Columns

Family law requires a lot of patience, both for attorneys and clients. Knowing when and where you can file and how long the process takes keeps it moving smoothly.

By Marie E. Matyjaszek

Family law requires a lot of patience, both for attorneys and clients. Knowing when and where you can file and how long the process takes keeps it moving smoothly.

To file for divorce in Michigan, a party must have resided in Michigan for 180 days and in the county of filing for 10 days immediately preceding the filing of the complaint (see MCL 552.9). The only exception to the 10-day requirement is if all of the following apply: “the defendant was born in, or is a citizen of, a country other than the United States of America,” the parties have a child together, and “there is information that would allow the court to reasonably conclude that the minor child or children are at risk of being taken out of the United States of America and retained in another country by the defendant.”

For most people, there’s no residency issue as they’ve lived in Michigan for years. However, I have seen people file in a county other than where either one resides, which is problematic unless all the above exceptions are met (spoiler alert: they usually aren’t). It is exceptionally depressing to tell parties they must start all over again in the correct county and pay more filing fees.

If the divorce is filed properly, 60 days is the bare minimum amount of time from start to finish (see MCL 552.9f). Naturally there are exceptions – if the cause for divorce is desertion, or “when the testimony is taken conditionally for the purpose of perpetuating such testimony.” Gotta love that lawyer lingo.

If you have kiddos, your minimum time frame is extended to 6 months, which is where patience comes in handy. Most divorcing couples want it over and done with ASAP, and 6 months can seem like a lifetime. However, if the divorce is contested, you can easily surpass the 6-month mark, with or without children.

I’ve already addressed two exceptions in this article, and you guessed it, there is a third – an exception to the 6-month rule! If you can show the court that you have “unusual hardship” or “compelling necessity,” you can accelerate your divorce finalization time to 60 days. Depending on how stringent your judge is, this may not be an easy task. Examples of “unusual hardship” are one party leaving for active military duty, bankruptcy filing, refinancing, or other financial concerns. While it may be true, telling the judge “I’m over it” doesn’t usually work.

Most people want their divorce finalized in record time, but it’s important to understand the minimum legal timelines to stay grounded in reality. A lot of planning and time went into your wedding – expect the same for your divorce.

The author is a Judicial Attorney at the Washtenaw County Trial Court; however, the views expressed in this column are her own. 

Years ago, I had an unexpected meeting with a gentleman who worked high up in the benefits department of an automotive manufacturer before ERISA’s enactment. He had an encyclopedic knowledge about the run up to the law’s passage in 1974 and the opposition the law faced.

By JJ Conway
J.J. Conway Law

Years ago, I had an unexpected meeting with a gentleman who worked high up in the benefits department of an automotive manufacturer before ERISA’s enactment. He had an encyclopedic knowledge about the run up to the law’s passage in 1974 and the opposition the law faced. Almost every interest group was against ERISA – the automakers, the unions, most private companies, and even state and local governments. Its passage is something of a legislative miracle. What I remember most about our conversation was his response when I asked him what happened after ERISA passed. He said his company set the lawyers loose to shape the law the way they wanted it interpreted.

Perhaps, it’s not surprising then that ERISA can be a tough law for the very people it was meant to protect. Federal courts routinely cited “policy reasons” for restraint in construing the law’s protections. Courts took the view that employees should be thankful for the benefits they had since ERISA did not actually mandate the providing of any benefits. (ERISA only imposed standards on plans once they offered benefits to employees). To compound matters, the federal courts crafted difficult legal burdens to overturn discretionary decisions by an employee benefit plan. Nowhere were the judicial obstacles more pronounced than in the area of disability income replacement benefits.

Looking back on it now, it is interesting that two cases involving two hardworking and successful employees were able to push past these obstacles and improve the lives of many others trying to secure disability insurance benefits. I had the good fortune to work with these two remarkable women and witness firsthand their resolve in fighting against difficult odds.

The first case involved the claims of Sherry DeLisle, the chief financial officer of a luxury jeweler. Sherry had been seriously injured in an automobile accident that left her occupationally disabled. Despite her physical limitations and concentration difficulties, Sherry was trying to push through her pain and cognitive issues. Her work was complex, and she was having trouble keeping up. She was ultimately fired for non-performance of her job.

Sherry filed a claim for disability benefits and asserted that she was functionally disabled while still working. She argued that her diminished performance was evidence of her disability after years of accolades, bonuses, pay increases, and promotions. Her benefit plan’s insurer denied the claim.

The insurer claimed Sherry had no coverage since she had been terminated by her employer. The case went to full briefing in a federal district court. Sherry won. But the court allowed the insurer to reprocess the claim and decide whether Sherry was, in fact, occupationally disabled, despite her being off work and later being deemed disabled by the Social Security Administration.

Reviewing her claim a second time, the insurer now claimed that Sherry was “not disabled” based on the file reviews of several physicians working for the insurer or under contract with the insurer. Sherry countered with multiple treating physicians, considerable objective evidence showing extensive hardware and spinal repair, cognitive tests, and affidavits. Again, the insurer upheld the denial. Sherry went back to federal court and challenged her disability insurer’s claims practices. Sherry’s case spanned more than seven years before two different trial court judges and the U.S. Court of Appeals for the Sixth Circuit and a full en banc briefing.

When it was over, Sherry’s case established the “evaluation of factors” analysis in ERISA long-term disability cases. DeLisle v. Sun Life Assurance Company of Canada, 558 F.3d 440 (6th Cir. 2009). This was a key development because it established a framework for analyzing these types of claims. A reviewing court would now look at different evidentiary factors and decide whether a participant was entitled to benefits or whether an insurer abused its discretionary decision-making authority. It also helped make sense of the Supreme Court’s ruling in MetLife v. Glenn, 554 U.S. 105 (2008), a case that originated in the Sixth Circuit. See also “Refining Wilkins: A 20-Year Look at the Factors Used in the Sixth Circuit’s Resolution of Disability Claims Under ERISA,” 34 W. Mich. U. Cooley L. Rev. 2018.

Years later, the Sixth Circuit decided Wallace v. Oakwood Healthcare, Inc., 954 F.3d 879 (6th Cir. 2020). Cheryl Wallace, a decades-long nurse and medical volunteer, contracted a serious infectious disease while traveling abroad. Cheryl became seriously ill and was unable to return to work. Her employee plan denied her claim, arguing that she did not exhaust her pre-suit remedies.

A “failure to exhaust” defense was reflexively asserted in nearly every ERISA claim, and its application was uneven at best. Some cases would be dismissed with prejudice for a failure to exhaust. Other cases would be sent back to the plan by the court to allow a participant to exhaust their remedies. The exhaustion doctrine was commonly used as a technical defense to sink an otherwise valid claim by missing a step in the pre-litigation process.

Cheryl challenged the exhaustion doctrine in federal court. She argued that if an insurance company was going to insist that a plan participant exhaust their remedies, it had to write that requirement into its contract. Otherwise, there was nothing to require Cheryl — or any other plan member — to take this step. Interestingly, in the nearly fifty years since ERISA had been around, this issue had not been decided at the appellate level.

Cheryl prevailed with the U.S. Court of Appeals for the Sixth Circuit finding that if a benefit plan did not require exhaustion of remedies, it was no longer required. The reasoning in her case was adopted by the Eighth Circuit Court of Appeals, and there has not been a decision holding otherwise to date.

Neither Sherry DeLisle nor Cheryl Wallace set out to change the law. Rather, they both had a contractual dispute in need of a resolution. Both were provided opportunities to resolve their claims by pursuing early settlements. Somewhere along the way something changed. Their cases stopped being about their own individual claims. They took a broader view, despite the financial hardship. The idea of helping others became more appealing and entered into their approach to litigation.

There are risks to this approach. There are also rewards. And when the decision to go big ends up changing the way things are done, there is a kind of magic that happens. And it is something to behold when a client can experience it, just like Sherry DeLisle and Cheryl Wallace did.
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John Joseph (J.J.) Conway is an employee benefits and ERISA attorney and litigator and founder of J.J. Conway Law in Royal Oak.

In marking our firm’s 25th anniversary, we were provided a special opportunity to look back at some of the important contributions made by our clients who changed the law in a meaningful way.

By JJ Conway
J.J. Conway Law

In marking our firm’s 25th anniversary, we were provided a special opportunity to look back at some of the important contributions made by our clients who changed the law in a meaningful way. Their cases have been impactful. From healthcare for children to pension security, the work of our clients is still making a difference in the lives of others to this day.

As we know, in law, we must always keep looking toward the horizon. And when we do, one of our clients who is working on improving the lives of others is Rachel Cuschieri-Murray.

Rachel has been at the forefront of passing a comprehensive mental health parity bill in Michigan. She and her husband became advocates in the children’s mental health community following a healthcare fight seeking mental health benefits for her son.

Rachel has organized advocacy groups, established a nationwide clearinghouse of information for parents seeking assistance with medical reimbursements, and is now working to bring a comprehensive mental health parity law to Michigan. Rachel’s thinking is ahead of the curve nationally and is needed in our state.

The federal Mental Health Parity and Addiction Equity Act was a bipartisan legislative achievement. The MHPAEA was based on solid public policy reasons and sought to improve upon an aspirational parity law passed earlier that didn’t really do much.

The bill’s two chief sponsors, Paul Wellstone, a Democratic Senator from Minnesota and Pete Domenici, a Republican Senator from New Mexico worked together to secure its passage. It was signed into law by President George W. Bush.

Both senators had personal family experiences with mental illness and mental health issues. They wisely recognized that mental illness and addiction is nonpartisan.

So, they crafted a law that sought to destigmatize mental illness and create a kind of “parity,” or equality, in the delivery of healthcare benefits.

The law and its regulations targeted such things as artificial treatment limitations, unfair cost-sharing obligations, and other barriers to care like onerous preauthorization requirements.

Following the law’s passage, plans could be required to show that coverage for mental health related issues was no more restrictive than for claims seeking medical or surgical treatments. The law’s scope was again expanded in 2010 under the Patient Protection and Affordable Healthcare Act which was signed into law by President Barack Obama.

While the law was a significant legislative achievement, health law and employee benefit practitioners quickly learned of its limits. For example, there is no private right of action to sue under the MHPAEA. There is no right to a jury trial. This is usually the product of lobbying efforts to water down a law’s strength. Also, there is no real relief beyond a traditional breach of contract remedy, so there is occasionally a duplicative aspect to mental health parity claims.

Oddly, the MHPAEA works best in a class action setting since entire coverage groups can be scrutinized and the limitations of widely issued policies can be better examined statistically for their impact on mental health coverage.

So it was that Rachel, in recognizing the disparity of care particularly for teens and adolescents in crisis, set about to change the law. She heard the stories from others about difficulties in securing care. She knew that insurers continued to play to stereotypes in this area.

Realizing just how much was at stake (the lives of children with mental health challenges) and how inadequate the state’s regulatory system is — an ineffectual insurance commissioner, a broken external medical review system, Rachel thought bigger. She and a number of advocates began working to create a mental health parity act for Michigan that would mean something. If her vision becomes reality, the disparities of care will be eliminated. The enforcement rights of those with such claims will be enhanced.

This is no small feat, and it is a game changer. Rachel and those working towards the law’s passage almost succeeded last year during the state’s legislative session.

News reports indicate that Michigan’s largest insurer set out to stop the legislation, and this last-minute push succeeded in blocking the bill.

To provide some cover, the state passed a duplicate mental health parity act which essentially mirrors the federal law. Passage of a more ambitious law awaits, but with Rachel Murray in the fight, the future looks bright for those who need it most.
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John Joseph (J.J.) Conway is an employee benefits and ERISA attorney and litigator and founder of J.J. Conway Law in Royal Oak.

Whenever the US Supreme Court takes up a substantive case involving the Constitution’s confrontation clause, Professor Richard Friedman—one of the leading experts on the clause—typically submits an amicus brief.

By Bob Needham
Michigan Law

Whenever the US Supreme Court takes up a substantive case involving the Constitution’s confrontation clause, Professor Richard Friedman—one of the leading experts on the clause—typically submits an amicus brief.

Friedman’s work was instrumental to the landmark Crawford v. Washington decision in 2004, which strengthened the right of criminal defendants to demand that witnesses testifying against them be brought into court for cross-examination. He has also successfully argued two follow-up cases, he publishes the Confrontation Blog, and he has been cited on the issue at the Supreme Court six separate times.

The most recent citation came near the close of the latest term, when the Court ruled in Smith v. Arizona that the clause was violated when an expert witness testified about laboratory analysis that had been conducted by someone else. (The Court sent the case back to the state to consider a separate question, whether the analyst’s statements constituted “testimony.”)

In addition to the citation of Friedman’s amicus brief in the majority opinion—written by Justice Elena Kagan—a concurrence by Justice Samuel Alito separately cited a 1991 article by Emeritus Professor Samuel Gross. Friedman—the Alene and Allan F. Smith Professor of Law—recently answered five questions about the case:

1. What was at issue in Smith v. Arizona?

The confrontation clause has been understood since Crawford to require that those who give testimony against the accused must testify face-to-face, under oath, subject to cross-examination. That applies to lab witnesses who make a lab report that’s clearly going to be used in prosecution. In effect, if you just submit that piece of paper, you’re allowing the lab analyst to testify against the accused without facing them in court.

Some prosecutors have argued that they are not introducing the lab report for the truth of what it asserts but rather only in support of the expert opinion—which would mean the confrontation clause doesn’t apply. Rule 703 of the federal rules of evidence—which has been copied by most states, including Arizona—says that an expert may testify on the basis of information that is not necessarily admissible if it’s of the type that experts in the field reasonably rely on.

In a 2012 case, Williams v. Illinois, four justices bought that reasoning. The other five justices disagreed, saying you’re really admitting the report for the truth of what it says. But Justice Thomas joined the four on another issue, and the whole thing was in confusion. In Smith v. Arizona, the issue came up cleanly, just by itself. The question was, if the state says we’re only offering this statement in support of the opinion, does that satisfy the confrontation clause—even though the statement supports the opinion only if it’s true?

2. What was the outcome this time?

The majority said no, because the report is actually being offered for the truth of what it asserts. The majority further said that Rule 703 is an evidentiary rule, and therefore it doesn’t control the Constitution. The Constitution means what it means. The Constitution says, if you’re offering something for the truth of what it asserts, then you have to prove it through admissible evidence, subject to confrontation.

The Constitution trumps evidentiary rules, not the other way around. But they further said that if an evidentiary rule reflects long-standing practice, it might reflect the understanding of the confrontation right at the time that it was framed.

3. What is the specific point from your brief that the majority opinion cited?

They cited me to say that Rule 703 was a creation of the late 20th century, so it couldn’t be a reflection of what’s always been done in evidentiary law. Beyond that, it was understood by its drafters to be a departure from traditional practice. So Rule 703 can’t control the Constitution. I was pleased to see the citation because it was an accurate citation of my brief. It was an important point at the core of the case.

4. Does this decision provide the clarity lacking after Williams v. Illinois?

Yes, on that specific point. It’s clear that this strange end run—saying “we’re only offering this in support of the opinion, we’re not offering it for the truth”—won’t work. On that, the ruling was very clear.

Unfortunately, in my view, the Court went beyond that and discussed some questions of the standards for whether a statement is testimonial. That wasn’t really presented, but it was discussed a lot in the briefs and at argument. The Court offered some comments on that, and I don’t think those were particularly helpful. We’ll have to see what happens. But on the point that was before the Court, it was very clear and the opinion resolved it.

5. The case included another Michigan Law citation: Justice Alito’s concurrence cited Sam Gross’s 1991 article, “Expert Evidence.” How is that significant?

Justice Alito is saying that we had a deficient way of presenting evidence—relying on hypothetical questions in court—which Rule 703 cleared up, and now you’re driving us back.

There are all sorts of problems with hypothetical questions. They are subject to a lot of abuses. Sam points out a couple of them, and Justice Alito was citing him for that. One problem is that they were sometimes extremely long and confusing. Another is that they were often used in effect as early summations of the argument, and maybe sneaking in inappropriate information.

Sam wrote a great article, and the citation shows it still has legs after all these years.

The U.S. Supreme Court in Ohio v. Environmental Protection Agency blocked the EPA from enforcing its “Good Neighbor” rule requiring 23 states to reduce air pollution traveling to downwind states.

By Bob Needham
Michigan Law

The U.S. Supreme Court in Ohio v. Environmental Protection Agency blocked the EPA from enforcing its “Good Neighbor” rule requiring 23 states to reduce air pollution traveling to downwind states.

That decision puts the EPA’s plan on hold while it’s challenged in federal appeals court. But it’s also part of a broader group of rulings—along with Loper Bright Enterprises v. Raimondo, Securities and Exchange Commission v. Jarkesy, and Corner Post Inc. v. Board of Governors of the Federal Reserve System—in the Court’s recent term that substantially reduce the power of executive agencies to issue and enforce regulations.

The Ohio v. EPA ruling was 5-4, with a dissent from Justice Amy Coney Barrett that was joined by Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson. Barrett’s dissent cited a 2017 paper by Nicholas Bagley, the Thomas G. Long Professor of Law, titled “Remedial Restraint in Administrative Law.” Bagley—who also wrote about the Court’s recent decisions for The Atlantic—answered five questions about Ohio v. EPA, its broader implications, and the citation of his work:

1. What happens now with the EPA’s “Good Neighbor” plan? The Supreme Court majority ruled that the EPA didn’t adequately respond to some of the criticisms received during its rule-making process. Could the EPA just provide that fuller response now to remedy the Court’s concern?

Agencies would love to be able to do that. Typically, what the courts will say is we only accept explanations offered at the time of the agency decision because we fear that otherwise agencies are just going to come up with contextual reasons or reasons that they didn’t really have at the time, and use that to backfill their true justifications. In order to make sure that agencies behave right in the future, we’ve got to really hold them to the fire.

So now the EPA has to go back to the drawing board, and they’ve got to think through whether they want to adopt a single plan for all of these states, like they’ve said they do, and address the concerns that the court identified; or whether they want to take a different approach. Either way, it means delay and confusion.

2. Were you surprised that Justice Barrett dissented, or that she cited your work?

Justice Barrett has shown an independent streak, and when she sees arguments that frankly don’t add up, I think it bothers her. Justice Gorsuch’s opinion in Ohio v. EPA is really unpersuasive. Just as a matter of craft, I can understand why she bristled at it.

I was certainly surprised she cited my work. That’s a piece I wrote a long time ago, saying that courts should have a lot more discretion in whether they choose to strike down an agency action when there’s a fairly modest problem with it. She picked up on that suggestion, and it was really gratifying to see that.

I emphatically agree with the broad strokes of the dissent, which is that courts shouldn’t be in the business of fly-specking lengthy notice-and-comment records. Agencies often don’t address a particular comment because it doesn’t seem salient at a particular time, and it only becomes salient later. The benefit of hindsight makes it easy to castigate them, but that’s not the courts’ job. The question is whether the agency has behaved arbitrarily and capriciously, and that’s a pretty demanding standard.

3. What are the broader implications of this decision and the others you’ve written about?

All four rulings represent an intensification of judicial oversight over federal agencies, and that’s not a shift that’s unique to these four cases. It’s a broader shift over the past couple of decades at the US Supreme Court, where a conservative majority has changed doctrine to reflect its skepticism about the administrative state and its concerns that the administrative state is too unaccountable and regulating too stringently without adequate safeguards.

Most of these decisions I think are wrong and reflect a pretty impoverished view about what government is for and what courts are good at. The United States faces a bunch of related challenges. We have a problem with the green energy transition. We’ve got a dearth of available and affordable housing. We’ve got crumbling infrastructure. We’ve got a raging opioid crisis. All of these problems are things that we really need government to help out with. We’re not going to be able to achieve our goals unless we’ve got a functional state with high capacity to do stuff, and the courts are custom-built to frustrate government action and to make it much harder for agencies to do their jobs.

Courts tend to underestimate just how disruptive their interference tends to be, and the Supreme Court in particular doesn’t fully appreciate just how much its decisions reverberate in the halls of administrative agencies in counterproductive ways.

The Court might think that they’re disciplining agencies from when they act arbitrarily, and that will encourage them to behave better in the future. Yet the real message that agencies get is, we’re just going to lose sometimes for reasons we can’t possibly anticipate. In response, they get defensive and sclerotic. In the long run, I don’t think that’s actually good for business or for the values that the conservative legal movement professes to stand for.

4. The business community and conservative politicians have been wanting this change for a long time. What leads you to say it would be bad for them?

Many business leaders are locked into a world of the 1980s and ’90s, with lots of examples of agency overreach. Now, those concerns and complaints have some force–agencies do sometimes overreach. What I struggle with is the assumption that if you dislike the administrative state, it’s a good idea to make it work less well. That will eventually blow up in your face, because you’re going to have agencies that are defensive, that are slow to change, that can’t respond to your particular needs, that end up making bad decisions. An ineffective public sector ends up making it hard for businesses to do their jobs effectively.

5. What’s the best way to address these issues going forward?

I think lawyers need to be humbler about our ability to encourage good governance through the enforcement of procedural rules in the courts. I think strict court oversight over every aspect of agency decision-making is bad for government and bad for the American public, and we would be better off with a public sector that has a little bit more freedom—where we turn to democratic institutions, to our elected leaders, and to Congress to respond to the excesses of what agencies might do.

Part of the reason that you’re seeing so much court frustration with agencies is that our politics seems not very well designed to keep agencies on track and doing what we want them to do. A lot of our statutes are very old. Congress seems unable or unwilling to update them. The filibuster makes it extraordinarily difficult to get anything passed, together with highly polarized politics and a splintered American public.

Put all that together, and you have an unresponsive Congress and an Executive Branch that is under a lot of pressure to get things done. That’s a recipe for bureaucratic overreach, and the Court thinks that the right solution is to ride herd on agencies even more. I think that will prove counterproductive in the long run. It displays a distrust of our democratic institutions, which although slow and balky can and sometimes do respond.

Soaring housing costs in many areas of the country have sparked considerable public debate in recent months, with both ends of the political spectrum agreeing that there’s a problem. Solving it, of course, is the hard part.

By Bob Needham
Michigan Law

Soaring housing costs in many areas of the country have sparked considerable public debate in recent months, with both ends of the political spectrum agreeing that there’s a problem. Solving it, of course, is the hard part.

Assistant Professor Noah Kazis studies issues of housing, land use, and local governments. Before joining the Michigan Law faculty, he was a legal fellow at New York University’s Furman Center for Real Estate and Urban Policy, and he served as an attorney for the City of New York.

Last year, Kazis served as guest editor for a special issue of Cityscape: A Journal of Policy Development and Researchfocused on reforming land use to increase housing supply. Kazis recently answered five questions about current housing issues:

1. Would you agree that the US is currently in a housing crisis and, if so, how would you define the problem?

Yes, or at least there are multiple overlapping problems with the housing system that add up to a crisis. One problem is that there just aren’t enough homes in the high-demand areas to go around. This is putting immense pressure on rents and housing prices.

This is an issue up and down the West Coast and throughout the northeast, from Boston to New York to DC, to varying degrees. We’re starting to see this in Florida.

Smaller pockets of other metro areas may have an individual jurisdiction or jurisdictions with supply constraints, even if the metro area as a whole doesn’t.

During the pandemic, we saw similar dynamics spring up very quickly across the Mountain West because of changing residential patterns due to remote work. It’s not the case everywhere, but this is a serious problem.

A second problem is that there are other places where the housing is really poor quality, even as low incomes mean housing remains unaffordable for many. This is also widespread—across the Rust Belt, across rural areas, but also in certain inner cities that might be just outside of high-demand places. This is another serious concern, and both can contribute to housing instability and cost burdens.

2. What is the role of zoning in creating the housing crisis, and in solving it?

Zoning has been tightening since its inception roughly a hundred years ago. That squeeze is driven by so many factors. We’ve got pretty good research that shows that restrictive zoning has been about racial exclusion, economic exclusion, a certain vision of environmental benefits (low density and lots of green space), and protecting property values. It’s also about gender and family roles. It’s a system that has evolved over a hundred years, so a lot has gone into it and we’re just now, over the last five to 10 years, rethinking that. There’s a lot to unpeel.

However, I don’t see a lot of demand for or need for abolishing zoning altogether. The only big city in the country that doesn’t have zoning is Houston, but they have a lot of things that look a lot like zoning. There is a role for land-use regulation, but we need to reconsider what we are regulating to change the outcomes. We should be loosening the amount of zoning considerably, adding in more flexibility, allowing more types of housing, and allowing more types of uses in proximity to each other.

We should be thinking about what actually is harmful and what turns out not to be. And we need to reform zoning processes in tandem with changes to the substance of zoning rules.

3. Zoning typically plays out in individual municipalities. Is there any way to tackle the problem more efficiently than that, on a state or even national level?

Yes. It is true that most zoning happens locally, but not all land use regulation happens at the local level, and it never has. So first of all, legally, land-use powers are devolved from the state to the city. Therefore, states can take it back. In fact, pretty much every state has done so somewhere. A state might say, for instance, “When we’re talking about a gigantic power plant, that’s not for you to decide. That’s for us to decide. That’s a statewide kind of thing.” Or in the other direction, the state might protect wetlands regardless of where the local governments would allow building.

More recently, states have gotten interested in thinking about how to expand housing supply. There have been a few laws on the books for decades trying to take on exclusionary zoning, but there’s been a lot more action on that in the last few years. Will these new laws work? We haven’t had enough time to fully see these latest efforts play out. We’ve got layers and layers of rules interacting with each other, and often taking out one rule isn’t enough to actually change the ultimate outcome.

That said, I’m really encouraged by some developments that we are starting to see. California has reformed its processes that require planning for housing supply, and we are seeing rezonings to facilitate that. That process isn’t done yet, and rezonings don’t necessarily mean units that people can live in, but it’s encouraging. We’ve seen good results from California’s accessory dwelling units law.

The transit-oriented development law in Massachusetts has created a bunch of rezonings. Are they enough? Not in one go. But we’ll see how far they take us.

4. You’ve mentioned that there largely seems to be a bipartisan agreement that the US has a housing problem. Do you think there’s bipartisan agreement on solutions?

Not on every detail, but yes. I use a slide in my local government class that shows every blue-ribbon commission saying we need to do something about overly restrictive zoning—here’s the Johnson administration doing it, here’s the Reagan administration, the Bush administration, the Clinton administration, Obama, Trump, Biden. So I think there really is bipartisan consensus at the policy maker, elite level.

The difference is in the messaging. The Montana messaging is about property rights—“don’t turn us into California.” In other places, you might have a racial justice message or an economic justice message or an environmentalist message.

The parties are starting in a different place, but they both share a basic interest in deregulating land use. However, there’s also a bipartisan consensus among many regular people that they don’t want to see this happen in their neighborhood.

5. Is that “not-in-my-backyard” sentiment the biggest thing standing in the way of further progress? How do you get around that?

Yes, it is, but we have a lot of strategies. Some of them are just doing the work of organizing at the local or state level. That actually has moved the needle a lot, just getting out there and doing that work.

Another strategy is to change the focus of the politics from local to state or even national government. At those levels, the debate is less about individual projects, right next to someone’s house, and more about values: Should we be building more housing or less housing? Should we allow apartments in or not? Asking a different question avoids some of the not-in-my-backyard answers.