The Urban Lawyer,
Vol. 29, No. 1, Winter 1997
Publication Date: February 25, 1997
Robert H. Freilich, Editor's Comment: The Use of a Special Master in Complex
Environmental Litigation, 29 Urb. Law. 1 (1997).
The author served as the special master in United States v. Conservation Chemical Co., the
nation's largest Superfund case to date, and now finds it appropriate to write about his
experience, for a number of reasons. First, an interesting array of procedural experiments were
used to reduce the time and expense involved in multiple-party litigation. Second, the interest of
the organized bar in alternative dispute resolution makes this publication of increasing interest,
with great numbers of parties (over 260 were involved in the case) and the ultimate agreed upon
settlement. Third, Congress has continuously looked for ways to amend CERCLA to provide for
a more efficient and expeditious method of resolving complex environmental litigation. Finally,
the U.S. Supreme Court has cast doubt on the ability of Congress to place either mandatory
police power constraints upon the states to enact regulation, or to require states to pay damages
for violation of federal legislation by reason of the limitations placed upon Congress by the
Eleventh Amendment. By reviewing his role in the resolution of this complex environmental
litigation, he hopes to assist readers in determining if a special master would be useful in similar
cases.
Michael K. Whitman, The Ripeness Doctrine in the Land-Use Context: The Municipality's
Ally and the Landowner's Nemesis, 29 Urb. Law. 13 (1997).
This article presents a hypothetical fact scenario representative of those which often give rise to
Fifth Amendment takings claims wrought with ripeness issues. Part II then discusses and
analyzes the current status of the ripeness doctrine, a judicial doctrine that has come to be called
the landowner's nemesis and the municipality's best friend. Part II then traces the doctrine's
evolution in the land-use context, illustrating its development in the Supreme Court, laying out a
series of steps necessary for ripening a claim, and demonstrating why municipalities almost
always employ it as a defense to a taking allegation. Part III concludes by examining the ever
developing futility exception to the ripeness doctrine and the controversial effect that Lucas,
primarily known for its "takings" significance, has had upon it.
Micas, Steven L., The Doctrinal Basis for Absolute and Qualified Public Official Immunities,
29 Urb. Law. 47 (1997).
The goal of this article is to provide a basic introduction to the absolute and qualified immunity
doctrines recognized and applied in federal civil rights litigation. Part I provides a brief historical
overview of the rationale for the absolute and qualified immunity doctrines and summarizes the
analytical model the U.S. Supreme Court embraces for resolving each type of immunity issue.
Part II discusses recent precedent involving the issue of how official immunity claims can be
defeated. Part III outlines recent developments in the use of interlocutory appeals to preserve
official immunities.
H.L. "Mike," McCormick, Excessive Force Claims Under the Fourteenth Amendment, 29
Urb. Law. 69 (1997).
Much confusion and uncertainty exists in federal court treatment of excessive force claims
against law enforcement agencies and personnel. Recent federal court decisions have made
varied attempts to resolve these uncertainties. Excessive force analysis consists of four steps: (1)
initial investigatory stop or arrest; (2) undefined period between arrest and pretrial detention; (3)
undefined period of pretrial detention; and (4) post-conviction incarceration. Questions of the
proper constitutional protection that applies to citizens after arrest and prior to pretrial
detainment are still undecided as are questions concerning when an "arrestee" becomes a "pre-trial detainee." This article outlines recent federal court opinions and attempts to resolve these
questions and illustrate some affirmative approaches.
John Bender, Solid-Gold Photocopies: A Review of Fees for Copies of Public Records
Established Under State Open Records Laws, 29 Urb. Law. 81 (1997).
This article attempts to fill a gap in the literature by providing a national review of a problem that
seems intensely local. Disputes over access to specific records or fees for copies usually attract
only local interest and are resolved under the laws of the particular state. Nevertheless, the
problem appears in virtually all jurisdictions. Based on a review of the statutes of all fifty states
and the District of Columbia, case law, and opinions of state attorney generals, the article
examines various issues relating to the right to receive copies of public records, how fees for
copies are calculated, when fees may be reduced or waived, and other factors that may limit or
enhance the ability of records custodians to charge for access to public information. The review
is limited to the fee provisions of the open records laws. Laws that set specific fees for copies of
specific records and laws other than a state's open records law that limit copy charges are outside
the scope of this study. Most of the cases reviewed for this article were decided after 1966.
Rebecca J. Schwartz, Comment: Public Gated Residential Communities: The Rosemont,
Illinois, Approach and Its Constitutional Implications, 29 Urb. Law. 123 (1997).
This comment examines both Fourth Amendment and due process right to travel issues created
by local gated community ordinances that attempt to increase neighborhood security through the
use of gates, fences, or other physical barriers. Part II examines the Village of Rosemont, Illinois,
ordinance in detail. Part III examines the constitutional implications of the Rosemont ordinance,
including both Fourth Amendment search and seizure issues and the right to travel. Finally, Part
IV provides conclusions and potential policy considerations relating to the Rosemont ordinance.
With Cases, Statutes, and Recent Developments covering:
Environment
Sierra Club v. United States Environmental Protection Agency 1996 WL 657868 (10th Cir.
1996).
Backcountry Against Dumps & Donna Tisdale v. Environmental Protection Agency, 1996 WL
621924 (D.C. Cir 1996).
Government Operations
Bery v. City of New York, 97 F.3d 689 (2d Cir. 1996).
Romer v. Evans, 116 S. Ct. 1620 (1996).
Becker v. Federal Communications Comm'n, 95 F.3d 75 (D.C. Cir. 1996).
Land Use, Planning, and Zoning
City of Edmonds v. Oxford House, Inc., 115 S. Ct. 1776 (1995).
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