Ordering (and Order in) the City
Garnett, Nicole Stelle, Stanford Law Review
I. THE NEW POLICING AND PROPERTY REGULATION A. The Order-Maintenance Revolution B. Property Regulation as Disorder Suppression 1. Disorder suppression through regulatory inspections 2. Disorder suppression through property litigation C. Order Construction as Disorder Suppression II. RETHINKING THE DISORDER-SUPPRESSION/ORDER-CONSTRUCTION EQUATION A. Fostering Economic Vitality Through Deregulation: Enterprise Zones B. Zoning for Diversity: Jane Jacobs and the New Urbanism C. A Test Case in East Harlem III. PROPERTY REGULATION AND NORMS OF ORDER A. City-Suburb Competition B. The Norms of Work C. The Social Influence Effects of Law Avoidance D. Diffusing the "Us v. Them" Perception IV. LAND-USE REFORM AS A COMMUNITY-POLICING ISSUE CONCLUSION
The walls of the Palazzo Publico in Siena, Italy, are graced with Ambrogio Lorenzetti's striking frescos contrasting the effects of "good government" and "bad government" on fourteenth-century city life. In the city under good government, men work to repair stately buildings, women socialize in the streets, and merchants sell their wares in a busy marketplace. In the city under bad government, the buildings are crumbling, men stand idle (save one crafting weapons), bandits terrorize the innocent, and the bodies of murder victims lie in the streets. (1) The goals of urban policy, it appears, have not changed in over six hundred years.
Over the past two decades, however, the conventional wisdom about how to achieve these goals in American cities has been turned on its head. After years of attributing the problems of urban decay and disorder to intractable "root causes," city officials now embrace "root solutions" that seek to eliminate these problems directly, regardless of their causes. (2) A primary catalyst for this change was the articulation in 1982 of the "broken windows" hypothesis by George Kelling and James Q. Wilson. (3) This now-familiar theory is that uncorrected manifestations of disorder, even minor ones like broken windows, signal a breakdown in the social order that accelerates neighborhood decline. (4) The response to this theory, and to a growing disillusionment with modern policing practices generally, (5) has been a proliferation of policies focusing on public order, such as former Mayor Rudolph Giuliani's "quality of life" and "no tolerance" programs, as well as ubiquitous "community policing" efforts. (6)
Broken windows policies have generated a vast legal literature, most of which focuses on police efforts to restore order by enforcing criminal laws. This scholarship falls into two broad, and overlapping, categories: First, "social norms" scholars argue that order-maintenance policing strategies are needed to shore up important nonlegal social controls. (7) As Dan Kahan has observed, "[c]racking down on aggressive panhandling, prostitution, open gang activity and other visible signs of disorder may be justifiable on this ground, since disorderly behavior and the law's response to it are cues about the community's attitude toward more serious forms of criminal wrongdoing." (8) Second, and in response, criminal procedure scholars concentrate primarily on the constitutional questions raised by the discretion afforded police officers by order-promoting criminal laws. (9)
Largely missing from the academic debate about these developments is a discussion of the complex and important role of property regulation in order-maintenance efforts. (10) To be fair, broken windows scholarship concentrates primarily on policing strategies that are, in a sense, property regulations: they seek to restore order by regulating public places--streets, parks, etc. (11) But traditional private property regulations also affect order-maintenance efforts in important, and understudied, ways. This Article attempts to fill that property law gap in the public-order puzzle by tackling the complicated relationship between property regulation and order-restoration efforts. …