Oppenheimer, Franz M.

English

Yale Law School Legal Scholarship Repository

THE YALE LAW JOURNAL
As to strict liability: The time consumed by the courts in negligence cases,
the element of chance in securing compensation, the swollen verdicts obtained
by some of the expert operators, and the very real need of protection to persons
made indigent by disaster, may cause a profound change in the rules. To carry
the authors' ideas to a logical conclusion, each person or household should be
required to be insured against all forms of disaster. There is the same economic
loss whether harm is caused by slipping in a bath tub or being run over by a
negligent or non-negligent driver. The premium could be collected as a tax;
as in social security, the amount of the tax and the compensation could be ad-
justed to income. Surely the state is the best "spreader of the loss." Such an
approach would eliminate waste in the court room and elsewhere even more
than do Workmen's Compensation Acts. Without advocating such a system,
I think it is preferable to one of strict liability, which has many difficulties that
have not been sufficiently explored to enable us to judge its workability. I do
not subscribe to the idea that negligence as a factor in liability is passing nor
that it should pass out, although I do agree that basing liability on legal fault
does not substantially minimize the slaughter on the highway.
Again may I say that the reading of the book was interesting and educational.
I suggest it for consideration and thought by all three branches of the legal
profession.
WAExN A. SEAvEYt
THE LAW OF ZONING. By James Metzenbaum. New York: Baker, Voorhis
& Co., 2d ed., 1955. 3 Volumes, pp. xxix, 2531. $35.00.
THE rise of'zoning in the second decade of this century was a symptom not
of urban progress but of urban decline. It followed a new emphasis on "effici-
ency" in city administration and a new contempt for beauty.' Even within the
narrow compass of its potential usefulness, zoning has not been successful: in
1942 a study concluded that non-conforming uses were increasing rather than
decreasing ;2 and given the wretched standards of enforcement generally pre-
vailing,3 it is unlikely that this trend has since been reversed. 4
tBussey Professor Emeritus of Law, Harvard Law School.
1. TUNNARD & REE, AMERICAN SKYLINE 171, 172-73 (1956).
2, Comment, Amortization of Property Uses not Conforming to Zoning Regulations,
9 U. CHI. L. REv. 477, 479 (1942).
3. See, e.g., Lwis, A Nzw ZONING PLAN FOR THE DisTRicr oF COLUM!BIA 6 (1957).
A unique aspect of zoning lies in the fact that boards of zoning adjustment can grant
variances and exceptions without showing the reasoning on which their decisions are based
in published reports or opinions. Hence there is no need for consistency, lawyers have no
means of analyzing the board's past policies, and "contacts" and "influence" are at a
premium. See, e.g., Note, Zoning Variances and Exceptions: The Philadelphia Experience,
103 U. PA. L. REv. 516, 529, 533 (1955), which also comments on inadequate enforcement,
id. at 552.
4. It is true that there has been a trend towards ordinances requiring the termination
of non-conforming uses after a reasonable period of time, which have been upheld by the
[Vol : 66
REVIEWS
Zoning law has reflected the unpromising beginnings and the depressing de-
velopment of zoning as an instrument of city planning. As Norman Williams
has observed, zoning cases "are usually handled by small-time lawyers," and
"court opinions tend to proceed on a remarkably low intellectual level."
"Many opinions read as if (as was probably the case) the lawyers considered
their job done when they had found the leading zoning case in their own
jurisdiction, and then copied out long passages of vague language about
property rights, due process, the police power, and the public health, safety
and general welfare-which then end up as the first few pages of the
court's opinion." 5
In turn, the sorry state of the art has been reflected in the literature. Metzen-
baum's three massive volumes bound in red buckram with gold lettering on
their backs, like the volumes of Yoldey 6 and Rathkopf,7 are a treatise only in
appearance. In content they are paste and scissor digests and excerpts inter-
spersed with a minimum of comment and transition, composed in pre-Lang-
dellian legal prose of touching pomposity.
It would be a pleasure to be able to praise his work, for James Metzenbaum
was a pioneer in zoning at a time when its advocacy required imagination and
courage. He was a member of the Commission which drafted the zoning ordi-
nance for the Village of Euclid, Ohio, and afterwards served as counsel in the
celebrated case of Euclid v. Ambler Realty Co.,8 in which the Supreme Court
held that ordinance constitutional. Moreover, the transformation of his treatise
from the 500 page first edition in 1930 to the 2,500 page second edition gives
evidence of the author's sustained and devoted industry in the service of the
cause. Yet praise is difficult, even if the absence of analysis and evaluation is
overlooked and the work judged strictly in accordance with its stated aims: to
permit the reader to find the law without reference to any other source; "to
make virtually all cited decisions clear in the very pages of these books, by
quotations therefrom; to create a 'Rocking Chair' situation, where each reader
may-while seated in his study, office or home-know precisely what each
ruling has actually decided" ;9 to spare the reader any "index-hunting" by sup-
plying cross-references throughout; and to facilitate reading by omitting foot-
notes altogether and citing all cases in the text itself. It is simply not possible
courts in several cases. See Norton, Elimination of Incompatible Uses and Structures,
20 LAW & CONTaEn. PRoB. 305, 308-11 (1955), and cases cited. But it is probable that
these compulsory amortization provisions will become dead letters. See HoRACK &
NOLAN, LAND USE CONTROLS 162 (1955).
5. Williams, Plamnnng Law and Democratic Living, 20 LAW & CoNmi'sP. PROB. 317,
318-19 (1955).
6. YOKLEY, ZONING LAW AND PRACTICE (2d ed. 1953) in two volumes.
7. RATHKoPF, THE LAW OF ZONING AND PLANNING (3d ed. 1956) loose leaf in two
volumes. HoRAcK & NOLAN, LAND USE CONTROLS (1955), a volume of materials in the
American Casebook Series, is the only intelligent book on zoning law I have been able to
find.
8. 272 U.S. 365 (1926).
9. P. vi.
THE YALE LAW JOURNAL
to find the law in a procession of quoted headnotes and syllabi, and the author
as much as admits it when he occasionally interrupts the procession by such
remarks as "it would be fruitful to read this entire case," 10 and "this case merits
full reading."' Instead of sparing us index-hunting, he makes index-hunting
difficult, for the table of cases fails to distinguish between casual references and
full discussions. Since many cases are cited many times-there are fifty-seven
page references to Euclid v. Ambler Realty Co.,' 2 thirty-six to Arveren Bay
Constr. Co. v. Thatcher,3 twenty-two to Rodgers v. Tarrytown,14 and so on-
the task of finding the most complete information possible in these volumes is
arduous.
It would be unkind to labor the work's weaknesses any further; to enumerate
instances where, after a collection of conceptual verbiage on one side of a
given question, we are faced with a sub-chapter entitled "Somewhat Contra"
and a similar collection on the other side, always without analysis or con-
clusion ;15 to dwell on variations in the spelling of a case name ;16 or to deplore
the omission of such important cases as Davis v. Onmaha,17 and Fischer v. Bed-
minster Township.'8 Metzenbaum's work will provide a wide selection of
words and phrases for quotation in a zoning brief, and its third volume use-
fully collects a number of illustrative zoning ordinances and forms for litigation
before boards and courts. We must leave it at that.
If the law of zoning has been permitted to develop in a distorted and anachro-
nistic frame of reference, the fault, after all, is not Metzenbaum's, Yokley's and
Rathkopf's. The nature of zoning has been misunderstood quite universally. Even
the most casual observer cannot fail to notice that the bulk of all residential
and commercial building in American cities is done by large-scale corporate
builders, contractors and real estate developers.' 9 But there seems never to
have been a clear recognition that zoning must be a method of regulating a
powerful industry. No one would suppose that it is possible to regulate financial
markets or labor relations by local city ordinances. Yet the legal decisions and
texts typically discuss zoning as if it were designed to permit Jeffersonian
10. P. 155.
11. P. 156.
12. P. 2366.
13. P. 2358.
14. P. 2383.
15. P. 72. Cf. the similar treatment of minimum area restrictions, pp. 279-287, omitting
any discussion of the difficult policy questions involved. Cf. Haar, Zoning for Minimum
Standards: The Wayne Township Case, 66 H.Agv. L. Rxv. 1051 (1953); Nolan & Horack,
How Small a House?-Zoning for Minimum Space Requirements, 67 HAv. L. REv. 967
(1954); Haar, Wayne Township: Zoning for Whom?-In Brief Reply, 67 HAav. L. REv.
986 (1954).
16. Is it Necktow or Nectow v. Cambridge? Compare pp. 397, 560, 2377 (Necktow)
with pp. 283, 745, 747 (Nectow).
17. 153 Neb. 460, 45 N.W.2d 172 (1950) (spot-zoning).
18. 11 N.J. 194, 93 A.2d 378 (1952) (upholding five acre minimum lot restriction).
19. More than 80% of all houses are built for sale to unknown buyers. See Hughes
& May, Housing: The Stalled Revolution, Fortune, April 1957, p. 286.
[Vol : 66
REVIEWS
farmers to live unmolested on their homesteads, instead of recognizing that
zoning must provide a barrier to the abuse of massed corporate power.
Professor McDougal recognized this basic problem as many as fifteen years
ago, when he called for "an institutional interrelation of... local and federal
agencies in a way which, while preserving and channeling local initiative, will
draw upon superior federal finances and superior federal ability to fight and
defeat nationally-organized pressure groups."20 But his diagnosis has drawn
little response. Far from distrusting the vested interests of corporate builders
and developers and their professional spokesmen, city administrations typically
rely almost exclusively on the purported expertise of those interests when
formulating policy.21 Hence, it is hardly surprising that many coroporation coun-
sels and city attorneys serving such administrations seem to labor still under
the belief that the Fourteenth Amendment did, indeed, enact Mr. Herbert
Spencer's Social Statics.
What is the explanation for the chaotic inadequacy of the regulatory scheme
at a time when the explosive growth of our cities has become one of the fore-
most, if not the foremost, of national domestic problems? Professional planners
and architects must share a large part of the responsibility, for their discussions
are pitched on so esoteric and arcane a semantic level that it is not surprising
when their admonitions go unheeded. 22 Yet the basic cause lies in the almost
incredible apathy of Americans towards their physical environment. It is not
true that, in Professor McDougal's words, "humble millions are ever more
insistently demanding healthful homes, homes at reasonable prices, and homes
in stable, well-planned communities."' 23 The millions, humble or arrogant, may
be demanding bigger cars with more chromium, gaudier give-away shows on
television and cuts in the defense and foreign aid budgets, but there is no evidence
that they demand better cities.
Perhaps this apathy is the result of the characteristic contemporary disillusion
20. McDougal, Book Review, 54 HARv. L. RFv. 526, 530 (1941). See also MCDOUGAL,
MUNICIPAL LAND POLICY AND CONTROL 8-10 (1946).
21. This is particularly true of Washington, D.C. where building and real estate are
the only large industries. The composition of a citizens' Zoning Advisory Committee ap-
pointed by the Commissioners of the District of Columbia to advise them on a major
revision of the zoning regulations is symptomatic: according to my private and conservative
compilation, of a total committee membership of 62, 20 members are in the real estate or
building business, 3 are in mortgage banking, 2 are architects whose clients are large
builders, 2 are lawyers representing prominent real estate and building interests, and one
member is in the parking lot business. Thus almost half the total membership of the
committe has direct financial interests adverse to reform. The sub-committee chairmanships,
in which the actual power of the committee resides, are distributed even more unequally:
out of a total of 13 sub-committee chairmen, 9 represent real estate and building interests.
The committee does not contain any educator or government official; it contains only 1
clergyman, only 1 retired military man and only 2 representatives of labor.
22. For an example of highfaluting language, see Dukeminier, Zoning for Aesthetic
Objectives: A Reappraisal, 20 LAW & CONT MP. PROD. 218 (1955).
23. McDougal, Book Review, 54 H, v. L. R-v. 526 (1941).
THE YALE LAW JOURNAL
with all systematic thinking, ideological and utopian.2 Perhaps it is the result
of the loss of local roots which has turned most business executives and profes-
sional men into transients,2 5 and which may be producing the kind of nomadic
character structure that has always been contemptuous of the accidental mo-
mentary camp site. Whatever the reasons, we will have no decent city planning
until there has been a revolution in public opinion. As we are learning in the
field of desegregation, an enlightened Supreme Court is not enough.
2 6
FRANZ M. OPPENHEIMER"
JUVENILE OFFENDERS BEFORE THE COURTS. By Max Grfinhut. Oxford: Oxford
University Press, 1956. Pp. 143. $3.40.
AT THE first United Nations Congress on the Prevention of Crime and the
Treatment of Offenders held in Geneva in 1955 it was resolved that "accurate
knowledge of the fields of [juvenile] delinquency prevention and treatment
lags far behind the good intentions of those interested in increasing social
action, and so there is need for caution in determining the social action to
be taken. It is desirable to make provision for evaluation whenever new social
action is undertaken."' No one with any degree of knowledge in this field
can doubt the truth of this only apparently harmless statement. The air is
noisy with confidently asserted recommendations for the treatment of juvenile
delinquents and for the development of programs of prevention; yet how
slight, how very slight, is our knowledge of the success which our already
existing methods of treatment and prevention achieve or fail to achieve. With-
out such knowledge how can we with confidence in other than our good
intentions advocate changes in treatment methods? It is true today, as it was
in 1933, when Michael and Adler affirmed it in their acidulous Crime, Law
and Social Science, that "we know nothing about the deterrent or reforma-
tive effects of any mode or variety of treatment. It is, therefore, impos-
sible for a proposal of alterations in the modes of treatment to be defended on
the ground that the proposed mode of treatment will have greater deterrent
or reformative effects. All changes in the treatment process offer opportuni-
ties for the study of their differential effects upon human behaviour. Any pro-
24. Cf. Riesman, Some Observations on Conimzunity Plans and Utopia, 57 YALE L.J.
173 (1947), reprinted in INDIVIDUAUSm RECONSIDERED 70 (1954).
25. Cf. WHYTE, THE ORZGANIZATION MAN 267-98 (1956).
26. "If those who govern the District of Columbia decide that the Nation's capital
should be beautiful as well as sanitary, there is nothing in the Fifth Amendment that stands
in the way." Berman v. Parker, 348 U.S. 26 (1954).
tMember of the New York and District of Columbia Bars.
1. Resolutions and Recommendations of the First United Nations Congress on the
Prevention of Crime and the Treatment of Offenders, adopted Sept. 3, 1955. U.N. Doc.
No. A/CONF. 6/L.17, p. 45 (1955).
[Vol : 66


Metzenbaum: The Law of Zoning

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Metzenbaum: The Law of Zoning

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