Local Government Law's "Law and (Blank)" Problem
Schleicher, David, Fordham Urban Law Journal
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
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. …