The Yale Law Journal

State & Local Government Law


Suing Cities

Zachary D. Clopton & Nadav Shoked

Current law makes it easy to sue cities. Too easy. While suing federal and state governments is notoriously difficult, various doctrines open courthouse doors to taxpayers, homeowners, and politically favored groups suing local governments. These doctrines further strengthen powerful actors, weaken …


The Local Lawmaking Loophole

Daniel B. Rosenbaum

This Article illustrates how contracts between local governments—interlocal agreements (ILAs)—play a powerful lawmaking function yet lack democratic accountability.  It traces the problem to state statutory schemes, where checks designed to promote transparency are ignored by state officials and cou…


Public Utility’s Potential

Alison Gocke

State-level public utility commissions regulate our energy systems. But they are often viewed as ill-equipped to address climate change. This Feature counters that conventional wisdom by uncovering a forgotten history of New York’s energy transition, revealing that public utility’s potential to faci…


Navigating Between “Politics as Usual” and Sacks of Cash

Daniel C. Richman

Like other recent corruption reversals, Percoco was less about statutory text than what the Court deems “normal” politics. As prosecutors take the Court’s suggestions of alternative theories and use a statute it has largely ignored, the Court will have to reconcile its fears of partisan targeting an…


What Are Federal Corruption Prosecutions for?

Lauren M. Ouziel

This Essay considers the role of prosecutors in the Supreme Court’s decades-long contraction of public corruption law. It examines how federal prosecutors’ reliance on broad theories of liability has paradoxically narrowed federal criminal law’s reach over public corruption, and considers how prosec…


Demoralizing Elite Fraud

Zephyr Teachout

The Supreme Court’s effort to avoid interpreting morally weighted terms like “fraud” and “honest services” has led it to make bad and confusing law in wire-fraud cases. These cases, unlike Citizens United and its ilk, are unanimous, joining liberal and conservative Justices, reflecting a shared skep…


The Stakes of the Supreme Court’s Pro-Corruption Rulings in the Age of Trump: Why the Supreme Court Should Have Taken Judicial Notice of the Post-January 6 Reality in Percoco

Ciara Torres-Spelliscy

In Percoco, the Supreme Court squandered opportunities to contextualize political corruption. This Essay argues that the Supreme Court should have taken judicial notice of the post-January 6 circumstances which surround the decision. This is a perilous time in American democracy for the Justices to …


Zoned Out: How Zoning Law Undermines Family Law’s Functional Turn

Kate Redburn

A fatal conflict in the legal definition of family lurks at the intersection of family law and zoning law. Family law has increasingly embraced “functional families,” those whose bonds can be traced to cohabitation, while zoning law has narrowed to restrict residency to individuals related by blood,…


The Dilemma of Localism in an Era of Polarization

Nestor M. Davidson

Localism discourse has long confronted a fundamental problem: how can we remain committed to decentralized decision-making while checking the excesses of local parochialism? This Essay proposes a new approach in our polarized era, emphasizing the joint role state individual rights and the often-igno…


The Reach of Local Power

James Horner & Christine Kwon

Recent litigation has challenged local California prosecutors’ power to seek and receive statewide relief for violations occurring outside county lines. This Essay argues against this trend and explains why it is inappropriate to apply the constitutional norms that state-versus-federal conflicts to …


Tailoring Regimes for a Designer Drug: Developing Civil Liability for Retailers of Synthetic Marijuana

Sophia House

The spread of synthetic marijuana is a public health crisis. Municipalities struggle with how to regulate drugs that can change as quickly as officials can design enforcement regimes. This Comment proposes leveraging creative administrative design and existing consumer protection torts to stem the t…


Local Action, National Impact: Standing Up for Sanctuary Cities

Christine Kwon & Marissa Roy


Over the past year, cities have emerged as crucial sites of resistance. Using San Francisco and the sanctuary city litigation more broadly as a case study, this Essay argues that cities can and should take advantage of the Constitution’s federalism protections to resist federal intrusion onto loc…


Surreply: How and Why We Should Become Un-Stuck!

David Schleicher

David Schleicher replies to Naomi Schoenbaum, Sheila Foster, Sara Pratt, and Michelle Wilde Anderson’s Responses to his Volume 127 Article, Stuck!:The Law and Economics of Residential Stagnation.


Civil Rights Strategies To Increase Mobility

Sara Pratt

Sara Pratt contends that established and sustained segregation has impeded mobility. Federal leadership, changes to the Fair Housing Act, different approaches to state and local planning, and ultimately, political will may clear the path for increased mobility across state and regional lines.


Stuck or Rooted? The Costs of Mobility and the Value of Place

Naomi Schoenbaum

Naomi Schoenbaum addresses the costs of mobility for productivity, welfare, and sex equality, as well as addresses Schleicher’s treatment of place as a market. Ultimately, Schoenbaum argues that Schleicher’s argument does not sufficiently account for how mobility interacts with critical relationship…


Losing the War of Attrition: Mobility, Chronic Decline, and Infrastructure

Michelle Wilde Anderson

Michelle Anderson maintains that providing assistance will take more than reducing formal legal barriers to interstate mobility. Meaningful improvements—whether social or geographic—will require a new antipoverty agenda for declining regions, as well as fiscal and environmental responsibility for ex…


The Limits of Mobility and the Persistence of Urban Inequality

Sheila R. Foster

Sheila Foster argues that Schleicher’s prescriptions neglect the economic and racial stratification of disadvantaged populations within the successful metropolitan regions he hopes new migrants will enter. The federal government should help bridge the spatial gap between that opportunity and disadva…


Stuck! The Law and Economics of Residential Stagnation

David Schleicher

America has become a nation of homebodies. This Article advances two central claims. First, declining interstate mobility rates create problems for federal macroeconomic policymaking. Second, the Article argues that governments, mostly at the state and local levels, have created a huge number of leg…


Williams-Yulee and the Anomaly of Campaign Finance Law

Noah B. Lindell

In 2015, the U.S. Supreme Court held in Williams-Yulee v. Florida Bar that states may prohibit candidates for judicial office from personally soliciting campaign donations in order to protect the appearance of judicial integrity.2 For only the third time in its history, the Court upheld a l…


Localist Administrative Law

Nestor M. Davidson

To read the voluminous literature on administrative law is to inhabit a world focused almost exclusively on federal agencies. This myopic view, however, ignores the wide array of administrative bodies that make and implement policy at the local-government level. The administrativ…


The Perils of Experimentation

Michael A. Livermore

More than eighty years after Justice Brandeis coined the phrase “laboratories of democracy,” the concept of policy experimentation retains its currency as a leading justification for decentralized governance. This Article examines the downsides of experimentation, and in pa…


State Legislative Drafting Manuals and Statutory Interpretation

Grace E. Hart

Although legislation has become a central feature of our legal system, relatively little is known about how statutes are drafted, particularly at the state level. This Note addresses this gap by surveying drafting manuals used by bill drafters in state legislatures. These manua…


In Wakefield’s Wake: Rescuing New York's Enterprise Corruption Jurisprudence

Noah A. Rosenblum

introduction For many years, New York State’s enterprise corruption law was grounded in a legal error. Recently, the New York Court of Appeals has sought to correct some of the doctrinal consequences of this mistake. Unfortunately, the court’s solution has left the law unmoored fro…


The New Public

Sarah A. Seo

By exploring the intertwined histories of the automobile, policing, criminal procedure, and the administrative state in the twentieth-century United States, this Essay argues that the growth of the police’s discretionary authority had its roots in the governance of an automotiv…


Toward an Efficient Licensing and Rate-Setting Regime: Reconstructing § 114(i) of the Copyright Act

Joseph Pomianowski

Why is Sony/ATV Music Publishing, the world’s largest music publisher,1 unhappy about its massive hit single “Happy”?2 According to CEO and Chairman Martin Bandier, the answer comes down to the math behind digital streaming revenues. In the first three months of 2014, the Internet ra…


Governance Reform and the Judicial Role in Municipal Bankruptcy

Clayton P. Gillette & David A. Skeel, Jr.

Recent proceedings involving large municipalities such as Detroit, Stockton, and Vallejo illustrate both the utility and limitations of using the Bankruptcy Code to adjust municipal debt. In this Article, we contend that, to resolve fully the distress of a substantial city, mun…


The "Supreme Board of Sign Review": Reed and Its Aftermath

Urja Mittal

First Amendment jurisprudence is fickle. Sometimes it is transformed in prominent, widely known cases, like Citizens United. At other times, it is quieter, lesser known cases that revolutionize the doctrine. One of last summer’s cases, Reed v. Town of Gilbert, falls squarely into the latter…


Which Way To Nudge? Uncovering Preferences in the Behavioral Age

Jacob Goldin

Behavioral Law and Economics has created a dilemma for policymakers. On the one hand, research from the field suggests a wide range of unconventional policy instruments (“nudges”) may be used to shape people’s voluntary choices in order to lead them to the option they most pref…


The Sum of All Delegated Power: A Response to Richard Primus, The Limits of Enumeration

Kurt T. Lash

In his provocative article, The Limits of Enumeration,1 Richard Primus rejects what he calls the “internal-limits canon” and challenges the assumption that the powers of Congress do not add up to a general police power, such that “there are things Congress cannot do, even without refe…


"We Don't Follow, We Lead": How New York City Will Save Mortgage Loans by Condemning Them

Robert Hockett

Introduction1 Many cities across the nation have begun to consider exercising their eminent domain authority to purchase, then write-down principal on, otherwise unmodifiable home mortgage loans facing foreclosure.2 I and several others have advocated this method and cognate uses of gover…


Why Firearm Federalism Beats Firearm Localism

Michael P. O'Shea

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 mu…


City Unplanning

David Schleicher

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…


Dissolving Cities

Michelle Wilde Anderson

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 numb…


Democracy and Debt

Richard C. Schragger

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 s…


When the Interests of Municipalities and Their Officials Diverge: Municipal Dual Representation and Conflicts of Interest in § 1983 Litigation

Dina Mishra

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…


Searching for Balance in the Aftermath of the 2006 Takings Initiatives

Hannah Jacobs

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 …


Private Law or Social Norms? The Use of Restrictive Covenants in Beaver Hills

Valerie Jaffee

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…


An Empirical Look at Churches in the Zoning Process

Stephen Clowney

116 Yale L.J. 859 (2007)


City, Heal Thyself

Robert C. Ellickson

In Save the Cities, Stop the Suburbs, Nicole Stelle Garnett perceptively ruminates about the future of American metropolitan areas. She rightly praises Robert Bruegmann for putting forward a steadfastly contrarian set of views on issues of suburban sprawl. Even readers who ultimately reject Bruegman…


Beyond City and Suburb: Thinking Regionally

Richard Briffault

“City” and “suburb” as they were known and debated in the twentieth century are no more. Increasingly, the key urban unit in metropolitan America is the region. Robert Bruegmann’s Sprawl: A Compact History, a chronicle of the melding of city and suburban land use patterns, illustrates this…


Save the Cities, Stop the Suburbs?

Nicole Stelle Garnett

The fact that the word “sprawl” is uttered by curling the upper lip into a snarl captures some of the emotion generated by the current debate over American land use policy. Two recent books—Robert Bruegmann’s defense of sprawl and Joel Kotkin’s ambitious but short history of great cities p…


Save the Cities, Stop the Suburbs?

Nicole Stelle Garnett

116 Yale L.J. 598 (2006)

Sprawl: A Compact History

The City: A Global History


Of Sovereigns and Servants

Heather K. Gerken

115 Yale L.J. 2633 (2006)


Why (and When) Cities Have a Stake in Enforcing the Constitution

David J. Barron

115 Yale L.J. 2218 (2006)

This Essay examines independent constitutional interpretation from the bottom up. It focuses on San Francisco's recent challenge to the California ban against same-sex marriage and the judicial response it provoked in Lockyer v. City & County of San Francisco. The Essay argu…


Can Strong Mayors Empower Weak Cities? On the Power of Local Executives in a Federal System

Richard C. Schragger

This Essay considers the historic weakness of the American mayoralty and recent reform efforts designed to strengthen it. I argue that the strong mayoralty is a potential instrument for democratic self-government to the extent that it is able to amass power on behalf of the city.


Law's Migration: American Exceptionalism, Silent Dialogues, and Federalism's Multiple Ports of Entry

Judith Resnik

115 Yale L.J. 1564 (2006)

Legal theorists are engaged in understanding the legitimacy of techniques by which principles of rights-holding travel across borders. Sovereigntists in the United States object to that migration. The history of both protest about and the incorporation of "foreign" law provi…


Rehabilitating Rehab Through State Building Codes

Sara C. Galvan

115 Yale L.J. 1744 (2006)

Building codes are not neutral documents. Traditional codes have the effect of deterring the rehabilitation of older structures. But rehabilitation--which can have many positive effects, especially on cities--should be encouraged, not deterred. One promising method of encour…


The Secret Ambition of Racial Profiling

Steven Wu

115 Yale L.J. 491 (2005)

In 2000, a year after the shooting of Amadou Diallo, a select committee of the New York City Council held a series of meetings in the Bronx to address police-community relations. The committee intended the meetings "to open a dialogue between police officers and city resident…


The Tenth Amendment and Local Government

Jake Sullivan

This Comment posits that the Constitution may well carve out a limited space for the people to express themselves and exercise certain powers through local self-government—without interference by the state. More specifically, the Tenth Amendment endows the people with the right to choose and define …


Homes Rule

Lee Anne Fennell

112 Yale L.J. 617 (2002)

In this important new book on local governance, economist William Fischel presents and defends a deceptively simple and intuitively resonant proposition: "that homeowners, who are the most numerous and politically influential group within most localities, are guided by their …


The Copyright Law

Robert Kry

111 Yale L.J. 761 (2001)


Categorical Federalism: Jurisdiction, Gender, and the Globe

Judith Resnik

111 Yale L.J. 619 (2001)

An absence of bounded categories may be unsettling but, in lieu of (false) comfort, multi-faceted federalism offers something else, hopefully more useful if less supportive. Under the rubric of multi-faceted federalism, the deployment of categories is accompanied by a sense t…


Abolition Without Deliverance: The Law of Connecticut Slavery 1784-1848

David Menschel

111 Yale L.J. 183 (2001)

According to American public memory, slavery in the United States was peculiar to the South. Unless explicitly reminded of the North's history of slavery, most Americans associate the North with abolitionists rather than slaveholders. Alongside this public memory is the work …


The Kabuki Mask of Bush v. Gore

Nick Levin

111 Yale L.J. 223 (2001)

Is law merely Kabuki politics? Many critics consider the Supreme Court's recent foray into electoral matters, Bush v. Gore, as resounding evidence that it is, with concerns for equality and electoral deadlines constituting the "conservative" Justices' masks. These critics p…


Deliberative Trouble? Why Groups Go to Extremes

Cass R. Sunstein

110 Yale L.J. 71 (2000)

In this Essay, I have discussed the phenomenon of group polarization and explored some of its implications for deliberation generally and deliberative democracy in particular. The central empirical finding is that group discussion is likely to shift judgments toward a more ext…