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Public Entrenchment through Private Law: Binding Local Governments

dc.contributor.authorSerkin, Christopher
dc.identifier.citation78 U. Chi. L. Rev. 879 (2011)en_US
dc.descriptionarticle published in law reviewen_US
dc.description.abstractAnti-entrenchment rules prevent governments from passing unrepealable legislation and ensure that subsequent governments are free to revisit the policy choices of the past. However, governments — and local governments in particular — have become increasingly adept at using private law mechanisms like contracts and property conveyances to make binding precommitments into the future. Simultaneously, courts and state legislatures in recent years have reduced the availability of core de-entrenching tools, like eminent domain, that have traditionally allowed governments to recapture policymaking authority from the past. These changes threaten to shift democratic power intertemporally. This Article develops a typology of mechanisms for public entrenchment through private law and private rights, as well as core anti-entrenchment protections embedded in the law. It then develops a framework for evaluating entrenchment concerns, comparing the costs of decreased flexibility against the benefits of increased reliance. Viewed through this framework, some recent changes in the law appear particularly problematic, from restrictions on eminent domain, to the rise of development rights, and creative forms of municipal finance like selling assets instead of incurring debt.en_US
dc.format.extent1 PDF (88 pages)en_US
dc.publisherUniversity of chicago Law Reviewen_US
dc.subjectLegislative entrenchmenten_US
dc.subjectPrivate lawen_US
dc.subjectProperty conveyancesen_US
dc.subjectUnrepealable legislationen_US
dc.subject.lcshLocal lawsen_US
dc.subject.lcshLocal governmentsen_US
dc.subject.lcshCivil lawen_US
dc.subject.lcshEminent domainen_US
dc.subject.lcshPublic lawen_US
dc.subject.lcshConstitutional entrenchmenten_US
dc.titlePublic Entrenchment through Private Law: Binding Local Governmentsen_US

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