Constitutional Law | Law | State and Local Government Law
Clayton Gillette's In Partial Praise of Dillon's Rule, or, Can Public Choice Theory Justify Local Government Law? is an ambitious attempt to breathe new life into an old local government law chestnut through the analytical tools of modern political economy. Gillette asserts that because the Rule permits state judges to invalidate local legislation that results from "one-sided lobbying," Dillon's Rule increases the allocational efficiency of local decision making and reduces the deadweight losses attendant on special interest pursuit of rent-seeking ordinances. According to Gillette, Dillon's Rule checks the danger of special interest abuse of local politics by constraining local government actions in areas prone to special interest manipulation. He contends that local residents would have consented to Dillon's Rule if it had been presented to them; indeed, he suggests the existence of Dillon's Rule may contribute to the willingness of people to submit themselves to local governments. Thus, Gillette would have us believe that Dillion's Rule – which has so often been condemned by local government scholars as antithetical to local self-government – actually vindicates the interests of local majorities and sustains local autonomy itself.
Gillette's is an ambitious thesis, appealing as much in its audacity and its analytical style as in its substantive project of finding legal rules that would promote public-regarding local self-government. Unfortunately, Gillette's effort fails. The base metal of arbitrary state judicial intervention in local decision making that is Dillon's Rule cannot be alchemically transmuted into a public interest-serving Golden Rule. To answer the question posed in his title, "public choice theory" cannot "justify" local government law – or at least Gillette's theory does not "justify" Dillon's Rule under his standard of promoting the local public interest.
Home Rule, Majority Rule, and Dillon's Rule,
Chi.- Kent L. Rev.
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