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Thursday, July 12, 2012

Legal Conventional Wisdom versus Legal Reasoning: The Case for New York City's Power to Impose Congestion Fees

There is a useful but often overlooked distinction between what I will dub "legal conventional wisdom" ("LCW") and legal reasoning. LCW consists of those catchphrases, habits of mind, slogans, proverbs, maxims, half-truths, and rough predictions for what courts do, usually without much explanation or justification. Legal reasoning, by contrast, claims to be normative and justificatory: Some propositions are deduced from, or invalidated by, other more basic propositions, all of which hold together as a consistent system of rules serving some general goal or set of goals (say, obedience to the text enacted by an authoritative sovereign, internal logical consistency, etc). To understand a proposition deduced with legal reasoning, one needs to understand not only the reason for the rule but also the weight and scope of that reason against rival reasons that support rival rules.

Which should be regarded as "the law" -- LCW, or legal reasoning? If "the law" is a prediction of what people with legal power will do in fact, then the question has no easy answer. Most of the time, ordinary "street-level" decision-makers follow LCW without asking why. The bureaucrat follows the custom of the office, perhaps supplemented by the staff manual. The trial judge just follows the prevailing LCW, perhaps supported by a tagline from a precedent (assuming that they issue a written opinion rather than just rule orally from the bench). At times, however, LCW is destabilized by some crisis -- say, a popular movement, a widespread ideology, a scandal, or just a sense that old unthinking habits are failing -- in which case, LCW can be thrust aside by legal reasoning, just as habits give way to reflection whenever habits become too self-destructive.

A good example of the conflict between LCW and legal reasoning is the widespread belief in New York City that the City cannot toll bridges or roads without specific authorization from Albany. Having questioned some of NYC's top lawyers, public and private, with expertise in local government law, I can confidently say that this belief in NYC's legal impotence is the reigning LCW. Yet any careful look at the relevant state statute -- specifically, section 1642(a)(4) of the NY Vehicle & Traffic Law -- suggests that this particular piece of LCW makes little sense as a matter of legal reasoning. (In the likely event that you, like myself, are fascinated by the finer -- i.e., more tedious -- details of state laws on local government, I have published my reasoning in support of the City's power to impose congestion fees in CityLaw, Ross Sandler's preeminent publication on all things related to laws governing NYC (Download Hills CityLaw piece on Congestion Pricing)).

When asked by various interested parties whether NYC has the power unilaterally to impose congestion fees under existing law, I always give two answers. If the scope of NYC's powers were decided based on legal reasoning, then I cannot see how NYC could lose. Yet the reigning LCW is so powerfully against NYC that it would be rash to predict victory. A question I want to ask and answer (after the jump) is whether there is something normatively undesirable about being governed by LCW when it so blatantly contradicts legal reasoning.

1. First, why do I say that sound legal reasoning supports NYC's power to impose fees? You can read the article -- only three pages long! -- if you like, but the gist is painfully simple. In 1960, the state comprehensively re-wrote their traffic code, giving special authorization to cities with a million residents (aka New York City) to impose “tolls, taxes, [and] fees … for the use of the highway or any of its parts where the imposition thereof is authorized by law.” The question of whether this clause authorizes NYC to impose congestion fees on roads and bridges to reduce peak-hour traffic and finance mass transit turns on whether those last three words -- "authorized by law" -- mean "authorized by either state or local law" or merely "authorized only by state law."

The answer, I argue, is simple: Reading the statute according to the latter interpretation makes it a meaningless tautology, essentially reading the provision to say that "state law gives New York City the power to toll roads if state law gives New York City the power to toll roads." By contrast, reading the statute to allow NYC to impose congestion fees when "authorized by either state or local law" construes the statute to place a familiar "non-delegation" limit on local officials' power, by requiring the mayor or commissioner of transportation to secure a fee schedule from city council before they impose tolls on drivers.

2. Second, why is LCW so powerfully against NYC?
I'd say that the LCW has arisen from habit, mayoral political incentives, and political culture.

First, habit: For decades, NYC has made a point of going to Albany whenever it has wanted to do anything new relating to roads and taxes. This habit has a legal basis: The black-letter doctrine in New York is that cities' powers over both of these topics must be narrowly construed for the sake of freedom of movement and to protect local minorities from being expropriated by avaricious officials. This canon of narrow construction is defensible in terms of legal reasoning: Burdens on roads can have big network externalities that one might want the State Legislature to monitor. But, as VTL section 1642(a)(4) suggests, sometimes the habit can outstrip the legal basis: Even when the City seems unquestionably to have legal authority, city officials still make the trek upstate for a statute, because that is what they always have done in the past. The habit became so entrenched that many lawyers -- including some quite high up in the City's legal hierarchy -- simply assume that they need state authorization for anything transportation- or fee-related, even without reading the actual state code. (The majority of the lawyers with whom I had spoken never heard of VTL section 1642(a)(4) before I mentioned it to them).

Second, this habit is reenforced by a mayor who does not particularly like City autonomy, because it allows City Council to police his implementation of policy. (By contrast, delegations of authority straight from the State Legislature to the mayor bypass Council, which might explain why the mayor sought authority directly from Albany to increase the number of taxi medallions rather than just go to Council for a local law).

Finally, state judges just do not seem to like NYC: They seem to have hazy, unarticulated memories of Boss Tweed and Tammany Hall floating about that subconsciously induce them to read NYC's powers with persnickety hostility.

These three factors combine to make it hazardous to predict that a state supreme court justice would rule in the City's favor in the first instance. They'd instead read "authorized by law" to mean "authorized by state law," reduce the provision to an empty tautology, cite a few old cases on the narrow power of cities over roads, and call it a day.

3. Is it normatively desirable that LCW so trump legal reasoning? Here are two objections.

A. First, there ought to be a place for collective reflection when habit does not reflect a real popular settlement of an issue. Please do not mistake me: I am not calling for constant collective debate on public issues. For the most part, I tend to agree with Madison's argument in Federalist #49 that big questions of social policy should be debated infrequently. Once settled after debate, there is a good case for following the settlement relatively unthinkingly, at least until a policy entrepreneur can overcome the presumption in favor of settlement to place an issue on our collective agenda. After all, thinking is painful, and habitual adherence to old settlements avoids the acrimony that comes with debating policies in which some win and some lose. If we really have self-consciously reached some deliberate settlement regarding some practice, then lawyers should arguably facilitate unthinking adherence to that settlement.

But sometimes we have not really settled an issue so deliberately. City power to act independently on traffic is a case in point. There never was any publicized debate about whether the dangers of network externalities from city tolls outweighed the danger of upstate representatives' rent-seeking (by holding up legislation desired by NYC until the upstaters are properly greased with pork -- say, prisons, property tax caps, or revenue-sharing). Instead, courts backed into a habit of repeating the slogan that local government power over roads should be narrowly construed (mostly in cases not involving NYC); city officials made a habit of trekking to Albany and appeasing Shelly Silver (the Assembly Speaker); and no one bothered asking whether a city with the size and corresponding transit and finance expertise of NYC really should be kow-towing to a bunch of state assemblymen and senators with little experience or staff expertise on large-city infrastructure and mass transportation.

One problem with LCW is that it mistakes such open questions as closed questions, by treating the habit as a settled decision. Good lawyers ought to recognize the difference. Legal reasoning helps lawyers to do so, by pointing out the absence of any genuinely self-conscious legal settlement of an issue and insisting that default normative principles used in the event of an unsettled issue kick in. In the case of congestion fees, those principles include honoring of the best reading of legal text. If Albany does not like its own 1960 handiwork, then it can amend the code.

B. Second, sometimes habits really cease making any sense as a matter of policy. When they do, it is a good idea for lawyers to facilitate political action to address the obsolete habit rather than shut down politics by deferring to LCW. The old legal presumption that local governments should not be able to toll roads is rooted in a judicial sense that such tolls interfere with freedom of movement. Maybe this principle made sense before the age of mass ownership of private cars. But, as the distinguished economist and New Yorker, Charles Komanoff (among others) has demonstrated, untolled roads are a tragic commons for automobile drivers who, oblivious of the external cost that each imposes on the other, mire each other in traffic jams that stop free movement. In this sense, tolls are movement-liberating, not movement-impeding: They send a price-signal to drivers about the consequences of their decisions so that drivers can better coordinate their decisions to use the roads, with low-value trips making way for higher-value trips. To deprive the City of the power to toll roads and bridges in the name of freedom of movement is, therefore, perverse. Moreover, to say that the state legislature should handle such matters because the City might burden non-resident suburbanites is to ignore the political incentives of (a) the City to facilitate traffic movement into the downtown areas (and reap a corresponding yield of commerce and tourism) City and (b) up-state politicians to impose costs on NYC by holding legislation that the City desires hostage until the City's representatives pay a "toll" of pork, tax relief, or other up-state goodies.

Of course, had We the People of New York, through our elected representatives, opted for such senseless policies as "free" roads that toll everyone with traffic jams, then so be it: The judges ought to make us eat our words, democracy being the theory (as Mencken put it) that the people ought to get what they want good and hard. But we never made such a decision: We said exactly the opposite in 1960, when New York's traffic laws were being comprehensively re-codified anticipating the highway revolution of the 1960s. Through our state legislature, we declared that NYC was special -- that it could be trusted, because of its scale economies and financial sophistication, to impose tolls denied to other municipalities in the state. This is the obvious import of the words of VTL section 1642(a)(4). To read those words out of existence through mindless habit is the antithesis of good lawyering or good judging.

Posted by Rick Hills on July 12, 2012 at 06:25 PM | Permalink


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Rick - This immediately makes me think of the administrative state. I practiced with the NLRB for almost a decade and there were so many things that we did that no one could explain to me in other than LCW terms that I actually gave up asking for explanations. The administrative law context seems a nice application of the principle because everyone is so convinced at the level of practice - often self-righteously so - that the LCW "obviously" derived from legal reasoning. I have always thought that the true explanation for the broad acceptance of LCW was that not doing so would wreak such practical havoc that no one dares contemplate it.

Posted by: Michael Duff | Jul 12, 2012 11:25:58 PM

Yes, Michael, that's precisely the attitude that I encounter among grizzled practitioners. And -- I hasten to add, lest I offend some grizzled practitioner lurking out there -- it is actually often a really healthy attitude that we law profs should learn to understand and respect. Changing a real-life institution is much harder than just making a smart logical argument rooted in sound legal reasoning: If one has fallen into a "good-enough" pattern or habit of decision-making rooted in LCW, then there really ought to be a presumption against changing it, even if it is, in terms of legal reasoning, fairly arbitrary.

My very modest point is only that -- sometimes -- habit is not enough and legal reasoning ought to have its day. I think that NYC's legal powers to enact congestion fees likely falls into that category of cases.

Posted by: Rick Hills | Jul 13, 2012 9:47:34 AM

Rick - I agree generally but would add that the very question of whether something really is "good enough" is often not asked at all. I've been both a grizzled practitioner and a law prof and I'll throw my lot in with the "shaker-uppers" (or at least with the questioners) almost every time. So I suppose I'm (mildly) taking issue with your presumption.

Posted by: Michael Duff | Jul 13, 2012 11:06:48 AM

"a million residents (aka New York City)"

"aka," or "i.e."?

Posted by: andy | Jul 13, 2012 7:48:47 PM

I think it worth raising the point that legal conventional wisdom is not necessarily opposed to legal reasoning. Put more bluntly, habit or custom has an important role to play in filling the gaps in legal reasoning when reasons run out. One way in which reasons can run out is that the law can grant a permission to do X or Y. In that case, there is no reason to do X over Y or Y over X, but for reasons of consistency, legal agents may want one to prevail whenever X and Y conflict. In such cases, habit, or "legal conventional wisdom" may kick in to provide some reason for doing, e.g., X. (Other sorts of reasons may kick in as well, but these may be subsumed under the category of legal conventional wisdom, depending upon precisely what is included in that category). In the instant case, it appears that there is a permission (as well as a power: enact or don't enact a road tax, Mr. Mayor, as you wish, but at least use the right process whatever you do) and a customary norm has developed to restrict the scope of that permission (don't enact and defer to Albany). The norm is in one sense arbitrary, as not based on some decisive reason, but once adopted the custom develops reasons of its own (comity or something like that, I suppose). This may suggest that once a particular settlement is adopted, legal conventional wisdom becomes part of legal reasoning. The normative question is how willing future individuals should be to revisit the original settlement as the cost of unsettling the law. I take no position on that latter question in this instance.

Posted by: Eric J. Miller | Jul 14, 2012 9:08:57 AM

Eric - I agree. I think that reasonable gap filling is a good and necessary thing. I also think it may be ok if the LCW represents a point of repose: this is where we wound up when we were too exhausted to think about it any more. For me the trouble comes when a practice isn't working and it is claimed (the claim is LCW) that the status quo can't change because it is the product of (ineluctable) legal reasoning. (I hope I haven't strayed too far from what Rick was driving at).

Posted by: Michael Duff | Jul 14, 2012 2:51:10 PM

Thanks for your thoughtful remarks, Michael and Eric. Just to clarify (and apologies for my not being clear the first time around!): I do not think that there is any "gap" to fill in NYC's statutory authorization to impose tolls. Read according to the usual canons, the text is perfectly clear: NYC CAN impose such tolls. Custom is not filling a gap here but rather creating one, contradicting plain text in an arguably perverse way insofar as sound policy-making is concerned.

My distinction, in short, is less the difference between incomplete text and supplementary custom and more between complete and clear "law" (on paper) and LCW (or custom, if you will) that flagrantly contradicts that "paper law." And I think that Michael has it right when he says that sometimes experienced legal practitioners describe LCW as "ineluctable" without much of a normative defense, citing their sheer experience, savvy, craft, etc, as authority for this conclusion (i.e., "that sort of thing Just Isn't Done").

My problem with LCW is not that it is ineluctable but that its defense is taken to be ineffable -- something that legal reasoners can neither question nor defend in terms of any transparent normative argument. I am happy to meet Michael halfway in his mildly taking issue with my presumption for the sake of shaker-uppers by conceding that my presumption in favor of LCW would be very mild, precisely because I don't much like the mystic ineffablility of grizzled practitioners' claims of authority for LCW. You just cannot argue with someone who says, "Trust us: This is a matter of professional experience -- and your proposal Just Isn't Not Done." (It is a comfort to me that someone with as much lawyer street cred as Michael -- both on the client side as a union guy and as a lawyer with over a decade of experience under his belt doing labor law -- gets as frustrated with that sort of statement as I do).

I take Eric to be making LCW a little less ineffable, by offering an expressly articulated defense in terms of settlement: "If the City acts unilaterally, then all hell will break loose, Shelly Silver will be pissed, the upstaters will cut back on state aid, etc." But note that, as soon as one makes such an argument from prescription, one has moved away from LCW into the realm of legal reasoning. That is, one has provided an express exception to written norms with another written (or articulated) norm of adverse possession: "Sure, the mayor has the power with council to pass congestion fees -- but that power has lain dormant so long that, as a matter of prescription, it has now lapsed into desuetude." I can argue with claims about prescription and the disruption that departures from long-standing norms would create. But those are not the claims made by LCWers, because those prescriptive claims can be attacked empirically and theoretically.

Posted by: Rick Hills | Jul 15, 2012 11:41:52 AM

Having first read this bit on Streetsblog, I find it interesting to see how you've tailored your posts for different audiences.

Posted by: Matthew Bruckner | Jul 18, 2012 4:58:44 PM

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