Beyond Preemption, Toward Metropolitan Governance

Abstract

Although U.S. metropolitan areas are increasingly economically and culturally inter-connected, legal authority over core substantive areas remains largely decentralized, divided, and uncoordinated. Scholars have long recognized that this configuration can yield substantial benefits, but also exacerbates social problems that transcend local boundaries, such as traffic congestion, pollution, and segregation. Though some have called for state preemption or the formation of metropolitan governments, such reforms have proved elusive and may often be normatively undesirable. More recent theories of “metropolitan governance” lack a comprehensive framework for describing and assessing such authority, and neglect the role of formal legal strategies in inducing effective governance.

Building on insights from literatures on institutional design and governance, this Article reveals the traces of an alternative approach. Based on three in-depth case studies involving housing, water pollution, and transportation, it identifies misunderstood and underexplored reallocations of authority that destabilize existing municipal incentives. Each case illustrates how states have set standards for local governments, and promoted implementation and attainment of these standards, by establishing third-party enforcement rights and/or instruments for intergovernmental coordination. Such targeted reallocations may be more politically plausible than broader institutional changes and more likely to simultaneously leverage the benefits of local and more centralized institutions.

More broadly, the Article argues that distinguishing the extent authority is centralized from the levels of overlap and coordination better facilitates assessment of the potential tradeoffs among different institutional configurations. Ultimately, this framework reveals a range of opportunities that may better promote more effective metropolitan governance.