By J.B. Ruhl
August 15, 2006
For the inaugural post of my Readings in Complexity series, in which I will abstract and review contributions to the law and complex systems literature, I’ve chosen the recent article by John Mixon and Kathleen McGlynn, A New Zoning and Planning Metaphor: Chaos and Complexity Theory, 42 Houston L. Rev. 1221 (2006). John is a preeminent property and land use scholar at UH, and has been a good friend and mentor to me for many years. After our many discussions about law and complexity theory, I was delighted to see his take on the issue, and a good take it is.
The authors “believe that land use is a nonlinear, complex, adaptive, dynamical system that cannot be analyzed, predicted, and controlled by linear cause-and-effect formula, such as 'plan, then zone.'” Hence they strike right at the heart of modern land use regulation and the “priestcraft” of planning, which depend heavily on front-end instruments such as comprehensive plans and zoning maps and are repelled by adaptive, ad hoc measures such as the much-dreaded “spot zoning” and citizen referenda. In place of that regime, they “recommend replacing the traditional planning paradigm (based on reductionist logic) with a new management paradigm grounded in complexity analysis….Instead of planners’ maps, [they] would rely on multiple interpretations of an accessible bank of current land use information that displays how land is actually used in a particular geographic area.” They do not reject planning, but rather repackage it as part of an information-based, GIS-powered mechanism for displaying land use landscapes to the public and through which more innovative, mixed use development could occur.
Mixon and McGlynn make a strong case for the “law and” complexity theory approach to land use law. After 12 years practicing land use and 12 years teaching it, I can’t think of a human system that comes closer to the environment’s complex system attributes than land use. It’s a snarl of money, politics, trends, neighborhood activism, luck, and timing. The modern suburban amoeba and its adaptive life strategy of so-called “sprawl” has defied the best and the brightest of planners and their comprehensive plans. So I have to think the authors are on to something. In particular, the design features they propose for land use law rely heavily on enhancing information flows, which I have argued is a central design feature of law as a complex system.
The practical upshot of their proposal, though, is bound to be controversial. The information-enriched decision environment they envision is clearly designed to free local governments from the shackles of “spot zoning” and “plan consistency” limits on discretion that state legislatures and courts have imposed, and they would restrict judicial oversight to cases of obviously corrupt or outrageous decisions. On the other hand, the heightened public information and transparency that comes with their proposal would make the political process, one would think, more adaptive and responsive as a check on local legislative decisions gone awry. In many ways this is the tension revealed in all the literature on adaptive management forms of governance—which institutions gets discretion to “adapt,” how much, what is the public input, and how do courts review decisions? As Mixon and McGlynn suggest, designing law as a complex system, or even just to respond to a complex system, probably means employing decision making processes foreign to the modern administrative state. Can we live with that?