Toward a federal legal theory of the city.

• Author: Kong, Hoi

This paper offers a federal legal theory of the city. Debates about federalism give rise to questions of economic efficiency, regulatory coordination, and democratic legitimacy that arise in circumstances where political authority is divided, typically along overlapping geographic lines. Furthermore, particularly in the legal academy, federalism debates tend to raise questions of institutional design, including some that involve the configurations of legislative or administrative bodies. This paper will offer an account of cities that addresses these kinds of questions. Part I will present debates in the local government law literature between localists and regionalists and show that they sound in the language of federalism. The underlying theoretical claims of the positions in those debates will be subject to close examination. Part II will argue for a particular kind of institution that accommodates and is responsive to the range of concerns expressed in the localist-regionalist debate. Part II will further argue that British Columbia's regional district system resolves many of the contested issues in the localist-regionalist debate and that that system can be conceived of in federalism terms.

Cet article presente une theorie juridique federale de la ville. Les debats sur le federalisme engendrent des questions d'efficacite econoinique, de coordination de la reglementation et de legitimite democratique, qui apparaissent lorsque l'autorite politique est divisee, typiquement selon des aires geographiques qui se chevauchent. En plus, surtout dans le discours academique, les debats federalistes tendent a soulever des questions de conception institutionnelle, y inclus des questions de configuration des organismes legislatifs ou administratifs. Cet article offre une theorie de la ville qui adresse ce genre de questions. La partie I examine les etudes juridiques sur le gouvernement local, presente les debats entre localistes et regionalistes et demontre que ces debats emploient le langage du federalisme. Les pretentions theoriques sous-jacentes des positions adoptees dans ces debats seront examinees de pres. La partie II propose un certain type d'institution qui repond a la vaste gamme de preoccupations exprimees dans le debat entre les localistes et les regionalistes. La partie II soutient aussi que le systeme des districts regionaux de la Colombie Britannique resout nombre de questions contestees dans le debat localiste-,regionaliste et que ce systeme peut etre concu a travers le prisme du federalisme.

Introduction I. Localism vs. Regionalism A. American Localism: Efficiency and Legitimacy B. Canadian Localism: Efficiency and Legitimacy C. The Regionlist Response II. Resolving the Debate: New Regionalism and Regional Districts A. Beneath the Impasse B. New Regionalism: Foundations and Criticisms C. Regional Districts as New Regionalist and Federalist Institutions 1. The Regional Districts as New Regionalist Institutions 2. Responses to Localist and Regionalist Concerns About the Regional District System 3. The Regional District System as a Federalist Institution Conclusion Introduction

Political theorists have recently turned their attention to the city. Professor Daniel Weinstock, for example, has argued that we can profitably examine well-established issues in political theory in light of city-specific concerns. The city as an object of inquiry is distinct, argues Weinstock, because of its unique spatial circumstances. The city has a scale, and city dwellers live in a degree of proximity, that transforms sometimes abstract questions of political theory into more concrete and specific inquiries. (1) In this paper, I join this general project of theorizing the city but do so from the perspective of a public law scholar, and I believe that this perspective opens up lines of analysis that may not obviously present themselves to political theorists.

Two assumptions--that law and political theory are distinguishable and that legal arguments in public law raise institutional questions--inform the analysis undertaken in this paper. (2) I begin with the assumption that a legal theory of the city is not identical to a political theory of the city. The distinction arises because what the law is or can be in relation to a particular city is not identical to what is or can be consistent with the demands of a particular political theory. This distinction exists whether one conceives of cities as communities of interest or as specific jurisdictions defined by law. Scholars who argue for the first conception have proposed various measures, such as the census metropolitan area, to define a community of interest. (3) But a city can also be understood as, and identified with, a municipality. For example, we might understand the city of Victoria to be that entity which has been legally defined as a municipality, with all the powers that have been delegated to it by the province of British Columbia. Whether one conceives of a city broadly as a community of interest, or more specifically, as a municipality, laws shape cities, and the relevant issues of law are distinct from those of political theory. For instance, the question of what kinds of instruments and institutions should govern cities, when they are conceived of as communities of interest, is a central preoccupation of legal scholars, as we shall see in Part II, and this design preoccupation is distinctively legal in nature. The significance of law to cities is also striking when we consider cities, defined as municipalities.

As a matter of Canadian constitutional law, municipalities are creatures of the provinces, and therefore a province may create or destroy a city when a city is understood to be identical to its legal definition as a municipality. (4) Of course, this fact does not preclude one from asking whether the cities that are created by law are just or fair, nor does it prevent one from prescribing conditions for cities that are different from those of actually existing cities. What this fact about the legal nature of cities does suggest is that if one wants to advance a criticism or analysis of cities, one should be cognizant of the legal institutional context within which they exist. To criticize a city for not being what it cannot possibly be (where law sets the limits of possibility) strikes me as a somewhat futile exercise. In addition, the fact that cities exist within a legal context suggests that prescriptions for changes to cities should exhibit awareness of this context. Because cities are creatures of law, there is limited utility, in my view, in offering prescriptions that are ignorant of what is legally possible.

These claims may seem self-evident, but authors in disciplines other than law have made arguments that either misrepresent the legal status of cities in Canada or offer prescriptions that go beyond the range of what is legally possible. For instance, nonlegal scholars have argued that Canadian cities should benefit from home-rule status because, they argue, such status would prevent the provinces from intervening in city affairs. (5) These scholars draw their conception of home rule from the American experience. (6) This argument is flawed because it is mistaken as to what cities are and what they can be as a matter of law. The first thing to note is that these scholars do not understand what home rule is. Home rule, in its various forms, does hot completely insulate cities from intervention; rather, it sets out a requirement that a higher-order government be explicit when it intervenes in the regulation of a municipality, (7) or it delineates the conditions under which municipalities can exercise authority that is not explicitly delegated to them from a higher political order. (8) Moreover, far from being radically different from home rule, legislation in Canada yields effects that are identical to those of home-rule provisions in the United States. (9) Finally, the general aim of completely insulating cities from provincial control is constitutionally impossible because, as we have seen, cities are creatures of the provinces.

I should be clear about the limits and the potential of my claims. I do not mean to say that we cannot study cities from the perspective of disciplines other than law. Indeed, given the complex nature of cities, it is probably futile to attempt even a legal analysis that ignores the insights of other disciplines. I only mean to point out that any serious analysis of cities should be cognizant of the relevant legal constraints. Cities can be many things, but they are necessarily creations of the law. This fact suggests that if one is to offer prescriptions to change cities, one should be sensitive to the legal implications of such prescriptions, and this awareness requires, at a minimum, an understanding of what is legally possible. But sensitivity to legal considerations involves more than simple awareness of what the law permits; it also involves an understanding of the kinds of institutional concerns that are omnipresent in public law scholarship. Let me turn now to these concerns, as they will motivate the arguments that follow.

The title of this paper refers to a federal legal theory of the city because I believe that cities have aspects that open themselves to a variety of legal arguments and theories. By a "legal argument", I mean an argument that informed participants in legal discourse would recognize as valid, and by a "legal theory", I mean any theory that supports such an argument. (10) Public law scholars have noted that these arguments and theories tend to involve judgments about legal institutions and prescriptions for changing these. (11) There are a variety of possible legal arguments and theories that can be applied to cities. One might conceive of cities in property law terms. For instance, Professor William Fischel has argued that one key feature of regulation in cities--namely...