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 …

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 …

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 …

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. …

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 …

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 …

Reforming The Laws And Practice Of Diplomatic Immunity, Paul F. Roye

University of Michigan Journal of Law Reform

As a result of public criticism and increasingly strained relations between diplomatic communities and local communities, Congress recently enacted legislation that dramatically changes United States diplomatic immunity law. This legislation eliminates the complete immunity from criminal and civil law proceedings that was afforded most foreign diplomats and their staffs, and establishes the rules of the Vienna Convention on Diplomatic Relations as the measure of diplomatic immunity in the United States. This article will examine the theoretical justification for diplomatic immunity and its application in the United States. The manner in which the recently enacted legislation alters United States diplomatic immunity …

Municipal Bankruptcy: The Need For An Expanded Chapter Ix, Daniel J. Goldberg

University of Michigan Journal of Law Reform

New York City's default crisis in 1975 presented to Congress and the nation the possibility of a major municipality's entering the federal bankruptcy court. Chapter IX of the Bankruptcy Act, as recently amended by Congress, provides the exclusive remedy by which local governmental units may obtain relief from burdensome indebtedness. Unlike certain other chapters of the Bankruptcy Act, Chapter IX is limited to a voluntary composition or extension of indebtedness. In recent years municipalities have developed complex systems of financing, while experiencing unprecedented expansion in the services which they must provide. Accordingly, a mere composition of municipal indebtedness is no …

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 …

Conversion Of Apartments To Condominiums And Cooperatives: Protecting Tenants In New York, Charles M. Cobbe

University of Michigan Journal of Law Reform

In recent years, the number of conversions of rental apartments to cooperative and condominium ownership has increased dramatically. Such conversions often result in extreme hardships for tenants in the buildings affected. Those who are unable or unwilling to pay the purchase price of an apartment are generally forced to seek other rental accommodations at a time when these are increasingly difficult to find -a problem which becomes especially severe for elderly tenants and those with low incomes. In addition, tenants who purchase apartments may suffer the abuses which often accompany sales of condominium and cooperative units. A further problem in …

State Management Of The Environment Part Two: A Continuing Evaluation Of The Michigan Experience, Geoffrey J. Lanning

University of Michigan Journal of Law Reform

In Part One of this article, the author outlined the scope and character of Michigan's environmental problems and suggested some of the factors underlying the state's weak and bureaucratic decisionmaking process. Part Two concludes the author's analysis of the fundamental obstacles to effective environmental decisionmaking in Michigan, and Part Three will contain recommendations for reform.

Guidelines For Alleviating Local-Emergency Work Disruptions, Joshua Greene

University of Michigan Journal of Law Reform

The first section of this article summarizes the vast differences between the rights of public and private employees to strike. The second section focuses on likely obstacles to a governmental suit to enjoin shutdowns in the broadest segment of American private industry-the segment in which labor relations are governed by the National Labor Relations Act (NLRA). The final section of the article suggests a legislative solution to the problem, fashioned after existing statutory remedies for limiting certain strikes by public employees.

Review, David L. Callies

University of Michigan Journal of Law Reform

Review of Public Planning and Control of Urban and Land Development, Cases and Materials by Donald G. Hagman

Exclusionary Zoning: A Wrong In Search Of A Remedy, Leonard S. Rubinowitz

University of Michigan Journal of Law Reform

This article discusses affirmative approaches to providing effective relief in two types of exclusionary zoning cases: (1) remedies specific to a particular proposed development or a given site and (2) regional remedies, which provide a generalized framework for meeting what courts are increasingly identifying as a regional problem: the need for decent housing for all families. In the first instance (the "single-site" case) a court would remove obstacles in order to facilitate development of low- and moderate- income housing on a particular suburban site. In the second case (the regional approach) a court would specify the obligation of the municipalities …

Determining Permissible Municipal Expenditures: The Public Purpose Doctrine Revived, Richard A. Van Wert

University of Michigan Journal of Law Reform

This article surveys the criteria presently used by courts, commentators, and city officials in determining whether an expenditure of public funds is legally permissible. Each factor is then reevaluated to ascertain its place in a new attempt to determine more consistently the nature of proposed expenditures.

The Interrelationship Between Exclusionary Zoning And Exclusionary Subdivision Control, Robert E. Hirshon

University of Michigan Journal of Law Reform

This article will examine both exclusionary zoning and subdivision control with a view toward analyzing the assumptions common to both types of laws. The operative differences between exclusionary zoning and subdivision control may be non-existent. If this is truly the case, the judicial response to each practice should be the same.

Voter Registration Lists: Do They Yield A Jury Representative Of The Community, Fred A. Summer

University of Michigan Journal of Law Reform

The passage of the Federal Act was primarily a response to the inability of the prevailing jury selection process to achieve the goal of a representative jury. The Act requires that voter registration lists be used as the primary source of names for jury selection in federal courts. A similar provision applicable to state courts is included in the Uniform Jury Selection and Service Act, adopted by the Conference of Commissioners on Uniform State Laws in 1970.6 This article will examine the rationale and effectiveness of the use of voter registration lists as a means of achieving the goal of …

County Home Rule: An Approach To Metropolitan Problems In Michigan, Stephen M. Silverman

University of Michigan Journal of Law Reform

This note examines what seems to be the most viable solution for metropolitan problems in Michigan: county home rule, as authorized by the 1963 state constitution. Since the primary obstacle to the use of county- home rule as a vehicle for metropolitan reform appears to lie in the present statutory authority, the Michigan County Home Rule Act of 1966 (Act), considerable attention is given to the Act and to recent legislation proposed to amend the Act, Michigan House Bill 5464, introduced into the Michigan Legislature on June 21, 1971, and currently pending before the Michigan House Committee on Towns and …

Commonwealth Of Puerto Rico V. Rosso: Land Banking And The Expanded Concept Of Public Use, David L. Callies

University of Michigan Journal of Law Reform

As the supply of vacant land on which to expand dwindles, the economic, social and cultural blight attendant upon the rapid but relatively unplanned growth of metropolitan areas increasingly becomes a subject of grave concern throughout the world. The two most common traditional approaches to land use problems are now proving inadequate, given the nature of urban sprawl. The first is zoning, basically an exercise of the police power whereby a governmental body restricts the use of land by appropriate regulation without compensating the owner. The restriction must be for the purpose of promoting the health, morals, safety or welfare …