May 20: Fifteen forces driving the secular decline of American state capacity

13 articles on solar zoning, corporate housing ownership, unused property rights, and more

Highlights

🏡 Housing: American property law now protects owners who don’t build

⚡️ Energy & Permitting: Five statutes besides NEPA need streamlining

🏛 State Capacity: Fifteen forces are driving a decades-long decline in American state capacity

💡 Innovation: Unused property rights need an expiration date

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🏡 Housing

• American property law now protects owners who don’t build
  How the Gentry Won: Property Law’s Embrace of Stasis—Roderick M. Hills Jr. & David Schleicher (Texas Law Review)
  American property law used to favor building, ownership turnover, and change. Since the 1970s, it has shifted toward protecting incumbents through permanent HOA covenants, conservation easements, and property tax structures that discourage development—contributing to housing crises and reduced growth.

• Corporate ownership bans alone won't fix housing affordability
  The Big Shortage: Affordable Housing—Michael E. Hornzell (University of Baltimore Law Review)
  Institutional investors now own nearly twice as many single-family homes as nine years ago, driving up prices and rents. Proposed bans on corporate ownership of residential property face Takings Clause challenges and are easy to circumvent. A more feasible approach would gradually require institutional investors to sell holdings while giving first-time buyers and community land trusts priority purchasing rights.

• NIMBY opposition and local institutions drive insufficient permitting
  Why Cities Resist New Housing: NIMBYism, Institutions, and Permitting Relative to Need—Robert W. Wassmer & Shoshana F. Levy (Journal of Urban Affairs)
  California cities with more older and long-term residents permit less housing relative to state-set targets; cities with more young adults and higher voter turnout permit more. Charter cities with mayor-council governance outperform council-only structures, and delays in state approval of local housing plans reduce permitting across all income levels.

• People closest to new housing fight it hardest
  Missing Middle: NIMBY Reactions in Arlington, Virginia—Paulo Carvalho (Policy Perspectives)
  About 70 percent of respondents to Arlington’s public comment process on its missing middle rezoning wanted at least some housing types excluded, with opposition rising as density increased. Single-family homeowners dominated the opposition, and rezoning all districts at once amplified proximity-based sentiment over general anti-growth sentiment.

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⚡️ Energy & Permitting

• Five statutes besides NEPA need streamlining
  Permitting Reform Is Back On. What Should It Include?—Nick Loris (C3 Solutions)
  The permitting system is redundant, litigation-prone, and stalls energy and infrastructure projects for years. Reform limited to NEPA alone will be insufficient—the Clean Water Act, Clean Air Act, Endangered Species Act, and National Historic Preservation Act all need streamlining.

• Local zoning is the main bottleneck for solar, not state or federal rules
  Municipal Zoning Challenges for Solar Energy—Patrick Seroogy (UC Law Environmental Journal)
  At least 15% of U.S. counties have zoning codes that impede or ban renewable energy development. Courts generally uphold state preemption of local solar bans—through both express and implied preemption—but collaboration between states and municipalities is more effective than litigation for clearing these barriers.

• 1960s-era nuclear rules are pricing out safer, smaller reactors
  Recent NRC Rulemakings Can Help Unlock Advanced Nuclear Energy—Nick Loris & Prasanna Pydipalli (C3 Solutions)
  Nuclear power costs have risen even as the technology improved, largely because regulations designed for 1960s-era large reactors are applied to smaller, safer designs through costly exemption processes. New NRC rules—including the technology-neutral Part 53 framework finalized in March 2026—aim to fix this mismatch.

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🏛 State Capacity & Governance

• Fifteen forces are driving a decades-long decline in American state capacity
  The Secular Decline of the American State—Ganesh Sitaraman (New York University Law Review)
  Federal capacity erosion is not a Trump-specific or Republican-specific phenomenon—it is a secular trend driven by fifteen reinforcing dynamics in law, politics, and institutional design. Consequences include reduced innovation, weaker crisis resilience, and rising consumer harms. Reversing decline requires accepting that its causes span both parties and many decades.

• Digitizing government paperwork lets firms specialize
  From Red Tape to Digital Tape: Digital Government Construction and Corporate Vertical Specialization in China—Zhixuan Shen, Wanli Li, Mengmeng He & Xi Wen (Economic Modelling)
  Government digitalization in China reduces administrative costs and regulatory friction enough that firms restructure toward vertical specialization—focusing on core competencies rather than maintaining integrated operations to navigate bureaucracy.

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💡 Innovation

• Unused property rights need an expiration date
  How IP Ends—David Fagundes & Aaron Perzanowski (New York University Law Review)
  Patents, copyrights, and trademarks all have mechanisms that terminate rights—through expiration, nonuse, fraud, or abandonment—but no one has analyzed these doctrines together. A unified taxonomy reveals that expanding use requirements and shortening terms could free up dormant IP. The provocative extension is why physical property lacks similar limits, given that idle land contributes to housing scarcity much as warehoused patents block innovation.

• Anti-troll laws increase patenting but shift it toward incremental work
  Legal Shields, Hidden Costs: The Dual Effects of Patent Troll Laws on Information Technology Firm Innovation—Xuewen Han, Zhitao Yin & Arun Rai (Information Systems Research)
  State anti-troll laws boost total IT patenting, but the gains are concentrated in exploitative (incremental) patents rather than exploratory ones—especially for firms previously targeted by trolls. The study measures patent output, not underlying R&D activity.

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🏥 Healthcare

• Licensing laws keep new hospitals and clinics from opening
  Putting the CON in Con Law: Women’s Surgical Center v. Berry and How a Unique State Constitutional Provision on Contracts Intersects with Certificate of Need Laws—John R. Oates (Emory Law Journal Online)
  Georgia’s certificate-of-need laws restrict entry for new healthcare providers. The state supreme court rejected an antitrust-based constitutional challenge in Berry, but the court’s own reasoning leaves openings for future attacks on these anticompetitive licensing regimes.

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⛏️ Industrial Policy

• Domestic mining can’t compete on cost, workers, or permits
  Onshoring the Mineral Supply Chain: Structural Constraints, Policy Tools, and Research Gaps—Beia Spiller, Zach Whitlock, Ambarish Kota, Emma DeAngeli & Nafisa Lohawala (Resources for the Future)
  U.S. critical mineral production has declined for a century as cheaper foreign supply—especially Chinese-dominated. Domestic onshoring faces high costs, workforce gaps, lengthy permitting timelines, and community opposition, and current policy tools (tariffs, subsidies, stockpiling) each address only part of the problem.