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Thursday, May 10, 2007

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?

Posted by Bill Araiza on May 10, 2007 at 05:37 PM | Permalink


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Colin: Thanks for the question. Of course I can't speak for those who commented on my post, but I think Olech is troubling to the extent it raises the specter that any fact-intensive government decision (such as a zoning variance)can give rise to an equal protection claim, even if the decision was not motivated by some sort of ill-will. This really does make equal protection an all-purpose cause of action, which it surely was not intended to be, and which pre-Olech doctrinal evolution did not necessitate. Of course, such claims are still subject to usually-deferential rational basis review, which means most claims will fail. But to the extent Olech allows a plaintiff to get past a motion to dismiss, it might allow plaintiffs to extract otherwise unjustifiable settlements from government defendants. And of course for those who care there's also the damage to the conceptual understanding of equal protection. Those are the main reasons the decision troubles me, at least.

Posted by: Bill Araiza | Jun 4, 2007 1:53:10 PM

I am a bit confused. Not being a lawyer, I perhaps have a very different perspective, but it seems that the consensus here is that this Olech decision was bad. Is that in fact your views? And if so, why?

Posted by: Colin Glynn | Jun 4, 2007 11:52:45 AM

Thanks to Dave and Martin for their comments. I agree that the case is both important and troubling. The ultimate conclusion in my article was that it was important to retain an ill-will requirement for these claims, with "innocent but irrational" government action challengeable under (what I'll shorthand as) the recklessness standard of Sacramento County v. Lewis (1999) (the police chase case). This is close to but not exactly the same as the conclusion Tim Zick came to in his early article on Olech, which I cited in my original post.

The problem with this approach is that it really seems inconsistent with the Court's language in Olech. I know a number of lower court judges (including Posner, who's been influential in this area -- indeed, I think he wrote the 7th Circuit opinion in Olech itself) have simply refused to read Olech for what it plainly says, and have insisted on an ill-will requirement. But that seems hard to square with what Olech actually says. Of course, the rational basis standard is so deferential, and, as I note in my piece, it's so easy in class-of-one cases to find the plaintiff differently situated than better-treated persons, that in terms of litigated outcomes Olech's more plaintiff-friendly approach may not amount to much. (But I'd love to hear from practitioners on that point.) Still, if Olech allows a plaintiff to survive a motion to dismiss, that might be enough for most plaintiffs to extract a settlement from the government defendant. Indeed, it's my tentative conclusion that that may turn out to be Olech's greatest impact.

Posted by: Bill Araiza | May 15, 2007 1:58:27 PM

I agree that Olech is a troubling case. As a private practice civil defense litigator, I have seen a number of these cases now, and the local federal and state judges in MA do find this area quite troubling. Of course, there was a recent 7 figure verdict in one of these cases in state court, so they are not going away any time soon. The 1st Cir. has read the case narrowly and with a high standard of proof.

Posted by: Martin | May 11, 2007 4:57:46 PM

True that Olech has been more or less ignored by legal academics but not by litigants or courts--it's been cited almost a thousand separate times in judicial opinions since it was decided in 2000. This seems to confirm the concern that Breyer gestured at in his concurrence: the class-of-one equal protection theory effectively transforms any individual citizen's complaint into a plausible constitutional claim. Olech gives people aggrieved by the decisions of zoning boards or employer decisions a cause of action that can at least survive the motion to dismiss stage, particularly since the case doesn't even require that the plaintiff state that the city acted with any animus or ill will. One of my first posts on Prawfs was about one of Olech's progeny:


In the IP setting the case I'd nominate for most underwritten is Golan v. Gonzalez, upholding against constitutional objections section 104A of the copyright act, which revives certain expired copyrights.

Posted by: Dave | May 10, 2007 9:12:56 PM

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