Academic journal article Missouri Law Review

Homelessness at the Cathedral

Academic journal article Missouri Law Review

Homelessness at the Cathedral

Article excerpt

ABSTRACT

This Article argues that legal restraints against homeless persons are resolved by applying certain nuisance-like approaches. By drawing on nuisance restraints that adopt property-based and social-identity information, courts and decision-makers choose approaches that create conflict between homeless identities and adopted social identities. These approaches tend to relegate the social choice of whether to tolerate homeless persons to one of established social order (property) or broadly conceived notions of liberty (constitutional rights or due process rights). This Article argues for a broader conception of social identity, which may force parties to internalize certain costs of action, tolerate certain uses, or abate the full range of property rights that the law would otherwise allow in different social settings. Considering the question of "undesirable " uses of space--both on private and public land --helps articulate a narrative of property that moves beyond the rhetoric of economics-bound entitlements and affords a broader, more honest characterization. Conceived in this way, property entitlements represent information about how society defines, refines, enforces, and rejects its collective identity through the legal recognition of property entitlements.

TABLE OF CONTENTS
INTRODUCTION
PART I: COLLECTIVE IDENTITY IN LEGAL ACTION
     A. Collective Identity in Legal and Sociological Terms
         1. Establishing Social Identity Through Rule Creation
             a. Social Identity Creation
             b. Ideology
             c. Power Relationships
         2. Establishing Group Identity Through Rule-Enforcement
     B. How Space Exclusion Leads to Collective Identity
PART II: THE VISIBLE YET LEGALLY INVISIBLE HOMELESS
     A. Homeless in Public Spaces
         1. Trespass and Anti-Camping Ordinances as Protections of
             Property
         2. Hygiene Ordinances and Rules as Means of Excluding
             Homeless Persons
         3. Seizure of Homeless Property
     B. Homeless Activities in Public Spaces
     C. Homeless Control and the "Not in My Backyard" Mentality
         1. Homeless Persons as Nuisances to Property Owners
         2. Claims That Other Government Ordinances Render the
             Homeless Service Provider a Nuisance
         3. Government Acts Towards Property Owners Attracting
             Homeless Persons
             a. The Right to House Homeless Persons
             b. Administrative Limitations on Housing Homeless
                 Persons
PART III: HOMELESSNESS AND INFORMATION
     A. Homelessness at the Cathedral
     B. Asserting Subjective Homeless Identity in Legal Decision
         Making
CONCLUSION

INTRODUCTION

The law of property is entrenched with information--information about markets, information about wealth, and information about social identity. (1) It is well regarded as a catalyst for economic stability through systematic transfer of information. (2) It is shaped by political power and expectations of social entrenchment. (3) It communicates what is important by being the canvas of our creativity. (4) It says something about what we value by how we manage it when it's scarce (5) and how we do not when it's plentiful. (6) We remember why we acquired it and tell stories about why it remains meaningful. (7) Property captivates our attention as a measure of prosperity and as a signal of power (and its opposite--powerlessness). (8) It remains--as Blackstone noted--a catalyst of our imaginations and our emotions, whether acquired by hook or crook, and then honored as the thing that validates our social life. (9) The law of property reflects our collective identity--what we value, what we do not and why we think it matters.

Property, at its core, is also about social approval of one's occupancy of space. (10) The law of property reflects a collective identity of the society that recognizes its resource value, enforceability, or import. …

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