Separate, But Equal? Virginia’s “Independent” Cities and the Purported Virtues of Voluntary Interlocal Agreements

Some public choice-influenced scholars claim that voluntary interlocal bargaining can effectively address city-suburb wealth disparities. On this view, economic interdependence encourages (comparatively) affluent suburbs to enter into “burden-sharing” agreements with cities, diminishing the need for so-called regional governments. This perspective holds that Virginia’s distinctive system of city-county separation is uniquely well-suited to the formation of such agreements. Interlocal burden sharing is rare in Virginia, however, and proponents’ example of such burden sharing—a tax base sharing scheme between Charlottesville and Albemarle County—is deficient in several respects.

This Note thus challenges the invocation of Virginia as a model to which other states might aspire. The paucity of burden sharing and the deficiencies of existing agreements stem from two weaknesses in the bargaining thesis. First, the conditions necessary to bargaining are frequently absent. For instance, Virginia’s annexation moratorium eviscerates cities’ bargaining power against counties. Second, and more fundamentally, the bargaining thesis neglects structural disincentives to bargaining resulting from Virginia’s system.

The weaknesses of the bargaining thesis have important repercussions for addressing interlocal inequities. Although some call for regional governments to cure disparities, such reforms are substantively undesirable and politically unfeasible. Similarly, Virginia’s now-dormant annexation system was problematic. Although annexation enhanced cities’ bargaining power, it also produced bitter conflicts. The annexation system also failed to promote significant burden sharing. Several reforms would realign suburban counties’ bargaining incentives, providing a means by which existing governmental entities can address metropolitan disparities. 

Originality

In this Essay we introduce a model of copyright law that calibrates authors’ rights and liabilities to the level of originality in their works. We advocate this model as a substitute for the extant regime that unjustly and inefficiently grants equal protection to all works satisfying the “modicum of creativity” standard. Under our model, highly original works will receive enhanced protection and their authors will also be sheltered from suits by owners of preexisting works. Conversely, authors of less original works will receive diminished protection and incur greater exposure to copyright liability. We operationalize this proposal by designing separate rules for highly original works, for works exhibiting average originality, and for works that are minimally original or unoriginal. We illustrate our rules’ application by showing how they could have altered court decisions in classic copyright cases in a socially beneficial way.

Intent to Contract

There is a remarkable difference between black-letter contract laws of the United States and England. In England, the existence of a contract is supposedly conditioned on the parties’ intent to be legally bound, while section 21 of the Second Restatement of Contracts states that “[n]either real nor apparent intention that a promise be legally binding is essential to the formation of a contract.” There are also differences within U.S. law on the issue. While section 21 describes courts’ approach to most contracts, the parties’ intent to contact can be a condition of validity of preliminary agreements, domestic agreements and social arrangements, reporters’ promises of confidentiality to sources, and gratuitous promises.

This Article develops an analytic framework for evaluating these rules and examines their relationship to the broader principles that animate contract law. Rules that condition contractual liability on proof of contractual intent must include rules for interpreting that intent. Those interpretive rules will include both interpretive defaults and rules for what it takes to opt-out of the default. By adjusting these default and opt-out rules, the law can achieve different balances between the duty-imposing and power-conferring functions of contract law, or among the various reasons for enforcement. This is demonstrated by an analysis of the rules for gratuitous promises, preliminary agreements, spousal agreements and reporters’ confidentiality promises. The results of that analysis include a new argument for the Model Written Obligations Act; a critique of Alan Schwartz and Robert Scott’s proposal preliminary agreements and a recommended alternative to it; and recommended changes to the rules for agreements between spouses. Attention to intent to contract requirements also indicates an overlooked aspect of how the enforcement of contracts affects extralegal norms and relationships of trust. Interpretive rules that require parties who want, or who do not want, legal liability expressly to say so are particularly likely to interfere with or erode extralegal forms trust that otherwise create value in transactions.