Worth a read: our colleague Sam Spiegelman’s latest piece that, as the title indicates, offers a theory to return Euclid and zoning laws to their harm-prevention roots, or abandon Euclid entirely. In “‘One Hundred Years of Solicitude’: Fixing the Nanny State of Zoning at Euclid’s Centennial,” 42 Touro L. Rev. ___ (forthcoming 2026) (working draft available at SSRN here), Sam urges a return to the “sic utere approach,” and limited to harm prevention, not social engineering.
Here’s the Abstract:
Beginning in the 1920s, American courts gave legislatures and public agencies unprecedented latitude to determine what qualified as a publicexigency or even merely a public purpose sufficient to impose land-use controls, most commonly under the banner of zoning. That latitude was never the common law’s. For most of American history—indeed, the entire Anglo-American legal tradition—a land-use control had to be justified as a restraint on some tangible harm to neighbors—the sic utere principle—and courts examined the substance of the restriction rather than the label the legislature attached to it. Village of Euclid v. Ambler Realty Co. (1926) vastly accelerated the retreat from that model towards the public-purpose approach, a shift all but complete by Berman v. Parker (1954), in which Justice William O. Douglas shamelessly declared that “when the legislature has spoken, the public interest has been declared in terms well-nigh conclusive.” This Article marks Euclid’s centennial by taking stock of its adverse impacts on a host of fundamental rights expressed through the exercise of property rights free of undue interferences. It first traces how the common-law, harm-prevention sic utere model gave way to the uber-deferential approach that remains predominant to this day (though the common-law approach is slowly but surely making a comeback). The article does this first by recounting the history of land-use controls in America and then catalogs the specific fundamental rights that modern land-use controls tend to burden without facing the judicial scrutiny interferences with those rights appear to merit in almost every other context. Rights including, but not limited, to the ownership and use of private property, to privacy, to travel and trade freely, to speak one’s mind, to associate however one chooses, to worship some gods and not others, and, finally, to “establish a home” in which to realize these individual choices. The Article then argues that the Roberts Court’s takings and exactions decisions, especially in the last decade or so, mark the early stages of a return to the harm-prevention model, and concludes with a rough outline of the doctrinal and practical fixes that only the return of the sic utere approach makes possible. Zoning itself is not the problem. It is how it has been used, as an instrument of social and economic control, instead of as a means of stopping and prevent real harms (a problem not unique to land-use regulations), that demands our reappraisal. There is no time like the present, and no better inflection point for such a reappraisal than Euclid’s centennial.
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