Rightsizing Local Legislatures

58 Pages Posted: 1 Apr 2022

See all articles by Brenner Fissell

Brenner Fissell

Villanova University; Villanova University, Law School

Date Written: March 29, 2022

Abstract

A serious defect in governmental design is hiding in plain sight: local councils, boards, and commissions have all the lawmaking powers of a “legislature,” but they are far too small to deserve them. With an average size of only four members, local legislatures depart from the norm observable at all other levels of government. Only in the past few years have legal scholars turned their attention to the institutional design of these bodies, but this developing literature has yet to address their most striking feature—their small size.

This Article takes up this project. It claims that local micro-legislatures are both unrepresentative and undemocratic, and that their size affects the content of local law and the way that it is perceived. The fundamental problem with a micro-legislature is that it is not inclusive of the diversity of interests in a modern society. Too few seats results in a deficit of descriptive representation—meaning the legislature will not “look” like its community—and also of democratic deliberation, since all voices will not be a part of political debate. This works to silence or muffle minority viewpoints, resulting in more extreme legislation. Moreover, minorities will perceive this exclusion, and may view local law as less legitimate because of it.

Recognition of the phenomenon of micro-legislatures, and its implications, should lead to further skepticism of the long-dominant theory of participatory localism. Rather than being models of democratic involvement, localities—at least as they are currently structured—are sites of exclusion, not inclusion. The path forward involves a rightsizing of local legislatures, and, in the interim, heightened judicial scrutiny of local legislation.

Keywords: local government, preemption, representation, democracy

Suggested Citation

Fissell, Brenner, Rightsizing Local Legislatures (March 29, 2022). Utah Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=4070005 or http://dx.doi.org/10.2139/ssrn.4070005

Brenner Fissell (Contact Author)

Villanova University ( email )

Villanova, PA 19085
United States

HOME PAGE: http://www.brennerfissell.com

Villanova University, Law School ( email )

299 N. Spring Mill Road
Villanova, PA 19085
United States

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