Over the past decade, a number of state and local governments have amended land use regulations t... more Over the past decade, a number of state and local governments have amended land use regulations to permit the accessory dwelling units (“ADUs”) on single-family lots. Measured by raw numbers of reforms, the campaign to secure legal reforms permitting ADUs appears to be a tremendous success. The question remains, however, whether these reforms overcome the well-documented land-use parochialism that has, for decades, represented a primary obstacle to increasing the supply of affordable housing. In order to understand more about their actual effects, this Article examines ADU reforms in a context which ought to predict a minimal level of local parochialism. In 2002, California enacted state-wide legislation mandating that local governments either amend their zoning laws to permit ADUs in single-family zones or accept the imposition of a state-dictated regulatory regime. We carefully examined the zoning law of all California cities with populations over 50,000 people (150 total cities) ...
DAVID AND AMY CARSON, as Parents and next Friends of O.C., and TROY AND ANGELA NELSON, as Parents... more DAVID AND AMY CARSON, as Parents and next Friends of O.C., and TROY AND ANGELA NELSON, as Parents and next Friends of A.N. and R.N., Petitioners v. A. PENDER MAKIN, in Her Official Capacity as Commissioner of the Maine Department of Education, Respondent. On Petition for Writ of Certiorari to the United States Court of Appeals for the First Circuit BRIEF FOR COUNCIL OF ISLAMIC SCHOOLS IN NORTH AMERICA, PARTNERSHIP FOR INNER-CITY EDUCATION, AND UNION OF ORTHODOX JEWISH CONGREGATIONS OF AMERICA AS AMICI CURIAE IN SUPPORT OF PETITIONERS No. 20-1088 March 11, 2021 Amici curiae operate, represent, and support elementary and secondary schools in three faith traditions: Catholic (Partnership for Inner-City Education), Islamic (Council of Islamic Schools in North America), and Jewish (Union of Orthodox Jewish Congregations of America). Students attending many of the schools that are operated or supported by amici participate in publicly-funded private-school-choice programs. Central to thes...
In recent years, America’s older suburbs—sometimes called 'inner ring ' or 'first&... more In recent years, America’s older suburbs—sometimes called 'inner ring ' or 'first' suburbs—have become the focus of a tremendous amount of popular and scholarly attention.1 A sense of doom pervades much of the commentary on these communities, which are home to approximately one-fifth of the nation’s population.2 Since the publication of Myron Orfield’s Metropolitics in 1997, a steady stream of reports have emerged warning that many of our inner ring communities are on a path of decline that will lead inevitably to the social and economic crises facing inner city communities.3 Inner ring suburbs are, according to these accounts, our next ghettos. The 2014 riots in Ferguson, Missouri—a poor, predominantly African American suburban community—heightened these anxieties about the future of the inner ring, leading some to warn that the unrest in the St. Louis suburb was reflective of a pervasive and deep suburban dysfunction resulting from failed public policies at all...
Notre Dame Law School Legal Studies Research Paper Series, 2011
Over the past several decades, debates about the appropriate tools of commons management have pla... more Over the past several decades, debates about the appropriate tools of commons management have played themselves out in a particularly illuminating way in the management of urban public spaces. Some commentators urge, a la Garrett Hardin, that government coercion is needed to restore order to the urban commons. Others urge the privatization or quasi-privatization of urban public-spaces. On the ground in American cities, these theoretical arguments have been translated into concrete policies, especially policing strategies (e.g., order-maintenance and community policing) and urban development strategies (e.g., business improvement districts). This is an opportune time to reexamine the commons-management questions raised by these policies. The current economic crisis is forcing cities to scale back law enforcement efforts, as well as limiting the financing available to fund sublocal investments in urban public spaces. It is possible that these pressures will lead the current urban-comm...
University of Michigan Journal of Law Reform, 2018
Over the past few decades, parental choice has exploded in the United States. Yet, despite early ... more Over the past few decades, parental choice has exploded in the United States. Yet, despite early proponents’ hopes that parental choice would eliminate the need to regulate school quality — since parents’ choices would serve an accountability function — demands to use the law to hold chosen schools accountable for their academic performance are central features of education-reform debates today. This is an opportune time to consider the issue of academic accountability and parental choice. Parental choice has gained a firm foothold in the American educational landscape. As it continues to expand, debates about accountability for chosen schools will only intensify. The questions of whether, when, and how the law ought to regulate the quality of the schools participating in parental-choice programs are important and vexing ones for the law of education. This Article examines these questions and proposes principles to guide regulatory design efforts.
This short essay reviews the regulatory takings legacy of Justice Antonin Scalia, evaluating both... more This short essay reviews the regulatory takings legacy of Justice Antonin Scalia, evaluating both its impact on the Supreme Court's takings canon and its consistency with his stated jurisprudential principles.
This article analyzes the U.S. Supreme Court's most-recent regulatory takings decision, Murr ... more This article analyzes the U.S. Supreme Court's most-recent regulatory takings decision, Murr v. Wisconsin, concluding that the decision further muddies the takings waters and threatens to undermine the already-limited protection of private property provided by the Fifth Amendment's Takings Clause.
In his twenty-five years on the Supreme Court, Justice Clarence Thomas has earned the (sometimes ... more In his twenty-five years on the Supreme Court, Justice Clarence Thomas has earned the (sometimes grudging) respect of legal scholars and commentators, including many who disagree with him, for his careful, principled, analytic approach to many areas of law. Race is not among them. For his allegiance to a “color blind” Constitution, Justice Thomas has been accused of judicial activism, rank hypocrisy, racial self-hatred, and racial betrayal. These criticisms, which profoundly misrepresent Justice Thomas’s views on race, are both unfortunate and avoidable. In the race context, more than any other area of the law, Justice Thomas has explained the reasons for his views, including his desire to restrain government policies that he believes harm minorities. As he has explained, “It pains me deeply . . . to be perceived by so many members of my
In the District of Columbia . . . one out of every three students drop out before they finish hig... more In the District of Columbia . . . one out of every three students drop out before they finish high school. A new study done: three-fourths of the nation's schoolchildren are unable to compose an organized, coherent essay. All across the country-New York, Chicago, Los Angeles, New Orleans-the Catholic school system, more than half of those students are non-Catholic, most of them black, many of them with a single mom. They have decided the public schools don't work for their kid, and they want to stop the experimentation on their child. And they have chosen to send their kid to a Catholic school, even though they're nonCatholic. And 99 percent of them go on to college. Why don't those poor, minority moms with their kids, who could not possibly deal with the chaos of public school, deserve a break? Tim Russert, questioning Vice-President Gore on NBC's "Meet The Press"1 I. INTRODUCTION An interesting exchange occurred during the December 19, 1999 appearance...
Most zoning laws severely restrict residents' ability to work from home. Some prohibit it out... more Most zoning laws severely restrict residents' ability to work from home. Some prohibit it outright. These regulations serve the ostensible purpose of protecting neighbors from externalities that might be generated by home businesses. But, home occupation restrictions also reflect in a particularly sharp way the central motivating ideology underlying all zoning laws - namely, that the "good life" requires the careful segregation of work and home. Today, home business regulations are being challenged by both planning theory and economic reality. At the same time that many in the academy and planning professions are calling into question zoning's pervasive segregation of land uses, increasing numbers of Americans are choosing to work from home. Homeowners, however, continue to worry about the introduction of commercial activity into residential neighborhoods. This article examines how local governments might respond to zoning law's "home business dilemma."
The number of students participating in private-school-choice programs in the United States has i... more The number of students participating in private-school-choice programs in the United States has increased dramatically in recent years (to over 350,000 during the 2014-15 school year). At present, more than half of states have at least one private-school-choice program. In Zelman v. Simmons-Harris (2002), the U.S. Supreme Court cleared the federal constitutional path to this expansion of private-school choice by holding that the Establishment Clause does not preclude states from government funds to enable students to attend private schools. Nevertheless, private-school-choice programs raise a number of other legal issues. This paper addresses several of the most significant.
This contribution to a Notre Dame Law Review symposium on “Law and Educational Innovation” critiq... more This contribution to a Notre Dame Law Review symposium on “Law and Educational Innovation” critiques the oft-repeated assertion that private-school-choice programs, such as tuition vouchers or tax credits, are unnecessary because charter schools provide sufficient educational choices. Arguing that policy makers have failed to come to terms with the profound, unfortunate consequences of Catholic schools’ rapid disappearance from urban neighborhoods, the essay builds a case for a shift in education policy that embraces both charter schools and private-school-choice mechanisms.
Business improvement districts ("BIDs") have become a ubiquitous feature of the urban d... more Business improvement districts ("BIDs") have become a ubiquitous feature of the urban development toolkit. An important - perhaps the most important - instantiation of the trend in urban governance toward the devolution of local authority to new "sublocal," quasi-governmental institutions, BIDs play an important role in urban re-development efforts, especially efforts to revitalize downtowns and satellite center-city business districts. Drawing upon case studies of Philadelphia’s BIDS, this symposium essay seeks to answer three questions about how BIDs actually work on the ground: First, whether BIDs are actually functioning as local governments rather than quasi-private providers of supplemental services; second, whether BIDs either generate an insider/outsider problem within urban neighborhoods; and, third, whether BIDs exacerbate the pre-existing inequalities between urban neighborhoods.
Notre Dame Law School Legal Studies Research Paper Series, 2009
This Essay, prepared for a NYU Journal of Law and Liberty symposium on “The Unknown Justice Thoma... more This Essay, prepared for a NYU Journal of Law and Liberty symposium on “The Unknown Justice Thomas,” challenges the oft-repeated criticism that Justice Clarence Thomas’s opinions reflect a lack of empathy for the less fortunate. The Essay argues that, on the contrary, Justice Thomas’s opinions are replete with expressions of concern for the “little guy,” which are frequently overlooked or misinterpreted. The Essay explores three themes reflecting this concern in Thomas’s opinions.
Notre Dame Law School Legal Studies Research Paper Series, 2011
This short essay takes as its starting point on the Supreme Court’s recent decision in Winn v. Ar... more This short essay takes as its starting point on the Supreme Court’s recent decision in Winn v. Arizona Christian Tuition Organization, which involved an Establishment Clause challenge to Arizona’s scholarship tax program — a school-choice device that provides tax credits from state income taxes for donations to organizations granting scholarship to private K-12 schools. In Winn, a divided court ruled that taxpayers lack standing to challenge this and other tax credit programs — thereby dramatically limiting the Flast v. Cohen exception to the no-taxpayer-standing rule. The essay makes the case that the Winn will promote authentic educational pluralism by clearing the constitutional path for further expansion of scholarship tax credit programs, which enhance the educational opportunities available for students of modest means.
Two vexing puzzles plague American land use regulators. The first puzzle is how to protect proper... more Two vexing puzzles plague American land use regulators. The first puzzle is how to protect property owners from harmful spillovers without unduly stifling land use diversity. The dominant forms of land use regulation in the United States - zoning and private covenants - rely on ex ante prohibitions. Yet, since local governments and private developers rarely can calibrate the level of regulation to residents’ true preferences, the costs imposed by these regulations tend to exceed the benefits of actual harm prevention. The result is the over-protection of property owners and, and, many would argue, a monotonous, sterile, inefficient, and inconvenient suburban landscape. The second puzzle is how to address the intrametropolitan inequalities resulting from the fragmented distribution of regulatory authority without undercutting the beneficial effects of inter-jurisdictional competition. While this puzzle extends beyond property law, land use regulations are particularly problematic bec...
Government officials regularly use the power of eminent domain to benefit private entities, and j... more Government officials regularly use the power of eminent domain to benefit private entities, and just as regularly justify their actions with post hoc assertions about the need to promote "economic development." In Hawaii Housing Authority v. Midkiff, the Supreme Court reaffirmed that the Fifth Amendment demands broad deference to a government's decision to exercise the power of eminent domain. Midkiff makes clear that "public use" challenges are subject to rational basis review; so long as a taking can be justified by some conceivable public purpose, it will be upheld. Yet in recent years, a number of courts have put the government to its proof-requiring a demonstrated connection between the challenged taking and the particular purpose used to justified it. In so doing, these courts refused to allow the government to avail itself of the "conceivability" safety valve provided by rational basis review, a standard that requires approval of any taking t...
Over the past decade, a number of state and local governments have amended land use regulations t... more Over the past decade, a number of state and local governments have amended land use regulations to permit the accessory dwelling units (“ADUs”) on single-family lots. Measured by raw numbers of reforms, the campaign to secure legal reforms permitting ADUs appears to be a tremendous success. The question remains, however, whether these reforms overcome the well-documented land-use parochialism that has, for decades, represented a primary obstacle to increasing the supply of affordable housing. In order to understand more about their actual effects, this Article examines ADU reforms in a context which ought to predict a minimal level of local parochialism. In 2002, California enacted state-wide legislation mandating that local governments either amend their zoning laws to permit ADUs in single-family zones or accept the imposition of a state-dictated regulatory regime. We carefully examined the zoning law of all California cities with populations over 50,000 people (150 total cities) ...
DAVID AND AMY CARSON, as Parents and next Friends of O.C., and TROY AND ANGELA NELSON, as Parents... more DAVID AND AMY CARSON, as Parents and next Friends of O.C., and TROY AND ANGELA NELSON, as Parents and next Friends of A.N. and R.N., Petitioners v. A. PENDER MAKIN, in Her Official Capacity as Commissioner of the Maine Department of Education, Respondent. On Petition for Writ of Certiorari to the United States Court of Appeals for the First Circuit BRIEF FOR COUNCIL OF ISLAMIC SCHOOLS IN NORTH AMERICA, PARTNERSHIP FOR INNER-CITY EDUCATION, AND UNION OF ORTHODOX JEWISH CONGREGATIONS OF AMERICA AS AMICI CURIAE IN SUPPORT OF PETITIONERS No. 20-1088 March 11, 2021 Amici curiae operate, represent, and support elementary and secondary schools in three faith traditions: Catholic (Partnership for Inner-City Education), Islamic (Council of Islamic Schools in North America), and Jewish (Union of Orthodox Jewish Congregations of America). Students attending many of the schools that are operated or supported by amici participate in publicly-funded private-school-choice programs. Central to thes...
In recent years, America’s older suburbs—sometimes called 'inner ring ' or 'first&... more In recent years, America’s older suburbs—sometimes called 'inner ring ' or 'first' suburbs—have become the focus of a tremendous amount of popular and scholarly attention.1 A sense of doom pervades much of the commentary on these communities, which are home to approximately one-fifth of the nation’s population.2 Since the publication of Myron Orfield’s Metropolitics in 1997, a steady stream of reports have emerged warning that many of our inner ring communities are on a path of decline that will lead inevitably to the social and economic crises facing inner city communities.3 Inner ring suburbs are, according to these accounts, our next ghettos. The 2014 riots in Ferguson, Missouri—a poor, predominantly African American suburban community—heightened these anxieties about the future of the inner ring, leading some to warn that the unrest in the St. Louis suburb was reflective of a pervasive and deep suburban dysfunction resulting from failed public policies at all...
Notre Dame Law School Legal Studies Research Paper Series, 2011
Over the past several decades, debates about the appropriate tools of commons management have pla... more Over the past several decades, debates about the appropriate tools of commons management have played themselves out in a particularly illuminating way in the management of urban public spaces. Some commentators urge, a la Garrett Hardin, that government coercion is needed to restore order to the urban commons. Others urge the privatization or quasi-privatization of urban public-spaces. On the ground in American cities, these theoretical arguments have been translated into concrete policies, especially policing strategies (e.g., order-maintenance and community policing) and urban development strategies (e.g., business improvement districts). This is an opportune time to reexamine the commons-management questions raised by these policies. The current economic crisis is forcing cities to scale back law enforcement efforts, as well as limiting the financing available to fund sublocal investments in urban public spaces. It is possible that these pressures will lead the current urban-comm...
University of Michigan Journal of Law Reform, 2018
Over the past few decades, parental choice has exploded in the United States. Yet, despite early ... more Over the past few decades, parental choice has exploded in the United States. Yet, despite early proponents’ hopes that parental choice would eliminate the need to regulate school quality — since parents’ choices would serve an accountability function — demands to use the law to hold chosen schools accountable for their academic performance are central features of education-reform debates today. This is an opportune time to consider the issue of academic accountability and parental choice. Parental choice has gained a firm foothold in the American educational landscape. As it continues to expand, debates about accountability for chosen schools will only intensify. The questions of whether, when, and how the law ought to regulate the quality of the schools participating in parental-choice programs are important and vexing ones for the law of education. This Article examines these questions and proposes principles to guide regulatory design efforts.
This short essay reviews the regulatory takings legacy of Justice Antonin Scalia, evaluating both... more This short essay reviews the regulatory takings legacy of Justice Antonin Scalia, evaluating both its impact on the Supreme Court's takings canon and its consistency with his stated jurisprudential principles.
This article analyzes the U.S. Supreme Court's most-recent regulatory takings decision, Murr ... more This article analyzes the U.S. Supreme Court's most-recent regulatory takings decision, Murr v. Wisconsin, concluding that the decision further muddies the takings waters and threatens to undermine the already-limited protection of private property provided by the Fifth Amendment's Takings Clause.
In his twenty-five years on the Supreme Court, Justice Clarence Thomas has earned the (sometimes ... more In his twenty-five years on the Supreme Court, Justice Clarence Thomas has earned the (sometimes grudging) respect of legal scholars and commentators, including many who disagree with him, for his careful, principled, analytic approach to many areas of law. Race is not among them. For his allegiance to a “color blind” Constitution, Justice Thomas has been accused of judicial activism, rank hypocrisy, racial self-hatred, and racial betrayal. These criticisms, which profoundly misrepresent Justice Thomas’s views on race, are both unfortunate and avoidable. In the race context, more than any other area of the law, Justice Thomas has explained the reasons for his views, including his desire to restrain government policies that he believes harm minorities. As he has explained, “It pains me deeply . . . to be perceived by so many members of my
In the District of Columbia . . . one out of every three students drop out before they finish hig... more In the District of Columbia . . . one out of every three students drop out before they finish high school. A new study done: three-fourths of the nation's schoolchildren are unable to compose an organized, coherent essay. All across the country-New York, Chicago, Los Angeles, New Orleans-the Catholic school system, more than half of those students are non-Catholic, most of them black, many of them with a single mom. They have decided the public schools don't work for their kid, and they want to stop the experimentation on their child. And they have chosen to send their kid to a Catholic school, even though they're nonCatholic. And 99 percent of them go on to college. Why don't those poor, minority moms with their kids, who could not possibly deal with the chaos of public school, deserve a break? Tim Russert, questioning Vice-President Gore on NBC's "Meet The Press"1 I. INTRODUCTION An interesting exchange occurred during the December 19, 1999 appearance...
Most zoning laws severely restrict residents' ability to work from home. Some prohibit it out... more Most zoning laws severely restrict residents' ability to work from home. Some prohibit it outright. These regulations serve the ostensible purpose of protecting neighbors from externalities that might be generated by home businesses. But, home occupation restrictions also reflect in a particularly sharp way the central motivating ideology underlying all zoning laws - namely, that the "good life" requires the careful segregation of work and home. Today, home business regulations are being challenged by both planning theory and economic reality. At the same time that many in the academy and planning professions are calling into question zoning's pervasive segregation of land uses, increasing numbers of Americans are choosing to work from home. Homeowners, however, continue to worry about the introduction of commercial activity into residential neighborhoods. This article examines how local governments might respond to zoning law's "home business dilemma."
The number of students participating in private-school-choice programs in the United States has i... more The number of students participating in private-school-choice programs in the United States has increased dramatically in recent years (to over 350,000 during the 2014-15 school year). At present, more than half of states have at least one private-school-choice program. In Zelman v. Simmons-Harris (2002), the U.S. Supreme Court cleared the federal constitutional path to this expansion of private-school choice by holding that the Establishment Clause does not preclude states from government funds to enable students to attend private schools. Nevertheless, private-school-choice programs raise a number of other legal issues. This paper addresses several of the most significant.
This contribution to a Notre Dame Law Review symposium on “Law and Educational Innovation” critiq... more This contribution to a Notre Dame Law Review symposium on “Law and Educational Innovation” critiques the oft-repeated assertion that private-school-choice programs, such as tuition vouchers or tax credits, are unnecessary because charter schools provide sufficient educational choices. Arguing that policy makers have failed to come to terms with the profound, unfortunate consequences of Catholic schools’ rapid disappearance from urban neighborhoods, the essay builds a case for a shift in education policy that embraces both charter schools and private-school-choice mechanisms.
Business improvement districts ("BIDs") have become a ubiquitous feature of the urban d... more Business improvement districts ("BIDs") have become a ubiquitous feature of the urban development toolkit. An important - perhaps the most important - instantiation of the trend in urban governance toward the devolution of local authority to new "sublocal," quasi-governmental institutions, BIDs play an important role in urban re-development efforts, especially efforts to revitalize downtowns and satellite center-city business districts. Drawing upon case studies of Philadelphia’s BIDS, this symposium essay seeks to answer three questions about how BIDs actually work on the ground: First, whether BIDs are actually functioning as local governments rather than quasi-private providers of supplemental services; second, whether BIDs either generate an insider/outsider problem within urban neighborhoods; and, third, whether BIDs exacerbate the pre-existing inequalities between urban neighborhoods.
Notre Dame Law School Legal Studies Research Paper Series, 2009
This Essay, prepared for a NYU Journal of Law and Liberty symposium on “The Unknown Justice Thoma... more This Essay, prepared for a NYU Journal of Law and Liberty symposium on “The Unknown Justice Thomas,” challenges the oft-repeated criticism that Justice Clarence Thomas’s opinions reflect a lack of empathy for the less fortunate. The Essay argues that, on the contrary, Justice Thomas’s opinions are replete with expressions of concern for the “little guy,” which are frequently overlooked or misinterpreted. The Essay explores three themes reflecting this concern in Thomas’s opinions.
Notre Dame Law School Legal Studies Research Paper Series, 2011
This short essay takes as its starting point on the Supreme Court’s recent decision in Winn v. Ar... more This short essay takes as its starting point on the Supreme Court’s recent decision in Winn v. Arizona Christian Tuition Organization, which involved an Establishment Clause challenge to Arizona’s scholarship tax program — a school-choice device that provides tax credits from state income taxes for donations to organizations granting scholarship to private K-12 schools. In Winn, a divided court ruled that taxpayers lack standing to challenge this and other tax credit programs — thereby dramatically limiting the Flast v. Cohen exception to the no-taxpayer-standing rule. The essay makes the case that the Winn will promote authentic educational pluralism by clearing the constitutional path for further expansion of scholarship tax credit programs, which enhance the educational opportunities available for students of modest means.
Two vexing puzzles plague American land use regulators. The first puzzle is how to protect proper... more Two vexing puzzles plague American land use regulators. The first puzzle is how to protect property owners from harmful spillovers without unduly stifling land use diversity. The dominant forms of land use regulation in the United States - zoning and private covenants - rely on ex ante prohibitions. Yet, since local governments and private developers rarely can calibrate the level of regulation to residents’ true preferences, the costs imposed by these regulations tend to exceed the benefits of actual harm prevention. The result is the over-protection of property owners and, and, many would argue, a monotonous, sterile, inefficient, and inconvenient suburban landscape. The second puzzle is how to address the intrametropolitan inequalities resulting from the fragmented distribution of regulatory authority without undercutting the beneficial effects of inter-jurisdictional competition. While this puzzle extends beyond property law, land use regulations are particularly problematic bec...
Government officials regularly use the power of eminent domain to benefit private entities, and j... more Government officials regularly use the power of eminent domain to benefit private entities, and just as regularly justify their actions with post hoc assertions about the need to promote "economic development." In Hawaii Housing Authority v. Midkiff, the Supreme Court reaffirmed that the Fifth Amendment demands broad deference to a government's decision to exercise the power of eminent domain. Midkiff makes clear that "public use" challenges are subject to rational basis review; so long as a taking can be justified by some conceivable public purpose, it will be upheld. Yet in recent years, a number of courts have put the government to its proof-requiring a demonstrated connection between the challenged taking and the particular purpose used to justified it. In so doing, these courts refused to allow the government to avail itself of the "conceivability" safety valve provided by rational basis review, a standard that requires approval of any taking t...
Uploads
Papers by Nicole Garnett