The smallest level of government in American law was always the local—the city, the school district, the zoning commission, the police department, etc. Yet over the last few decades, this smallest of government levels has been further localized: now, in many fields of law, bodies such as the neighborhood, the individual school, the police beat, and sometimes simply the adjacent residents, are meaningful legal actors. These entities are located underneath local governments and often lack the traditional traits of government units—most prominently, a unitary decision-making body. They have been were legally recognized and empowered through an array of seemingly unrelated judicial, legislative, and administrative acts, adopted on the federal, state, and local levels. Such disparate and uncoordinated moves have created a patchwork of intersecting bodies, rights, and powers. Until now, this new level and form of governing—dubbed by this Article “micro-local”—has escaped detection and analysis. Most troublingly, micro-local reforms have proceeded with no critical appraisal. Most judges, legislators, and commentators embrace decisions that directly or indirectly further localize local government since they adhere to a utopian and simplistic assumption that further localized government is always better—that is, more efficient and more democratic—than traditional local government. This Article replaces this assumption with a more rigorous theoretical framework enabling lawmakers and scholars to appraise whether any given micro-local reform actually promotes economic efficiency and democratic participation. An application of this framework to several examples of the new local, in the fields of education law and land use law, results in unsettling findings. Some of the most consequential and widespread, albeit heretofore unnoticed, recent legal reforms in these areas of law not only fail to promote economic efficiency and democratic participation, but actually defeat these normative values.
Article
Transactionalism Costs
Modern civil litigation is organized around the “transaction or occurrence,” a simple and fluid concept that brings together logically related claims in one lawsuit. It was a brilliant innovation a century ago, but its time has passed. Two inherent defects always lurked within transactionalism, but modern litigation realities have exacerbated them. First, transactionalism represents a crude estimate about the most efficient structure of a lawsuit. Often that estimate turns out to be wrong. Second, the goals of transactionalism are in tension. To function properly, the transactional approach must be simultaneously flexible (when structuring a lawsuit at the beginning of litigation) and predictable (when enforcing preclusion doctrine on the back end of litigation). But frequently it is neither.
I propose abandoning the transactional approach in favor of one that actually achieves transactionalism’s goals. In essence, the parties must put forward all of their claims and then, with the court, negotiate the appropriate structure of the lawsuit. Preclusion will apply only to the claims that the parties and the court choose to include in the litigation package (and that the parties failed to plead initially). The proposal will achieve three main goals. First, it will give parties and courts true flexibility to determine the most efficient structure of their specific lawsuit. Second, it will give parties new autonomy—the power to shape preclusion doctrine. Finally, it will offer certainty and predictability that parties never have had before—knowing exactly how broadly preclusion will apply.
Offsetting Benefits
There are numerous areas of the law in which the victim of a wrongdoing has the right to obtain damages that compensate her for harm. When the wrongdoing also creates a benefit—either for the same victim or for a third party—a question arises as to whether the damages should be reduced to reflect that benefit. The law is unclear, and courts frequently act inconsistently. We argue that courts should deduct the benefit when it is not offset by another harm to a third party, and would not have existed but for the wrongdoing. We also argue that courts need to take into account the effect of deductions on victims’ and beneficiaries’ incentives to take care, and that measurement difficulties and other complex causal issues provide a basis for denying deductions in many cases.