Two cheers for shifting the presumption of validity: a reply to Professor Hopperton

Article Abstract:

Robert J. Hopperton is correct in his statement that much more analysis of the judicial review standards used in land-use decisions where constitutional rights have not been clearly violated needs to be done, but abandoning the presumption of validity will not make rulings clear and consistent. Hopperton advocates strict scrutiny as a standard of review. This works best with a rights analysis, and it is difficult to see land use as constitutional. Land-use disputes turn on the local government's level of justification, and using a presumption shift works more effectively than strict scrsutiny.

Presumptions (Law), Hopperton, Robert J.

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The presumption of validity in American land-use law: a substitute for analysis, a source of significant confusion

Article Abstract:

Confusion on presumptions of validity has characterized land-use jurisprudence and courts should abandon such presumptions. Some courts have reversed such presumptions and exercised heightened judicial review of land use laws. The US Supreme Court's land use decisions since 1987 are an example of such a heightened standard. Some state courts have given clear land use rulings using heightened judicial review as well. The key players in the real estate industry need such clarity and predictability from the judicial system.

Judicial review of administrative acts

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Majoritarian and counter-majoritarian difficulties: democracy, distrust, and disclosure in American land-use jurisprudence - a response to Professors Mandelker and Tarlock's reply

Article Abstract:

Daniel R. Mandelker and A. Dan Tarlock fail to see that the concern of the earlier article was how to craft limits for judges as they exercise judicial review, especially when such review inevitably leads to subjectivity. How to limit the personal preferences of unelected judges who hold life-long tenure is a counter-majoritarian problem. Insisting that a court disclose the methods and reasons behind its decisions provides some limitation.

Mandelker, Daniel R., Tarlock, A. Dan

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