SelectedWorks @ Chapman University Dale E. Fowler School of Law
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The Scope of Regulatory Authority Under the Second Amendment
No full textThis paper will appear as a chapter in a forthcoming book to be published by the Johns Hopkins University Press that analyzes the efficacy of firearms regulation. In this paper, the authors analyze the emerging jurisprudential framework for assessing the validity of firearms regulation under the Second Amendment to the United States Constitution. This emerging framework, the authors contend, preserves substantial regulatory authority for federal, state, and local governments. The authors then assess the constitutionality of the leading proposals for regulatory reform that have emerged in the wake of the tragic events at Sandy Hook Elementary School in Newtown, Connecticut
Saving Disparate Impact
No full textMore than four decades ago, the Supreme Court concluded that Title VII of the Civil Rights Act of 1964’s prohibition on racial discrimination in employment is properly construed to forbid “practices, procedures, or tests neutral on their face, and even neutral in terms of intent,” that nevertheless “operate as ‘built-in headwinds’ for minority groups . . . that are unrelated to testing job capability.” In the Civil Rights Act of 1991, Congress codified liability for cases in which an employer “uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin and the [employer] fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity.” As many have observed, disparate-impact liability, by forcing employers to justify employment practices that have the effect of excluding women and minorities from their workforce, has been of considerable importance in producing reform in employment practices that had inhibited the economic advance of women and minorities. Yet, a cloud hangs over disparate impact liability. In Ricci v. DeStefano, the Court concluded that an employer\u27s decision to discard an employment practice because it produced a racially disparate impact amounts to a form of racial discrimination against nonminorities, at least absent “a strong basis in evidence to believe it would face disparate-impact liability . . . . By holding that an employer’s abandonment of an employee selection mechanism because it produces too many successful nonminority candidates amounts to racial discrimination, Ricci cast grave constitutional doubt on disparate-impact liability. Contemporary equal protection jurisprudence requires strict scrutiny whenever the government acts on the basis of race, even when the challenged action has a remedial or otherwise ostensibly benign justification. Ricci has provoked a torrent of criticism in the academy from those who regard it as an indefensible limitation on the ability of the civil rights laws to remediate discrimination. Others have expressed doubt about how its holding is likely to be applied. The literature does not yet contain, however, an account that endeavors to harmonize disparate-impact liability with contemporary equal protection jurisprudence. The task of this article is to provide that account. Part I demonstrates that the holding in Ricci was essentially compelled by the structure of contemporary equal protection jurisprudence. Part II offers an account that reconciles disparate-impact liability with the dictates of equal protection. Part III submits that the the fate of disparate-impact liability will tell us much about the character of equal protection. Asking the question whether disparate impact can be saved ultimately tells us whether equal protection jurisprudence is to embody a conception of a colorblind Constitution so robust that it prevents the government from addressing racially skewed inequality of opportunity. While it proves difficult to disentangle race-conscious governmental action, even for remedial purposes, from the rigors of strict scrutiny, Part III contends that there is good reason to resist the view that the government must always remain colorblind, even in the face of demonstrable inequality of opportunity that locks racial minorities into a position of economic disadvantage
The Reason Giving Lawyer: An Ethical, Practical, and Pedagogical Perspective
No full textWhether as a matter of duty or utility, lawyers give reasons for their actions all the time. In the various venues in which legal skills must be employed, reason giving is required in some, expected in others, desired in many, and useful in most. This Essay underscores the pervasiveness of reason giving in the practice of law and the consequent necessity of lawyers developing a skill at giving reasons. This Essay examines reason giving as an innate human characteristic related directly to our need for answers and our constant yearning to understand the answer to the question “why.” It briefly surveys the scholarship on reason-giving, including an analysis of its presence in law and legal institutions. Understanding then that reason-giving is a skill required for effective lawyering, the Essay proceeds to emphasize the pedagogical importance of (a) teaching an understanding of reason-giving’s prevalence in law; and, (b) nurturing the discrete habit and skill of reason giving in legal education as a foundational trait of good lawyering. The Essay concludes with a case study equating the law school exam taking process with administrative law decisionmaking and law school grading with the process of judicial review of agency action. Agency is to student as judge is to law professor. Greater recognition of the role of the reason giving lawyer – along with recognition and strengthening of the parts of legal education that help inculcate the reason giving skill – should improve our understanding of when, how, and under what conditions reason giving must occur for the effective functioning of the legal system and for effective lawyering
Whither Workforce Housing?
No full textThe last forty years have marked a dynamic era in affordable housing. During this time, affordable housing shifted from being largely government-owned to privately-owned, though certainly supported by government efforts.This evolution thus marked a distinct switch from a supply-side approach to a demand-side approach to affordable housing. As states and localities adapted to this paradigm shift, some high-priced metropolitan regions discovered that their housing markets were squeezing out middle-income service workers, such as police officers and teachers. In response, many localities - and some states - adopted various laws and policies to spur the creation of workforce housing: that is, moderately-priced housing that is affordable and desirable for these middle-income workers. These types of efforts seemed - and, indeed, were - necessary for these metropolitan areas when the housing market was at its peak in the mid-2000s. However, with the Great Recession came a bursting of the housing bubble, and home prices dropped dramatically all around the country. With the correction in the housing market, the continued need for workforce housing programs is less clear. In the context of the changes in affordable housing, this article seeks to analyze workforce housing’s place in the affordable housing landscape and explore the need for workforce housing in the future
Neighborhood Empowerment and the Future of the City
No full textIn any given metropolitan region, there are scores of municipalities locked in a zero-sum struggle for mobile sources of jobs and tax revenue. This competition appears to advantage small, homogenous suburbs over large, diverse cities because the former can directly enact the uniform will of the electorate rather than becoming ensnarled in conflict between competing interest groups. Cities can level the playing field with suburbs, however, by devolving municipal power to smaller, more homogenous subgroups within the city, such as neighborhoods. Indeed, one such effort at neighborhood empowerment, the “business improvement district,” (BID) has been widely identified as a key factor in the recent revitalization of many central cities. The BID, and the related “special assessment district,” essentially devolve the financing of infrastructure and services to landowners within a territorially designated area. Courts have widely upheld special assessment districts and BIDs against constitutional challenges.
Cities remain hamstrung in competing with suburbs, however, because courts prohibit cities from delegating perhaps the most coveted power of all to neighborhood groups: zoning. Since an unusual series of Supreme Court cases in the early twentieth century, it has been largely settled that cities may not constitutionally delegate the zoning power to sub-municipal groups, at least where the power is delegated specifically to landowners in a certain proximity to a proposed land use change (a scheme I designate a “neighborhood zoning district”).
This article argues that there is a serious inconsistency in a jurisprudence that treats BIDs and special assessment districts as unproblematic while prohibiting neighborhood zoning districts. As I demonstrate, these devices are in fact conceptually identical. Both the neighborhood zoning district and the special assessment/BID are designed to enable large, diverse cities to capture some of the governance advantages of small, homogenous suburbs by providing landowners with the direct ability to manage local externalities. This article attempts to make sense of the disparate treatment accorded these devices by examining several grounds upon which they could potentially be distinguished. I find, however, that special assessment districts/BIDs actually raise far more troubling public policy concerns than neighborhood zoning districts. I conclude that courts should broadly defer to municipal delegations of power to sublocal groups, so that cities can work out their own strategies for surviving in an era of intense inter-local competition
The Significance of Reliance in Land Use Law
No full textFor generations, Americans have tapped their life savings and assumed huge amounts of debt in order to achieve the American dream of owning their own home. Though investing so heavily in a single asset is a rather risky move on its face, buyers have been induced to purchase homes by a slew of public policies, most notably zoning ordinances that protect home values by buffering single-family neighborhoods against an invasion of undesirable uses. As a result, homeowners have a fairly convincing argument that they possess some sort of vested reliance interest in the existing zoning of their neighborhoods that should prevent municipal authorities from enacting zoning changes to allow unwanted uses.
Nevertheless, courts have not been receptive to homeowners’ pleas when such zoning changes are threatened. While courts will occasionally prohibit localities from changing their land use regulations after landowners have undertaken substantial expenditures to develop their property in reliance on pre-existing regulations, they offer no such protection for the reliance interests of landowners who desire to prevent development on neighboring property. I argue that the judicial distinction between developers’ and neighbors’ reliance interests rests on judicial intuitions about the nature of the local political process. Courts suspect that homeowners are likely to be the dominant faction in most municipalities and can therefore prevent unwanted development through their influence with city hall, whereas developers are unlikely to be powerful in a local political process dominated by anti-development homeowners, especially once a developer has invested significant resources in a particular project. This conclusion leads to a broader insight: Judicial review of land use decisionmaking is largely driven by a desire to protect the reliance interests of both developers and homeowners. Thus, courts are generally deferential toward most municipal land use policies that privilege homeowners’ reliance interests but occasionally temper that deference with solicitude for developers who can demonstrate substantial reliance.
As I argue, however, the primacy of reliance has come at a substantial price. For the sake of protecting reliance interests in existing zoning schemes, courts have essentially reified a longstanding pattern of de facto income and racial segregation in most metropolitan regions by licensing suburban communities to maintain zoning barriers that enforce such segregation. Moreover, I conclude that the judicial enterprise to protect reliance interests by empowering local governments is entirely self-defeating because, as the recent real estate downturn vividly illustrates, property values are determined by a complex web of forces well beyond the control of local governments
Citizens United, Corporate Personhood and Corporate Power: The Tension Between Constitutional Law and Corporate Law
No full textEmpower the Neighborhood and Save the City: Why Courts Should Permit Neighborhood Control of Zoning
No full textWhether cities should delegate zoning authority to neighborhood groups is one of the most hotly contested issues in municipal politics, yet it is also essentially a moot point. Since a bizarre series of Supreme Court cases in the early twentieth century, it has been largely settled that cities may not constitutionally delegate the zoning power to sub-municipal groups, at least where the power is delegated specifically to landowners in a certain proximity to a proposed land use change.
This article argues that courts have erred in prohibiting cities from devolving zoning control to proximate landowners, a scheme I designate a “neighborhood zoning district.” Courts, as well as scholars, have failed to recognize that the delegation of zoning power to neighborhoods is conceptually identical to a popular municipal financing device that courts have routinely upheld: the “special assessment district,” known in its modern incarnation as a “business improvement district.” Under this scheme, a municipality assesses a mandatory charge on all landowners within a designated territorial area to finance services or improvements benefitting that area, provided that a percentage of landowners in the district authorizes the charge. As I argue, both the neighborhood zoning district and the special assessment district enable large, diverse cities to capture some of the governance advantages of small, homogenous suburbs by providing landowners with the direct ability to manage local externalities. Courts and commentators, however, erroneously treat these two devices as though they are entirely distinct. The practical result has been that cities increasingly rely on BIDs as a catch-all solution to all urban problems, while neighborhood groups seethe over their inability to control their own zoning. The article concludes that courts should broadly defer to municipal delegations of power to sublocal groups, so that cities can work out their own strategy for surviving in an era of intense inter-local competition
What is Going on with our Economy
No full textThe financial crisis was caused by two factors. First was the abnormally easy money policy followed by the Federal Reserve for many years, keeping down interest rates, and creating a bubble in real estate. The second was the influence of the federal government, under both parties, and through both Congress and the President, to increase home ownership whether or not individuals were financially able to carry the mortgage. The first factor fed the second as higher real estate prices gave the impression that refinancing would be able to pay off mortgages even if a borrower\u27s income could not. Solutions to the problem can be of two kinds. First, complete regulation: which is close to what Dodd-Frank has created. Unprecedented oversight of financial institutions, including many not involved in the crisis at all, has now been established. An alternative approach was bypassed: that would have been to undo government involvement in the housing markets, while restoring the Glass-Steagall protections against federally insured commercial banks being affiliated with investment banks. The Gramm-Leach-Bliley bill that allowed banks to grow so large was a mistake. Repealing it would constitute an alternative to massive increase in regulatory oversight, and we would see financial institutions of a size and nature that they were not too big to fail
