Law in politics: Struggles over property and public space on New York City's Lower East Side

Law and Social Inquiry

Volumn 21, Issue 2, 1996, Pages 265-273

  Brigham, John ^a   Gordon, Diana R ^b  

^a UNIVERSITY OF MASSACHUSETTS   (United States)

^b CITY UNIVERSITY OF NEW YORK   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0030520220     PISSN: 08976546     EISSN: None     Source Type: Journal    
DOI: 10.1086/492548     Document Type: Article

References (67)

1. The violent confrontations continue, but with less frequency. See Shawn G. Kennedy, "Squatters of 13th Street vs. Power of City Hall," N.Y. Times, 12 July 1995, at B1, and "Riot Police Remove 31 Squatters from Two East Village Buildings," N.Y. Times, 31 May 1995, at A1.
2. The violent confrontations continue, but with less frequency. See Shawn G. Kennedy, "Squatters of 13th Street vs. Power of City Hall," N.Y. Times, 12 July 1995, at B1, and "Riot Police Remove 31 Squatters from Two East Village Buildings," N.Y. Times, 31 May 1995, at A1.
3. E. P. Thompson, Whigs and Hunters: The Origin of the Black Act 261 (New York: Pantheon, 1975).
4. Stuart Scheingold, The Politics of Rights (New Haven, Conn.: Yale University Press, 1974).
5. Patricia Williams's commentary on property in "Alchemical Notes" argues for a con-ception of property that would include the power held by clerks in Manhattan stores who control the buzzer that opens the door. Patricia Williams, The Alchemy of Race and Rights (Cambridge: Harvard University Press, 1991).
6. Karl Klare, "Law-Making as Praxis," 40 Telos 123, 128 (1979).
7. Robert W. Gordon, "Critical Legal Histories," 36 Stan. L. Rev. 57 (1984).
8. Alan Hunt, Explorations in Law and Society (New York: Routledge, 1993).
9. Lucy E. Salyer, "The Constitutive Nature of Law in American History," 15 Legal Stud. F. 61 (1991).
10. David Kairys, ed., The Politics of Law: A Progressive Critique 6 (rev. ed. New York: Pantheon, 1990).
11. Carol Greenhouse, Praying for Justice (Ithaca, N.Y.: Cornell University Press, 1986); Sally Engle Merry, Getting Justice and Getting Even (Chicago: University of Chicago Press, 1990); Barbara Yngvesson, Virtuous Citizens, Disruptive Subjects (New York: Routledge, 1993).
12. Carol Greenhouse, Praying for Justice (Ithaca, N.Y.: Cornell University Press, 1986); Sally Engle Merry, Getting Justice and Getting Even (Chicago: University of Chicago Press, 1990); Barbara Yngvesson, Virtuous Citizens, Disruptive Subjects (New York: Routledge, 1993).
13. Carol Greenhouse, Praying for Justice (Ithaca, N.Y.: Cornell University Press, 1986); Sally Engle Merry, Getting Justice and Getting Even (Chicago: University of Chicago Press, 1990); Barbara Yngvesson, Virtuous Citizens, Disruptive Subjects (New York: Routledge, 1993).
14. Peter Gabel, "The Phenomenology of Rights-Consciousness and the Pact of the Withdrawn Selves," 62 Tex. L. Rev. 1563 (1984); Peter Goodrich, Reading the Law (Oxford: Blackwell, 1986); Carrie Menkel-Meadow, "Excluded Voices: New Voices in the Legal Profession," 42 U. Miami L. Rev. 29-53 (1987).
15. Peter Gabel, "The Phenomenology of Rights-Consciousness and the Pact of the Withdrawn Selves," 62 Tex. L. Rev. 1563 (1984); Peter Goodrich, Reading the Law (Oxford: Blackwell, 1986); Carrie Menkel-Meadow, "Excluded Voices: New Voices in the Legal Profession," 42 U. Miami L. Rev. 29-53 (1987).
16. Peter Gabel, "The Phenomenology of Rights-Consciousness and the Pact of the Withdrawn Selves," 62 Tex. L. Rev. 1563 (1984); Peter Goodrich, Reading the Law (Oxford: Blackwell, 1986); Carrie Menkel-Meadow, "Excluded Voices: New Voices in the Legal Profession," 42 U. Miami L. Rev. 29-53 (1987).
17. Martha Minow, Making All the Difference (Ithaca, N.Y.: Cornell University Press, 1990).
18. Dirk Hartog, Public Property and Private Power: The Corporation of the City of New York in American Law, 1730-1870 (Chapel Hill: University of North Carolina Press, 1983).
19. Mary Jo Frug, Postmodern Legal Feminism (New York: Routledge, 1992); Catharine MacKinnon, Feminism Unmodified (Cambridge: Harvard University Press, 1987) ("MacKinnon, Unmodified").
20. Mary Jo Frug, Postmodern Legal Feminism (New York: Routledge, 1992); Catharine MacKinnon, Feminism Unmodified (Cambridge: Harvard University Press, 1987) ("MacKinnon, Unmodified").
21. Jeffrey A. Segal & Harold J. Spaeth, The Supreme Court and the Attitudinal Model (New York: Cambridge University Press, 1993) ("Segal & Spaeth, Supreme Court").
22. Robert C. Ellickson, Order without Law: How Neighbors Settle Disputes (Cambridge: Harvard University Press, 1991) ("Ellickson, Order without Law").
23. Martin Shapiro, Law and Politics in the Supreme Court (New York: Free Press, 1964).
24. David M. O'Brien, Storm Center (New York: W. W. Norton, 1986).
25. Segal & Spaeth, Supreme Court.
26. Paul Brace & Melinda Gann Hall, "Studying Courts Comparatively: The View from the American States," 48 Pol. Res. Q. 5 (1995).
27. John Brigham & Christine B. Harrington, "Realism and Its Consequences: An Inquiry into Contemporary Sociolegal Research," 17 Int'l J. Soc. L. 41 (1989).
28. He does note, however, that "ranchette owners . . . unlike the cattlemen, sometimes respond to a trespass incident by contacting a county official who they think will remedy the problem." Ellickson, Order 59.
29. One of the most venerable English common law rules of strict liability in tort," the "fencing-out rule" makes the owner of livestock liable for damage to neighboring property even in the absence of negligence. Id. at 42.
30. Although the landowners in Shasta County did know whether their own lands were within the open or closed range designation, Ellickson speculates that the level of knowledge was probably "atypically high" because the range law had been the subject of political controversy. He found that the residents he interviewed were unfamiliar with terms like "estray" and "lawful fence" and knew little about subtleties in the law. Thus, he observes that disputing takes place "largely independent of formal law." Id. at 49-51.
31. John Brigham, Property and the Politics of Entitlement 183 (Philadelphia: Temple University Press, 1990); Rogers Smith, "Political Jurisprudence, the 'New Institutionalism' and the Future of Public Law," 82 Am. Pol. Sci. Rev. 89 (1987).
32. John Brigham, Property and the Politics of Entitlement 183 (Philadelphia: Temple University Press, 1990); Rogers Smith, "Political Jurisprudence, the 'New Institutionalism' and the Future of Public Law," 82 Am. Pol. Sci. Rev. 89 (1987).
33. Derrick Bell, And We Are Not Saved (New York: Basic Books, 1987).
34. William E. Forbath, "Courts, Constitutions, and Labor Politics in England and America: A Study of the Constitutive Power of Law," 16 Law & Soc. Inquiry 1 (1991).
35. MacKinnon, Unmodified (cited in note 14).
36. Emmanuel Tobier, "Housing Classes of the Lower East Side" (paper delivered at the Lower Manhattan Seminar, New School for Social Research, 1 Feb. 1990).
37. For a provocative study of city politics that puts the neighborhood in a larger social and economic context, see John H. Mollenkopf, The Contested City (Princeton, N.J.: Princeton University Press, 1989).
38. Dep't of City Planning, City of New York, Community Facts at a Glance 41 (New York, 1989).
39. Blanca Silvestrini, "The World We Enter When Claiming Rights: Latinos and the Quest for Culture" (delivered to the Amherst Seminar, 19 April 1991).
40. For a history of squatting in America see Eric Hirsch & Peter Wood, "Squatting in New York City: Justification and Strategy," 16 N.Y.U. Rev. L. & Soc. Change 605 (1988); John Opie, The Law of the Land: Two Hundred Years of Farmland Policy (Lincoln: University of Nebraska, 1987).
41. For a history of squatting in America see Eric Hirsch & Peter Wood, "Squatting in New York City: Justification and Strategy," 16 N.Y.U. Rev. L. & Soc. Change 605 (1988); John Opie, The Law of the Land: Two Hundred Years of Farmland Policy (Lincoln: University of Nebraska, 1987).
42. At this writing, the Speaker of the New York Assembly, Sheldon Silver is from the Lower East Side. His prominence in the legislature gives politics in the area heightened significance and real meaning to constituent service.
43. New York City Charter sec. 84, vol. 1, pp. 41-44i New York City Charter and Administrative Code, Annotated (Albany: Williams Press, 1976).
44. The district includes part of Chinatown, which has its own distinctive character and problems and is only an occasional participant in community board politics.
45. Peter Marcuse, "Neighborhood Policy and the Distribution of Power: New York City's Community Boards," 16 Pol'y Stud. J. 277 (1987).
46. Susan S. Fainstein & Norman I. Fainstein, "The Changing Character of Community politics in New York City: 1968-1988," in John H. Mollenkopf & Manuel Castells, eds., Dual City: Restructuring New York 320 (New York: Russell Sage Foundation, 1991).
47. For discussion of what counts as resistance and the place of resistance in contemporary sociolegal scholarship, see Mindie Lazarus-Black & Susan F. Hirsch, Contested States (New York: Routledge, 1994).
48. In this view, the police who back up the boards are equated with those who allocate housing resources, determine the status of squatters, and enforce city policy in the parks.
49. The forum is a force not unlike the narrowing that takes place in transforming a conflict into a dispute suitable for resolution in a court. Richard Abel, "Conservative Conflict and the Reproduction of Capitalism: The Role of Informal Justice," 9 Int'l J. Soc. L. 2 (1981).
50. The role of law in constituting ethnicity seems to be a good deal smaller than its role in defining property.
51. For attention to how rent control laws contribute to political mobilization, see Michael Lipsky, Protest in City Politics (Chicago: Rand, McNally, 1970).
52. These forms of ownership are not the only way that buildings may be constituted in law. On the Lower East Side one speaks of "old law tenements" to refer to buildings constructed before legislation in the late 19th century set minimum standards for air and light in tenements. Richard Plunz, A History of Housing in New York City 262 (New York: Columbia University Press, 1990).
53. Anne Clark & Zelma Rivin, Homesteading in Urban U.S.A. (New York: Praeger Publishers, 1977).
54. Marlis Momber, a participant in the homesteading movement, comments, "When the ownership thing takes over, they no longer care about their fellow man." Interview, 16 March 1990, with John Brigham.
55. Donna Ellaby, interview, 13 Oct. 1992, with Diana Gordon.
56. Prominent LES organizations with community professionals using the law in politics include G.O.L.E.S. (for Good Old Lower East Side, a tenant organizing group), Charas (the biggest arts group), NENA (Northeast Neighborhood Association) Health Center, Tompkins Square Park Neighborhood Coalition (the local homeowners), and the Joint Planning Council (a coalition of all the housing organizations - generally reformist, professionally staffed).
57. Lisa Kaplan, interviews, 3 Dec. 1990 & 30 Jan. 1992, with Diana Gordon. 50. This legal development derives from the city's position as sovereign, where, in the context of defaults for nonpayment of property taxes, the city government operates as the ultimate authority.
58. The In-Rem Housing Program Annual Report (City of New York, Department of Housing Preservation and Development, 1985-90).
59. Mutual housing involves a combination of central and tenant management, heavy involvement by community organizations, 100% financing for construction plus sec. 8 subsidy for some tenants. Id.
60. Paul Kneisel, "The Anti-Warehousing Movement in New York City," Downtown, 11 April 1990, at 8a.
61. Mary Katzenstein & Carol McC. Mueller, The Woman's Movements of the United States and Western Europe (Philadelphia: Temple University Press, 1990).
62. Emily Paradise Achtenberg & Peter Marcuse, "Toward a Decommodification of Housing," in Rachel G. Bart et al., eds., Cultural Perspectives on Housing (Philadelphia: Temple University Press, 1986).
63. Frank Morales, interview, 8 Nov. 1990, with Diana Gordon.
64. Leaflet on file with authors.
65. John Brigham, "Right, Rage, and Remedy: Forms of Law in Political Discourse," 2 Stud. Am. Pol. Dev. 303 (1987).
66. Marci Reaven, "Tomkins Square: Past and Present" (Text for Exhibition, Municipal Arts Society, 1989).
67. Herbert Gutman, "The Tompkins Square Riot in New York City on January 13, 1874: A Re-examination of Its Causes and Its Aftermath," 6 Labor Hist. 44 (1965).