Journal of Law Reform

Since the end of the American Civil War, scholars have debated the efficacy of various models of community economic development, or CED. Historically, this debate has tracked one of two approaches: place-based models of CED, seeking to stimulate community development through market-driven economic growth programs, and people-based models of CED, focused on the removal of structural barriers to social and economic mobility that prevent human flourishing. More recently, scholars and policymakers have turned to a third model from the impact investing community—the social impact bond, or SIB. The SIB model of CED ostensibly finds a middle ground by leveraging funding …

The Municipal Pardon Power, Hayato Watanabe

Michigan Law Review

At the state and federal levels, the pardon power can be used to restore the dignity and legal rights lost by a criminal conviction. Unfortunately, those facing similar consequences from municipal convictions may not have access to a pardon. Although clemency is exceedingly rare at any level of government, municipal defendants face a unique structural problem that deprives them of the possibility of a pardon. Specifically, many cities have simply failed to create a local clemency power. This Note argues that the authority to grant pardons for municipal offenses is part of the toolbox of powers provided to cities through …

Protecting Local Authority In State Constitutions And Challenging Intrastate Preemption, Emily S.P. Baxter

University of Michigan Journal of Law Reform

In recent years, state legislatures have increasingly passed laws that prohibit or preempt local action on a variety of issues, including fracking, LGBTQIA nondiscrimination, and workplace protections, among others. Often, these preemption laws are a direct response to action at the local level. States pass preemption laws either directly before or directly after a locality passes an ordinance on the same subject. Scholars have seen these preemptive moves as the outcome of the urban disadvantage in state and national government due to partisan gerrymandering.

Preemption may be a feature of our governing system, but it has also become a problematic …

States Empowering Plaintiff Cities, Eli Savit

University of Michigan Journal of Law Reform

Across the country, cities are becoming major players in plaintiff’s-side litigation. With increasing frequency, cities, counties, and other municipalities are filing lawsuits to vindicate the public interest. Cities’ aggressive use of lawsuits, however, has been met with some skepticism from both scholars and states. At times, states have taken action—both legislative and via litigation—to preempt city-initiated suits.

This Article contends that states should welcome city-initiated public-interest lawsuits. Such litigation, this Article demonstrates, vindicates the principles of local control that cities exist to facilitate. What is more, a motivated plaintiff city can accomplish public-policy goals that are important not just to …

Beyond Localism: Harnessing State Adaptation Lawmaking To Facilitate Local Climate Resilience, Sarah J. Adams-Schoen

Michigan Journal of Environmental & Administrative Law

Notwithstanding the need for adaptation lawmaking to address a critical gap between climate-change related risks and preparedness in the United States, no coherent body of law exists that is aimed at reducing vulnerability to climate change. As a result of this gap in the law, market failures, and various “super wicked” attributes of hazard mitigation planning, local communities remain unprepared for present and future climate-related risks. Many U.S. communities continue to employ land-use planning and zoning practices that, at best, fail to mitigate these hazards, and, at worst, increase local vulnerability. Even localities that have implemented otherwise robust adaptation plans …

Incubator Cities: Tomorrow's Economy, Yesterday's Start-Ups, Abraham J.B. Cable

Michigan Business & Entrepreneurial Law Review

Venture development funds (“VDFs”) are products of state and local government law that use public funds to invest in local start-ups, in the hope that these companies will then attract venture capital investment. Existing analysis by legal scholars largely assumes that establishing a private venture capital market is essential to encouraging entrepreneurship. This article challenges that assumption. It argues that VDFs and other policies focused on encouraging venture capital are outmoded and inconsistent with the ultimate economic development goals of state and local governments. In many industries, entrepreneurs can now get by with less capital because the cost of developing …

Graffiti Museum: A First Amendment Argument For Protecting Uncommissioned Art On Private Property, Margaret L. Mettler

Michigan Law Review

Graffiti has long been a target of municipal legislation that aims to preserve property values, public safety, and aesthetic integrity in the community. Not only are graffitists at risk of criminal prosecution but property owners are subject to civil and criminal penalties for harboring graffiti on their land. Since the 1990s, most U.S. cities have promulgated graffiti abatement ordinances that require private property owners to remove graffiti from their land, often at their own expense. These ordinances define graffiti broadly to include essentially any surface marking applied without advance authorization from the property owner. Meanwhile, graffiti has risen in prominence …

Environmental Aesthetics And Free Speech: Toward A Consistent Content Neutrality Standard For Outdoor Sign Regulation , Brian J. Connolly

Michigan Journal of Environmental & Administrative Law

First Amendment challenges by billboard companies and other sign owners to local sign regulations have become a frequent occurrence in the past thirty years. The stakes are high for both commercial sign owners and local governments. Sign control has emerged as an important front in the environmental protection movement, as it focuses on the visual or scenic quality of the environment. Courts have begun to recognize and accept local governments’ interest in controlling the proliferation of signage as part of their efforts to improve environmental quality, but courts have applied First Amendment doctrine in an inconsistent manner. The courts’ inconsistent …

Public Use, Public Choice, And The Urban Growth Machine: Competing Political Economies Of Takings Law, Daniel A. Lyons

University of Michigan Journal of Law Reform

The Kelo decision has unleashed a tidal wave of legislative reforms ostensibly seeking to control eminent domain abuse. But as a policy matter, it is impossible to determine what limits should be placed upon local government without understanding how cities grow and develop, and how local governments make decisions to shape the communities over which they preside. This Article examines takings through two very different models of urban political economy: public choice theory and the quasi-Marxist Urban Growth Machine model. These models approach takings from diametrically opposite perspectives, and offer differing perspectives at the margin regarding proper and improper condemnations. …

Scaling "Local": The Implications Of Greenhouse Gas Regulation In San Bernardino County, Hari M. Osofsky

Michigan Journal of International Law

This Essay analyzes local climate regulation in San Bernardino County as a window into the complexities of defining a local scale in an interconnected world. In so doing, it aims to contribute to the Symposium's broader dialogue about "Territory Without Boundaries" and the Panel's more specific discussion of "Urban Territory in a Global World." As a purely territorial matter, U.S. cities and counties differ substantially in their sizes, the quantity and physical characteristics of their land, the size and density of their populations, and the needs of their citizens. Structurally, these localities remain administrative subunits of states, but they also …

The Role Of Local Governments In Great Lakes Environmental Governance: A Canadian Perspective, Marcia Valiante

University of Michigan Journal of Law Reform

Restoration of environmental integrity in the Great Lakes Basin has been only a qualified success after thirty-five years of efforts pursuant to policies developed by federal, state, and provincial governments. Many unresolved problems stem from activities under local government control, yet in the past local governments were excluded from Great Lakes policy-making. By looking at recent changes in the powers, interests, experience, and influence of local governments in Ontario, this Essay concludes that local governments now have the ability to participate meaningfully in Great Lakes policy formation and implementation. To include local governments would improve the chances of successful restoration …

Public Nuisance Claims Against Gun Sellers: New Insights And Challenges, Jean Macchiaroli Eggen, John G. Culhane

University of Michigan Journal of Law Reform

Gun violence continues unabated. Regulation of these deadly instruments is woefully inadequate, and legislatures are compounding the problem by barring or restricting access to the courts for the death and injuries that guns cause. In short, Congress and state legislators have repeatedly acquiesced to the demands of the gun lobby.

During the past several years, cities have struck back by filing public nuisance claims against those gun sellers whose practices pose a risk to the public's health and safety. After a slow start, public nuisance claims have recently gained traction in state appellate courts, which are increasingly coming to realize …

Adverse Possession Of Municipal Land: It's Time To Protect This Valuable Asset, Paula R. Latovick

University of Michigan Journal of Law Reform

The laws of several states regarding adverse possession of municipal land vary widely from providing no protection to granting complete immunity from such loss. Generally, states that permit adverse possession of municipally owned land do so without articulating a rationale for allowing such a loss of a valuable municipal asset. In this Article, Professor Latovick describes why the current state of the law is unsatisfactory. She then considers the public policies raised by the issue of adverse possession of municipal land. Professor Latovick concludes by proposing that states should adopt legislation expressly protecting all municipal land from adverse possession and …

Local Government Anti-Discrimination Laws: Do They Make A Difference?, Chad A. Readler

University of Michigan Journal of Law Reform

During the past decade, local governments have expanded their role protecting individuals from discrimination in private employment. Although federal and state laws already protect individuals from employment discrimination based on race, sex, color, religion, national origin, age, and disability, local anti-discrimination ordinances protect an even wider range of characteristics such as sexual orientation, marital status, military status, and income level. The author details the results of a survey indicating that the agencies and dispute resolution processes mandated by local anti-discrimination ordinances are seldom used to protect this wider range of characteristics He argues that effective, uniform anti-discrimination protection should come …

Telecommunications Act Of 1996: 704 Of The Act And Protections Afforded The Telecommunications Provider In The Facilities Sitting Context, The, Peter M. Degnan, Scott A. Mclaren, Michael T. Tennant

Michigan Telecommunications & Technology Law Review

The Telecommunications Act of 1996, signed into law by President Clinton in February, addresses, among many other important subjects, some of the technical problems that have arisen from the increasing popularity of mobile communications. This article will provide an overview of the Act and will focus specifically on the protections afforded a telecommunications provider in § 704 of the Act.

Why Is This Man A Moderate?, Richard A. Epstein

Michigan Law Review

A Review of William A. Fischel, Regulatory Takings: Law, Economics, and Politics

Meeting The Challenge Of Urban Revitalization, Henry G. Cisneros

University of Michigan Journal of Law Reform

Intensified spatial, racial, and social isolation of the inner-city poor is the single most significant aspect of American urban decline in the latter half of the twentieth century. Successful urban revitalization depends on our willingness to confront it. Failure to deal with it will leave a critical mass of human misery at the cores of our cities, and a self-sustaining chain reaction of poverty that no amount of tax credits, tax incentives, or business investment can ever overcome.

The Clinton administration's urban strategy is founded on an understanding of this reality. Our approach to urban revitalization is, accordingly, twofold: on …

United States Urban Policy: What Is Left? What Is Right?, Jack Sommer

University of Michigan Journal of Law Reform

This Article has three Parts: Part I provides a perspective on what remains of United States urban policy after the Reagan and Bush years. Part II sets forth a critique of the current institutional framework for the construction of national urban policy. Finally, Part III addresses current challenges for American metropolitan areas. In the spirit of Tocqueville, but with two caveats, I urge that greater reliance be placed on actions of private firms and voluntary associations than on federal programs to restore the central cities of many of the nation's metropolitan areas. Government action to protect citizens and to remove …

Revitalizing Our Cities Or Restoring Ties To Them? Redirecting The Debate, Donald A. Hicks

University of Michigan Journal of Law Reform

In this Article, I generally concur that certain legal reforms do hold considerable potential for ameliorating some of the desperate circumstances we find in our cities today. My view is rooted in the recognition that past reforms which dismantled legal barriers to equal opportunity were of monumental significance in broadening social and economic access to our urban arrangements. But it also is rooted in the conviction that a new wave of legal reform might well be required in order to reconsider other past reforms that, however unintentionally, have made many matters worse. Above all, any proposed legal reform should be …

Community Development Banking Strategy For Revitalizing Our Communities, Rochelle E. Lento

University of Michigan Journal of Law Reform

CDCUs and CDLFs may outnumber CDBs, but their scope of lending activity pales in comparison. Despite CDBs' relatively small number, their impact on their respective communities warrants an in-depth discussion of their structures and formulas for success. This Article will provide an overview of the CDBs in the United States. Part I first sets forth the legal structure and purpose of CDBs, and then reviews the history and current status of mature CDBs and emerging CDBs. Part II considers community development credit unions, after which Part III gives community development loan funds similar treatment. Finally, Part IV analyzes the potential …

Redevelopment Redefined: Revitalizing The Central City With Resident Control, Benjamin B. Quinones

University of Michigan Journal of Law Reform

Misguided redevelopment has been both a symptom of, and a means for achieving, inappropriate urban development goals. Requiring resident control will improve the redevelopment process itself, and simultaneously redirect the development goals towards which it channels its energy. One hopes that by shifting control of the redevelopment process, we also would shift the goals that redevelopment would pursue and the development forms it would take. Presumably, this would result in urban development designed to benefit residents of the urban core.

Urban Revitalization And Community Finance: An Introduction, Peter R. Pitegoff

University of Michigan Journal of Law Reform

This Introduction draws from and expands upon the diverse Articles that follow. Part I documents the need for urban revitalization. Part II highlights the current academic and policy debate about the role of government in urban affairs. Part III examines community development finance and targeted pension investment as an affirmative and crucial strategy for strengthening America's cities.

Accelerating Integration : Effective Remedies In Public Housing Discrimination Suits, Adam M. Shayne

University of Michigan Journal of Law Reform

This Note examines the different remedies employed by judges to integrate public housing and recommends a standard approach for courts to employ in the future. Part I describes the status of local and federal public housing policy in the United States. Part II examines litigation aimed at achieving the integration of public housing. This Part details short-term remedies employed by judges in several cities and long-term integration efforts by the courts in two cities: Chicago, Illinois, and Yonkers, New York. The Chicago and Yonkers suits exemplify the major obstacles that plaintiffs and judges face in developing appropriate measures to integrate …

The Lessons Of Miller And Hudnut: On Proposing A Pornography Ordinance That Passes Constitutional Muster, Martin Karo, Marcia Mcbrian

University of Michigan Journal of Law Reform

This Note first reviews the evolution of obscenity law, concentrating on the modern obscenity test formulated in Miller v. California, including its requirement that any obscenity prosecution must be based on a state statute, not merely on the common law. It then examines the elements of the Miller test, arguing that legislatures may determine statewide "community standards" of patently offensive depictions of sexual conduct and discusses the permissibility of legislative expansion of pornography regulation beyond the present boundaries. Part II examines the federal courts' analysis of the civil rights-based antipornography ordinance passed in Indianapolis. Part III suggests standards for …

Plebiscites, Participation, And Collective Action In Local Government Law, Clayton P. Gillette

Michigan Law Review

Participation is again in the air. Apparently fueled by current debates concerning decentralized power and republican versus pluralist traditions in our political and legal theory, those concerned with political decisionmaking have turned their attention to calls for increased public involvement in the process. As has been true in the past, the objectives of those who advocate increased participation are by no means uniform. Some stress the positive effects that broad participation would have on individual participants. The primary function of participation in these accounts lies in its educative value, its capacity to produce a more informed, hence more self-sufficient, citizenry. …

Reflections On Stare Decisis In Michigan: The Rise And Fall Of The "Rezoning As Administrative Act" Doctrine, Roger A. Cunningham

Michigan Law Review

In an earlier article in this law review, I discussed the new doctrine that in certain municipalities a decision by the local governing body to rezone or not to rezone land should be deemed an "administrative" or "quasi-judicial," rather than a "legislative," act. This doctrine was introduced into Michigan law several years ago in a series of opinions signed by only three justices of the Michigan Supreme Court. The earlier article dealt principally with the merits of the new "rezoning as administrative act" doctrine. The present article discusses troublesome aspects of the Michigan Supreme Court's attitude toward the principle of …

The Inadequacy Of Judicial Remedies In Cases Of Exclusionary Zoning, Michigan Law Review

Michigan Law Review

This Note presents and evaluates the possible judicial responses to cases, like Mount Laurel, that involve challenges to entire zoning ordinances on exclusionary grounds. It argues that pragmatic and legal difficulties militate against any judicial imposition of affirmative relief not tailored to specific tracts of land and suggests that the most effective resolution of the problems confronted by low-income housing advocates lies in comprehensive legislative programs.

Small Claims Courts: An Overview And Recommendation, Alexander Domanskis

University of Michigan Journal of Law Reform

Small claims courts have been in operation in the United States for over sixty years. They were established to function as inexpensive, efficient, and convenient forums for resolving claims which could not be brought economically in ordinary civil courts because of the costs and delays accompanying ordinary civil court proceedings. Small claims courts also reduce administrative delays by resolving a large volume of claims. For example, the District of Columbia small claims court processed 30,000 claims in 1973. Despite the amount of litigation handled by small claims courts, commentators have expressed much dissatisfaction with their operation and practice. Some commentators …