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Showing papers in "Columbia Law Review in 1988"









Journal ArticleDOI
TL;DR: In this paper, the authors argue that even a very imperfect, but clearly articulated, formal takings doctrine is likely to be superior to open-ended balancing in other areas of law, because of the important role of investment-backed expectations.
Abstract: Frank Michelman believes that the Supreme Court is "moving noticeably towards a reformalization of regulatory-takings doctrine."' He criticizes this development, believing that the Court should instead engage in balancing. To him "balancing-or, better, the judicial practice of situated judgment or practical reason-is not law's antithesis but a part of law's essence."2 I argue in this Article that Michelman is wrong on both counts. Part I demonstrates that the Court does not appear to be articulating consistent formal principles in the takings area. Part II argues that it should try to do just that. Whatever the merits of ad hoc balancing in other areas of law, it has special difficulties in the takings area because of the important role of investment-backed expectations. Nonetheless, Michelman is correct in saying that the formal pattern he discerns is an undesirable one.3 Thus, Part III suggests a way to think about the takings question that unifies physical and regulatory takings and provides a way to distinguish between government actions that require compensation and those that do not. Nevertheless, even a very imperfect, but clearly articulated, formal takings doctrine is likely to be superior to open-ended balancing.

31 citations


Journal ArticleDOI
TL;DR: In the past decade, the average failure rate for banks was a modest.07%, but from 1984 to 1987 this rate increased fivefold to.37% as discussed by the authors, which is the highest failure rate since the Great Depression.
Abstract: Not since the Great Depression has there been such concern in the popular press about the fundamental stability of the banking industry. This apparent decline in public confidence stems from the unprecedented increase in the incidence of bank failures during the past decade. From 1946 to 1984 the average failure rate for banks was a modest .07%, but from 1984 to 1987 this rate increased five-fold to .37%.1 Although this failure rate is still quite small compared with the failure rate for firms throughout the rest of the economy,2 the large stake that the federal government has in the financial stability of banks, and the widespread perception that healthy banks are especially important to the economy, suggest that concern about the increasing incidence of bank failures is warranted. 3 The absolute number of bank failures is not particularly large. One hundred twenty banks failed in 1985,4 145 failed in 1986,5 and 184

30 citations


Journal ArticleDOI
TL;DR: Jaffe and Tushnet as discussed by the authors argued that the APA's injury-in-fact requirement should be replaced with a standing requirement for institutional litigants not having an injury in fact.
Abstract: ion of the dispute. For example, the dispute in Sierra Club v. Morton 70-the principal modem example of a case denying standing on injury-in-fact grounds-was hardly hypothetical or remote.7 1 Standing limitations are also said to be a way of ensuring sincere or effective advocacy.72 But institutional litigants not having injury in fact are particularly likely to be strong advocates. 7\" It is expensive to initiate a lawsuit, and those who do so without meeting the standing requirements are especially committed. 74 67. See L. Tribe, supra note 15, at 1571; Tushnet, The Sociology of Article III: A Response to Professor Brilmayer, 93 Harv. L. Rev. 1698 (1980). On the ahistorical character of the injury-in-fact test, see Berger, supra note 8, at 827; see also Jaffe, supra note 8, at 1035-37, 1047 (Anglo-American courts not restricted by requirement of Hohfeldian plaintiff, and courts should explicitly recognize this and the importance of individual conscience). 68. See infra notes 156-57, 176-81 and accompanying text (defending injury-infact limitation of APA); infra notes 205-32 and accompanying text (discussing possible article III limitations). 69. See, e.g., Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 471-76 (1982). 70. 405 U.S. 727 (1972). 71. See id. at 734 (alleged injury was adverse effect on national park of recreational development that would \"impair the enjoyment of the park for future generations\"). 72. See, e.g., Valley Forge, 454 U.S. at 472-73. 73. See Jaffe, supra note 8, at 1044; Meltzer, supra note 4, at 295-313. 74. The injury-in-fact requirement, however, might be justified as an interpretation of the APA that promotes autonomy and self-determination on the part of those directly affected. See infra note 157 and accompanying text. An additional justification for standing limitations is that they are an effective means of limiting the federal caseload. But unless there is an independent reason for the limitation in question, it is an entirely arbitrary way of accomplishing that goal; and in any case, there is little evidence that the elimination of standing requirements would materially affect the number of suits brought in federal court. Indeed, the available evidence suggests that broadened standing has produced very little in the way of increased lawsuits-perhaps an unsurprising result in light of the numerous costs, monetary and nonmonetary, of initiating litigation. See K. Davis, Administrative Law Treatise 222-27, 338 (1983); Fadil, Citizen Suits Against Polluters: Picking Up the Pace, 9 Harv. Envtl. L. Rev. 23, 29, 39 (1985); Meltzer, supra note 4, at 308-09. Standing limitations are also said to be a component of judicial restraint, or to serve the system of separation of powers. This claim raises more complex issues and is discussed infra notes 182-204 and accompanying text. 1448 [Vol. 88:1432 HeinOnline -88 Colum. L. Rev. 1448 1988 Notwithstanding these problems, the Data Processing approach appeared for a long time to generate a body of standing doctrine that had a large measure of coherence, at least under the APA.7 5 As the law developed, courts did not sharply distinguish between statutory beneficiaries and regulated class members, thus largely eliminating the asymmetry built into previous law.7 6 This development served to remove a skewed set of incentives for administrators who, under the previous regime, could be subject to a lawsuit in the event of overzealous enforcement action, but would be immunized from legal controls if they furnished insufficient protection. 77 There is powerful evidence that the recognition of standing for regulatory beneficiaries has been important in bringing about agency compliance with law. 78 At the same time, the doctrine has excluded merely ideological interests and the interest in law enforcement for its own sake. 79 A principal goal of the Data Processing approach was to achieve a large degree of clarity and predictability. And for a period, the injuryin-fact requirement seemed to operate in a reasonably straightforward fashion. It should be clear, however, that an assessment of whether the plaintiff has suffered injury in fact could not be the only question for purposes of standing. In an integrated economy, an enormously wide variety of people are affected by an agency's decision to act or not to 75. SeeJ. Vining, supra note 1, at 39-42. 76. Some asymmetry remains, however, since scarce prosecutorial resources provide a legitimate reason for agency inaction. The fact that agencies must allocate their limited resources to those problems that seem most pressing, however, has implications for reviewability rather than for standing. See Heckler v. Chaney, 470 U.S. 821, 831 (1985); Sunstein, Reviewing Agency Inaction After Heckler. v. Chaney, 52 U. Chi. L. Rev. 653, 683 (1985). 77. Congress has recognized this risk and expressly granted rights to beneficiaries in many statutes. See, e.g., Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. § 1270 (1982); Energy Policy and Conservation Act, 42 U.S.C.A. § 6305 (West 1983 & Supp. 1988); Clean Air Act, 42 U.S.C. § 7604 (1982). 78. See, e.g., Exec. Office of the President, Office of Management and Budget, Regulatory Program of the U.S. Gov't 213-14, 432-34, 469 & 492 (Apr. 1, 1986-Mar. 31, 1987) (reflecting agency initiatives, resulting from judicially imposed deadlines in such areas as environmental and labor law); see also United Steelworkers of Am. v. Pendergrass, 819 F.2d 1263 (2d Cir. 1987) (requiring Secretary of Labor to publish standards for providing employees with information about hazardous chemicals, resulting in 29 C.F.R. §§ 1915.99, 1917.28, 1918.90 (1988)); Public Citizen Health Research Group v. Tyson, 796 F.2d 1479 (D.C. Cir. 1986) (finding that OSHA failed to set proper exposure limits for ethylene oxide, resulting in 29 C.F.R. § 1910.1047 (1987)); International Union, United Auto., Aerospace, & Agric. Implement Workers of Am. v. Donovan, 590 F. Supp. 747 (D.D.C. 1984) (requiring OSHA to reconsider decision not to issue temporary standards regarding workplace exposure to formaldehyde, resulting in 29 C.F.R. § 1910.47 (1987)). 79. The characterization of an interest as \"merely ideological\" or involving \"law enforcement for its own sake,\" must, however, be based on the relevant statutes; the characterization cannot be made in the abstract. By conferring a legal right, a statute might convert an ideological interest into a legal one. See infra notes 205-32 and accompanying text. 1988] STANDING 1449 HeinOnline -88 Colum. L. Rev. 1449 1988

27 citations







Journal ArticleDOI
TL;DR: The regulatory takings problem as discussed by the authors is a story about a perceived imbalance of power between the two groups of actors involved in the process of public land-use regulation-private landowners and government regulators.
Abstract: "The Regulatory Takings Problem" is the title given to a story, or narrative, that has become prominent in the literature on just compensation issues.' The story is one of power and fear. It is about a perceived imbalance of power between the two groups of actors involved in the process of public land-use regulation-private landowners and government regulators. It depicts scenarios of past or threatened abuse of power by local land-use regulators, and it looks to the takings clause generally and regulatory takings doctrine specifically as crucial corrective devices, essential to set the power imbalance aright. The dominant narrative describes local regulators as empowered, possessing enormous leverage over private landowners, who are depicted as unempowered. The authority to regulate land use in a wide variety of ways places local regulators in a position of potentially enjoying virtual monopoly power over land-use entitlements2 unless such power is checked by constitutional strictures. Furthermore, this narrative sees these local agencies as motivated to behave opportunistically, abusing their discretion by strategically manipulating the situation of the vulnerable landowners. Thus, chroniclers of this narrative argue, courts must develop constitutional norms aimed at controlling the behavior of government land-use regulators because only regulators, not landowners, are empowered. There are narratives of power embedded in several opinions from the Supreme Court's 1987 quartet of takings cases.3 These narratives, stories about the power relationships between the parties involved in the cases, constitute a second level of the opinions, operating just below the abstract, impersonal doctrinal analysis. It is at this second







Journal ArticleDOI
TL;DR: A substantial amount of the conflict in Congress, as well as within and between states, is over who reaps the gains and who bears the costs of takeovers, whatever their net social impact as mentioned in this paper.
Abstract: Hostile tender offers have become a recurrent political issue. In recent years Congress has held seemingly endless hearings on the subject, and by now the testimony has settled into a familiar dialogue. Potential acquirers cast themselves as the embodiment of Adam Smith's invisible hand-their activities energize the market for corporate control with the desirable result of improving the efficiency of corporate management. Management of potential targets, in turn, claim the role of Albert Chandler's visible hand-efficient managers who internalize a function previously carried out by an inefficient market.' Their argument is that because the market for corporate control systematically understates companies' intrinsic values, managers must displace the market to prevent underpriced acquisitions. Although the terms of the debate are cast in the language of efficiency, as with most serious political issues, much of the real substance is distributional. Even those who genuinely believe that hostile takeovers improve allocative efficiency will concede that some groups still suffer in the process. Their point goes no further than the claim that, after netting out the gains (to, for example, target shareholders) and the losses (to, for example, laid-off middle management and local communities), hostile takeovers still yield a positive result. A substantial amount of the conflict in Congress, as well as within and between states, is over who reaps the gains and who bears the costs of takeovers, whatever their net social impact.2 Out of this political maelstrom, one element of virtual consensus has emerged: greenmail-target management paying a potential ac-