Wednesday, August 3, 2011
Jonathan Rosenbloom (Drake) has posted New Day at the Pool: State Preemption, Common Pool Resources, and Non-Place Based Municipal Collaborations on SSRN. Here's the abstract:
State preemption laws strictly limit local governments from regulating beyond their borders. In contrast, local governments face a broad spectrum of challenges which cannot be confined to municipal borders. These challenges freely flow in and out of many local jurisdictions at the same time. The juxtaposition of limited local government authority and multi-jurisdictional local challenges has the potential to create inefficiencies and to discourage local governments from seeking innovative solutions to the challenges they face. In an attempt to help local governments avoid these inefficiencies, this article investigates whether municipal collaborations can help encourage local governments to address broad-based environmental, social, or economic challenges notwithstanding state preemption laws. The article draws on 2009 Nobel Memorial Prize winner in Economic Sciences Elinor Ostrom’s work and applies it to a new context. Guided by Ostrom’s research on place-based, individual private sector collaborations, public sector municipal collaborations are envisioned as forming around common challenges, regardless of geographical location. The non-place based municipal collaborations are proposed as a rethinking of existing local government authority, and not a reallocation of authority from higher levels to the local level. They seek to capitalize on the power local governments already have without departing from existing legal paradigms.
The objective of the article is not to suggest one strategy over another or one level of government action over another, but rather to propose an additional forum for local governments to address pressing local problems. By changing the motivating factors and the perspective on local sovereignty, the article recognizes that some issues are best addressed through collaboration among municipalities.