Beyond the Double Veto: Housing Plans as Preemptive Intergovernmental Compacts

The problem of local-government barriers to housing supply is finally enjoying its moment in the sun. For decades, the states did little to remedy this problem and arguably they made it worse. But spurred by a rising Yes in My Backyard (YIMBY) movement, state legislatures are now trying to make local governments plan for more housing, allow greater density in existing residential zones, and follow their own rules when reviewing development applications. This Article describes and takes stock of the new state housing initiatives, relating them to preexisting Northeastern and West Coast approaches to the housing-supply problem; to the legal-academic literature on land use; and, going a bit further afield, to the federal government’s efforts to protect the voting rights of African Americans in the Jim Crow South. Of particular interest, we will see that in California, ground zero for the housing crisis, the general plan is evolving into something that resembles less a traditional land-use plan than a preemptive and self-executing intergovernmental compact for development permitting, one which supersedes other local law at least until the local government has produced its quota of housing for the planning cycle. The parties to the compact are the state, acting through its housing agency, and the local government in whose territory the housing would be built. I argue that this general approach holds real promise as a way of overcoming local barriers to housing supply, particularly in a world—our world—where there is little political consensus about the appropriate balance between local and state control over land use, or about what constitutes an illegitimate local barrier. The main weakness of the emerging California model is that the state framework does little to change the local political dynamics that caused the housing crisis in the first place. To remedy this shortcoming, I propose some modest extensions of the model, which would give relatively prohousing factions in city politics more leverage and facilitate regional housing deals

Appendix: Text and Precedent for Representational Adequacy Claims Under Fifty State Constitutions

This Appendix supplements the Article, From Educational Adequacy to Representational Adequacy: A New Template for Legal Attacks on Partisan Gerrymanders in the print edition of the William & Mary Law Review

From Educational Adequacy to Representational Adequacy: A New Template for Legal Attacks on Partisan Gerrymanders

For decades, legal attacks on partisan gerrymanders have foundered on a manageability dilemma: doctrinal standards the Supreme Court has regarded as judicially discoverable have been rejected as unmanageable, whereas the more manageable standards on offer have been dismissed as insufficiently tethered to the Constitution—that is, as undiscoverable. This Article contends that a solution to the dilemma may be found in a seemingly unlikely place: the body of state constitutional law concerned with the adequacy of state systems of public education. The justiciability barriers to partisan gerrymandering claims have near analogues in educational adequacy cases, yet only a minority of the state courts have deemed educational adequacy claims nonjusticiable. Other courts have dealt with putatively standardless education claims by holding that the legislature must adopt educational standards, together with a system of testing, school finance, and accountability reasonably designed to realize those standards. If the legislature drags its feet, courts have issued provisional remedies, which the legislature is free to update or replace. I explain how the same strategy could be adapted for a new generation of “representational adequacy” claims under broadly worded provisions found in many state constitutions. I also suggest that by anchoring claims to the generally worded provisions about representation found in state constitutions (or possibly Article I of the U.S. Constitution), litigants could mitigate the downside risk of success under the Equal Protection Clause—namely, the inducement of responsiveness-dampening bipartisan gerrymanders. The Online Appendix provides a state-by-state breakdown of constitutional provisions and relevant precedents, highlighting twenty-two states that appear ripe for representational adequacy litigation

Advisory Counterparts to Constitutional Courts

In recent years, legal scholars have paid a great deal of attention to the emergence of constitutional courts and judicial review in democracies worldwide, yet an intriguing parallel development in democratic constitutionalism has gone largely unnoticed: the establishment of independent bodies which, like constitutional courts, are concerned with foundational commitments of liberal democracy, but which advance these commitments mainly through investigations and advice-giving. Lacking de jure authority to block the implementation of unconstitutional laws and policies, the new advice givers instead make their contributions ex ante, identifying problems that warrant legislative attention and helping to craft laws and regulations that respond to foundational aspirations. This Article surveys the emergence of these advisory counterparts to constitutional courts and offers an account of their comparative advantage, relative to constitutional courts, as guardians of liberality. The Article also presents an initial treatment of the advisory counterparts\u27 characteristic limitations. and, dangers, and explores some associated questions of institutional design