Thursday, November 18, 2010
I've been thinking for some time that land use just might be the field that has the most interesting constitutional law issues today. Timothy Zick’s article, linked in the post below, is primarily a First Amendment paper. But it’s about First Amendment rights with respect to speech in public parks, which makes it a land use issue too. As with most free speech issues, the speech is only controversial to the extent that it happens in a place--which then makes it a land use issue. Much of First Amendment law revolves around definitions and analyses of the "forum" in which speech takes place, and whether it is in the public square, a public forum, whether the speech represents private or government points of view. The First Amendment looms large in land use law (or, perhaps, vice versa)-- free speech, public forums, commercial speech, aesthetic regulation, sexually-oriented businesses assemblies, religious land use, and more.
Jamie posted a link recently to a video that has been making the rounds with a cartoon robot law firm partner mocking a wannabe law student for, among other things, her desire to practice constitutional law. ("Do you have a time machine, so that you can go to Harvard in the 1970s?"). The video is hilarious, and it is undoubtedly true that there aren't a lot of opportunities for idealistic young con law geeks to practice straight-up constitutional law in the tradition of the big Supreme Court cases we all learn. But my one quibble is that if you are interested in constitutional law, it's alive and well in the land use field--not only the First Amendment issues, but also property rights, eminent domain, regulatory takings, vested rights, civil rights, fair housing, exclusionary zoning, growth controls, environmental regulation, equal protection, due process, separation of powers, and federalism. There are also issues presented by state constitutional law, which gets much less attention in law school curricula.
Readers of this blog will probably not be surprised at my observation that constitutional law and land use are intertwined, but I do find that many students and lawyers don’t intuitively make the connection, until they start to hear some of the examples. It's because the exercise of our freedoms almost always happens in a particular place, and our places are governed by land use rules. While the issues may often be primarily local, they are no less interesting, or "constitutional."
Good land use attorneys need a good understanding of and appreciation for basic constitutional law. And even better, if you really like con law, land use might be the field where you have the most likely chance to advise on or litigate constitutional issues.
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