Local government law's "law and (blank)" problem.

• Author: Schleicher, David
• Position: 40th Anniversary Symposium

Introduction I. Local Government Law and Urban Economics II. Local Government Law and Positive Political Science . III. Local Government Law's "Law And __ "Problem More Generally: Local Government Law, Social Science and Legal Scholarship INTRODUCTION

Local government law scholarship has a "law and __ "problem. It should be relatively uncontroversial to note that, over the last forty years, most fields of legal scholarship have been profoundly transformed by the incorporation of the tools and analytical methods used in economics, political science, and other social scientific disciplines. Local government law has not been immune. It is not hard to find in local government law scholarship discussions of concepts drawn from economics and political science, as well as from a host of other disciplines. What is notable, and what I will show in this Essay, is that these references are, for the most part, extremely dated.

Specifically, I will argue that local government law has not kept up with the intellectual movements that have defined the last twenty or so years in the study of cities or politics. I will focus on the two areas of social science that have been among the most important influences on legal scholarship generally: economics and positive political science. But as I will discuss in the conclusion, the same point could be made with respect to other social scientific disciplines. Our field has had many successes, but it is being held back by a failure to keep up with contemporary social science.

The Essay is divided into three parts. Part I addresses local government law's interaction with economics. In local government law scholarship that deals with economic issues, there is frequent discussion of the work of Charles Tiebout, who showed in the 1950s that under certain assumptions, if local governments provide purely local public services and individuals are mobile and able to choose among local governments in an area, local public services will be provided at an efficient level. (1) But, although there have been many advances in the use of the Tiebout model through the years, and useful criticisms of it, (2) it is far from the only economic model relevant to cities or local government law. But until very recently at least, scholars failed to notice a revolution in urban economics, specifically research on agglomeration economics. (3)

Agglomeration economics focuses on why cities exist in the first place, given the higher rents for property in urban areas. (4) Scholars working in this field argue that urban residents pay higher rents, but receive gains from reduced shipping costs, increased market size, and information spillovers. (5) Changes in the form of these gains can explain major changes in urban form, or the gains from public policies. Agglomeration economics has become the dominant tool for understanding the effect of changes in land use and other local policies. (6) But while other fields incorporated the newest things in economic research--from antitrust's embrace of industrial organization theory to behavioral economics' influence throughout the legal academy (7)--advances in urban economics have largely been absent from local government scholarship.

Part II discusses local government law's interaction with political science and finds similar problems to the ones discussed in Part I. One can find discussion in local government law scholarship of work in political science on growth machines, "city limits," regime theory, and pluralism, some of the dominant methodologies in urban politics studies since the middle of the last century. (8) But there is almost no discussion of positive political theory, rational choice models of legislative behavior, models of political party organization and competition, empirical research on voting and legislative behavior, or any of the other moves that have characterized the last few decades of political science. (9) Here the problem is not only in legal scholarship, but also in the urban politics sub-discipline of political science, which one scholar has called a "black hole" for its own refusal to use contemporary methodologies. (10)

But problems in urban politics research should not stand in the way of local government law scholars using the tools of modern political science. While local government law scholars have focused substantially on questions of the power of exit by residents and the benefits of different forms of institutional design--both of voting systems and governmental form--Part II will argue that there has been too little focus on studying the incentives of local officials or strategic interaction between such officials inside existing governmental structures. Similarly, when discussing whether power should be allocated to local or state legislatures, or how regional governments should be structured (if at all), local government law scholars have largely ignored research on how local officials get elected and how local party systems work. Also, very little empirical work has been done on how local political systems or legislatures operate. Again, this is in contrast to other fields of legal scholarship, like statutory interpretation, administrative law, and constitutional law, which have all substantially incorporated and influenced work in contemporary political science. (11)

Part III will expand the scope of the discussion to other social sciences. Research into cities is booming in a whole variety of fields, particularly in economics, but also in fields ranging from criminology to the "science of cities." (12) But with a few exceptions, local government law scholars have not used these findings or methodological approaches. Our failure to incorporate the best work by other types of scholars has been harmful to the field. Ignoring contemporary trends in the social sciences has left the field on the margin of mainstream legal academic thought, even though many important contemporary legal debates have a substantial local government law component. (13)

But more importantly, our failure to integrate modern work in the social sciences into local government law has been bad for public and scholarly debate about cities and local governance. As local government law scholars, we have a great deal to add to these debates, as work by social scientists frequently fails to acknowledge or deal adequately with the institutions and legal processes through which public policy in cities is made. But we will only be able to add to these debates if we understand them. The first step to making our field more analytically interesting and practically useful is admitting we have a problem. A "law and __" problem.

1. LOCAL GOVERNMENT LAW AND URBAN ECONOMICS

   At a conference full of local government law scholars, one need not spend too much time explaining the Tiebout Model. Tiebout argued that, under certain assumptions, local policy outputs will be provided at the efficient level: that is, the amount and kind of local public services and taxes would match residents' preferences. (14) Individuals will choose where to live among many local governments in a region based on their local policies, and this sorting process will result in a good fit between policies and voter preferences. (15) Bruce Hamilton and Wallace Oates fleshed out Tiebout's model, explaining and providing empirical support for the claim that the quality of public policies will be capitalized into property values, and showing how the model has no equilibrium if property taxes are used but there is no zoning (and thus providing a justification local zoning power). (16) Bill Fischel provided the model with a "supply side," arguing that local homeowners are intensely worried about variation in the value of their home, and thus have an incentive to get involved in politics, to ensure that local governmental officials do not cause prices to fall by driving people out. (17) Fischel thus made "voice" speak in the same language as exit, and provided a story why certain powers--property taxation, zoning and schools--were traditionally allocated to local governments. (18)

   The Tiebout Model has been heavily incorporated into local government law, with scholars like Vicki Been, Lee Fennell, Chris Serkin and many others using Tieboutian arguments to understand the costs and benefits of land use policies, takings by cities, and other local governmental policies. (19) The Tiebout Model has also been heavily criticized by a variety of scholars, including Gerry Frug, who object to its assumption that local government services can or should be understood as a consumption good, and a host of others for failing to consider limits on mobility, inter-local externalities or distributional effects. (20) In his opus Our Localism, Richard Briffault argued that Frug's approach to cities, rooted in participatory political theory, and the Tiebout's economic model provide two contrasting "tales of the city." (21) It is relatively clear that when legal scholars talk about the economic approach to local governments, they mean only one thing: the Tiebout Model.

   But the Tiebout Model is not, and has never been, the only economic model about cities and local governments. Two stand out: "mono-centric" models of cities and agglomeration economics. When the field of local government law was consolidating in the 1970s and early 1980s, urban economics was in a period of relative stasis, focused on mono-centric models of cities that probably looked only weakly descriptive to the scholars of the time if they were cognizant of them. However, starting in the early 1990s, agglomeration models took off, powered by mathematical innovation and the existence of sufficient computing power to make them work. (22) Associated with leading scholars like Edward Glaeser, Paul Krugman, Robert Lucas, and Paul Romer, this work exploded and turned out to be crucial to many modern models of international trade and economic growth. (23)...