Local Government Law: Cases and Materials
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Description
The study of local government law has, in recent years, achieved new levels of analysis. The debates in the legal literature about liberalism and communitarianism, about the role of interest groups in the selection and passage of legislation, about the proper scope of the judiciary in allocating social resources all have implications for the issues of local competence and local autonomy that constitute the framework of local government law. At the same time, debates in the political forum about the role of local government in the federal firmament have become more important as federal funding has decreased, cities have struggled with fiscal distress, and states have imposed increased obligations on localities to address social issues ranging from environmental cleanup to the delivery of basic services. The materials in this book attempt to provide a means for studying these phenomena and for wrestling with both the theoretical and practical issues that local governments face today. My approach to these issues consists of an investigation of the basics of what it is that we expect of local governments, of why we would or would not favor local redress for a particular social problem. My concern, therefore, is with the question of when local bodies (cities, counties, special authorities, towns) rather than some other level of government, or the marketplace, should make decisions concerning the allocation of social resources. In short, these materials explain local government law through and exploration of institutional design. The issues that these materials address are familiar in the public law component of the law school curriculum. They involve the scope of governmental decisionmaking and the competence of the decisionmaker to render results consistent with an acceptable social objective, such as fairness or efficiency. Most public law courses, however, address these issues only at the federal level and ask whether a given decision should be made by the executive, the legislature, or the judiciary. A course in local government law adds to this matrix the issue of whether a particular decision should be made at the local, state, or federal level. Occasionally, these materials also invite the student to consider whether the good or service at issue should be provided by government at all. The materials begin from the assumption that the appropriate level of decisionmaking for any issue depends on three factors: (1) the extent to which the decision will have effects beyond the jurisdiction of the decisionmaker; (2) the possibility that decentralization will enhance or frustrate a decisionmaking procedure that is dominated by nonrepresentative interests, that is, the problem of collective action; and (3) the desirability of creating institutions for decisionmaking that promote political participation by those affected by the decision. Given the current state of local government scholarship, it is not appropriate to address these issues as purely legal matters. Instead, the law that emerges, and the student’s reaction to it, largely reflects learning from other disciplines, ranging from public finance to political philosophy. I have attempted to provide some basis for students to consider work from these other disciplines in order to encourage a more reflective critique of the legal doctrine and its consequences. A word about the cases is in order. Many of the doctrines of local government law lack the precision and definiteness that one would like. Concepts such as “debt,” “public purpose,” “local affairs,” and “uniform taxation” are not readily susceptible to definition. I have attempted to select cases that demonstrate the complexity inherent in these concepts and that give sufficient examples of when the particular court believes the standard at issue has or has not been satisfied. Unfortunately, cases that are successful for these purposes tend, for the same reason, to be lengthy. My apologies in advance to teachers and students. In addition, I have chosen to retain detailed discussions of the transactions that give rise to the underlying disputes in the hope that students will come to appreciate the intricate and varied contexts in which local governments interact with the state, with each other, and with their residents. Here, too, I fear, brevity must give way. I have also attempted (with notable exceptions) to select relatively recent cases from state courts in order to give students a sense of the currency of the problems presented. The cases also reveal my preference for explicating the law through the state courts rather than through federal court explanations of what localities ought to do. In large part, this choice reflects my preference not to turn the study of local government law into an examination of “constitutional law as applied to localities.” Hence, I have avoided cases that treat “first amendment law as applies to localities” or “takings law as applied to cities” in favor of cases that, at least implicitly, ask fundamental questions about the appropriate scope of municipal conduct. These materials have evolved over a period of years, and I have not faith that the evolutionary process has ended.
Publication Date
1994
Edition
1
Recommended Citation
Gillette, Clayton P., "Local Government Law: Cases and Materials" (1994). Faculty Books & Edited Works. 340.
https://gretchen.law.nyu.edu/fac-books-edited-works/340
