June 23, 2006
Fast food and land use laws ...
A New York City councilman wants to use zoning laws to restrict sharply the number of fast-food restaurants in Manhattan. Using land use laws to control the spread of chain restaurants is nothing new (see a New York story from 1985), but the current goal is different from most: The councilman wants to fight obesity, especially among young and poor people, who eat in disproportionate numbers at the fried food factories. Although I may applaud the goal, using land use laws to fight the nation's obesity problem seems to be using the wrong tool -- just as using school busing to try to create a more racially just society (meanwhile, there was not much far effort to integrate by housing) may have used the wrong tool to deal with a bedrock social problem.
June 20, 2006
The Clean Water Act and the Court's unsatisfying reliance on "tradition"
As many expected, the Supreme Court’s “decision” yesterday in the Clean Water Act cases only further muddied the question of the reach of the law, other than for pollution into interstate waters that are navigable by boats. The morass cries out for a statutory, not just a regulatory, solution. I am especially troubled by the continued reliance of Justice Scalia and the property-rights advocates on the supposed fact that land use regulation is a “quintessential state and local power.” Citing some Supreme Court cases that made this assertion (If the Supreme Court says a fact is true, does this make it so?), the property-rights advocates have justified their restrictive Clean Water Act opinions in large part on a need to avoid the boundary of the interstate commerce power. But the conclusion that a regulatory interpretation is close to the boundary is in itself a rough decision as to where that boundary lies (without actually engaging in a thorough delineation of this boundary). Moreover, the assertion of the supposed “tradition” of state and local control over land use ignores such developments as the national regulation of air and hazardous waste pollution, not to mention 30 some years of national regulation of water pollution. The logic that “Congress can’t regulate land and water use because traditionally only states have done so” could have been (could still be?) used for fields such as employment (the Court struck down national employment laws before the 1930s) and discrimination (“moral” regulation was largely left to the states before the New Deal or before the 1960s). Interpreting statutes and making rough constitutional decisions through broad generalizations about “tradition” is both unstable and unsatisfying.
June 19, 2006
Clutter: Property Right or Police Power Trigger?
My father has told me the story (Happy Father’s Day, Dad!) of, when he got into the cutting-edge world of computers in the 1960s, how people predicted the arrival of the “paperless office.” Ha ha. Computers have simply created more paper than ever before, especially for lawyers. What happens when a lawyer piles up too much paper in his apartment office, creating a potential fire hazard? Does a citizen have a property right to be messy, or does the police power justify government action?
From Arlington, Virginia, comes a story about a lawyer who was evicted from his condo for too much paper … and other junk. A problem with anti-“hoarding” laws is, of course, that they hold the potential for inconsistent, unfair, and selective enforcement. In today’s relatively safe cities, however, we can forget how dominant was the fear of fire in the development of modern land use laws. In addition to creating a fire hazard, too much clutter can make it difficult for emergency responders to provide assistance and to get in and out safely. The biggest problem I have with the Virginia story is that the government officials apparently evicted the lawyer immediately, without giving him some time to “cure” his clutter problem. He is, of course, suing the government ….