Cities are traditionally characterized as a sub-unit of the state that functions as a socioeconomic node. However, global trends in recent decades indicate that cities are gradually acquiring a semi-independent political role, challenging and contesting the nation state`s authority. Into the twenty-first century, cities` actions in global politics (e.g., supranational city-based networks) and within the state (e.g., sanctuary cities) indicate that they aspire to attain or even directly claim more political autonomy. However, achieving these localist goals sometimes warrants regional cooperation (...) with neighboring municipal jurisdictions, thereby engendering ad-hoc and bottom-up regionalisms. Addressing this phenomenon theoretically, this Article analyzes three empirically and conceptually distinct types of the localist-regionalist nexus, demonstrating different rationales: (1) regional cooperation supporting localist innovation independent of state intervention; (2) regional cooperation supporting localist contestation of state policies; and (3) regional solidarity in the face of national tensions. Based on recent examples from Israel, it analyzes these three types along with their political and normative implications. Despite various discrepancies and possible tensions between localism and regionalism, the main conclusion emerging from this Article is that these two principles are not mutually exclusive. Moreover, although there are legal, institutional, political, and ideological tensions between them, the analysis suggests a third way between localism or regionalism. Likewise, some types of regionalization may act as a mechanism or tactic to support and deepen localist agendas. (shrink)

National Priority Regions (NPRs) are one of Israel’s most robust tools for redistribution: a resource allocation governmental plan that favors some regions over others, mostly according to their socioeconomic status and peripherality. Drawing on archival research, this article is the first to focus on this topic and provide a detailed description and analysis of this measure. It provides historical and theoretical accounts of NPRs, tracing their history, starting in the 1970s, over three periods and showing how they have been used (...) and abused. This allows for some important observations about the stakes of using a "color-blind" place-based distributive mechanism, and about the complex relationship between redistribution, development, and settlement. At the national level, this article shows how NPRs changed over the years from a discriminatory tool that excluded almost all Palestinian-Arab localities into a more inclusionary mechanism, but one that also works to support and incentivize Jewish settlement in the Occupied West Bank. At the theoretical level, this article lends itself to and supports a ‘region-skeptic’ approach that sees the regional scale, much like other seemingly “race-neutral” criteria, mostly as an elusive exercise of power that often deepens inequality. However, drawing on Israel’s experience with NPRs, this article provides some more specific cautionary tales that can, I suggest, work to improve the regional scale rather than eliminate it altogether. (shrink)

Since ancient Greece’s “megalopolis,” the concept of vast cities has loomed in the urban discourse. A century ago, English planner Patrick Geddes warned about a growing imbalance between traditional society and ever-larger conurbations, an anxiety that Lewis Mumford later invoked to predict that urban hubris would inevitably collapse of its own weight. In 1961, by contrast, the geographer Jean Gottman surveyed the interconnected agglomeration stretching from Washington, D.C. up the east coast of the United States to the cities of southern (...) New England, and more optimistically highlighted this new urban form’s governance potential. Today, the question is not whether urbanism will arrive at the scale that so concerned Geddes and Mumford yet engaged Gottman—it already has. Commentators and scholars increasingly recognize that vast polycentric urban regions are displacing cities and metropolitan areas as the locus of modern growth and development. Eleven distinct urban-centered megaregions, for example, concentrate the bulk of the population and economic activity in the United States, and similar clusters are coalescing globally, from Greater Tokyo, Beijing, and the Pearl River Delta, to the arc from São Paulo to Rio de Janeiro, to the European urban spine running from London to Milan. Grappling with the phenomenon’s legal-institutional dimensions—whether and how to formalize governance to match this scale—requires more than transposing the descriptive and normative discourse on metropolitanism. Crosscurrents around fragmentation, efficiency, inequality, and democratic legitimacy refract, but there are distinct arguments for fostering governance—and equally particular concerns to anticipate—with the rise of the megalopolis. (shrink)

Democracy demands a capital city that represents a country and is not removed from it. If the government is to be of the people and for the people, then the capital must be able to relate to the people—and the people to the capital. In the United States, democracy struggles not just because of what happens outside of and comes to Washington, but because of what happens inside Washington. The federal government, in other words, faces democratic problems because of the (...) type of place that Washington is. There are many factors to consider in deciding where a country should be governed from, but the ability of the capital to understand the country it governs is certainly one of the most important of these factors. The goal of this symposium article is to consider the contemporary democratic crisis in these geographical terms. Washington was initially a rural area meant to govern a rural country. It has gradually turned into a dynamic metropolitan area meant to govern a country featuring many—and many different—dynamic metropolitan areas. During its entire history, though, Washington has remained dominated by a single company: the federal government. A company town will struggle to attract and to cultivate the large range of people featured in the United States. Given that a company town struggles to satisfy the democratic demands of a capital, the question then becomes whether other types of places would better satisfy these democratic demands. (shrink)

In this Article, we explore a subset of the urban-rural divide and propose a mechanism for reducing its economic and political effects within that limited realm. Specifically, we focus on the subset of rural areas that lie within what the Office of Management and Budget defines as micropolitan areas. Micropolitan areas are characterized by an urban area with a population between 10,000 and 50,000, and adjacent rural counties. Data suggest that rural areas within micropolitan regions do better economically than rural (...) areas unconnected to urban areas, though not as well as the principal city within the micropolitan area. If the objective is to reduce the economic, and perhaps also the political, divide between urban and rural areas, then micropolitan areas may represent low-hanging fruit for redress. This Article argues that micropolitan areas are an important window into understanding the relationship between urban and rural economies, explores the characteristics of those areas that are likely to generate economic success, and recommends policies that would capture those benefits. Additionally, we speculate that increased opportunities for economic interaction between the urban and rural parts of micropolitan areas could also address the political aspects of the urban-rural divide. Recognizing the complexity of the relationship between urban and rural economies, we identify various obstacles to realizing the kinds of interlocal cooperation that we believe are necessary to reduce the economic and political divide within micropolitan areas. We conclude with suggestions for a research agenda to remedy the underdeveloped study of micropolitan areas. (shrink)

Scholarship on regionalist institutions lacks a theory of regionalist politics because we lack regional political parties, without which regional politics is difficult. Particularly in the United States, regional governments are the product of either intergovernmental agreements between governments controlled by ostensibly national parties or state statutes and federal grants administered by ostensibly nonpartisan bureaucrats. The absence of truly regionalist politics and parties creates problems for governmental problem-solving at both the national and regional levels. First, politics abhors a vacuum: In the (...) absence of truly regionalist parties, politics generates semi-regionalized parties that risk hindering national policymaking with the parochial outlook of the semi-regionalized politicians. Second, regional politics are important tools for organizing both legislators and voters to pursue regionally controversial ends requiring political compromise. National parties organized around national issues cannot perform this function at the regional level. Without regional parties organized around issues like overcoming NIMBY (“not-in-my-backyard”) resistance to housing, for instance, it is difficult to rally politicians to take politically costly positions on those issues. This Article aims to solve the problem of missing regionalist parties and politics in two steps—first, with a taxonomy of regional governments and regionalist and semi-regionalist parties along with their respective benefits and burdens, and second, with very modest suggestions for promoting regionalist and discouraging semi-regionalist, parties. None of these solutions is perfect. Genuinely regionalist democracy presents an unsolvable problem, resulting from the inevitable cognitive limits of voters and the organizational incentives of politicians at every level of government. (shrink)

This article offers a discussion on the opportunity of collaborative, multi-actor (public, private, science, social, and civic actors) partnerships as experimental policymaking and governance solutions for climate mitigation and adaptation plans geographically localized at the urban, metropolitan, and regional level. It sets out considerations as regards the need to design newly conceived permanent or temporary institutional geographies by building on the analysis of examples of policies implementing this kind of partnerships in Italy (e.g., river contracts; river foundations; neighborhood agreements; pacts (...) of collaboration; city science offices; urban sustainable development and innovation partnerships, etc.). Finally, the article draws attention to the challenges entailed by these partnerships including ethics, accountability, and climate justice concerns. (shrink)

Stark variations exist in U.S. immigration enforcement. These variations have persisted even during the COVID-19 pandemic, when special measures that should have constrained variations were in place. This Article argues that variations in discretionary enforcement decisions based on resistance to national policies, bias, illegal tactics, or arbitrariness are unjust and should be curtailed. The Article first distinguishes between transparent sources of variation in immigration law and variations that stem from non-transparent, discretionary determinations. Within the category of discretionary determinations, the Article (...) argues that there are just and unjust variations. It contends that unjust variations raise serious constitutional concerns, weaken preemption doctrine, and require us to reconceptualize the immigration federalism debate to account for cooperative and uncooperative behavior within the federal government itself. Finally, the Article offers solutions to help limit unjust variations. (shrink)

The role of subnational regions is ill-conceived in international law scholarship, which has come to slowly accept the important role that cities can play as international actors. Opening up the academic debate for a perspective on regions promises to develop new insights on the divide of governance functions between international organizations and states, regions and cities. At the same time, the regional focus helps to unearth some of the shortcomings of overly enthusiastic approaches to what cities can do as global (...) actors. International law scholarship has found it difficult, however, to engage with the concept of the region. This is owed, as this Article demonstrates, to difficult definitional issues as well as the informalizing bend of a focus on regional governance, which is hard to square with traditions of formalist thinking in international law. Ultimately, the Article argues that regions can function as a useful prism through which to analyze current governance challenges. (shrink)

Regionalism is experiencing a global resurgence as countries grapple with issues such as coordination problems, economic inequality, racial tensions, and environmental degradation. Nations are exploring various regional entities as potential solutions to these challenges. However, despite the growing prominence of regions, they remain undertheorized. While extensive research has been conducted on national and local governments, regions have often been treated as either state-like or locality-like, or as ad-hoc remedies for the limitations of both. This article seeks to complicate this perspective (...) and present the initial stages of a theory of regions. By examining the case study of the Cities’ Union in Israel and tracing its historical origins and legal evolution into multipurpose regional clusters, the article uncovers valuable theoretical insights about regions. First, it argues that just as “the local” and “the national” mutually shape one another, “the local” and “the regional” too are interdependent concepts, each definition relying on the other. The existence of a third concept—the regional—is crucial, making this a conceptual triad rather than a dyad. Second, the article highlights that legal institutions such as interlocal cooperations and special-purpose governments (SPGs) are not inherently local or regional but can be perceived as either depending on historical and political contingencies. The conceptualization and concrete manifestations of local and regional forms are subject to political concerns and ideological commitments, extending beyond mere technical or functional considerations. Lastly, the article reflects on the unique characteristics of regional forms that make them legally, socially, geographically, and economically nimbler and more adaptable than their national and local counterparts. (shrink)

Observers of metropolitan dysfunction have long advocated for a regional tier of government that could (among other things) equalize spending across local jurisdictions, pursue cooperative economic development policies, provide for fair share housing, rationalize land use, and coordinate transportation planning. For many good government reformers, right-scaling our fragmented metropolitan areas appears to be an obvious solution to interjurisdictional spillovers and competitive races-to-the-bottom. This article counsels caution. “Region hope”—the idea that the substantive problems of metropolitan governance can be solved regionally by (...) redrawing territorial boundaries to encompass ever-larger areas—is perennial. But territorial manipulation in aid of state centralization has significant drawbacks. The regional impulse exhibits some key features of failed social engineering efforts; seen through the lens of the state, these efforts privilege technocratic over democratic governance, bureaucratic over local knowledge, and mobile over immobile capital. That does not mean that regionalism should be resisted in all cases, but only that the costs of territorial manipulation should be weighed against its asserted benefits. (shrink)

Fragmented regions face a range of collective action problems on issues ranging from transportation to affordable housing. Specifically, within regions, free-rider and race-to-the-bottom problems both abound. This Article offers theoretical lenses to clarify the sources of, and barriers to solving, these problems. First, it introduces the concept of concentricity to better understand the region. The municipality and the region represent coexisting, concentric communities and nodes of competition. The geographically based identity that one espouses may toggle between the local and the (...) regional across different contexts. Second, this Article describes a community-competitor feedback loop. Drawing on social science literature, the Article shows how encouraging deep identification with a community can inspire competition with other communities. And encouraging competition between communities can deepen community identity. The Article then applies these theories to practical considerations. Given the persistent nature of hyperlocal identity, intraregional competition, and the resultant feedback loop, mandatory regional solutions may often be politically unattainable, even when they are the optimal solution. Accordingly, this Article presents two voluntary, cooperative regionalist solutions that embrace and potentially exploit regions’ concentric identities, instead of doing the more costly work of dislodging local identity. (shrink)

This Article presents a new mode of governance called “inclusive regionalism,” which aims at curing the fragmented citizenship of marginalized groups within multicultural-divided societies. It seeks to expand the theoretical work on the appropriate mode of local governance in multicultural-divided societies from a narrow resident-based to a broad citizen-based point of view. I argue that regionalism can play a dual role in curing social ills through the establishment of regional facilities that engage in civic activities and promote solidarity between citizens. (...) As opposed to localism, a regionalist mode of governance that coordinate the facilities and practices of several localities within a region is more capable of confronting issues of discrimination, segregation, and inequality within and between localities. Moreover, such a mode of governance can connect the residents of separate localities within the region by providing regional facilities and institutions that serve as bridges between communities. Accordingly, applying a regional mode of governance might result in a much less fragmented society, which benefits from greater opportunities for cooperation between residents of the region in various fields. Promoting such a mode of governance requires a shift in the perception of regionalism as a means of control toward a mode of “community building” that advances social and environmental justice and inclusive citizenship. (shrink)

There is something missing in existing discussions of domination. While republican theory, antisubordination theory, and critical legal theory each have contributed significantly to our understanding of domination, their focus on structural relationships and group subordination can leave out of focus the individual wrongs that make up domination, each of which is an unjustified exercise of power by one person over another. Private law (supported by private law theory) plays an important role in filling out our pictures of domination and the (...) role of the state in limiting it. Private law allows us to recognize domination in wrongs by one person against another, and it has the potential to articulate the state-enforced boundaries on domination as well as a framework for thinking through inevitable compromises between the aspiration to nondomination and other basic interests of a liberal state. We can understand employment law as continuous with private law, that is, attempting to vindicate a nondomination principle in the context of employment by regulating specific acts of employers. Alternatively, we might understand employment relationships to define group membership, commonly recognized along class lines. In that case, employment law is not about individual nondomination but about mitigating class subordination. It might do this in service of the antisubordination principle, or in order to ensure that employees are capable and ready to exercise the responsibilities of democratic citizenship. While these various purposes largely coincide, there are points of normative divergence which sometimes require that we prioritize one or other function of employment law over the others. (shrink)

This Article explores the idea that the moral standards of relational or interpersonal justice can be used to lay the foundations for a theory of justice in work, rather than relying on principles of justice developed for society as a whole in philosophical theories of distributive justice. It is argued that a rich and distinctive scheme of interpersonal justice can be developed by using a method of internal critique and by focusing on two distinctive features of contracts of employment. Because (...) they are incomplete by design, like other relational contracts, contracts of employment depend for their success on a broad obligation of performance in good faith. Contracts of employment also usually function within organizations which provide the source of customary norms of associational justice that govern relations between members of the firm. These principles of associational justice include rewards based on desert, a strong egalitarian principle, protection from unjustified exclusion, and a right to have a voice in the affairs and the direction of the organization. (shrink)

Tort law does many things—it determines substantive rights, decides what counts as violating these rights, recognizes rights of repair, and grants rights of redress. Two non-instrumentalist conceptions of tort law appear to dominate how we are supposed to understand and discharge these tasks. One conception takes tort law to be the law of wrongs, whereas the other conception identifies tort law with the law of victim recourse. I argue that both conceptions (including a combination of both) mischaracterize what tort law (...) does and what it should be doing. By contrast, the conception I shall defend—viz., the conflict theory of tort law—takes the basic task of tort law to be identifying the value of the conflict to which it responds (or which it shapes). In fact, there are three types of conflicts: inherently valuable, tolerably valuable, and valueless. Each type of conflict calls for a qualitatively different response by the law of torts. The conflict theory, I argue, changes the way we understand and determine the rights, duties, liabilities, and remedies that arise in and around tort law. I demonstrate this claim in connection with the tort of battery and then extend the analysis to capture the tort law of workplace and, in particular, trespass law as it applies to nonconsensual access to the workplace by organizers and by workers. (shrink)

In this Article, I contest on both theoretical and empirical grounds the progressive agenda, as represented by Hanoch Dagan, that seeks to advance the unionization movement in the name of individual autonomy and property. Theoretically, the Article shows that the common-law account of autonomy, which stresses freedom of action from external constraints involving the use or threat of force, provides the best analytical framework, one that undermines the modern progressive case for collective bargaining by workers. The negative account of autonomy (...) applies to all persons; its correlative duties are simple. It applies regardless of the overall level or distribution of wealth. It is scalable from small to large societies. And it forces employers to respect the full range of material and psychological needs in order to recruit and retain their workers. In contrast, the modern progressive alternative imposes no clear correlative duties on employers. It has no obvious way to constrain the dominance of union forces. And its commands are sufficiently complex that they are often not understood by the workers whom they are intended to protect. Empirically, this Article shows that the institutional rigidity of union structures in dynamic markets fails; and it rejects the claim that individual workers are wedded to their current employer, given competitive forces that allow for rapid entry and exit. Given the long-term systematic advantages of the classical liberal model, it is no surprise that unions are generally in decline in major industrial societies. (shrink)

This Article contrasts two views of the relationship between the fields of work law and private law. The “internal” view, propounded by Hanoch Dagan, would bring work law into the domain of private law by recentering the latter, including property law, around liberal values of reciprocal respect for autonomy. The “external” view locates the law of work in an overlapping but distinct domain that we might call “social law,” where it operates as a set of externally imposed conditions on the (...) activity of employing others. When workers’ rights and interests come into conflict with those of owner-employers, the two views face off on the constitutional terrain of takings. In principle, the internal view might afford a better defense against takings challenges to laws that constrain property owners’ entitlements in the interest of those who work there, for it would redefine the former to reflect the latter. The external view relies more on takings law than property law to accommodate others’ interests when they conflict with traditional property rights. Unfortunately, the U.S. Supreme Court’s recent decision in Cedar Point Nurseries v. Hassid deals a heavy blow to both views. Its neo-Blackstonian conception of property rights rejects the notion that property law itself recognizes workers’ interests and entrenches that conception of property rights within the constitutional law of takings, sharpening the takings sword against social law’s regulation of property rights in the interest of others, including workers. Cedar Point thus underscores and magnifies the challenges that modern U.S. takings law, with its constitutional definition of property rights, poses to the advancement of workers’ rights, whether those are understood as internal or external to property law. (shrink)

Contract and employment law have grown apart. Long ago, each side gave up on the other. In this Article, we reunite them to the betterment of both. In brief, we demonstrate the emancipatory potential of contract for the law of work. Today, the dominant contract theories assume a widget transaction between substantively equal parties. If this were an accurate description of what contract is, then contract law would be right to expel workers. Worker protections would indeed be better regulated by—and (...) relegated to—employment and labor law. But contract law is not what contract theorists claim. Neither is contract law what the dominant employment theorists fear—a domain that necessarily misses the constitutive place of work in people’s life-plans and overlooks the systemic vulnerability of workers to their employers. Contract, we contend, is not work law’s canonical “other.” Rightly understood, contract is an autonomy-enhancing device, one founded on the fundamental liberal commitment of reciprocal respect for self-determination. From this “choice theory” perspective, the presumed opposition between employment and contract law dissolves. We show that many employment law doctrines are not external to contract, but are instead entailed in liberal contract itself. Grounding worker protections in contract theory has two salutary effects. First, it offers workers more secure protection than that afforded by their reliance on momentary public-law compromises. Second, it reveals contract’s emancipatory potential for all of us—not just as workers, but also as widget buyers. Contract can empower, and employment can show the way. (shrink)

This Article uses a history of the push for job security in the United States during the late 20th century to assess New Private Law (NPL) theory. The history recounts the rise and fall of common law and statutory approaches to replacing at-will employment with termination for just cause only. Applying NPL theory to that history, the Article argues that NPL theorists’ current approach to defining their topic of study and distinguishing it from public law is inconsistent within and across (...) theories. NPL theorists seek to carve out an area of law where interpersonal morality trumps legal economists’ goal of collective welfare maximization. That conceptual project depends on a coherent and consistent approach to distinguishing private from public law. Ultimately, the Article argues, NPL theorists face a more fundamental problem, however. Regardless of how one categorizes the events in this history, it shows that the common law-derived interpersonal morality at the heart of NPL theory may not strengthen worker protections in the ways at least some of its theorists hope. (shrink)

This Article explores how managerial prerogative shapes disputes over employment classification and reveals a neglected but prominent feature in legal arguments about platform worker rights—the disputed relevance of a platform’s intellectual property rights. In classification disputes, instead of denying that it has a right to control how others perform services for it, the company often concedes its employer-like authority but offers an alternative rationale: managerial prerogative. The company argues, and judges often agree, that its labor control is not the exercise (...) of employer authority but instead reflects a prerogative of enterprise ownership, like a right to protect property and determine product lines. Thus, managerial prerogative both explains labor control and exempts that control from the statutory duties that would otherwise attach under the legal tests. Platform companies appear to have taken notice of such cases and designed their work relationships around property-based rationales. For instance, Uber uses a software “license” in which drivers agree to Uber’s authority as a condition for accessing the app. The license depicts the terms upon which drivers must affirmatively cooperate with Uber to produce transportation as simply the negative duties not to interfere with Uber’s intellectual property. The Article concludes that we must reject appeals to managerial prerogative in employment classification disputes. To assume that a property-based rationale for labor control is inconsistent with employment is to misunderstand the legal basis of employment and the purpose of statutory labor law. The appeals also rely on dubious economic assumptions and conflate property rights with agreements about the use of property. (shrink)

This Article argues that the duty of good faith in contractual performance offers powerful but neglected resources to empower workers to pursue their legitimate interests and resist mistreatment by employers. The duty of good faith creates a joint authority structure within contractual relationships, vesting co-contractors with equal and joint authority over the meaning, purposes, and, hence, the requirements of their contract. Implementing such an authority structure requires ensuring that the parties to a contract have the communicative space and epistemic resources (...) they need to uncover and develop a common understanding of their contract. In the context of employment, such an authority structure would be transformative. It would require legal recognition of a variety of employee speech rights and protection from termination for reasonable and good faith refusals to perform work, and would offer a legal basis to challenge the scope and enforceability of at-will employment clauses. The duty of good faith could thus supply a common law foundation for rights and obligations commonly associated with labor law. (shrink)