Abstract:

This short article discusses urban redevelopment, and its relation to economic productivity and various concepts of well being.  It notes that solutions adopted in one era are apt to be the problems of the next. The article then introduces the four articles comprising the George Mason Law Review “Rethinking Urban Development” Symposium.

Dean Daniel Rodriguez and Professor David Schleicher’s The Location Market stresses the importance of agglomeration economics, by which critical masses of similar individuals lead to enhanced productivity.  On the other hand, Professor J. Peter Byrne’s Historic Preservation and Its Cultured Despisers: Reflections on the Contemporary Role of Preservation Law in Urban Development stresses the importance for human flourishing of a critical mass of historic structures. Professor Peter Salsich’s Does America Need Public Housing? asserts the importance of a supply of societal housing. Finally, Professors Julie Forrester and Jerome Organ assert, in Promising to be Prudent: A Private Law Approach to Mortgage Loan Regulation in Common-Interest Communities, that private covenants limiting leveraging by homebuyers could prevent or alleviate harm to community residents from another housing bust. Together, the articles mirror the variety of contemporary development issues.

Abstract:

In Stop the Beach Renourishment v. Florida Department of Environmental Protection, a Supreme Court plurality asserted that takings liability could arise from judicial acts, as well as from state or local legislation and executive agency decisions. The Plurality’s rationale supporting “judicial takings” was that the Just Compensation Clause of the Fifth Amendment applies to State acts, not to particular State actors.

This Article starts by reviewing the doctrinal bases for the Stop the Beach plurality opinion. It provides prudential reasons why rulings affecting property rights might be legitimate under state law, but nevertheless constitute compensable takings under the federal constitution. It then analyzes the implications of the “state acts and not state actors” doctrine to existing regulatory takings law. Viewed through the lens of “state acts,” the rationales of the Supreme Court’s Williamson County “state litigation” prong and its Dolan “legislative vs. adjudicative” bifurcation are undermined. Similarly, takings distinctions pertaining to whether small-scale rezonings are “legislative” or “quasi-judicial” acts are drawn into question.

Abstract:

Most commentary on redistricting is concerned with fairness to groups, be they racial, political, or geographic. This Essay highlights another facet of the redistricting problem: how the configuration of districts affects the ability of low-information voters to secure responsive, accountable governance. We show that attention to the problem of voter ignorance can illuminate longstanding legal-academic debates about redistricting, and that it brings into view a set of questions that deserve our attention but have received little so far. District designers should be asking how alternative maps are likely to affect local media coverage of representatives, as well as the “branding” strategies of political party elites. Bearing these questions in mind, we offer some tentative suggestions for reform.

Abstract:

The antitrust community retains something of an inconsistent attitude towards evidence-based antitrust.  Commentators, judges, and scholars remain supportive of evidence-based antitrust, even vocally so; nevertheless, antitrust scholarship and policy discourse continues to press forward advocating the use of one theory over another as applied in a specific case, or one school over another with respect to the class of models that should inform the structure of antitrust’s rules and presumptions, without tethering those questions to an empirical benchmark.  This is a fundamental challenge facing modern antitrust institutions, one that I call the “model selection problem.”  The three goals of this article are to describe the model selection problem, to demonstrate that the intense focus upon so-called schools within the antitrust community has exacerbated the problem, and to offer a modest proposal to help solve the model selection problem.  This proposal has two major components: abandonment of terms like “Chicago School,” “Neo-Chicago School,” and “Post-Chicago School,” and replacement of those terms with a commitment to testing economic theories with economic knowledge and empirical data to support those theories with the best predictive power.  I call this approach “evidence-based antitrust.”  I conclude by discussing several promising approaches to embedding an appreciation for empirical testing more deeply within antitrust institutions.

Abstract:

This article is a contribution to the symposium “Hyperpartisanship and the Law,” sponsored by the Georgetown Journal of Law and Public Policy.  The article considers the implications of direct election of United States Senators via partisan elections for the Constitution.  As originally designed, the Senate was elected by state legislatures and the Framers anticipated (naïvely perhaps) that the Senate would be comprised of men chosen on the basis of distinction and ability rather than partisan allegiances.  That system was changed in 1913 with the enactment of the Seventeenth Amendment, which adopted direct election of Senators.  This article asks whether the Constitution would look different if the Framers had anticipated that Senators eventually would be elected by direct election as opposed to indirect election.

In particular, I focus on the distinctive powers given to the Senate within the federal constitutional structure and the reasons articulated for why those powers were given to the Senate: the power to try impeachments, to confirm nominees, and to ratify treaties, as well as the role of the Senate in the system of bicameralism and federalism.  Although it is impossible to know for sure what the Framers would have done had they anticipated direct election in partisan elections I argue that it is likely that they would not have given the power to try impeachments to the Senate in the form that they did, it is reasonable that they might have changed the system of nomination and confirmation, and is likely that they would have retained the Senate’s major role in treaty confirmation.  Although direct election dramatically diluted the value of bicameralism, it is likely that they would have retained a bicameral structure for most matters anyway.  Finally, it is extremely likely that had they anticipated that Senators would be directly elected they would have built in additional explicit constitutional safeguards for the protection of federalism.

Abstract:

Individual location decisions are not given much respect by local governments. Governments frequently use zoning and other regulatory rules to spread development across a city, claiming that the whole city, and not just one favored or disfavored part, should get the benefits and bear the costs of new development.  Local governments also create incentives to encourage certain types of development to locate in certain areas—using policy tools that range from non-cumulative zoning to outright subsidies—in order to create particular mixes of industrial, commercial, and residential development.   However, the arguments in favor of these policies frequently rely upon a specious depiction of the incentives of governmental decisionmakers on the one hand and private citizens on the other. That is, they fail to see the wisdom behind the old saying that the three most important factors in real estate are “location, location, location."

This paper focuses on the benefits businesses and residents get from being able to locate in specific places inside a given city.  First, it argues that agglomeration economics -- the study of why people locate in cities -- provides a useful tool for explaining exactly what is lost when a city government uses its zoning power to limit certain uses of land in specific areas inside a city.   The reduction in positive externalities like reduced transportation costs, market size effects and information spillovers stand as a counterpoint to zoning's effect in reducing negative externalities like nuisances and the like.   We explore the harms to agglomeration economies created by two Washington D.C. policies, a limit on the percentage of storefronts in a neighborhood that can be devoted to bars and restaurants and the federal Height of Buildings Act of 1910. 

Second, we argue that the mere fact that agglomeration economies are positive externalities does not necessarily justify subsidizing specific combinations of land uses.  Firms and residents have effective tools for creating and maintaining efficient clusters when the scope of agglomerative externalities is sufficiently local and when relocating is sufficiently easy.  We also explore the case for subsidies when agglomerative externalities are felt broadly across a city or region and when investments are more fixed.

Abstract:

In the altruism model of voting, the social benefits of an electoral outcome is considered to offset the low probability of casting a decisive vote, thereby overcoming the voting paradox.  One problem with this model is that it assumes both a clearly superior electoral outcome for society and some probability of a tied vote.  These two propositions stand in tension with each other.

This Article presents a modified model of altruistic voting.  It assumes voter altruism toward selected groups instead of toward the general population.  The unequally altruistic voter model not only overcomes the deficiencies of the Edlin, Gelman and Kaplan (2008) model, but also has implications for an integrated analysis of voter turnout, candidate selection, and interest group strategy.

Abstract:

The conventional wisdom is that this country’s privately owned critical infrastructure – banks, telecommunications networks, the power grid, and so on – is vulnerable to catastrophic cyberattacks.  The existing academic literature does not adequately grapple with this problem, however, because it conceives of cybersecurity in unduly narrow terms:  Most scholars understand cyberattacks as a problem of either the criminal law or the law of armed conflict.  Cybersecurity scholarship need not run in such established channels.  This article argues that, rather than thinking of private companies merely as potential victims of cyber crimes or as possible targets in cyber conflicts, we should think of them in administrative law terms.  Firms that operate critical infrastructure tend to underinvest in cyberdefense because of problems associated with negative externalities, positive externalities, free riding, and public goods – the same sorts of challenges the modern administrative state faces in fields like environmental law, antitrust law, products liability law, and public health law.  These disciplines do not just yield a richer analytical framework for thinking about cybersecurity; they also expand the range of possible responses.  Understanding the problem in regulatory terms allows us to adapt various regulatory solutions for the cybersecurity context, such as monitoring and surveillance to detect malicious code, hardening vulnerable targets, and building resilient and recoverable systems.  In short, an entirely new conceptual approach to cybersecurity is needed.

Abstract:

Only in American law is West not primarily a geographical term. When we lawyers think of West we tend to think first of West Publishing Company – the preeminent source of printed law books since before we were born and of electronic law databases in recent years. But despite its importance to the development and dissemination of American law, West itself is a creature most of us do not know much about; we know only its products. That is not our fault, because there is only a little bit of information available, and much of that little bit is hard to find. This Article offers some perspective on the roots of West, the publishing company, and of its primacy (or at least the primacy of its brand) in the consciousness of modern American lawyers.

Abstract:

Originalism has had an uneasy relationship with stare decisis, but the two seem wedded in a way that precludes divorce and thus encourages adultery. Almost all originalists have decided, on pragmatic grounds, that the Supreme Court’s constitutional infidelities must sometimes be allowed to mature into de facto constitutional amendments. Writing in the Michigan Law Review, Jonathan Mitchell has proposed a new theory—based solely on the text of the Supremacy Clause rather than on pragmatic considerations—that purports to identify which interpretive infidelities must be rejected and which may be allowed to continue indefinitely.

According to this theory, it is unconstitutional for the Supreme Court to rely on stare decisis when, and only when, its precedents (a form of nonsupreme law) conflict with one of the three forms of supreme law identified in the Supremacy Clause. Accordingly, erroneous constitutional precedents may never be relied on to strike down a federal statute or to uphold a state law that conflicts with the supreme law of the land. Conversely, erroneous constitutional precedents may be relied on to uphold a federal statute or to strike down a state law.

Mitchell’s argument overstates the implications of the use of the word “supreme” in the Supremacy Clause, and it overlooks the principal purpose of the Clause. The better reading is that the Clause was meant to establish both the supremacy of federal law over state law and the obligation of state courts to respect that principle. The Supremacy Clause is simply silent about the Supreme Court’s duty when its precedents conflict with the original meaning of the Constitution.

Mitchell is right, however, to emphasize that the Supremacy Clause implicitly rejects the notion that Supreme Court opinions can be the supreme law of the land. Because the Clause is directed primarily at commanding state courts to follow the supreme law when it conflicts with a nonsupreme law, a reasonable inference is that state courts are not bound by erroneous Supreme Court opinions. If state supreme courts were to take that inference seriously, we might see a healthy intellectual competition between them and their federal counterpart. If all these contestants were to begin taking the Constitution more seriously than they do now, the nation could be the ultimate winner.

Abstract:

In District of Columbia v. Heller, the Supreme Court recognized the Second Amendment right of individuals to keep and bear arms, and struck down a ban on civilian possession of handguns. The lower courts have since confronted numerous challenges to less restrictive regulations, many of which have required judges to conjure guidance from the highly enigmatic Heller opinion.

Surprisingly, perhaps, the federal courts of appeals have quickly reached a consensus about the proper analytical framework to apply. That framework draws heavily on a tiers-of-scrutiny approach borrowed largely from the Supreme Court’s First Amendment jurisprudence. In a recent case from the D.C. Circuit, Judge Brett Kavanaugh’s dissenting opinion mounted a fundamental challenge to this framework. Judge Kavanaugh argues that the consensus framework was rejected in Heller, and that courts have been instructed to use a different approach based on American history and tradition.

This article maintains that Heller did not dictate the approach proposed in Judge Kavanaugh’s dissent, and that his approach is unworkable. The consensus approach taken by the D.C. Circuit is preferable to Kavanaugh’s, but it was misapplied by the majority. The best approach is exemplified in a Seventh Circuit opinion written by Judge Diane Sykes, who provided an unusually intelligent interpretation of Heller and displayed an appropriate respect for the constitutional right at stake in Second Amendment litigation.

Abstract:

In this paper, we clarify and defend the Chicago School of antitrust against incorrect and uninformed claims that it represents a narrow set of inefficiency impossibility theorems based on free market ideology. The Chicago School arose decades ago as a reaction to the then current antitrust policies summarized above. Chicago prevailed, both as a methodology and in changing antitrust law for the better. That triumph was based primarily on scholarship before 1980, work that focused largely on overthrowing the old order, not on the myriad details that are necessary to implement policy. Moreover, to the extent they addressed implementation issues, prominent Chicago scholars often disagreed.

We nevertheless argue for the term’s demise. The current popular understanding of the Chicago School of Antitrust as a narrow and uniform ideological approach to antitrust is inaccurate. As a result, the term Chicago, as well as the derivative terms Post- and Neo-Chicago, add little value and are frequently misused to make normatively incorrect points. We therefore add our voices to those who doubt the continuing usefulness of such labels. We hope to hasten the demise of using labels like Chicago pejoratively and as a substitute for the economic analysis that has been at the core of the Chicago School of Antitrust.

Abstract:

We are pleased to introduce a few new members of the “Supreme Court Sluggers” trading card lineup. The addition of Justice Antonin Scalia to the team is in keeping with our goal of expeditiously compiling and publishing data for all current members of the Supreme Court. (We have issued cards featuring Chief Justice John G. Roberts and Justice John Paul Stevens, and Justices Sandra Day O’Connor and Samuel Alito are in the works.) This season, we have also completed the first two cards of what might be called our “Veterans” series of those who served long ago: Justice Arthur Goldberg, who appears in the company of baseball great Marvin Miller, and Justice Abe Fortas.

Abstract:

Like reform and ambiguity and symmetry and many other things, relevance often is in the eye of the beholder. Chief Justice John Roberts may have been trying to remind scholars of that when he recently said, “Pick up a copy of any law review that you see, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in eighteenth-century Bulgaria, or something. . . .” Not everyone got the joke, or liked it. But the joke was also serious – it was a challenge to the academy to be more helpful to judges and members of the practicing bar. The academy should take Roberts at his word, and direct his Court’s attention to helpful scholarship. Professor Sherrilyn Ifill took a step in that direction, in a blog post responding to Roberts’s Kantian-Bulgarian-evidence joke. She made a good start, but something more systematic is called for if the Justices are to receive (1) a steady supply of recommendations of legal scholarship likely to be helpful in deciding the unending stream of cases before them, and (2) recommendations that reflect both the diversity of the academy and its collective expertise. To that end, professors should organize a cert pool of a sort for law review articles. They have the knowledge: they know scholarship, good and bad. They have the know-how: they know peer review, pure and corrupt. (Peer review of a sort is at the heart of this project.) And they are in position: they have the tenure that frees them to speak truth not only to power, but also to each other. But rather than giving the Justices stacks of memos evaluating every single law review article (as the clerks in the cert pool do with petitions in every single case), the professors should take a different kind of case-by-case approach. Every time the Court grants a cert. petition or otherwise agrees to hear a case, they should give the Justices a simple, readably short list of those articles most likely to be helpful in deciding that case. Then the Justices or their minions can read the helpful scholarship themselves. Each list should be in the form of (and filed as) an amicus brief – a truly brief “brief of scholarship” rather than a conventional “scholars’ brief” (a form whose credibility is limited by the behavior of some scholars who sign such briefs). Producing briefs of that sort would be hard. But there are respectable entities that could do it. Two come immediately to mind.

Abstract:

Original meaning originalism may now be the most popular version of constitutional theory in the legal academy.  The methodology has been endorsed by at least two Supreme Court justices and well-known scholars from across the political spectrum.

Original meaning is usually interpreted as focusing on the public understanding of the meaning of a constitutional provision at the time of ratification. This makes it essential to try to determine what the public actually knew and understood about the meaning of specific parts of the Constitution at the time they were enacted. If most of the public knew little or nothing about the constitutional provision in question, it may be difficult or impossible to determine its original meaning.

The evidence of extensive public ignorance on even very basic political issues suggests that such situations might well be quite common. Yet none of the rapidly growing literature on original meaning has so far grappled with the reality of widespread public ignorance.

This article begins the task of filling the gap in the literature.  Part I describes the ways in which various theories of original meaning implicitly depend on assumptions about public knowledge.  The problem is most severe with respect to determining the original meaning of provisions that are relatively vague and open-ended and least so when it comes to those that are more clear and precise. However, many of the most important disputes in constitutional law involve the former.   The available empirical evidence on political ignorance suggests that the public may well have been poorly informed about many constitutional issues at the time of ratification. Indeed, political ignorance is actually rational for most voters.

In Part II, I consider several possible solutions to the challenge posed by political ignorance.  These include relying on the perceptions of political elites, looking to contemporary coverage of constitutional issues in the popular media, and assuming that the public divined an original meaning after all, by relying on “information shortcuts.”  Each of these approaches has some merit, but all also have important shortcomings. Part III briefly considers two ways in which originalists could respond to the challenge of political ignorance by modifying their theories: adopting a presumption in favor of literal over figurative interpretations of constitutional text, and leaving more issues to be resolved by construction rather than interpretation.

Political ignorance is not a terminal problem for originalism, and certainly does not discredit the theory completely. But it is an important issue that both originalists and their critics need to pay more attention to.

Abstract:

The phrase “bundle of rights” does not serve as an accurate conceptual definition of property.  Nor has that phrase provided a helpful metaphor as used in Ronald Coase’s article “The Problem of Social Cost” (1960) and subsequent legal and economic scholarship. Coase’s usage portrays property rights as a collection of individualized permissions to use an asset, when in sound conceptual usage “property” signifies a domain of authority to decide how to use the asset.  The “bundle” metaphor may be understood to state that an owner has a right to deploy his property in any specific manner fairly implied by his general rights of ownership.  Although this metaphorical usage is helpful, it remains parasitic on a sound conceptual definition of property.  Property is best conceived of as a right securing a normative interest in determining exclusively the use of an asset external to the person of the owner.

Abstract:

Generations of scholarship on the political economy of zoning have tried to explain a world in which tony suburbs run by effective homeowner lobbies use zoning to keep out development, but big cities allow relatively untrammeled growth because of the political influence of developers. Further, this literature has assumed that, while zoning restrictions can cause "micro-misallocations" inside a metropolitan region, they cannot increase housing prices throughout a region because some of the many local governments in a region will allow development. But these theories have been overtaken by events. Over the past few decades, land use restrictions have driven up housing prices in the nation's richest and most productive regions, resulting in massive changes in where in America people live and reducing the growth rate of the economy. Further, as demand to live in them has increased, many of the nation's biggest cities have become responsible for substantial limits on development. Although developers are, in fact, among the most important players in city politics, we have not seen enough growth in the housing supply in many cities to keep prices from skyrocketing.

This paper seeks to explain these changes with a story about big city land use that places the legal regime governing land use decisions at its center. Using the tools of positive political theory, I argue that, in the absence of strong local political parties, land use law sets the voting order in local legislatures, determining policy from potentially cycling preferences. Specifically, these laws create a peculiar procedure, a form of seriatim decision-making in which the intense preferences of local residents opposed to re-zonings are privileged against more weakly-held citywide preferences for an increased housing supply. Without a party leadership to organize deals and whip votes, legislatures cannot easily make deals for generally-beneficial legislation stick. Legislators, who may have preferences for building everywhere to not building anywhere, but stronger preferences for stopping construction in their districts, “defect” as a matter of course and building is restricted everywhere. Further, the seriatim nature of local land use procedure results in a large number of "downzonings," or reductions in the ability of landowners to build "as of right", as big developers do not have an incentive to fight these changes. The cost of moving amendments through the land use process means that small developers cannot overcome the burdens imposed by downzonings, thus limiting incremental growth in the housing stock.

Finally, the paper argues that, as land use procedure is the problem, procedural reform may provide a solution. Land use and international trade have similarly situated interest groups. Trade policy was radically changed, from a highly protectionist regime to a largely free trade one, by the introduction of procedural reforms like the Reciprocal Trade Agreements Act, adjustment assistance, and "safeguards" measures. The paper proposes changes to land use procedures that mimic these reforms. These changes would structure voting order and deal-making in local legislatures in a way that would create support for increases in the urban housing supply.

Abstract:

Justice Harry Blackmun described Benjamin N. Cardozo’s The Nature of the Judicial Process as “a somewhat disappointing book.” A rummage in the folder labeled “Books – Read by Blackmun, lists – 1973-1997” in the Blackmun Papers at the Library of Congress turns up a possible reason for Blackmun’s less-than-friendly reaction to Cardozo’s great book – the book that brought Cardozo “national fame as well as that idolatrous regard of the law schools which eventually propelled him to the highest court of the land.” Possibly, Blackmun’s disappointment was a matter of context. Possibly, The Nature of the Judicial Process, as great a work as it may be, just did not measure up to some of the other books Blackmun was reading at the time – books that he might have seen as better-written, or more thought-provoking, or more informative, or more fun. It is certainly possible, because the bibliographic competition for Blackmun’s admiration was both diverse and high-powered during the summer he read Cardozo. What to make of such speculation about Blackmun and his books depends in part on what we seek. Four reasons to study the reading habits and judgments of Supreme Court Justices come to mind (and there are surely more): (1) our perennial and important interests in understanding both why they did what they have done – that is, their decisions and opinions in cases past – and what they might do next – that is, their decisions and opinions in pending and future cases (as Eleanor Little observed in The Early Reading of Justice Oliver Wendell Holmes, “The importance of [Holmes’s] reading lists is that they reflect the influence of other minds on Holmes’s own thought . . .”); (2) a general interest in learning something about the minds and characters of our public leaders from how they speak and write about books, reading, and learning, with an eye to choices we might make as citizens and role models we might emulate as individuals; (3) a far less important but not unreasonable interest in the reading (and listening, and watching, and traveling, and so on) choices made by clever, thoughtful, accomplished individuals, because we might want to try some of the same things; and (4) a perennial but trivial interest in every detail of the lives of celebrities, the Justices being among the biggest celebrities in the law. Why else would we need to know about every opera or baseball game or seminar they attend? Alas, all of these topics are beyond the scope of this little article, because they all depend on the resolution of the preliminary issue addressed below: The quality and reliability of the evidence.

Abstract:

This paper examines what law can do to enable an electorate comprised of mostly ignorant voters to obtain meaningful representation and to hold elected officials accountable for the government’s performance. Drawing on a half century of research by political scientists, we argue that political parties are both the key to good elections and a common cause of electoral dysfunction. Party labels can help rational, low-information voters by providing them with credible, low-cost, and easily understood signals of candidates’ ideology and policy preferences. But in federal systems, any number of forces may result in party cues that are poorly calibrated to the electorate and issue space of subnational governments. Further, the geographic clustering of partisan voters can lead to persistently dysfunctional elections at subnational levels, however well calibrated the major-party cues, because in these communities the aggregation of votes will not neutralize (as it otherwise would) the ballots cast by citizens whose party ties reflect their upbringing and social milieu more than their observations about what the government has done. To date, these problems have largely been the province of political science and sociology. We argue that they are problems of, and for, election law. Statutes and court decisions govern what appears on the ballot, who selects a party's candidates, and any number of other variables that affect the meaning and utility of party labels. Our analysis challenges the focus of decades of political science and legal scholarship, and sheds new light on important questions about party regulation, ballot design, the choice between partisan and nonpartisan elections, and the constitutional law of party rights.

Abstract:

The assertion that a “license” is simply a “contract not to sue” has become a commonplace in both copyright and patent law. I argue that this notion is conceptually flawed, and has become a straightjacket channeling juristic reasoning into unproductive channels. At root, a license is not a contract, but a form of property interest. It may be closely intertwined with a set of contractual relationships, but its nature and consequences cannot be satisfactorily explained from within the world of contract doctrine alone. In this article, I seek to explain the complementary but parallel roles played by property and contract doctrine in creation of the various forms of legal interests we refer to as “licenses.” Each doctrine has its own set of governing formalities that afford titleholders various means through which to create and protect use privileges granted to others, while still retaining residual title for themselves. I argue that clarifying the extent to which licenses are exercises of powers conferred by property rather than contract law provides a key to proper application of Section 204 of the Copyright Act of 1976, which has been (erroneously) construed as a statute of frauds governing contract formation, as opposed to one governing a specific form of property conveyance.