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State and Local Government Law
University of Texas Law School
Baker, Lynn A.

Perspectives on the Functions of Local Government
1)      Theoretical Perspectives
a)      10th Amendment – Reminds us state is center
i)        Two delegations – 1: up to fed; 2: down to localities
b)      Domestic Comparative Law
i)        Here’s how fed does it, here’s how states do it
ii)      Differences between how states do it
c)      Two Thematic Inquiries
i)        Descriptive/empirical – how the world is on the ground
ii)      Normative – is that the best option?
d)      Two conceptions of local government
i)        Focal Point of participation in government – town hall meetings, local issues, officials are part of the community
ii)      Government provides goods and services – who?, best provided by gov’t?, how paid for?
e)      Two choices of what the government is – Public Choice versus Civic Republicanism
i)        Motivation of government officials
(1)   PC – rational self-interest
(2)   CR – not motivated to get re-elected
ii)      Role of Government Officials
(1)   PC – tell me what you want to get elected
(2)   CR – to lead; tell people what they want
iii)    Role of constituent
(1)   PC – elected official listen to citizens
(2)   CR – citizen supposed to listen, get educated
iv)    Public good/public interest
(1)   PC – Issue of public good
(a)    Majority vote – problems of exit and constitutional constraints
(b)   Outcome of a decision-making process – deliberative, informed, and inclusive
(i)     How efficient is this really?
(c)    Platonic conception – governing elite – elected because wise
(2)   CR – public interest
(a)    Public good is ideal we are striving for
v)      Goal of government
(1)   PC – economic model
(2)   CR – communal/public interest model
f)       Centralized Government by Large Groups
i)        Advantages compared to local gov’t by small groups
(1)   Large scale – i.e. national security
(2)   Cross-border – i.e. pollution doesn’t stop at state borders
(3)   Race to bottom – may end up with some states not doing
(4)   Science and homogeneous facts – i.e. whether food is toxic, drug is effective
(5)   Cross-nation – i.e. currency
(6)   Mills excerpt – local officials lower intelligence and knowledge than national
(7)   Moderate force; increased principles – harder for a faction to control
(8)   Increased education/knowledge – small town might not have access to info
(9)   Increased resources – larger tax base
ii)      Advantages of local gov’t by small groups compared to centralized gov’t
(1)   Increased local knowledge – local preferences; more empathy
(2)   Increased diversification
(3)   More engaged citizenry; increased accountability to the officials
(4)   More experimental, less risk
(5)   Confined issues – issues not on national level
(6)   More manageable; can move quicker; increase info about cause and effect
(7)   More homogenous; group think – counterpoint to moderate force above
(8)   Less money available
g)      Service Provision – fed, state, local, private sector, or combination
i)        Elementary School Finance
(1)   Does? – all; mainly local through property taxes (private through PTA)
(2)   Should? – local, but need support
ii)      Elementary School Policy
(1)   Does? – primarily local, but input from state and fed
(2)   Should? – same – moderating force, ensure minimum testing, money from fed
iii)    Licensing of drivers
(1)   Does? – state
(2)   Should? – most likely same; could argue for fed
iv)    Anti-discrimination laws
(1)   Does? – fed, state, and local (all pretty similar)
(2)   Should? – same; local and state have led the way but problem with race to bottom
v)      Public Assistance (i.e. welfare)
(1)   Does? – all; lots of cooperation
(2)   Should? – same; local has better knowledge but race to bottom problem again
vi)    Water (i.e. faucet water)   
(1)   Does? – primarily state with localities; fee for service b/c limited resource
(2)   Should? – maybe fed; water districts that cross state borders; safety reasons
vii)  Police
(1)   Does? – all
(2)   Should? – same
viii)            Toxic Waste siting
(1)   Does? – fed with state/locality involved b/c their land; private b/c very profitable
(2)   Should? – same; large negative externalities
ix)    Toxic waste regulation
(1)   Does? – fed; state counterpart for fed to work with
(2)   Should? – same
h)      Two Models of Games – assume don’t know what other player is going to do
i)        Prisoner’s Dilemma (if both pay, cost 3 each; if one pays, cost 8; benefit of 7 to each)
(1)   Dominant strategy – town should hold out b/c never negative if hold out
(2)   Society best if parties work together
ii)      Chicken Game (total cost is 100, benefit to each is 125)
(1)   No dominant strategy
(2)   Society indifferent as long as both don’t hold out
iii)    Theory is gov’t comes in and says everyone chips in
i)        Gov’t as provider
i)        Need b/c not a perfect world
(1)   Coordination problems – chicken game and prisoner’s dilemma
(2)   Free rider problems – under provision of public good
(a)    Public good – non-rival (use) and non-excludable (charge) – i.e. lighthouse
(3)   Failure to internalize negative externalities (i.e. tragedy of commons)
(a)    Think of fridge with roommates
(4)   Information problems (cognitive biases)
ii)      Alternative to gov’t– voluntary cooperation – when defection can be monitored, actors value reputations, norm is cooperation enhances personal reputation
iii)    Gov’t as public good – why not underprovided?
(1)   Self-preservation, values, solve problems and anticipate future problems
2)      The Fed. Perspective on Local Gov’t (10 Amend.; Commerce (NY/Lopez), Spending (Dole)
a)      The Cases
i)        1976 – Nat’l League of Cities
(1)   Commerce clause doesn’t give Congress power to enforce FLSA with regard to employees of states and their political divisions
(2)   The exceptions

– fully mobile, full knowledge of revenue and expenditure patterns, large numbers of options, dividend income, no externalities/economies b/w communities, optimal community size, municipality will move to that size
(3)   Criticisms – unrealistic assumptions, partial exit (i.e. private school), people may use voice, agency problems (mismatch b/w citizen wants and what is provided)
iv)    Glaeser model – 1998
(1)   City agglomeration of people and firms, which now provides: thick labor market, finer division of labor, info spillover, faster human capital accumulation
(a)    In past, tradition manufacturing firms come to cities to lower cost
(2)   Major cost is congestion
v)      Logan and Molotch model – 1987
(1)   View as decisions about neighborhoods – more than service provider
(a)    Support network, security/trust, personal identity, ethnicity, agglomeration benefits
c)      Federal Preemption – U.S. Const. Art. VI – Supremacy Clause
i)        Two Types
(1)   Express preemption – Congress expresses intent to preempt state laws
(2)   Implied preemption – claim Congress has occupied the field (field preemption) or conflicts b/w federal law and state/local law (conflict preemption)
(3)   Case to case need to look at what Congress adopted, what the supposed problematic state law is, and the policy of the laws at issue
ii)      Riegel v. Medtronic – 2008 – Express preemption in Medical Device Amendments
(1)   MDA federal scheme striking a balance b/w safety and effectiveness – Idea of unitary standard
(2)   State common law tort claim doesn’t weigh both so state requirement preempted to extent differ from federal requirements – Ct. could have said MDA was floor
(a)    State can provide damages remedy if premised on violation of FDA regulation
(3)   Ginsburg dissent – Congress didn’t intend radical curtailment of state common law suits; presumption against preemption, especially fields of traditional state regulation – floor preemption
iii)    Crosby v. Nat’l For’n Trade Cn’l. – 2000 – Mass. Law restricting relations w/ Burma
(1)   Invalid under conflict preemption b/c threat of frustrating fed. statutory objectives
(a)    Obstacle b/c penalizes private action the federal law may allow
iv)    Prof. William Buzbee – unitary federal choice preemption
(1)   Precludes additional state/local protections – eliminates institutional diversity preserved by floor preemption