Volume 76, Number 1

April 2001

Regionalization and Interlocal Bargains

Clayton P. Gillette

Professor of Law, New York University. B.A., 1972, Amherst College; J.D., 1975, University of Michigan.

Numerous commentators on local government law have advocated some form of regionalization to address metropolitan problems. These recommendations emanate from a conception of local governments, particularly suburbs, as isolated, self-interested entities that ignore or exploit the plight of their neighbors, particularly central cities. In this Article, Professor Clayton Gillette puts forward a justification for decentralized entities and posits a more sanguine relationship among localities within a region. Analogizing from literature concerning firms that form long-term contractual relationships, he contends that neighboring localities may be sufficiently interdependent that they have significant incentives to cooperate through interlocal contracts that realize economies of scale or that share regional distributional burdens. He suggests that any underutilization of interlocal contract depends less on suburban disinterest or exploitation than on contracting costs and legal obstacles that do not affect interfirm relationships as readily. Thus, problems attributed by advocates of regionalization to excessive localism may be redressed best through institutional arrangements that reduce contracting costs. Nevertheless, Professor Gillette argues that some costs inherent in regional burden-sharing contracts, such as those involving observability and verifiability of contract breaches, may be irreducible. He concludes, therefore, that some contracting costs that are endemic in interlocal relations are best circumvented through informal cooperative bargains that avoid problems of monitoring and enforcement.

Reconciling Cost-Benefit Analysis with the Principle That Safety Matters More Than Money

Mark Geistfeld

Professor of Law, New York University. B.A., 1980, Lewis & Clark College; M.A., 1981, University of Pennsylvania; J.D., 1989, Ph.D., 1990, Columbia University.

Some health and safety laws emphasize safety over cost considerations by invoking the principle that safety matters more than money. Other laws rely on cost-benefit analysis (CBA) that equates safety and money. In this Article, Professor Mark Geistfeld argues that, despite their apparent inconsistency, the two regulatory approaches can be reconciled. He first explains why the safety principle most plausibly stands for a distributive claim that in the context of nonconsensual risk impositions, the safety interests of potential victims deserve greater weight than the ordinary economic interests of potential injurers. Although this claim seems to be inconsistent with CBA, Professor Geistfeld analyzes cost-benefit tort rules to demonstrate how potential victims are inadequately compensated for certain types of nonconsensual risks threatening death, an inequity that can be quantified with cost-benefit methodology. He shows that the inequity is defensibly remedied by altering the duty of care to give safety interests greater weight than economic interests (the weighting sanctioned by the safety principle), which ultimately yields a well-defined decision rule that modifies CBA for certain types of nonconsensual risks threatening serious physical injury. Subsequently, he contends that modified CBA (1) satisfies the requirements of modern welfare economics, (2) can accommodate a wide range of normative concerns, and (3) closely conforms to important tort practices, suggesting that it implements a version of the safety principle closely corresponding to the version adopted by the tort system. Finally, Professor Geistfeld concludes that the value of modified CBA is illustrated by the structure it gives to the precautionary principle, a vague regulatory approach based on the safety principle that has become increasingly important and controversial in international law.

Siren Songs and Amish Children: Autonomy, Information, and Law

Yochai Benkler

Professor of Law, New York University. LL.B., 1991, Tel Aviv University; J.D., 1994, Harvard University.

New communications technologies offer the potential to be used to promote fundamental values such as autonomy and democratic discourse, but, as Professor Yochai Benkler discusses in this Article, recent government actions have disfavored these possibilities by stressing private rights in information. He recommends that laws regulating the information economy be evaluated in terms of two effects: whether they empower one group to control the information environment of another group, and whether they reduce the diversity of perspectives communicated. Processor Benkler criticizes the nearly exclusive focus of information policy on property and commercial rights, which results in a concentrated system of production and homogenous information products. He suggests alternative policies that promote a commons in information, which would distribute information production more widely and permit a greater diversity of communications.


Sovereignty in Comparative Perspective: Constitutionalism in Britain and America

Lord Irvine of Lairg

Lord High Chancellor, United Kingdom of Great Britain and Northern Ireland.

Madison Lecture

In this James Madison Lecture series, the Lord Chancellor, Lord Irvine of Lairg, observes that the American system of constitutional supremacy and judicial review shares many common features with the British unwritten constitution’s emphasis on parliamentary sovereignty without judicial review. While the two systems are often described as polar opposites, Lord Irvine argues that both operate in a context of democratic government and translate substantially identical commitments to popular sovereignty into distinct, yet related, approaches to constitutionalism.


Life in Russia’s “Closed City”: Moscow’s Movement Restrictions and the Rule of Law

Damian S. Schaible

The City of Moscow continues to enforce a restrictive residence registration regime similar to the propiska system that prevailed in the Soviet era-despite constitutional guarantees of the freedom of movement, federal statutory provisions implementing that right, and Constitutional Court rulings that such restrictions are unconstitutional. In this Note, Damian Schaible argues that the continued restrictions represent more than simply an ongoing violation of the human rights of Moscow’s illegal residents; they are also an indicator of Russia’s imperfect transition to the rule of law and a practical obstacle to the success of that transition.

Who’s Failing Whom? A Critical Look at Failure-to-Protect Laws

Jeanne A. Fugate

Parents or caretakers may be charged with a form of criminal or civil penalty called “failure to protect” when they do not prevent another person from abusing the children in their care. Although couched in gender-neutral terms, defendants charged with failure to protect are almost exclusively female. In this Note, Jeanne Fugate suggests that the unequal numbers of women facing such charges can be explained by the higher expectations that women face in the realm of parenting and child care. She then offers several changes that should be made to the content and enforcement of failure-to-protect statutes. First, she argues that, to ensure that recent expansions of the duty do not implicate unfairly women, laws and courts should define clearly what actions establish a duty to protect children. Second, to avoid unfair expectations of women’s responses to child abuse, failure-to-protect laws should delineate the steps persons must take when they become aware of abuse. Finally, Fugate concludes that every state should adopt an affirmative defense to excuse persons who fear for their safety or the safety of abused children.

Reclaiming Title VII and the PDA: Prohibiting Workplace Discrimination Against Breastfeeding Women

Diana Kasdan

A number of claims brought in federal courts across the United States document stories of working mothers who have encountered workplace discrimination directed at their breastfeeding status. Federal courts considering these claims uniformly have agreed that sex discrimination based on breastfeeding is not actionable under Title VII as amended by the Pregnancy Discrimination Act (PDA). In this Note, Diana Kasdan argues that this jurisprudence fails to consider the intent of the PDA and instead revives the flawed and rejected analysis of General Electric Co. v. Gilbert, which, prior to enactment of the PDA, wrongly held that discrimination directed at a gender-specific condition such as pregnancy was not Title VII sex discrimination. In critiquing these cases, Kasdan suggests that they ignore the gender-specific nature of breastfeeding, thereby improperly foreclosing the application of Title VII to breastfeeding-based claims. She argues that the statutory language, legislative intent, and Supreme Court interpretation of the PDA support an interpretation that includes breastfeeding within the scope of Title VII’s antidiscrimination protections. Finally, Kasdan concludes that such an interpretation of the PDA is essential to preserving the integrity of Title VII law and ensuring the advancement of women in the workforce and public life.