Underrated Cases

A year ago or so I participated in a symposium on the topic of the most “underrated” administrative law case. (The contributions, including mine, were recently published in the Administrative Law Review.) Deciding what constitutes an underrated case was an interesting exercise. It seems to me that a case can be described as underrated for at least a couple of reasons. It can be an unambiguously “big” case considered by the conventional wisdom to be wrongly reasoned and decided, even though it really is correct. A case can also be underrated in that it doesn’t get much attention, even though it reveals something important about the law. Personally I find this latter description of underratedness to be more interesting: arguments about the correctness of some seminal but controversial case are of course important, but I tend to believe that at some point our knowledge may be advanced more by uncovering previously underappreciated pearls than rehashing the same arguments about seminal cases.

Thinking about all this made me appreciate again a case I wrote about for a symposium last year at Boalt Hall on regulatory takings. I was asked to speak and write about the class-of-one equal protection case from 2000, Village of Willowbrook v. Olech. Olech is a really interesting little case. A homeowner’s water well breaks, he asks the town to hook him up to the city’s water network, and the town agrees but only on the condition that it give the town an easement significantly larger than what it requests from other homeowners in the same situation. According to the homeowner, the town demanded the extra-large easement because he and the town had previously engaged in litigation that had left town officials embittered. Eventually, the Supreme Court allowed the suit to go forward, concluding that such a “class-of-one” plaintiff could state an equal protection claim. Interestingly, the Court did not even require the plaintiff to allege ill-will on the part of the government; all that was required was an allegation that the action irrationality treated the plaintiff differently from similarly-situated people.

This holding is potentially pretty important: it implicates not just the underlying theory of rational-basis review, but by extension our understanding of what equal protection law is all about. In particular, it implicitly rejects the notion that class-based discrimination is the sole focus of equal protection, and suggests that innocent mistake may play some role in equal protection analysis. Of course a lot of these implications get washed out when we consider classic equal protection issues like race and gender-conscious government action, but it’s the unusualness of the situation in Olech that makes its analysis potentially underappreciated. And, as a practical matter, Olech has caused significant consternation among lower court judges, who are concerned that every zoning variance decision made by a local government will give rise to an equal protection claim. If Olech is read aggressively, it’s not just zoning decisions that will be subjected to equal protection claims, but a whole host of other day-to-day government actions as well.

There hasn’t been much scholarship on Olech (one notable exception, among just a few, is Timothy Zick’s 2001 article in the Kentucky Law Review). I think that’s a shame. If anyone else has thought much about Olech I’d be interested in hearing about it – as I think all con law people should be. As for everyone else, are there sleeper cases out there in your areas?