Course previously numbered 438.
This intensive clinical offering is designed to give students a deeper understanding of the legislative process and the complex interaction between land use controls, environmental quality, and state and local government law. The class will have one client: the state Senate Committee on Local Government, which has jurisdiction over all land use and local government measures, plus any environmental legislation that affects these areas.
The core of the clinical will, like Gaul, comprise three parts:
1) Preparation of bill analyses and briefing papers for committee members, especially the Chairman. Each committee "discusses" literally dozens of bills each year, often upwards of 100: if each student writes a complete analysis for only ten bills, the course will require several dozen pages of serious, high-quality writing.
2) Policy development and legislative drafting. If desired by the committee Chair and the chief consultant clinic members will serve as an in-house policy think tank and (with the cooperation of the Legislative Counsel's office) prepare initial drafts of statutory language to be considered by the committee;
3) Oversight. Clinic members will also work on oversight projects: the current Legislature does a particularly poor job of determining whether recently-enacted bills have fulfilled their purpose, or how they have been implemented. The clinic would produce a small number of oversight papers for committee use in the subsequent calendar year for generating future legislation.
It may seem that such work would be redundant, as the legislative committees already have dedicated staff. Such a view, however, would overlook major changes that have occurred in the legislature since the passage of Proposition 140, a constitutional amendment enacted by the voters in 1990. The initiative not only created the severest legislative term limits in the country, but also substantially limited the size and pay of committee staffs and the Legislative Analyst�s Office.
Proposition 140's impact on legislative competence and authority was devastating. The nonpartisan Legislative Analyst's Office lost 60% of its funding and staff, and many of the legislature's professional policy experts simply disappeared. Peter Schrag, for nearly 20 years the editorial page editor of the Sacramento Bee, has comprehensively set forth the measure's legacy. Not surprisingly, there has also been a marked decline in the quality of the work done by committee policy staff . . . partly because they are now so shorthanded, partly because the turnover makes jobs less secure, and partly because many of the new members couldn't care less. They don't miss what they've never known. Where once committee bill analyses were, for the most part, relatively objective statements that laid out the arguments on a bill, pro and con, raised unanswered questions, and tried to suggest the likely effects, they now tend increasingly to be taken verbatim from the lobbyists pushing or opposing the measure, or simply from fantasy. "The net effect", Schrag concludes, has been more clout for lobbyists, bureaucrats, and "the governor and the executive branch, who still have budgeting and policymaking expertise."
One does not have to accept all of Schrag's arguments to conclude that the Legislature has a dire need of greater policy expertise. Term limits means that legislators no longer can wait years to accumulate deep knowledge of a subject area; even a cursory reading of most bill analyses reveals that overworked staffers simply do not have the time to do the research and analysis necessary to present a complete picture of proposed legislation.
The clinic would fill this gap by providing the necessary policy expertise. It would have the capacity to compile and analyze relevant research studies, propose clarifying and improving amendments, and at times present a budgetary analysis.
As an example, consider SB 744 (Dunn) a major piece of legislation now before the committee. SB 744 would establish a statewide appeals process for affordable housing developers whose projects have been denied by local authorities. It is explicitly based upon legislation enacted in Massachusetts and Connecticut. These acts essentially shift the burden to municipalities to show why the denial was necessary, and are available only to projects that receive certain kinds of HUD assistance. Massachusetts' law was enacted in 1969; Connecticut's in 1990.
I recently asked the bill's author, Senator Joe Dunn, what studies had been done concerning the relative effectiveness of the Massachusetts and Connecticut legislation. Amazingly, he told me that this was a very good question, and it is something to find out. Checking on the Local Government Committee's website and reading the bill analysis, I discovered that while the other states' legislation was mentioned, nothing was referred to that might guide the conscientious legislator as to whether this approach generally was a good idea, or whether key aspects might be changed, based on the Massachusetts or Connecticut experiences. Dunn is one of the legislature's leading affordable housing advocates; he has been devoted to the issue for years; and it hardly seems plausible that he is sponsoring this legislation to satisfy a major campaign contributor (most developers would not qualify under this law). In other words, it is not unfair to say that he is one of the best representatives in Sacramento--hard-working, intelligent--yet he cannot cite to any serious policy literature to defend his approach. This must be changed.
If, as Schrag suggests, legislators do not really care about policy, what if the good that the clinic will provide? Here, the role of the chairman is critical. The Senate Local Government Committee is chaired by Tom Torlakson (D-Antioch), who in four years has demonstrated a real commitment to thinking through policy issues and developing stronger institutional capacity. Torlakson is the founder of the Legislature's Smart Growth Caucus, which has attempted to take a broader perspective on the problems of planning and development within the state. He has set the tone on the committee to make it a serious policymaker.
The Local Government Committee is also an ideal place to work because its professional staff has a real commitment to quality, even in the post-Prop 140 era. Its chief consultant, Peter Detwiler, is known throughout the state a leader in land use and urban planning issues, and has maintained significant contacts with institutions of higher education, particularly UCLA. I believe that he would welcome the ability to augment his staff's analytical capabilities and deepen connections to universities.
Although the substance of the clinical is intrinsically interesting and important, the course will also provide students with a series of skills applicable to other practice areas:
Understanding statutory frameworks. Land use, local government, and urban planning are regulated by a series of complex and interlocking statutes, all of which affect each other. High quality legislative analysis requires an understanding how these statutes fit together, and--very importantly--how a change in one part of a statute might affect an overall framework. For example, how will a change in the requirements of California's Housing Element law affect potential CEQA litigation? Clinic participants will be expected to analyze these broader frameworks. In addition, clinical work on statutory drafting will sharpen student skills in statutory interpretation and construction.
Consuming policy analysis. The three most misleading words in the English language are "studies have shown." Legislative committees are deluged by lobbyists bearing "studies" that purport to justify their position. But they have no institutional capability to determine the relative quality of the studies, nor to identify the critical analytical assumptions behind them. Part of the clinic's task will be to assume this role. We hope that we could get assistance from the law school Empirical Research Group in this regard.
Interdisciplinary Competence. The Clinic will not only be staffed by law students: students in the public policy and urban planning schools, as well as those in enrolled in the Environmental Science and Engineering program, will be invited to participate. Lawyers function best when (among other things) they can translate between disciplines, and make clear to laypeople the critical pieces of statistical or scientific information. By requiring students to work with each other, the Clinic will enhance this general capability.
Literary succinctness/"Talking Points". In a famous line, philosopher Blaise Pascal apologized to a correspondent for "having written such a long letter; I did not have time to write a short one." Writing succinct and clear prose that nevertheless explains the critical complexities of a situation constitutes a central demand of any good lawyer. And few have less time to delve into policy complexities than legislators: a former Assembly member widely known for his knowledge of policy detail once told me to write a memo that "a five year old could understand." That may have been hyperbole, but it highlights the need for conciseness. Bill analyses will be no more than five pages apiece, with an executive summary of "talking points" available for the committee. Students will learn how to pack more punch into less paper. This also applies to policy development and oversight issues: legislators must be able to understand legislation's fundamental conception quickly yet thoroughly, and must be able to comprehend flaws in an existing statutory framework in the same way.
I anticipate that each student will participate in preparing upwards of ten bill analyses plus the longer oversight, policy development, and drafting projects. The clinic will operate on the principle that nothing good is ever written--it is only rewritten. While these will be group projects, I also anticipate fierce editing by the instructor (i.e. me) forcing them to go through at least two drafts per any project. All in all, by the end of the term, they will have written several dozen pages of prose designed for direct client view.