Taking sides: the burden of proof switch
Article Abstract:
The US Supreme Court's understated burden of proof shift in Dolan v. City of Tigard may be justified to the extent that the burden of production falls on the party with access to information but is inappropriate to the extent that it alters the burden of persuasion. The Court found that the government has the burden of proof in establishing a rough proportionality between its regulatory action and potential harm. This shift in the burden will limit the ability of governments to implement controls on land use, but doing so would appear to be consistent with the Court's support of private property rights.
Publication Name: New York University Law Review
Subject: Law
ISSN: 0028-7881
Year: 1996
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Limiting the use of heightened scrutiny to land-use exactions
Article Abstract:
The New York Court of Appeals failed to properly interpret US Supreme Court regulatory taking case law in ruling in Manocherian v. Lenox Hill Hospital that a state law exempting non-profit hospitals from certain rental laws was unconstitutional. The NY Court applied a heightened scrutiny standard to assess whether the law is linked to a significant government interest, but the US Supreme Court has only used heightened scrutiny in cases involving adjudicated land-use exactions. Extending the standard to all regulatory takings would encroach on the authority of legislative bodies.
Publication Name: New York University Law Review
Subject: Law
ISSN: 0028-7881
Year: 1996
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A poor relation? Regulatory takings
Article Abstract:
The US Supreme Court's decision in Dolan v. City of Tigard did introduce the rough proportionality test for exactions into regulatory takings jurisprudence, but the decision did not carry out the will to elevate property rights suggested in the majority's dictum. Regulatory takings have been receiving more Supreme Court attention, and the Court has characterized property rights as "poor relations" to other fundamental rights. The Dolan opinion, however, applies a standard to land-use takings that could not be characterized as a significant departure from existing law.
Publication Name: University of Chicago Law Review
Subject: Law
ISSN: 0041-9494
Year: 1996
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