Faculty Spotlight: Professor David Schleicher

Professor David Schleicher, an expert in local government law, land use, federalism, state and local finance, and urban development, joined the Law School faculty in 2015 and was named Walter E. Meyer Professor of Property and Urban Law in 2024. A prolific scholar, Schleicher is also a frequent contributor to mainstream media outlets and a sought-after resource for journalists looking to understand these complex issues.

Reviews of his 2023 book “In a Bad State: Responding to State and Local Budget Crises” called Schleicher “the ideal legal scholar of cities” and “one of the most brilliant and far-ranging political thinkers of his generation.” 

In the Q&A below, Schleicher discusses the legacy of a major Supreme Court case on eminent domain, why a revolt against property taxes will make the housing crisis worse, and how his teaching blends legal theory and policy analysis.

You are holding a conference in February about the 20th anniversary of Kelo v. City of New London. Can you say more about what the conference will cover? Why is this Supreme court case so important 20 years later?

Oh, I’m really excited about the conference! My former colleagues at George Mason, Eric Claeys and Ilya Somin ’01, came up with the idea and asked me and the Law School to jointly run the conference. In Kelo, the Court decided that New London, Connecticut could use eminent domain to take property from a homeowner and give it to developer as part of economic development project.  

What fascinates me about the case is not only the issue — “private-private” takings are one of the thorniest legal issues involving the takings clause — but how it was received. Kelo engendered a huge popular backlash, leading to a bunch of state legal changes and a public debate about eminent domain more broadly. The conference is going to address the case itself; we’re having the litigants involved come talk about the case. But we’re also having leading scholars talk about the broader implications of Kelo and about the future of eminent domain doctrine, an area where the Supreme Court has been very active in recent years. It’s also exciting because we have people with wide diversity of opinions on Kelo and the Takings Clause, as well as experts who will discuss a variety of related issues like regional economic development and scholars studying eminent domain elsewhere in the world.

You’ve written about the “property tax revolt,” in which homeowners have pushed to limit property taxes that cities heavily rely upon. How does this movement affect city budgets?

It has a huge effect on local government budgets — not just cities, but also school districts and a whole variety of other types of local governments too. After the pandemic, there was a huge increase in demand for space and in new household formations. This led to substantial increases in property values for residential property, particularly in suburban areas. When property values go up, property taxes do too. There’s some irony in how angry this has made people — the value of your house going up is a good thing! — but unless you borrow against the increased value, increased property values do not provide cash in hand. And homeowners are the most powerful force in local and usually in state politics since they vote and participate at far higher rates than renters do, for instance. So these property value increases have led to a large number of referenda and votes cutting property taxes and imposing limits on how much property assessments can increase. 

These changes will not only limit the money available to local governments (or in many cases, reduce the amount by which local budgets increase due to keeping tax rates constant when property values increase). Just like the main result of the last big property tax revolt, Proposition 13 in California in 1978, many of these reforms will gum up the property market. They will make taxes lower for existing homeowners than for purchasers or developers, which will lead to a decline in sales and new building. The result will make the housing crisis worse and make things harder for new, first-time homebuyers. Other changes will put pressure on the still-struggling commercial property market, by shifting more tax burden on to office buildings. It’s a real mess.

How do you tackle the relationship between property law and social problems in your class “Property and Regulation”?

I changed the name of the property law course — 121 students this spring! — to “Property and Regulation” to reflect that the ways we regulate real property today are largely regulatory and not primarily through the common law. The course teaches all the classics — Pierson v. Post, the Charles River Bridge Case, etc. — but focuses substantially on other aspects of property regulation, from studying institutions like Fannie Mae, Freddie Mac, and the FHA to looking at the influence property taxes have land uses and transactions. In doing so, we discuss not only property theory — from Locke to Radin to Merrill and Smith with much between — but also do a lot of policy analysis. We’ll discuss everything from recent state efforts to limit local zoning powers (a subject of a lot of my work) to faltering fire insurance markets in California, everything from Chicago’s “dibs” system for claiming parking spaces to potential regulations on artificial intelligence generated music. The class is great, and I’m lucky to be able to teach it. 

What other research are you currently working on? 

Oh, gosh. A lot of stuff. I have a paper on what my co-author Rick Hills and I call the “developmental” tradition in American property law. The paper argues that across areas of property law and regulation, American law differed from British property law in favoring building, liquid markets, active use by small landholders and credit markers, in contrast with a greater focus on social stability, externalities, and localism in Britain. This trend continued until the 1970s and ’80s, when property law and regulation turned substantially against development, and in so doing played a real role in reducing economic growth rates. This is easiest to see in land use law, where zoning and other regulations made it much harder to build in many regions, leading to our current housing crisis. But it’s also true in the law of servitudes, forms of ownership, land assembly and property taxation. The paper ends by suggesting that the modern YIMBY (Yes In My Backyard) movement is recapturing the historical trend of American property law, and should consider pushing for reforms across property regulation. 

I also have a new paper with Nick Bagley coming out soon, about how criticisms of American state capacity are too focused on failures of federal government capacity. Most services are directly provided and substantially funded by state and local governments. The biggest source of difficulty in the cost and quality of government services are thus the failures of state and local governments. In particular, local services suffer due to the absence of informed electorates and electoral competition, excessive procedural and participatory requirements, and the often structurally unsound budgets found in both state capitols and city halls.

I also have a new white paper coming on how the next federal transportation spending bill can be restructured to address the increasingly high costs of American infrastructure projects. 

There’s other stuff too. It’s hard to keep track of everything, but it’s an exciting time!