Weinstein Publishes Two Land Use Articles

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

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