Faculty Bibliography

This law school casebook focuses on the advantages and difficulties involved in decentralizing power to cities (the city-state and city-federal relationships), the city-suburb divide (including the topics of sprawl and regionalism), and the structure of city government itself (issues like raising revenue, service delivery, economic development, and voting). The casebook combines case law with extensive excerpts from the urban studies literature, including history, political science, sociology, and planning. The new edition will update existing topics and will add material on important new issues, most notably state receivership and municipal bankruptcy. It will also include readings on international local government law.

Congressional delegation of broad lawmaking power to administrative agencies has defined the modern regulatory state. But a new form of this foundational practice is being implemented with increasing frequency: the delegation to agencies of the power to waive requirements that Congress itself has passed. It appears, among other places, as a central feature of two signature statutes of the last decade, the No Child Left Behind Act and the Patient Protection and Affordable Care Act. We call this delegation of the power to unmake major statutory provisions “big waiver.” This Article examines the basic structure and theory of big waiver, its operation in various regulatory contexts, and its constitutional and policy implications. While delegation by Congress of the power to unmake the law it makes raises concerns, we conclude the emergence of big waiver represents a salutary development. By allowing Congress to take ownership of a detailed statutory regime—even one it knows may be waived—big waiver allows Congress to codify policy preferences it might otherwise be unwilling to enact. Furthermore, by enabling Congress to stipulate a baseline against which agencies’ subsequent actions are measured, big waiver offers a sorely needed means by which Congress and the executive branch may overcome gridlock. And finally, in a world laden with federal statutes, big waiver provides Congress a valuable tool for freeing the exercise of new delegations of authority from prior constraints and updating legislative frameworks that have grown stale. We welcome this new phase of the administrative process.

Many major American cities are defying the conventional wisdom that suburbs are the communities of the future. But as these urban centers prosper, they increasingly confront significant constraints. In City Bound, Gerald E. Frug and David J. Barron address these limits in a new way. Based on a study of the differing legal structures of Boston, New York, Atlanta, Chicago, Denver, San Francisco, and Seattle, City Bound explores how state law determines what cities can and cannot do to raise revenue, control land use, and improve city schools. Frug and Barron show that state law can make it much easier for cities to pursue a global-city or a tourist-city agenda than to respond to the needs of middle-class residents or to pursue regional alliances. But they also explain that state law is often so outdated, and so rooted in an unjustified distrust of local decision making, that the legal process makes it hard for successful cities to develop and implement any coherent vision of their future. Their book calls not for local autonomy but for a new structure of state-local relations that would enable cities to take the lead in charting the future course of urban development. It should be of interest to everyone who cares about the future of American cities, whether political scientists, planners, architects, lawyers, or simply citizens.