Overcoming Neoliberal Hegemony Will Be Difficult:

• Library: At the Cutting Edge: Land Use Law from The Urban Lawyer (ABA) (2014 Ed.)

Jeffrey Kleeger^*

I. Introduction

THE TRANSFORMATION (EVOLUTION) OF LAW IS A FASCINATING SUBJECT. Legal history is complex. Understanding what once was helps one to understand what now is. Professor Jerrold A. Long has written a very interesting article on the evolution of law in the context of neo-liberal hegemony (the privatization of law) published in The Urban Lawyer.¹ He argues that narratives that represent public goods are excluded from the land use planning conversation.² It is difficult not to agree with much of what he argues. His description of the dynamics of land use planning is accurate, and it is laudable that he wants to see (and prescribes how to achieve) a better connection between "the visions and desires of the affected community" and legitimate law.³

The only hesitance I have to full acceptance of Long's proposition is that I believe neoliberal hegemony is here to stay, at least in the near-term, and tweaking the community planning process will not change that fact. Long's solution claims that the only way to know the value of a particular idea "is to imagine (or empirically witness) the actual consequences of acting on" it.⁴ I like this assertion. After that, he explains, one must "compare those actual consequences to the consequences that might result from plausible alternatives."⁵ So far, so good—he accurately described the essence of planning when plausible futures are compared to "the imagined consequences of each to select the option that seems best at that moment."⁶ However, problems begin to arise in the second aspect of the process—participatory decision making. "The only way to ensure that all possible, plausible futures are presented is to ensure that everyone has the opportunity to participate in the vision-forming process" which is the essence of a "Pragmatic democracy."⁷ Long develops a thesis of "selected Lamarck-ism," claiming good ideas do not develop "through accidental processes" but instead grow out of "intentional action."⁸ His "selected Lamarckism" is "evolutionary change driven by intentional action."⁹

This thesis is interesting particularly because it supports my thesis of the privatization of law under neoliberalism. In the land use planning context, the Weberian bureaucratic model represents "inclusive Pragmatism" which helps create "multiple alternative visions for a place with the specific goal of identifying public goods and representing the underrepresented elements of the community."¹⁰ The only caveat in Long's approach that I see is the experts will not wait for planning ideas to emerge from the community. Instead they will impose their own preferences on development by supporting the claims of the dominant private property owners who fund the work. Thus planning tends to "not be limited to consensus-based approaches."¹¹

The ultimate question is whether a dose of progressive social welfare can overcome neoliberal hegemony.¹² I think, after carefully reading Long's article and considering its implications that the prescribed dosage of medicine to remedy the ill of the neoliberal privatization of law needs to be strengthened if effective results are to follow. A neo-liberal-dominated collaborative process makes it very difficult to achieve social welfare oriented objectives. More than a mere "vision for collaboration" is necessary. Dependence on the input of community participation is not sufficient on its own. The idea that communities can simply imagine better planning results and then proceed to make those desires real is a bit too optimistic. As in the story of Pin-nocchio, simply because one wants to be a real boy does not make one real; rather, realness must be earned through trials and tribulations.

More than use of an optimistic imagination is necessary to turn the tide against the neoliberal privatization of law, which in fact seems in ascendency—meaning its ability to prevail against resistance to its predominance is increasing. A real commitment to the institutionalization of the social welfare obligation norm is necessary to bring about a socially progressive transformation of law.¹³ This article considers how this objective can be achieved and why it is important to try to achieve it. The problem is further clarified by recognizing that over a decade has passed since the Diamond Jubilee of the landmark land use case Village of Euclid v. Amber Realty Company.¹⁴ There the Court rejected the plaintiff's due process challenge of a city's zoning ordinance, effectively legalizing the process of zoning. The Court declared that a city can regulate land use through zoning using police power as an effective tool for implementing the interest of promoting the public good.¹⁵ Zoning derives its legitimacy from this decision. Understanding Euclid s historical legal context helps clarify the present status of land use law. To begin with the Court validated public comprehensive land use controls¹⁶ despite strong Lochner-era¹⁷ objections to economic regulation.¹⁸ The Court recognized the constitutionality of zoning. The only way to restore validity to social welfare then is to institutionalize it as a norm by now recognizing the constitutionality of it. This is the "stronger medicine" I am suggesting is necessary. The basis for this prescription can be found in the orientation to social objects of the evaluative mechanisms of learning (particularly the concepts of "imitation" and "identification") discussed below.¹⁹

II. Background on Planning and the Neoliberal Hegemony

Law indeed constrains behavior, with its legitimacy of course derived from efforts to achieve consensus.²⁰ Consensus seems right when it emerges naturally from an inclusive process that identifies a governed community's collectively imagined future remaining respectful of minority opinions,²¹ driven by the objective to facilitate rational land use planning. In the context of development, preference goes to visions that provide economic benefits to specific participants. This preference is not a mean-spirited or manipulative effort. Simply put, human nature dictates that people respond immediately to needs that are more urgently expressed (or are better articulated). The typical unintended result is that private interests dominate public ones. The Euclid²² experience illustrates this dilemma. It was an aberrational Lochner-era case, approving government economic regulation and providing a constitutional foundation for more regulation.²³ Studying it provides a historical perspective that contextualizes the modern development-by-agreement concept.²⁴

As explained in social systems analysis²⁵ the combination of processes is a set of processes of action integrating the analytical with the empirical to bring about a certain socialization result. This is the learning that law provides to participants in legal process. Specifically, the cognitive mechanisms of discrimination and generalization which provide an awareness of how parts of social characteristics are taken over in the interaction process, that is to say where attractive aspects of what one views around her are internalized.²⁶

While government regulation can be juxtaposed to the idea of "consensual, market arrangements," the important distinction to make looks at whether the predominant development model embraces private or public land use controls.²⁷ While most in government prefer the private land use model, the model does have its weaknesses. Consequently it is suggested here that using those controls can help achieve recognition of the social welfare obligation norm. This obligation reflects "democratic values and process" and ensures that the regulation of "personal autonomy, status or conduct" is not applied too zealously, thereby properly limiting the "power of the dead hand" and public control over private freedoms.²⁸ While it is probably true that the pathway between community vision and formal legal regimes is "broken" due to a reduction in social involvement and "an increasingly entrenched neoliberal orthodoxy,"²⁹ it will probably take more than providing clarity of community vision to remedy the deficiency. The problem concerns how one defines a community good, and distinguishes private from public aspects of it. Planning law is, after-all, directed toward allocating rights and duties, regulating private land use rights in the public interest, and managing conflicts over land use and development.³⁰ Essentially law's purpose is to legitimize public purpose planning and public planning's purpose is to regulate in the interest of promoting economic development in furtherance of both private and public good.

Planning concerns regulating private land use rights in the public interest.³¹ Legitimate law approximates community consensus because "true consensus on real problems is impossible."³² The Lamarckian analogy provides a "useful metaphor for explaining cultural (and thus legal) evolution"³³ but the problems with consensus-based planning— that it lacks specificity and tends to provide vague guidance—is what makes reliance on community solutions difficult to accept. The expertise of "rational, technocratic, expert planners" is absent in community planning and such planners know their limitations in what they can contribute to the process. They know that the government, courts, and developers are motivated by capital accumulation concerns, and therefore that local community input into decision-making carries weight only when it comes down hard on the side of fairness and public health, safety, and welfare. It also helps when the cost to implement such improvements is economically feasible.

The suggested solution to resolve the problem of neoliberal hegemonic dominance in the land use planning process of providing "a specific, inclusive plan that identifies the best future available to a particular community and provides strict and clear guidance to subsequent legal choices,"³⁴ is a highly optimistic one. It has been argued that...