State & Local Government Law
Toward an Efficient Licensing and Rate-Setting Regime: Reconstructing § 114(i) of the Copyright Act
The Sum of All Delegated Power: A Response to Richard Primus, The Limits of Enumeration
"We Don't Follow, We Lead": How New York City Will Save Mortgage Loans by Condemning Them
Why Firearm Federalism Beats Firearm Localism
Americans are increasingly polarized on gun rights and gun policy, leading some scholars to ask whether the Second Amendment provides a tool to manage disagreement and promote decentralization. Joseph Blocher’s Firearm Localism takes up this perspective and makes a case for deference to local and municipal gun control laws, including the revision or repeal of statewide firearms preemption statutes. In this Essay, Professor O’Shea argues that neither judicial tradition nor the priorities of contemporary urban gun owners support such deference. Moreover, unlike traditional federalism, Blocher’s localism would undermine the compromise value that was supposed to be decentralization’s strength: the prospect of piecemeal local regulation could threaten the practical exercise of gun rights even in generally pro-gun areas. In short, if one adopts a decentralizing approach to the Second Amendment, then its proper form is a conventional, state-based federalism backed by preemption.
City Unplanning
122 Yale L.J. 1670 (2013). Generations of scholarship on the political economy of land use have tried to explain a world in which tony suburbs use zoning to keep out development but big cities allow untrammeled growth because of the political influence of developers. But as demand to live in them has increased, many of the nation’s biggest cities have substantially limited development. Although developers remain important players in city politics, we have not seen enough growth in the housing supply in many cities to keep prices from skyrocketing. This Article seeks to explain this change with a story about big-city land use that places the legal regime governing land-use decisions at its center. In the absence of strong local political parties, land-use laws that set the voting procedure in local legislatures determine policy results between cycling preferences. Specifically, the Standard Zoning Enabling Act (SZEA) creates a peculiar procedure that privileges the intense preferences of local residents opposed to new building. Amendments to zoning maps are considered one-by-one, making deals across projects and neighborhoods difficult. Legislators may prefer to allow some building rather to stopping it everywhere, but are most concerned that their districts not bear the brunt of the negative externalities associated with new development. Absent deals that link zoning changes in different neighborhoods, all legislators will work to stop the zoning amendments that effect their districts. Without a strong party leadership to whip votes into line, the preferences of legislators about projects in their districts dominate and building is restricted everywhere. Further, the seriatim nature of local land-use procedure results in frequent downzonings, as big developers do not have an incentive to fight reductions in the ability of landowners to build incremental additions to the housing stock as of right. The cost of moving amendments through the land-use process means that small developers cannot overcome the burdens imposed by downzonings. The Article concludes by considering several forms of legislative process reform that mimic procedural changes Congress adopted in order to pass international trade treaties.
Dissolving Cities
121 Yale L.J. 1364. During the twentieth century, thousands of new cities took shape across America. Stucco subdivisions sprawled and law followed, enabling suburbs to adopt independent governments. That story is familiar. But meanwhile, something else was also happening. A smaller but sizable number of cities were dying, closing down their municipal governments and returning to dependence on counties. Some were ghost towns, emptied of population. In those places, jobs were lost and families struggled; crops died off and industries moved on. Other dead cities were humming with civic life: places with people but no longer with separate governments. In these cities, citizens from the political left and right, often in coalition, rose up to eliminate their local governments. As an end in itself, understanding these changes would be worthwhile. But this past has not passed. Unprecedented numbers of cities and citizens are currently considering disincorporation in response to economic crisis and population loss. The dissolution law to which they are turning, as it is written in state codes and as it is understood in theory, is immature and thin. Cities’ experiences with dissolution are unknown, constraining our ability to judge the values it serves or undermines. If dissolution is to grow in importance as part of the legal machinery of urban decline, we must understand what it meant in the decades that came before. Dissolving Cities tells the story of municipal dissolution. It is an article of law, theory, and urban history—a reminder that urban growth and local government fragmentation, which have long dominated academic discourse on cities, may not be the upward ratchet we have assumed them to be. Cities can die, and when they do, they raise critical questions about decline, governance, taxes, race, and community.
Democracy and Debt
121 Yale L.J. 860 (2012). Recent state and municipal budget crises have generated a great deal of consternation among market participants and policymakers; they have also led scholars to debate the merits of bailouts or other forms of debt relief. This Essay considers why the mechanisms that were supposed to control state and local fiscal behavior ex ante have not worked. In the aftermath of the state and municipal debt crises of the nineteenth century, states adopted a series of constitutional reforms intended to constrain state and local fiscal behavior. In addition, the debt markets and the Tieboutian market in jurisdictions should theoretically prevent states and municipalities from overspending. Neither the fiscal constitution in the states nor the markets have prevented state and local fiscal difficulties, however; indeed, they have arguably contributed to those difficulties. Nevertheless, much of the current debate over bailouts and state bankruptcy reprises the longstanding skepticism of ordinary state and local political processes. This Essay argues that this distrust of local democratic decisionmaking is unwarranted, that efforts to constrain fiscal politics are destined to fail, and that the solution to state and local fiscal crises is largely a matter of politics and not a matter of institutional design.
When the Interests of Municipalities and Their Officials Diverge: Municipal Dual Representation and Conflicts of Interest in § 1983 Litigation
119 Yale L.J. 86 (2009). In many cases, municipal attorneys defend both a municipality and a municipal official against § 1983 claims. Some defenses available to the two types of defendants are incompatible and may give rise to conflicts of interest. This Note analyzes the problems associated with these conflicts of interest. The Note categorizes and describes the strengths and shortcomings of existing approaches to addressing these conflicts. Finally, it proposes a hybrid approach that may better address conflicts of interest in municipal dual representation.
The Federalism Challenges of Impact Litigation by State and Local Government Actors
118 Yale L.J. 1557 (2009).
Searching for Balance in the Aftermath of the 2006 Takings Initiatives
116 Yale L.J. 1518 (2007) The partial regulatory takings movement seeks to compensate private landowners when regulations diminish their land values. This movement has grown in recent years, particularly at the state level. Scholars have focused thus far on the cost of compensation and its effect on the regulations that governments enact or enforce. In addition to exploring those concerns, this Note argues that partial regulatory takings regimes threaten to constrain residents’ ability to influence their communities’ growth and character. The greatest impact could fall on low-income communities, many of which contain disproportionate levels of undesirable land uses and lack adequate financial resources to influence land use planning in the absence of regulatory solutions or alternative venues. To address these problems, state and local governments should implement what I call a “regulatory balances” regime, strengthening participatory planning venues and funding the resulting measures.
Private Law or Social Norms? The Use of Restrictive Covenants in Beaver Hills
116 Yale L.J. 1302 (2007) This Note provides a detailed history of the use of restrictive covenants in Beaver Hills, a planned residential subdivision built in New Haven between 1908 and the end of the 1930s. It analyzes these covenants in light of both the relevant common law of servitudes and the contemporary evolution of public land use regulation, most notably zoning. These analyses reveal that restrictive covenants in this era are best understood as a form of signaling and social norms rather than as a form of private law.