Statutory Interpretation

Prosecutorial discretion has become a political battleground in state and local government. Among other initiatives, reform prosecutors in cities like San Francisco (where I teach) have claimed authority to categorically suspend enforcement of certain criminal laws on social-justice grounds. The San Francisco district attorney, for example, campaigned on declining prosecution of certain “quality of life” crimes. Similarly, just this this month, the newly elected Manhattan

This is the last in a four part series. SLoGLaw thanks Chris Elmendorf and Tim Duncheon for this timely treatment of the important issue of affordable housing for California, and urban regions around the country--Ed. The California Environmental Quality Act (CEQA) requires state and local agencies that have discretion to choose among possible options to study environmental effects before making their choice. In theory, this leads to better agency decisions. (A contestable cla

Here is Part 3 or this four-part series: The HAA prevents cities from denying or reducing the density of housing projects, but it doesn’t exempt projects from environmental review under CEQA. CEQA spells out time limits for the completion of environmental reviews, but as yesterday’s post explained, those limits have proven illusory in court. So if a city wants to deny a project that the HAA protects, what’s to keep the city from laundering the denial, as it were, through CEQ

In yesterday’s post , we asserted that the recent denial of a downtown housing project in San Francisco portends a generational clash of super-statutes, with the California Environmental Quality Act (CEQA) facing off against the state’s Housing Accountability Act (HAA). In subsequent posts, we will explore the particulars of the CEQA-HAA conflict, as illustrated by the saga of the San Francisco project. Today, however, our goal is simply to show that CEQA and the HAA both hav

This last July, the Michigan Supreme Court dusted off an obscure canon of statutory construction to resolve a high-profile case involving the City of Detroit’s efforts to revise its charter. The canon, codified by Article 7, section 34 of the Michigan Constitution , calls for the powers of local governments to be “liberally construed.” In theory, such a canon, which is contained in several other state constitutions or statutory home-rule grants (for instance, those of Kansa

Judge Sutton’s two books, Fifty-One Imperfect Solutions and Who Decides? contain fascinating history lessons, much food for thought, and some practical advice. One intriguing suggestion, especially prominent in his first book, is that state courts decide questions of state constitutional law first, reaching federal constitutional questions only if necessary. As readers of this blog undoubtedly know, when it comes to constitutional rights, the federal Constitution sets a flo

Judge Sutton’s Who Decides? is a gracefully written, good-natured, and open-minded book about the acceptance of pluralism in governmental processes. The book covers a broad swathe of questions concerning institutional design — legislative districts, agency powers, plural executives, selection of judges, local governments’ autonomy, among other topics. Uniting these disparate topics is the gently implicit argument that designing institutions is difficult, and reasonable peopl