State & Local Government Law
Ending the “Woke” Wars: A Federalism-Based Mechanism for Enforcing Civil-Rights Grant Conditions
Arguing that ambiguous civil-rights spending conditions enable presidents to nationalize harmfully polarizing culture-war fights, this essay urges a fix rooted in pluralism-promoting federalism: Enforce Title VI’s pinpointing provision with greater proportionality and severability. By scaling sanctions to funding, revitalized pinpointing lowers partisan polarization through decentralization while preserving core civil-rights protections.
Immigration Federalism: Rebalancing Immigration Law Through State Power
Until recently, the Supreme Court’s interpretations of immigration laws have been reasonably consistent with the pluralistic approach toward immigration regulation that shaped federal immigration statutes. More recent decisions, however, demonstrate a restrictionist drift in the Court’s approach. Federalism may be only path left for rebalancing immigration law.
Transportation Law's Congestion Problem
Transportation law has a congestion problem—at least for innovative, locally driven projects that aim to reduce driving. The legal battles over congestion pricing in NYC illuminate the limited power of local and regional authorities in our federalist system. This Essay encourages judicial and legislative approaches that facilitate such projects.
A New “Plan for Transformation”: Improving Living Conditions in Chicago’s Public Housing
Public housing suffers from disinvestment, and, today, many residents live in substandard conditions. By combining the literature on public-housing history and tenant-rights law with the lived experiences of public-housing residents, this Essay uses Chicago as a case study to explore litigation and other advocacy strategies for systematically improving public-housing quality.
The Water District and the State
In much of the American West, local special districts with undemocratic governance structures and archaic boundaries dominate water governance. In some places, they are expanding their reach into new policy realms. This Article explains how these governance systems evolved, why they are problematic, and how state governments can respond.
Public Utility’s Potential
State-level public utility commissions regulate our energy systems. But they are often viewed as ill-equipped to address climate change. This Feature counters that conventional wisdom by uncovering a forgotten history of New York’s energy transition, revealing that public utility’s potential to facilitate a clean-energy transition is broader than we imagine.
Suing Cities
Current law makes it easy to sue cities. Too easy. While suing federal and state governments is notoriously difficult, various doctrines open courthouse doors to taxpayers, homeowners, and politically favored groups suing local governments. These doctrines further strengthen powerful actors, weaken cities’ ability to initiate reforms, and undermine local democracy.
The Local Lawmaking Loophole
This Article illustrates how contracts between local governments—interlocal agreements (ILAs)—play a powerful lawmaking function yet lack democratic accountability. It traces the problem to state statutory schemes, where checks designed to promote transparency are ignored by state officials and courts, enabling undemocratic local power by virtue of state silence.
Demoralizing Elite Fraud
The Supreme Court’s effort to avoid interpreting morally weighted terms like “fraud” and “honest services” has led it to make bad and confusing law in wire-fraud cases. These cases, unlike Citizens United and its ilk, are unanimous, joining liberal and conservative Justices, reflecting a shared skepticism about anticorruption law.
Navigating Between “Politics as Usual” and Sacks of Cash
Like other recent corruption reversals, Percoco was less about statutory text than what the Court deems “normal” politics. As prosecutors take the Court’s suggestions of alternative theories and use a statute it has largely ignored, the Court will have to reconcile its fears of partisan targeting and its textualist commitments.
The Stakes of the Supreme Court’s Pro-Corruption Rulings in the Age of Trump: Why the Supreme Court Should Have Taken Judicial Notice of the Post-January 6 Reality in Percoco
In Percoco, the Supreme Court squandered opportunities to contextualize political corruption. This Essay argues that the Supreme Court should have taken judicial notice of the post-January 6 circumstances which surround the decision. This is a perilous time in American democracy for the Justices to make prosecuting corrupt campaign managers arduous.
What Are Federal Corruption Prosecutions for?
This Essay considers the role of prosecutors in the Supreme Court’s decades-long contraction of public corruption law. It examines how federal prosecutors’ reliance on broad theories of liability has paradoxically narrowed federal criminal law’s reach over public corruption, and considers how prosecutors might adjust their approach.
Zoned Out: How Zoning Law Undermines Family Law’s Functional Turn
A fatal conflict in the legal definition of family lurks at the intersection of family law and zoning law. Family law has increasingly embraced “functional families,” those whose bonds can be traced to cohabitation, while zoning law has narrowed to restrict residency to individuals related by blood, marriage, or adoption.
The Dilemma of Localism in an Era of Polarization
Localism discourse has long confronted a fundamental problem: how can we remain committed to decentralized decision-making while checking the excesses of local parochialism? This Essay proposes a new approach in our polarized era, emphasizing the joint role state individual rights and the often-ignored concept of the general welfare might play.
The Reach of Local Power
Recent litigation has challenged local California prosecutors’ power to seek and receive statewide relief for violations occurring outside county lines. This Essay argues against this trend and explains why it is inappropriate to apply the constitutional norms that state-versus-federal conflicts to conflicts between states and municipalities.
Tailoring Regimes for a Designer Drug: Developing Civil Liability for Retailers of Synthetic Marijuana
The spread of synthetic marijuana is a public health crisis. Municipalities struggle with how to regulate drugs that can change as quickly as officials can design enforcement regimes. This Comment proposes leveraging creative administrative design and existing consumer protection torts to stem the tide of synthetic marijuana overdoses.
Local Action, National Impact: Standing Up for Sanctuary Cities
Over the past year, cities have emerged as crucial sites of resistance. Using San Francisco and the sanctuary city litigation more broadly as a case study, this Essay argues that cities can and should take advantage of the Constitution’s federalism protections to resist federal intrusion onto local autonomy.
Surreply: How and Why We Should Become Un-Stuck!
David Schleicher replies to Naomi Schoenbaum, Sheila Foster, Sara Pratt, and Michelle Wilde Anderson’s Responses to his Volume 127 Article, Stuck!:The Law and Economics of Residential Stagnation.
Civil Rights Strategies To Increase Mobility
Sara Pratt contends that established and sustained segregation has impeded mobility. Federal leadership, changes to the Fair Housing Act, different approaches to state and local planning, and ultimately, political will may clear the path for increased mobility across state and regional lines.
Losing the War of Attrition: Mobility, Chronic Decline, and Infrastructure
Michelle Anderson maintains that providing assistance will take more than reducing formal legal barriers to interstate mobility. Meaningful improvements—whether social or geographic—will require a new antipoverty agenda for declining regions, as well as fiscal and environmental responsibility for existing unpaid infrastructure debts.