West-Thomson Reuters has just published the 2012 edition of Federal Land Use Law & Litigation, a one-volume treatise co-authored by C|M|LAW Professor Alan Weinstein and Mr. Brian Blaesser, an attorney in the Boston office of Robinson & Cole.
The 2012 edition of the treatise highlights the following important developments in the substantive areas of federal land use law and litigation: the Supreme Court’s continuing struggles with establishment clause jurisprudence in the context of religious displays on public property and the growing split among the Circuits –– which now includes the Second, Third, Fifth, Seventh and Eleventh –– as to the proper test to use in evaluating an equal terms challenge under RLUIPA; Sackett v. E.P.A. 132 S.Ct. 1367 (2012), the most recent Supreme Court environmental law decision involving the question of whether a party may bring a civil action in a federal court under the Administrative Procedure Act (APA) to challenge the issuance of an administrative compliance consent order issued by the EPA for an alleged violation of the Clean Water Act (CWA); recent changes to regulation of wireless telecommunications, examining the 2012 amendment to the Federal Telecommunications Act which requires that local governments approve the modification of an existing wireless tower or base station that does not substantially change the physical dimensions of the tower or base station and the FCC’s 2009 “shot-clock” rule; and the lower federal courts consideration of whether the Supreme Court’s statement regarding the Williamson County state compensation requirement of the finality requirement of the ripeness doctrine in Stop the Beach Renourishment, Inc. v. Florida Dept. of Environmental Protection, 130 S.Ct. 2592, 2610 (2010) means that this requirement is now prudential, not jurisdictional.
Information about the Treatise can be found at: http://store.westlaw.com/federal-land-use-law-litigation-2012/180157/13513986/productdetail
This week the Sixth Circuit decided US v. Amawi, affirming the convictions and sentences in the “terrorism” case C|M|LAW Professor Jonathan Witmer-Rich defended at trial. The government had cross-appealed the sentences, arguing that the 20-year sentence imposed by Judge Carr on Witmer-Rich’s client, Amawi, for conspiracy, was too low (substantively unreasonable). Recently a number of circuit courts have been reversing similar sentences in terrorism cases because they are too low. The Sixth Circuit affirmed the sentences. The court affirmed the sentences, although Judge Moore, concurring, thought the trial court erred in excluding some expert witnesses Witmer-Rich had presented, though ultimately concluded the error was harmless.
The decision was highlighted on the Lawfare blog, which then posted some commentary by Professor Witmer-Rich:
C|M|LAW Professor Alan C. Weinstein recently published: “The Effect of RLUIPA’s Land Use Provisions on Local Governments,”in the Fordham Urban Law Journal. , vol. 39, no. 4 (May 2012): 1221-1248. In the absence of perfect information about how RLUIPA has affected local governments, this article argues that the courts have adopted a pragmatic approach to maneuvering in the difficult terrain that RLUIPA occupies: combining appropriate judicial deference to a legislature that enacts a neutral law of general applicability with the heightened judicial scrutiny that becomes appropriate when that same law is applied to a specific zoning approval, a circumstance that frequently allows for subjectivity, and thus the potential for discrimination or arbitrariness against religious uses, in the approval process. I conclude that: (1) until proven otherwise, the costs RLUIPA undoubtedly imposes on local governments is the price to be paid for insuring against the discriminatory or arbitrary application of land use regulations and (2) RLUIPA does not seek to establish an unconstitutional preference for religious uses, but rather a proper accommodation of religious exercise in the land use context.
In addition, Professor Weinstein recently co-authored an article with Professor Richard McCleary, School of Social Ecology, University of California-Irvine entitled “The Association of Adult Businesses with Secondary Effects: Legal Doctrine, Social Theory, and Empirical Evidence,” in the Cardozo Arts and Entertainment Law Journal, vol. 29, no. 3 (2011): 565-96. In the decade since the U.S. Supreme Court’s decision in Alameda Books v. City of Los Angeles, 535 U.S. 425 (2002), the adult entertainment industry has attacked the legal rationale local governments rely upon as the justification for their regulation of adult businesses: that such businesses are associated with so-called negative secondary effects. These attacks have taken a variety of forms, including: trying to subject the studies of secondary effects relied upon by local governments to the Daubert standard for admission of scientific evidence in federal litigation; producing studies that purport to show no association between adult businesses and negative secondary effects in a given jurisdiction; and claims that distinct business models and/or specific local conditions are not associated with the secondary effects demonstrated in the studies relied on by many local governments. In this Article, Weinstein and McCleary demonstrate that, contrary to the industry’s claims, methodologically appropriate studies confirm criminological theory’s prediction that adult businesses are associated with heightened incidences of crime regardless of jurisdiction, business model or location and thus, such studies should have legal and policy effects supporting regulation of adult businesses.
The Cardozo A&E L. Rev. Article is available at http://www.cardozoaelj.com/wp-content/uploads/Journal%20Issues/Volume%2029/Issue%203/Weinstein%20McCleary%20Final.pdf
Legal Writing Professor Karin Mika presented Sight and Sound in the Legal Writing Classroom at the Western Regional Legal Writing Conference held at the University of Oregon (Eugene) on August 9 and 10th. The presentation focused on the current generation, which is primarily entertained by videos and music, and how connecting with the students in the classroom can be enhanced by including videos and music in substantive material. Mika explained how music videos can be used as substantive material in examining the Fair Use statute for purposes of a research and writing assignment.
In a Letter to the Editor in today’s Wall Street Journal, C|M|LAW Professor Deborah Geier commented on “The Weekend Interview with Dave Camp: Is Tax Reform Politically Possible?,” by Stephen Moore, August 11, 2012. In her letter, she states that “Rep. David Camp engages in selective memory when he implies that both the Tax Reform Act of 1986 and Steve Forbes’s flat tax are similar.” She clarifies that the Tax Reform Act”increased the capital gains tax rate from 20% to 28%, treating all income the same at the individual level, which ensured that the distribution of the tax burden was not made radically more regressive. The flat tax, in contrast, applies a 0% tax rate to capital income (whether dividends, capital gain, interest, etc.) at the individual level where it is a tax on labor income only.” Specifically, “[t]he TRA ’86 retained “income” as the tax base, while the Forbes flat tax would have shifted to a form of consumption taxation. To illustrate this distinction, she notes that under the Forbes flat tax, Mitt Romney’s tax rate would have been 0% (as opposed to 13.9%) in 2010.
To read Professor Geier’s Letter to the Editor, click here: http://online.wsj.com/article/SB10000872396390443324404577591042394246160.html
C|M|LAW Professor Candice Hoke appeared this morning on WCPN’s Sound of Ideas radio show. The show focused on a proposal by the non-profit group Voters’ First to change the system by which Ohio allocates its state legislative and U.S. House districts. Currently, whichever party is in power is able to exert influence over the process and draw boundary lines to its own benefit. Voters’ First hopes to alter the system to remove much of the politics, but critics argue that the proposal lacks a mechanism for accountability and asks judges to play an improper role. The proposal would ask judges to select and vet redistricting-commission members. The Ohio State Bar Association has expressed deep concerns,” that the setup would be a conflict of interest and undermine the Constitutional doctrine of the separation of powers.”
The proposal would create an independent citizens commission that would always meet in public sessions to discuss redistricting. The commission would include equal numbers of Republicans, Democrats, and independents, who would serve for 10-year terms. They would be charged to create districts that are compact and which minimize division of counties, towns, and and municipalities.
Ohio Republican lawmakers redrew the state’s Congressional boundaries last year. As a result, many districts now appear to favor Republicans at the ballot box. The Voters First proposal will be on the ballot in November. This radio show addressed whether the proposed system would be an improvement over the current one. Other guests included: Professor Dan Tokaji, Ohio State University Law School, Chris Redfern, Chairman of the Ohio Democratic Party, and Rob Frost, Chair of the Cuyahoga County Republican Party.
To listen or watch, click here: http://www.ideastream.org/soi/entry/48410
C|M|LAW Professor and Law Library Director Kristina Niedringhaus was recently elected Vice-Chair/Chair-Elect of the Society of Academic Law Library Directors. The purpose of this organization is to promote academic law librarianship and to represent the interests of academic law libraries.