What Is "Law"?

A few years ago, back when I was still attending the meat market as a candidate, I went to a reception hosted by a law school I had interviewed with.   At this time, I was already starting to write about suburban sprawl and related issues.  One of the older faculty said something like: “We don’t see what this sprawl stuff has to do with the law anyhow.”

I think that the interviewer’s question revealed a common misconception: that “law” is really what courts do.  He believed that sprawl was just another policy issue that had nothing to do with real “law”.

Why do I say “misconception”?  Because law is of course what legislatures do: not just Congress, but also city councils and state legislatures (as well as administrative agencies acting pursuant to state-created authority).  And as it happens, sprawl is (as I explain in my scholarship) at least partially a result of these legislative decisions.  Zoning codes and other municipal regulations often favor sprawl (which, in this particular context, means development that is designed solely with the interests of drivers in mind, and tends to turn pedestrians, bicyclists and transit users into second-class citizens).   Thus, sprawl is about law, and when I teach my seminar on sprawl and the law, I focus heavily on such laws, as well as court decisions upholding these regulations and policy analysis critiquing them. 

In addition, some states have created laws and regulations designed to limit suburban development in various ways.  These regulations, too, are law and equally deserving of study.

Comments

[James Grimmelmann]

I think there are two different senses of what it means to study law at work in this story. One sense is yours: the legal scholars study the effects of law, wherever they may be found. Because law pervades society, legal scholars are necessarily wide-ranging. When you study sprawl, you are quite clearly studying law in this sense; law has had profound effects on our lived environment. If the faculty member assumed that "law" meant only the decisions made by courts, yes, that seems an impoverished view of the law professor's work.

Your interlocutor, on the other hand, may have a different additional assumption: the legal scholar engages with some feature of law beyond its consequences. On this point of view, architects, political scientists, and urban planners debate how law causes (or doesn't) cause sprawl, and how different laws could change the landscape. The contribution of the law professor must be -- if law professing is to be a discipline of its own -- something more; she must contribute some distinctive knowledge about law itself. She could discuss how court-made land use doctrines diverge from legislative decisions, how settlement shapes land law on the ground, or the proper interpretation of RLUIPA with sprawl effects in mind. Any which way, however, she must bring something to the table that academics from those other fields wouldn't.