Roderick M. Hills

Bio: Roderick M. Hills is an academic researcher from New York University. The author has contributed to research in topics: Zoning & Federalism. The author has an hindex of 8, co-authored 27 publications receiving 218 citations. Previous affiliations of Roderick M. Hills include University of Michigan & Yale University.

Land Assembly Districts

Abstract: Eminent domain for economic development is both attractive and appalling. States need the power to condemn because so much land in America is inefficiently fragmented. But public land assembly provokes hostility because vulnerable communities get bulldozed. Courts offer no help. The academic literature is a muddle. Is it possible to assemble land without harming the poor and powerless? Yes. This Article proposes the creation of Land Assembly Districts, or “LADs.” This new property form solves the age-old tensions in eminent domain and shows, more generally, how careful redesign of property rights can enhance both welfare and fairness. The economic and moral intuition underlying LADs is simple: when the only justification for assembly is over-fragmentation of land, neighbors should be able to decide collectively whether their land will be assembled. Our legal theory solution is equally simple: use property law to retrofit communities with a condominium-like structure tailored to land assembly. Let’s try giving those burdened by condemnation a way to share in its benefits and to veto projects they decide are not worth their while.

Against Preemption: How Federalism Can Improve the National Legislative Process

Abstract: How easily should courts infer that federal statutes preempt state law? An ongoing debate exists on the question in Congress and among scholars and judges. One side calls for judges to protect federalism by adopting a rule of statutory construction that would bar preemption absent a clear statement of preemptive intent. Opponents argue against such a "clear statement" rule by arguing that state control over preemptable topics is often presumptively inefficient, because common-law juries lack expertise and because states are prone to imposing external costs on their neighbors. This article sidesteps these debates over preemption and instead argues that, quite apart from whether state law is itself efficient, an anti-preemption rule of statutory construction has benefits for the national law-making process. Because of the size and heterogeneity of the population that it governs, Congress has institutional tendencies to avoid politically sensitive issues, deferring them to bureaucratic resolution, and instead concentrating on constituency service. Non-federal politicians can disrupt this tendency to ignore or suppress political controversy, by enacting state laws that regulate business interests, thus provoking those interests to seek federal legislation that will preempt the state legislation. In effect, state politicians place issues on Congress' agenda by enacting state legislation. Because business groups tend to have more consistent incentives to seek preemption than anti-preemption interests have to oppose preemption, controversial regulatory issues are more likely to end up on Congress' agenda if business groups bear the burden of seeking preemption. Moreover, the interests opposing preemption tend to use publicity rather than internal congressional procedures to promote their ends. Therefore, by adopting an anti-preemption rule of construction, the courts would tend to promote a more highly visible, vigorous style of public debate in Congress.

State Autonomy in Germany and the United States

Abstract: Both the United States and the Federal Republic of Germany have mechanisms by which their component jurisdictions—states or Lander—can either implement federal law or resist such implementation. The authors describe the different constitutional mechanisms by which the two federal regimes induce state cooperation and protect state autonomy. They then offer some speculations as to how such constitutional rules might affect cooperative federalism in the two nations, arguing that the German system provides more categorical and therefore more secure protection of the Lander, whereas the U.S. system provides for a more flexible system of cooperative federalism. This flexibility of the U.S. system, the authors suggest, allows for vertical competition between the federal government and the states, which may provide a valuable tool to combat inefficiency in policy implementation.

Balancing the 'Zoning Budget'

Abstract: The politics of urban land use frustrate even the best intentions. A number of cities have made strong political commitments to increasing their local housing supply in the face of a crisis of affordability and availability in urban housing. However, their decisions to engage in “up-zoning,” or increases in the areas in which new housing can be built, are often offset by even more “down-zoning” or laws that decrease the ability of residents in a designated area to build new housing as-of-right. The result is that housing availability does not increase by anywhere near the promises of elected officials.In this essay, we argue that the difficulty cities face in increasing local housing supply is a result of the seriatim nature of local land use decisions. Because each down-zoning decision has only a small effect on the housing supply, citywide forces spend little political capital fighting them, leaving the field to neighborhood groups who care deeply. Further, because down-zoning decisions are made in advance of any proposed new development, the most active interest group in favor of new housing – developers – takes a pass on lobbying. The result is an uneven playing field in favor of down-zoning.Drawing on examples of “extra-congressional procedure” like federal base closing commissions and the Reciprocal Trade Act of 1933, we argue that local governments can solve this problem by changing the procedure by which they consider zoning decisions. Specifically, they should pass laws that require the city to create a local “zoning budget” each year. All deviations downward from planned growth in housing supply expressed in the budget should have to be offset by corresponding increases elsewhere in buildable as-of-right land. This would reduce the degree to which universal logrolling coalitions can form among anti-development neighborhood groups and would create incentives for pro-development forces to lobby against down-zonings in which they currently have little interest. The result should be housing policy that more closely tracks local preferences on housing development.

Dissecting the State: The Use of Federal Law to Free State and Local Officials from State Legislatures' Control

Abstract: This paper explores whether and to what extent the federal government ought to have the power to liberate the various institutions that compose a "state government" -- the governor, municipalities, counties, school districts, state administrative agencies, etc. -- from the state legislature's control. The federal government frequently attempts to bestow powers on the subdivisions or branches of a state that are inconsistent with state law. For instance, the Federal Power Commission might give a license to a city to build a dam, even though state law bars the city from such a project. Or the Congress might bestow a grant on a county or a state's governor, barring the state legislature from appropriating or otherwise controlling the grantee's use of the grant. In such cases, the question arises whether the federal government can delegate such powers to the subdivisions or branches of the state even against the will of the state legislature. Must the federal government take the state or local institution as it finds them, or can Congress expand the powers of state and local officials even in the teeth of state laws that bar such officials from exercising such powers? This paper offers a two-part answer to this question. First, the paper defends the traditional view that the federal government may not bestow powers on non-federal governmental officials when those powers are clearly and expressly barred by state law. The doctrinal basis for this principle is obscure: neither Hunter v. City of Pittsburgh nor "state autonomy" doctrine clearly supports such a result. However, this paper argues that the traditional doctrine, which this paper calls "the principle of state supremacy," makes sense as a matter of sound policy, because state lawmakers are more likely to promote certain efficiencies in designing institutions for local governance that the Congress is likely to disregard. Second, the paper qualifies the "principle of state supremacy" with a presumption of institutional autonomy: under this presumption, when state law is ambiguous, it ought to be construed to maximize the ability of state and local officials to serve as agents of Congress. Such a canon of construction makes sense as a matter of policy, because it encourages useful intra- and intergovernmental competition between various state and local institutions for federal grant revenues and implementing authority. When state legislatures, municipalities, governors, and other non federal institutions compete with each other for federal grants and implementing authority, then Congress can presumptively bypass non-federal officials who fail to implement federal law faithfully and avoid strategic misrepresentations, insuring that state and local officials faithfully adhere to their intergovernmental bargains to carry out schemes of cooperative federalism. Such a presumption is the mirror image of federalism promoting canons of construction: it helps protect nationalism through the states' political process, insuring that, absent a plain statement from the relevant state lawmaker, Congress will continue to have access to the services of state and local officials.

The Price for Federalism

Abstract: What is the price of federalism? Does it result in governmental interconnections that are too complex? Does it create overlapping responsibilities? Does it perpetuate social inequalities? Does it stifle economic growth? To answer these questions, Paul Peterson sets forth two theories of federalism: functional and legislative. Functional theory is optimistic. It says that each level of the federal system is well designed to carry out the tasks for which it is mainly responsible. State and local governments assume responsibility for their area's physical and social development; the national government cares for the needy and reduces economic inequities. Legislative theory, in contrast, is pessimistic: it says that national political leaders, responding to electoral pressures, misuse their power. They shift unpopular burdens to lower levels of government while spending national dollars on popular government programs for which they can claim credit. Both theories are used to explain different aspects of American federalism. Legislative theory explains why federal grants have never been used to equalize public services. Elected officials cannot easily justify to their constituents a vote to shift funds away from the geographic area they represent. The overall direction that American federalism has taken in recent years is better explained by functional theory. As the costs of transportation and communication have declined, labor and capital have become increasingly mobile, placing states and localities in greater competition with one another. State and local governments are responding to these changes by overlooking the needs of the poor, focusing instead on economic development. As a further consequence, older, big cities of the Rust Belt, inefficient in their operations and burdened by social responsibilities, are losing jobs and population to the suburban communities that surround them. Peterson recommends that the national government adopt policies that take into account the economic realities identified by functional theory. The national government should give states and localities responsibility for most transportation, education, crime control, and other basic governmental programs. Welfare, food stamps, the delivery of medical services, and other social policies should become the primary responsibility of the national government.

Fragmented Democracy: Medicaid, Federalism, and Unequal Politics

Abstract: Medicaid is the single largest public health insurer in the United States, covering upwards of 70 million Americans. Crucially, Medicaid is also an intergovernmental program that yokes poverty to federalism: the federal government determines its broad contours, while states have tremendous discretion over how Medicaid is designed and implemented. Where some locales are generous and open handed, others are tight-fisted and punitive. In Fragmented Democracy, Jamila Michener demonstrates the consequences of such disparities for democratic citizenship. Unpacking how federalism transforms Medicaid beneficiaries' interpretations of government and structures their participation in politics, the book examines American democracy from the vantage point(s) of those who are living in or near poverty, (disproportionately) Black or Latino, and reliant on a federated government for vital resources.

Guns, Hollywood, and School Safety: Defining the School‐Shooting Problem Across Public Arenas

Abstract: Objective. Research in agenda setting has demonstrated that dramatic news events can drive particular issues to the top of the media and governmental agendas. The objective of this study is to analyze how different aspects of an event-driven problem compete for attention in those arenas. Methods. The method is content analysis of media coverage and congressional legislative activity following the 1999 Columbine High School shootings. Results. The results show that while both agendas converged on the gun-control aspect of the problem, they substantially diverged on other understandings of what kind of problem the Columbine shooting represented and how to address it. Conclusions. We conclude that the differing institutional structure and incentives of the news media and Congress can create or inhibit interinstitutional positive feedback in the problem-defining process. Agenda divergences are amplified when prominent politicians cue the media to follow particular story lines that depart from actual legislative activity.

Ostrom's Law: Property Rights in the Commons

Abstract: In this symposium essay, I trace some of the ways that Elinor Ostrom’s focus on situated examples has advanced interdisciplinary dialogue about property as a legal institution and as a human invention for solving practical problems. Although the richness of these contributions cannot be distilled into a single thesis, their flavor can be captured in a maxim I call Ostrom’s Law: A resource arrangement that works in practice can work in theory. I begin by highlighting the attention to detail that characterizes Ostrom’s methodology. I then examine how Ostrom’s scholarship yields insights for, and employs insights from, property theory. Next, I consider the question of scale, an important focal point of Ostrom’s work, and one that carries profound implications for law. I conclude with some observations about interdisciplinarity as it relates to research on the commons.