Ellickson on "chronic misconduct" in urban spaces: Of panhandlers, bench squatters, and day laborers

Harvard Civil Rights-Civil Liberties Law Review

Volumn 32, Issue 1, 1997, Pages 1-48

  Munzer, Stephen R ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 0031540429     PISSN: 00178039     EISSN: None     Source Type: Journal    
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References (308)

1. Robert C. Ellickson, Controlling Chronic Misconduct in City Spaces: Of Panhandlers, Skid Rows, and Public-Space Zoning, 105 YALE L.J. 1165 (1996) [hereinafter Ellickson, Chronic Misconduct]. His article and this Response deal with nonaggressive rather than aggressive panhandling. See id. at 1169, 117-78.
2. Robert C. Ellickson, Controlling Chronic Misconduct in City Spaces: Of Panhandlers, Skid Rows, and Public-Space Zoning, 105 YALE L.J. 1165 (1996) [hereinafter Ellickson, Chronic Misconduct]. His article and this Response deal with nonaggressive rather than aggressive panhandling. See id. at 1169, 117-78.
3. Robert C. Ellickson, Controlling Chronic Misconduct in City Spaces: Of Panhandlers, Skid Rows, and Public-Space Zoning, 105 YALE L.J. 1165 (1996) [hereinafter Ellickson, Chronic Misconduct]. His article and this Response deal with nonaggressive rather than aggressive panhandling. See id. at 1169, 117-78.
4. Id. at 1220-22.
5. ROBERT C. ELLICKSON, ORDER WITHOUT LAW: HOW NEIGHBORS SETTLE DISPUTES (1991) [hereinafter ELLICKSON, ORDER WITHOUT LAW].
6. ROBERT C. ELLICKSON, ORDER WITHOUT LAW: HOW NEIGHBORS SETTLE DISPUTES (1991) [hereinafter ELLICKSON, ORDER WITHOUT LAW].
7. See infra text accompanying note 229.
8. See infra text accompanying notes 16-23.
9. STEPHEN R. MUNZER, A THEORY OF PROPERTY (1990).
10. The sketch abbreviates the outline in Stephen R. Munzer, Compensation and Government Takings of Private Property, in NOMOS 33: COMPENSATORY JUSTICE 195, 199-202 (John W. Chapman ed., 1991).
11. This variety of pluralism, sometimes called "intuitionism," is defended in Stephen R. Munzer, Intuition and Security in Moral Philosophy, 82 MICH. L. REV. 740 (1984); Christine Swanton, The Rationality of Ethical Intuitionism, 65 AUSTRALASIAN J. PHIL. 172 (1987); J.O. Urmson, A Defence of Intuitionism, 75 PROC. ARISTOTELIAN SOC'Y 111 (1975). See generally THOMAS NAGEL, The Fragmentation of Value, in MORTAL QUESTIONS 128 (1979).
12. This variety of pluralism, sometimes called "intuitionism," is defended in Stephen R. Munzer, Intuition and Security in Moral Philosophy, 82 MICH. L. REV. 740 (1984); Christine Swanton, The Rationality of Ethical Intuitionism, 65 AUSTRALASIAN J. PHIL. 172 (1987); J.O. Urmson, A Defence of Intuitionism, 75 PROC. ARISTOTELIAN SOC'Y 111 (1975). See generally THOMAS NAGEL, The Fragmentation of Value, in MORTAL QUESTIONS 128 (1979).
13. This variety of pluralism, sometimes called "intuitionism," is defended in Stephen R. Munzer, Intuition and Security in Moral Philosophy, 82 MICH. L. REV. 740 (1984); Christine Swanton, The Rationality of Ethical Intuitionism, 65 AUSTRALASIAN J. PHIL. 172 (1987); J.O. Urmson, A Defence of Intuitionism, 75 PROC. ARISTOTELIAN SOC'Y 111 (1975). See generally THOMAS NAGEL, The Fragmentation of Value, in MORTAL QUESTIONS 128 (1979).
14. This variety of pluralism, sometimes called "intuitionism," is defended in Stephen R. Munzer, Intuition and Security in Moral Philosophy, 82 MICH. L. REV. 740 (1984); Christine Swanton, The Rationality of Ethical Intuitionism, 65 AUSTRALASIAN J. PHIL. 172 (1987); J.O. Urmson, A Defence of Intuitionism, 75 PROC. ARISTOTELIAN SOC'Y 111 (1975). See generally THOMAS NAGEL, The Fragmentation of Value, in MORTAL QUESTIONS 128 (1979).
15. On conflicts and their resolution, see MUNZER, supra note 6, at 292-314.
16. On irreducibility, see id. at 294-95.
17. See infra text accompanying notes 50, 59, & 98; see also infra note 107.
18. See Ellickson, Chronic Misconduct, supra note 1, at 1191-93 (asserting that many "homeless" people have regular access to housing).
19. Cf. MURRAY N. ROTHBARD, FOR A NEW LIBERTY: THE LIBERTARIAN MANIFESTO 201-14 (rev. ed. 1978) (libertarian argument for making streets and roads private property). For effective criticism of Rothbard, see Jeremy Waldron, Homelessness and the Issue of Freedom, 39 UCLA L. REV. 295, 300 & n.8, 301 (1991) (hereinafter Waldron, Homelessness].
20. Cf. MURRAY N. ROTHBARD, FOR A NEW LIBERTY: THE LIBERTARIAN MANIFESTO 201-14 (rev. ed. 1978) (libertarian argument for making streets and roads private property). For effective criticism of Rothbard, see Jeremy Waldron, Homelessness and the Issue of Freedom, 39 UCLA L. REV. 295, 300 & n.8, 301 (1991) (hereinafter Waldron, Homelessness].
21. Cf. MURRAY N. ROTHBARD, FOR A NEW LIBERTY: THE LIBERTARIAN MANIFESTO 201-14 (rev. ed. 1978) (libertarian argument for making streets and roads private property). For effective criticism of Rothbard, see Jeremy Waldron, Homelessness and the Issue of Freedom, 39 UCLA L. REV. 295, 300 & n.8, 301 (1991) (hereinafter Waldron, Homelessness].
22. See, e.g., Ellickson, Chronic Misconduct, supra note 1, at 1173 (market forces cannot supply enough streets and sidewalks); Robert C. Ellickson, Property in Land, 102 YALE L.J. 1315, 1381-87 (1993) [hereinafter Ellickson, Land] (decentralized negotiations cannot provide an adequate network of public lands).
23. See, e.g., Ellickson, Chronic Misconduct, supra note 1, at 1173 (market forces cannot supply enough streets and sidewalks); Robert C. Ellickson, Property in Land, 102 YALE L.J. 1315, 1381-87 (1993) [hereinafter Ellickson, Land] (decentralized negotiations cannot provide an adequate network of public lands).
24. See, e.g., Ellickson, Chronic Misconduct, supra note 1, at 1173 (market forces cannot supply enough streets and sidewalks); Robert C. Ellickson, Property in Land, 102 YALE L.J. 1315, 1381-87 (1993) [hereinafter Ellickson, Land] (decentralized negotiations cannot provide an adequate network of public lands).
25. Indeed, his articles dating from 1986 and his book Order without Law reveal a new direction in his work. Before, he had approached land-use issues, with considerable library research, from a law-and-economics perspective. Now, he evidences a keen interest in fieldwork and other empirical investigations. See ELLICKSON, ORDER WITHOUT LAW, supra note 3, at vii-ix; see also Ellickson, Land, supra note 14.
26. Indeed, his articles dating from 1986 and his book Order without Law reveal a new direction in his work. Before, he had approached land-use issues, with considerable library research, from a law-and-economics perspective. Now, he evidences a keen interest in fieldwork and other empirical investigations. See ELLICKSON, ORDER WITHOUT LAW, supra note 3, at vii-ix; see also Ellickson, Land, supra note 14.
27. See, e.g., Robert C. Ellickson, Suburban Growth Controls: An Economic and Legal Analysis, 86 YALE L.J. 385 (1977) [hereinafter Ellickson, Suburban Growth Controls] (supporting liability-rule mechanisms to prevent suburban homeowners from behaving like a "profit-maximizing cartel"); Robert C. Ellickson, Alternatives to Zoning: Covenants, Nuisance Rules, and Fines as Land Use Controls, 40 U. CHI. L. REV. 681 (1973) [hereinafter Ellickson, Zoning].
28. See, e.g., Robert C. Ellickson, Suburban Growth Controls: An Economic and Legal Analysis, 86 YALE L.J. 385 (1977) [hereinafter Ellickson, Suburban Growth Controls] (supporting liability-rule mechanisms to prevent suburban homeowners from behaving like a "profit-maximizing cartel"); Robert C. Ellickson, Alternatives to Zoning: Covenants, Nuisance Rules, and Fines as Land Use Controls, 40 U. CHI. L. REV. 681 (1973) [hereinafter Ellickson, Zoning].
29. See, e.g., Robert C. Ellickson, Suburban Growth Controls: An Economic and Legal Analysis, 86 YALE L.J. 385 (1977) [hereinafter Ellickson, Suburban Growth Controls] (supporting liability-rule mechanisms to prevent suburban homeowners from behaving like a "profit-maximizing cartel"); Robert C. Ellickson, Alternatives to Zoning: Covenants, Nuisance Rules, and Fines as Land Use Controls, 40 U. CHI. L. REV. 681 (1973) [hereinafter Ellickson, Zoning].
30. See, e.g., Robert C. Ellickson, Suburban Growth Controls: An Economic and Legal Analysis, 86 YALE L.J. 385 (1977) [hereinafter Ellickson, Suburban Growth Controls] (supporting liability-rule mechanisms to prevent suburban homeowners from behaving like a "profit-maximizing cartel"); Robert C. Ellickson, Alternatives to Zoning: Covenants, Nuisance Rules, and Fines as Land Use Controls, 40 U. CHI. L. REV. 681 (1973) [hereinafter Ellickson, Zoning].
31. See Ellickson, Chronic Misconduct, supra note 1, at 1170, 1186, 1189-90 & n.118 (contending that "street disorder" bothers the poor at least as much as other people, because the poor are heavy users of "streets and sidewalks"). But see discussion infra Part VI.
32. Compare ELLICKSON, ORDER WITHOUT LAW, supra note 3, at 171, with MUNZER, supra note 6, at 198-206. However, Ellickson sometimes moves to an "objective" criterion of maximizing "welfare." See ELLICKSON, ORDER WITHOUT LAW, supra note 3, at 170-74.
33. Compare ELLICKSON, ORDER WITHOUT LAW, supra note 3, at 171, with MUNZER, supra note 6, at 198-206. However, Ellickson sometimes moves to an "objective" criterion of maximizing "welfare." See ELLICKSON, ORDER WITHOUT LAW, supra note 3, at 170-74.
34. Compare ELLICKSON, ORDER WITHOUT LAW, supra note 3, at 171, with MUNZER, supra note 6, at 198-206. However, Ellickson sometimes moves to an "objective" criterion of maximizing "welfare." See ELLICKSON, ORDER WITHOUT LAW, supra note 3, at 170-74.
35. See, e.g., Ellickson, Chronic Misconduct, supra note 1, at 1185 n.93.
36. See J.R. Hicks, The Foundations of Welfare Economics, 49 ECON. J. 696 (1939); Nicholas Kaldor, Welfare Propositions of Economics and Interpersonal Comparisons of Utility, 49 ECON. J. 549 (1939). For exposition and comment, see MUNZER, supra note 6, at 198-202; Jules L. Coleman, Efficiency, Utility, and Wealth Maximization, 8 HOFSTRA L. REV. 509, 512-20 (1980).
37. See J.R. Hicks, The Foundations of Welfare Economics, 49 ECON. J. 696 (1939); Nicholas Kaldor, Welfare Propositions of Economics and Interpersonal Comparisons of Utility, 49 ECON. J. 549 (1939). For exposition and comment, see MUNZER, supra note 6, at 198-202; Jules L. Coleman, Efficiency, Utility, and Wealth Maximization, 8 HOFSTRA L. REV. 509, 512-20 (1980).
38. See J.R. Hicks, The Foundations of Welfare Economics, 49 ECON. J. 696 (1939); Nicholas Kaldor, Welfare Propositions of Economics and Interpersonal Comparisons of Utility, 49 ECON. J. 549 (1939). For exposition and comment, see MUNZER, supra note 6, at 198-202; Jules L. Coleman, Efficiency, Utility, and Wealth Maximization, 8 HOFSTRA L. REV. 509, 512-20 (1980).
39. See J.R. Hicks, The Foundations of Welfare Economics, 49 ECON. J. 696 (1939); Nicholas Kaldor, Welfare Propositions of Economics and Interpersonal Comparisons of Utility, 49 ECON. J. 549 (1939). For exposition and comment, see MUNZER, supra note 6, at 198-202; Jules L. Coleman, Efficiency, Utility, and Wealth Maximization, 8 HOFSTRA L. REV. 509, 512-20 (1980).
40. See T. de Scitovsky, A Note on Welfare Propositions in Economics, 9 REV. ECON. STUD. 77 (1941). For a clear exposition, see ALLAN FELDMAN, WELFARE ECONOMICS AND SOCIAL CHOICE THEORY 142-45 (1980).
41. See T. de Scitovsky, A Note on Welfare Propositions in Economics, 9 REV. ECON. STUD. 77 (1941). For a clear exposition, see ALLAN FELDMAN, WELFARE ECONOMICS AND SOCIAL CHOICE THEORY 142-45 (1980).
42. For slightly different arguments to this effect, see MUNZER, supra note 6, at 201-02; Coleman, supra note 20, at 519-20.
43. See Ellickson, Chronic Misconduct, surpa note 1, at 1189-90 (arguing that distributive justice and redistributive objectives do not justify failing to regulate street misconduct). See also Ellickson, Suburban Growth Controls, supra note 16, at 389, 414-15. As to "horizontal equity," Ellickson employs the pseudo-Rawlsian test suggested by Michelma. Id. at 415; see Frank I. Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of "Just Compensation" Law, 80 HARV. L. REV. 1165, 1223 (1967). For an argument that this test is neither Rawlsian nor much different from utility or efficiency, see Stephen R. Munzer, A Theory of Retroactive Legislation, 61 TEX. L. REV. 425, 477-80 (1982). Ellickson largely dismisses "vertical equity," which he takes "to describe the fairness of the distribution of wealth." Ellickson, Suburban Growth Controls, supra note 16, at 415. Because, in his view, interpersonal comparisons of utility are impossible, "discussions of vertical equity tend to be about as enlightening as debates over the relative merits of following the Cubs or the White Sox." Id. He leaves the reader with the statement that "concerns abouth the general distribution of wealth cannot be wholly ignored." Id.
44. See Ellickson, Chronic Misconduct, surpa note 1, at 1189-90 (arguing that distributive justice and redistributive objectives do not justify failing to regulate street misconduct). See also Ellickson, Suburban Growth Controls, supra note 16, at 389, 414-15. As to "horizontal equity," Ellickson employs the pseudo-Rawlsian test suggested by Michelma. Id. at 415; see Frank I. Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of "Just Compensation" Law, 80 HARV. L. REV. 1165, 1223 (1967). For an argument that this test is neither Rawlsian nor much different from utility or efficiency, see Stephen R. Munzer, A Theory of Retroactive Legislation, 61 TEX. L. REV. 425, 477-80 (1982). Ellickson largely dismisses "vertical equity," which he takes "to describe the fairness of the distribution of wealth." Ellickson, Suburban Growth Controls, supra note 16, at 415. Because, in his view, interpersonal comparisons of utility are impossible, "discussions of vertical equity tend to be about as enlightening as debates over the relative merits of following the Cubs or the White Sox." Id. He leaves the reader with the statement that "concerns abouth the general distribution of wealth cannot be wholly ignored." Id.
45. See Ellickson, Chronic Misconduct, surpa note 1, at 1189-90 (arguing that distributive justice and redistributive objectives do not justify failing to regulate street misconduct). See also Ellickson, Suburban Growth Controls, supra note 16, at 389, 414-15. As to "horizontal equity," Ellickson employs the pseudo-Rawlsian test suggested by Michelma. Id. at 415; see Frank I. Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of "Just Compensation" Law, 80 HARV. L. REV. 1165, 1223 (1967). For an argument that this test is neither Rawlsian nor much different from utility or efficiency, see Stephen R. Munzer, A Theory of Retroactive Legislation, 61 TEX. L. REV. 425, 477-80 (1982). Ellickson largely dismisses "vertical equity," which he takes "to describe the fairness of the distribution of wealth." Ellickson, Suburban Growth Controls, supra note 16, at 415. Because, in his view, interpersonal comparisons of utility are impossible, "discussions of vertical equity tend to be about as enlightening as debates over the relative merits of following the Cubs or the White Sox." Id. He leaves the reader with the statement that "concerns abouth the general distribution of wealth cannot be wholly ignored." Id.
46. See Ellickson, Chronic Misconduct, surpa note 1, at 1189-90 (arguing that distributive justice and redistributive objectives do not justify failing to regulate street misconduct). See also Ellickson, Suburban Growth Controls, supra note 16, at 389, 414-15. As to "horizontal equity," Ellickson employs the pseudo-Rawlsian test suggested by Michelma. Id. at 415; see Frank I. Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of "Just Compensation" Law, 80 HARV. L. REV. 1165, 1223 (1967). For an argument that this test is neither Rawlsian nor much different from utility or efficiency, see Stephen R. Munzer, A Theory of Retroactive Legislation, 61 TEX. L. REV. 425, 477-80 (1982). Ellickson largely dismisses "vertical equity," which he takes "to describe the fairness of the distribution of wealth." Ellickson, Suburban Growth Controls, supra note 16, at 415. Because, in his view, interpersonal comparisons of utility are impossible, "discussions of vertical equity tend to be about as enlightening as debates over the relative merits of following the Cubs or the White Sox." Id. He leaves the reader with the statement that "concerns abouth the general distribution of wealth cannot be wholly ignored." Id.
47. See Ellickson, Chronic Misconduct, surpa note 1, at 1189-90 (arguing that distributive justice and redistributive objectives do not justify failing to regulate street misconduct). See also Ellickson, Suburban Growth Controls, supra note 16, at 389, 414-15. As to "horizontal equity," Ellickson employs the pseudo-Rawlsian test suggested by Michelma. Id. at 415; see Frank I. Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of "Just Compensation" Law, 80 HARV. L. REV. 1165, 1223 (1967). For an argument that this test is neither Rawlsian nor much different from utility or efficiency, see Stephen R. Munzer, A Theory of Retroactive Legislation, 61 TEX. L. REV. 425, 477-80 (1982). Ellickson largely dismisses "vertical equity," which he takes "to describe the fairness of the distribution of wealth." Ellickson, Suburban Growth Controls, supra note 16, at 415. Because, in his view, interpersonal comparisons of utility are impossible, "discussions of vertical equity tend to be about as enlightening as debates over the relative merits of following the Cubs or the White Sox." Id. He leaves the reader with the statement that "concerns abouth the general distribution of wealth cannot be wholly ignored." Id.
48. See, e.g., Robert C. Ellickson, Cities and Homeowners Associations, 130 U. PA. L. REV. 1519, 1520 (1982) (stressing "the sometimes involuntary nature of membership in a city versus the perfectly voluntary nature of membership in a homeowners association").
49. See generally ROBERT NOZICK, ANARCHY, STATE, AND UTOPIA (1974).
50. See generally ELLEN FRANKEL PAUL, PROPERTY RIGHTS AND EMINENT DOMAIN (1987).
51. Nozick and Paul emphasize individual rights and private property but not economic analysis. They allow for public or communal property by free consent. Within this framework, each is free to do whatever does not infringe the rights of others. In Hohfeldian terms, everyone has a liberty-right (privilege) to beg or seek a job from anyone else. See WESLEY NEWCOMB HOHFELD, FUNDAMENTAL LEGAL CONCEPTIONS AS APPLIED IN JUDICIAL REASONING AND OTHER LEGAL ESSAYS (Walter Wheeler Cook ed., 1923) discussed in MUNZER, supra note 6, at 17-22. Those solicited lack a claim-right whose correlative is a duty on the panhandler or day laborer not to inquire. But those solicited have a liberty-right to refuse to give or to hire. In short, "You can ask, but I can say 'No,'" and "I can ask, but you can say 'No.'" The same type of analysis applies to bench squatters. In the absence of legal restrictions, a bench squatter has a liberty-right to sit or lie on any unoccupied bench. No other person has a claim-right to sit or lie on that bench or a power to compel the bench squatter to leave. By the same token, if another person occupies the bench first, a would-be bench squatter has no claim-right to that spot and no power to eject that other person. Ellickson does not conduct his analysis in terms of individual rights in this way, primarily because, unlike pure libertarians, he deems "annoyance" that causes no infringement of tangible rights an actionable harm.
52. Ellickson, Chronic Misconduct, supra note 1, at 1173.
53. Id. at 1174 (emphasis omitted).
54. See id. at 1169, 1183, 1188-89, 1193, 1204-07, 1208, 1211-12, 1217, 1242-43, 1247. For independent evidence, see, for example, Marjorie J. Robertson, The Prevalence of Mental Disorder among Homeless People, in HOMELESSNESS: A PREVENTION-ORIENTED APPROACH 57-86 (René I. Jahiel ed., 1992).
55. See Ellickson, Chronic Misconduct, supra note 1, at 1187.
56. Id.
57. See id.
58. Id. at 1187.
59. See id. at 1180-81.
60. See id. at 1180.
61. See generally Rosemary Rader, Mendicancy, in 9 THE ENCYCLOPEDIA OF RELIGION 371-73 (Mircea Eliade ed., 1987).
62. See, e.g., ROBERT E. BUSWELL, JR., THE ZEN MONASTIC EXPERIENCE: BUDDHIST PRACTICE IN CONTEMPORARY KOREA 65, 198 (1992); MELFORD E. SPIRO, BUDDHISM AND SOCIETY: A GREAT TRADITION AND ITS BURMESE VICISSITUDES 103-11 (1970); DAISETZ T. SUZUKI, ZEN AND JAPANESE CULTURE 412 (1970).
63. See, e.g., ROBERT E. BUSWELL, JR., THE ZEN MONASTIC EXPERIENCE: BUDDHIST PRACTICE IN CONTEMPORARY KOREA 65, 198 (1992); MELFORD E. SPIRO, BUDDHISM AND SOCIETY: A GREAT TRADITION AND ITS BURMESE VICISSITUDES 103-11 (1970); DAISETZ T. SUZUKI, ZEN AND JAPANESE CULTURE 412 (1970).
64. See, e.g., ROBERT E. BUSWELL, JR., THE ZEN MONASTIC EXPERIENCE: BUDDHIST PRACTICE IN CONTEMPORARY KOREA 65, 198 (1992); MELFORD E. SPIRO, BUDDHISM AND SOCIETY: A GREAT TRADITION AND ITS BURMESE VICISSITUDES 103-11 (1970); DAISETZ T. SUZUKI, ZEN AND JAPANESE CULTURE 412 (1970).
65. See, e.g., A.S. Geden, Asceticism (Hindu), in 2 ENCYCLOPAEDIA OF RELIGION AND ETHICS 87-96 (James Hastings ed., 2d impression 1930); A.S. Geden, Charity, Almsgiving (Hindu), in 3 ENCYCLOPAEDIA OF RELIGION AND ETHICS 387-89 (2d ed. 1932); HEINRICH ZIMMER, PHILOSOPHIES OF INDIA 157-60, 210-11 & n.26 (Joseph Campbell ed., 1951).
66. See, e.g., A.S. Geden, Asceticism (Hindu), in 2 ENCYCLOPAEDIA OF RELIGION AND ETHICS 87-96 (James Hastings ed., 2d impression 1930); A.S. Geden, Charity, Almsgiving (Hindu), in 3 ENCYCLOPAEDIA OF RELIGION AND ETHICS 387-89 (2d ed. 1932); HEINRICH ZIMMER, PHILOSOPHIES OF INDIA 157-60, 210-11 & n.26 (Joseph Campbell ed., 1951).
67. See, e.g., A.S. Geden, Asceticism (Hindu), in 2 ENCYCLOPAEDIA OF RELIGION AND ETHICS 87-96 (James Hastings ed., 2d impression 1930); A.S. Geden, Charity, Almsgiving (Hindu), in 3 ENCYCLOPAEDIA OF RELIGION AND ETHICS 387-89 (2d ed. 1932); HEINRICH ZIMMER, PHILOSOPHIES OF INDIA 157-60, 210-11 & n.26 (Joseph Campbell ed., 1951).
68. See 1 JAINA SŪTRAS 64-78, 88-179, 296-311 (Hermann Jacobi trans., reprint Motilal Banarsidass 1968) (1884) (rules for begging and almsgiving). For contemporary academic explanations of religious and social implications of Jaina mendicancy, see, for example, LAWRENCE A. BABB, ABSENT LORD: ASCETICS AND KINGS IN A JAIN RITUAL CULTURE 56-58 (1996); PAUL DUNDAS, THE JAINS 117-19, 129-60 (1992); PADMANABH S. JAINI, THE JAINA PATH OF PURIFICATION 40-41, 217-21 (1979).
69. See 1 JAINA SŪTRAS 64-78, 88-179, 296-311 (Hermann Jacobi trans., reprint Motilal Banarsidass 1968) (1884) (rules for begging and almsgiving). For contemporary academic explanations of religious and social implications of Jaina mendicancy, see, for example, LAWRENCE A. BABB, ABSENT LORD: ASCETICS AND KINGS IN A JAIN RITUAL CULTURE 56-58 (1996); PAUL DUNDAS, THE JAINS 117-19, 129-60 (1992); PADMANABH S. JAINI, THE JAINA PATH OF PURIFICATION 40-41, 217-21 (1979).
70. See 1 JAINA SŪTRAS 64-78, 88-179, 296-311 (Hermann Jacobi trans., reprint Motilal Banarsidass 1968) (1884) (rules for begging and almsgiving). For contemporary academic explanations of religious and social implications of Jaina mendicancy, see, for example, LAWRENCE A. BABB, ABSENT LORD: ASCETICS AND KINGS IN A JAIN RITUAL CULTURE 56-58 (1996); PAUL DUNDAS, THE JAINS 117-19, 129-60 (1992); PADMANABH S. JAINI, THE JAINA PATH OF PURIFICATION 40-41, 217-21 (1979).
71. Today, Dominicans and Franciscans do almost no begging, unless one counts pledge drives in their parishes. In this century, even a Franciscan can ask whether mendicancy, in the sense of voluntary religious begging, is obsolete. See Michel Hubaut, Is Mendicancy Obsolete?, in A POOR MAN'S LEGACY: AN ANTHOLOGY OF FRANCISCAN POVERTY 739 (Cyprian J. Lynch, O.F.M. ed., 1988).
72. Aquinas defends religious begging against challenges by William of Saint Amour and others. See ST. THOMAS AQUINAS, Contra Impugnantes Dei Cultum et Religionem, in 15 OPERA OMNIA 1-73 (Parma, Typis Petri Fiaccadori 1864), especially ch. 7 at 36-48; translated in Against Those Who Attack the Religious Profession, in AN APOLOGY FOR THE RELIGIOUS ORDERS 1-376 (John Procter ed., 1902), especially ch. 7 at 199-248; ST. THOMAS AQUINAS, SUMMA CONTRA GENTILES - BOOK THREE: PROVIDENCE (PT. II), ch. 135, ¶¶ 15-17, 20-21 at 186-88 (Vernon J. Bourke trans., 1975). Bonaventure defends religious begging, in a polemic against Gerard of Abbeville, as falling within an ideal of radical religious poverty. See ST. BONAVENTURE, Apologia Pauperum Contra Calumniatorem, in 8 OPERA OMNIA 324-36 (Quaracchi, Ex Typographia Collegii S. Bonaventurae 1882); translated in Defense of the Mendicants, in 4 THE WORKS OF BONAVENTURE 277-92 (José de Vinck trans., 1966). C.H. LAWRENCE, THE FRIARS: THE IMPACT OF THE EARLY MENDICANT MOVEMENT ON WESTERN SOCIETY 1-64 (1994), is a fine study of the social and intellectual background.
73. Aquinas defends religious begging against challenges by William of Saint Amour and others. See ST. THOMAS AQUINAS, Contra Impugnantes Dei Cultum et Religionem, in 15 OPERA OMNIA 1-73 (Parma, Typis Petri Fiaccadori 1864), especially ch. 7 at 36-48; translated in Against Those Who Attack the Religious Profession, in AN APOLOGY FOR THE RELIGIOUS ORDERS 1-376 (John Procter ed., 1902), especially ch. 7 at 199-248; ST. THOMAS AQUINAS, SUMMA CONTRA GENTILES - BOOK THREE: PROVIDENCE (PT. II), ch. 135, ¶¶ 15-17, 20-21 at 186-88 (Vernon J. Bourke trans., 1975). Bonaventure defends religious begging, in a polemic against Gerard of Abbeville, as falling within an ideal of radical religious poverty. See ST. BONAVENTURE, Apologia Pauperum Contra Calumniatorem, in 8 OPERA OMNIA 324-36 (Quaracchi, Ex Typographia Collegii S. Bonaventurae 1882); translated in Defense of the Mendicants, in 4 THE WORKS OF BONAVENTURE 277-92 (José de Vinck trans., 1966). C.H. LAWRENCE, THE FRIARS: THE IMPACT OF THE EARLY MENDICANT MOVEMENT ON WESTERN SOCIETY 1-64 (1994), is a fine study of the social and intellectual background.
74. Aquinas defends religious begging against challenges by William of Saint Amour and others. See ST. THOMAS AQUINAS, Contra Impugnantes Dei Cultum et Religionem, in 15 OPERA OMNIA 1-73 (Parma, Typis Petri Fiaccadori 1864), especially ch. 7 at 36-48; translated in Against Those Who Attack the Religious Profession, in AN APOLOGY FOR THE RELIGIOUS ORDERS 1-376 (John Procter ed., 1902), especially ch. 7 at 199-248; ST. THOMAS AQUINAS, SUMMA CONTRA GENTILES - BOOK THREE: PROVIDENCE (PT. II), ch. 135, ¶¶ 15-17, 20-21 at 186-88 (Vernon J. Bourke trans., 1975). Bonaventure defends religious begging, in a polemic against Gerard of Abbeville, as falling within an ideal of radical religious poverty. See ST. BONAVENTURE, Apologia Pauperum Contra Calumniatorem, in 8 OPERA OMNIA 324-36 (Quaracchi, Ex Typographia Collegii S. Bonaventurae 1882); translated in Defense of the Mendicants, in 4 THE WORKS OF BONAVENTURE 277-92 (José de Vinck trans., 1966). C.H. LAWRENCE, THE FRIARS: THE IMPACT OF THE EARLY MENDICANT MOVEMENT ON WESTERN SOCIETY 1-64 (1994), is a fine study of the social and intellectual background.
75. Aquinas defends religious begging against challenges by William of Saint Amour and others. See ST. THOMAS AQUINAS, Contra Impugnantes Dei Cultum et Religionem, in 15 OPERA OMNIA 1-73 (Parma, Typis Petri Fiaccadori 1864), especially ch. 7 at 36-48; translated in Against Those Who Attack the Religious Profession, in AN APOLOGY FOR THE RELIGIOUS ORDERS 1-376 (John Procter ed., 1902), especially ch. 7 at 199-248; ST. THOMAS AQUINAS, SUMMA CONTRA GENTILES - BOOK THREE: PROVIDENCE (PT. II), ch. 135, ¶¶ 15-17, 20-21 at 186-88 (Vernon J. Bourke trans., 1975). Bonaventure defends religious begging, in a polemic against Gerard of Abbeville, as falling within an ideal of radical religious poverty. See ST. BONAVENTURE, Apologia Pauperum Contra Calumniatorem, in 8 OPERA OMNIA 324-36 (Quaracchi, Ex Typographia Collegii S. Bonaventurae 1882); translated in Defense of the Mendicants, in 4 THE WORKS OF BONAVENTURE 277-92 (José de Vinck trans., 1966). C.H. LAWRENCE, THE FRIARS: THE IMPACT OF THE EARLY MENDICANT MOVEMENT ON WESTERN SOCIETY 1-64 (1994), is a fine study of the social and intellectual background.
76. Aquinas defends religious begging against challenges by William of Saint Amour and others. See ST. THOMAS AQUINAS, Contra Impugnantes Dei Cultum et Religionem, in 15 OPERA OMNIA 1-73 (Parma, Typis Petri Fiaccadori 1864), especially ch. 7 at 36-48; translated in Against Those Who Attack the Religious Profession, in AN APOLOGY FOR THE RELIGIOUS ORDERS 1-376 (John Procter ed., 1902), especially ch. 7 at 199-248; ST. THOMAS AQUINAS, SUMMA CONTRA GENTILES - BOOK THREE: PROVIDENCE (PT. II), ch. 135, ¶¶ 15-17, 20-21 at 186-88 (Vernon J. Bourke trans., 1975). Bonaventure defends religious begging, in a polemic against Gerard of Abbeville, as falling within an ideal of radical religious poverty. See ST. BONAVENTURE, Apologia Pauperum Contra Calumniatorem, in 8 OPERA OMNIA 324-36 (Quaracchi, Ex Typographia Collegii S. Bonaventurae 1882); translated in Defense of the Mendicants, in 4 THE WORKS OF BONAVENTURE 277-92 (José de Vinck trans., 1966). C.H. LAWRENCE, THE FRIARS: THE IMPACT OF THE EARLY MENDICANT MOVEMENT ON WESTERN SOCIETY 1-64 (1994), is a fine study of the social and intellectual background.
77. Aquinas defends religious begging against challenges by William of Saint Amour and others. See ST. THOMAS AQUINAS, Contra Impugnantes Dei Cultum et Religionem, in 15 OPERA OMNIA 1-73 (Parma, Typis Petri Fiaccadori 1864), especially ch. 7 at 36-48; translated in Against Those Who Attack the Religious Profession, in AN APOLOGY FOR THE RELIGIOUS ORDERS 1-376 (John Procter ed., 1902), especially ch. 7 at 199-248; ST. THOMAS AQUINAS, SUMMA CONTRA GENTILES - BOOK THREE: PROVIDENCE (PT. II), ch. 135, ¶¶ 15-17, 20-21 at 186-88 (Vernon J. Bourke trans., 1975). Bonaventure defends religious begging, in a polemic against Gerard of Abbeville, as falling within an ideal of radical religious poverty. See ST. BONAVENTURE, Apologia Pauperum Contra Calumniatorem, in 8 OPERA OMNIA 324-36 (Quaracchi, Ex Typographia Collegii S. Bonaventurae 1882); translated in Defense of the Mendicants, in 4 THE WORKS OF BONAVENTURE 277-92 (José de Vinck trans., 1966). C.H. LAWRENCE, THE FRIARS: THE IMPACT OF THE EARLY MENDICANT MOVEMENT ON WESTERN SOCIETY 1-64 (1994), is a fine study of the social and intellectual background.
78. ST. FRANCIS OF ASSISI, About a Noble Friar Who Was Ashamed to Beg, in THE LITTLE FLOWERS OF ST. FRANCIS, pt. 3, ch. 18 (Raphael Brown trans., 1958), reprinted in ST. FRANCIS OF ASSISI, WRITINGS AND EARLY BIOGRAPHIES 149 (Marion A. Habig ed., 4th rev. ed. 1991). There is a similar version of the story in JOHN R.H. MOORMAN, A NEW FIORETTI: A COLLECTION OF EARLY STORIES ABOUT SAINT FRANCIS OF ASSISI, pt. 5, ch. 24 (1946), reprinted in ST FRANCIS OF ASSISI, supra, at 1851. I do not assume that the story is historical fact, only that mentioning it is instructive.
79. ST. FRANCIS OF ASSISI, About a Noble Friar Who Was Ashamed to Beg, in THE LITTLE FLOWERS OF ST. FRANCIS, pt. 3, ch. 18 (Raphael Brown trans., 1958), reprinted in ST. FRANCIS OF ASSISI, WRITINGS AND EARLY BIOGRAPHIES 149 (Marion A. Habig ed., 4th rev. ed. 1991). There is a similar version of the story in JOHN R.H. MOORMAN, A NEW FIORETTI: A COLLECTION OF EARLY STORIES ABOUT SAINT FRANCIS OF ASSISI, pt. 5, ch. 24 (1946), reprinted in ST FRANCIS OF ASSISI, supra, at 1851. I do not assume that the story is historical fact, only that mentioning it is instructive.
80. ST. FRANCIS OF ASSISI, About a Noble Friar Who Was Ashamed to Beg, in THE LITTLE FLOWERS OF ST. FRANCIS, pt. 3, ch. 18 (Raphael Brown trans., 1958), reprinted in ST. FRANCIS OF ASSISI, WRITINGS AND EARLY BIOGRAPHIES 149 (Marion A. Habig ed., 4th rev. ed. 1991). There is a similar version of the story in JOHN R.H. MOORMAN, A NEW FIORETTI: A COLLECTION OF EARLY STORIES ABOUT SAINT FRANCIS OF ASSISI, pt. 5, ch. 24 (1946), reprinted in ST FRANCIS OF ASSISI, supra, at 1851. I do not assume that the story is historical fact, only that mentioning it is instructive.
81. ST. FRANCIS OF ASSISI, supra note 43, at 1497.
82. Id.
83. See, e.g., Heinz Bechert, Sangha, State, Society, "Nation": Persistence of Tradition in "Post-Traditional" Buddhist Societies, DAEDALUS, Winter 1973, at 85 (survey of changes in Theravada Buddhist countries).
84. See, e.g., 2 JOHN CALVIN, INSTITUTES OF THE CHRISTIAN RELIGION, bk. 4, ch. 13, § 13 at 482-84 (Henry Beveridge trans., Wm. B. Eerdmans 1957) (1536) (arguing that perfection does not reside in the abandonment of material goods); R.H. TAWNEY, RELIGION AND THE RISE OF CAPITALISM: HISTORICAL STUDY 104-06, 110-11, 113-15, 131-32, 189-90, 232-35, 253-55, 260-73 (Harcourt, Brace and Co., 1952) (1926).
85. Ellickson, Chronic Misconduct, supra note 1, at 1189; cf. id. at 1185 n.93 ("many" instead of "most").
86. For a geographically limited but factually sensitive study, see Brandt J. Goldstein, Panhandlers at Yale: A Case Study in the Limits of Law, 27 IND. L. REV. 295 (1993) (discussing legal rules versus informal norms regulating panhandling). See also infra text accompanying notes 212 & 227 (discussing aggressive panhandling).
87. See THE RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE 1042 (unabr. ed. 1966).
88. See Ellickson, Chronic Misconduct, supra note 1, at 1183-84.
89. Id. at 1184.
90. See id. at 1191-93.
91. Id. at 1193.
92. Id. at 1192.
93. Id. at 1193.
94. Waldron, Homelessness, supra note 13; Jeremy Waldron, Property, Justification and Need, 6 CAN. J.L. & JURISP. 185 (1993) [hereinafter Waldron, Need].
95. Waldron, Homelessness, supra note 13; Jeremy Waldron, Property, Justification and Need, 6 CAN. J.L. & JURISP. 185 (1993) [hereinafter Waldron, Need].
96. Waldron, Homelessness, supra note 13; Jeremy Waldron, Property, Justification and Need, 6 CAN. J.L. & JURISP. 185 (1993) [hereinafter Waldron, Need].
97. See infra text accompanying notes 135-144.
98. See Ellickson, Chronic Misconduct, supra note 1, at 1184.
99. See infra text accompanying notes 187-201.
100. Ellickson, Chronic Misconduct, supra note 1, at 1173.
101. Id. at 1245 (footnote omitted). It is unclear whether "general standards" differ from "standards." See infra note 71.
102. Ellickson, Chronic Misconduct, supra note 1, at 1243-46.
103. Id. at 1244 (footnote omitted).
104. Id.
105. Id.
106. Id.
107. Ellickson, Chronic Misconduct, supra note 1, at 1245.
108. Id.
109. Id.
110. Ellickson does not define either term clearly, and refers to the work of others to indicate what he means. See id. at 1245 & n.460; see also ELLICKSON, ORDER WITHOUT LAW, supra note 3, at 128-30, 203. He refers, among others, to Isaac Ehrlich & Richard A. Posner, An Economic Analysis of Legal Rulemaking, 3 J. LEGAL STUD. 257 (1974); Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 HARV. L. REV. 1685, 1687-89 (1976).
111. Ellickson does not define either term clearly, and refers to the work of others to indicate what he means. See id. at 1245 & n.460; see also ELLICKSON, ORDER WITHOUT LAW, supra note 3, at 128-30, 203. He refers, among others, to Isaac Ehrlich & Richard A. Posner, An Economic Analysis of Legal Rulemaking, 3 J. LEGAL STUD. 257 (1974); Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 HARV. L. REV. 1685, 1687-89 (1976).
112. Ellickson does not define either term clearly, and refers to the work of others to indicate what he means. See id. at 1245 & n.460; see also ELLICKSON, ORDER WITHOUT LAW, supra note 3, at 128-30, 203. He refers, among others, to Isaac Ehrlich & Richard A. Posner, An Economic Analysis of Legal Rulemaking, 3 J. LEGAL STUD. 257 (1974); Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 HARV. L. REV. 1685, 1687-89 (1976).
113. See Ellickson, Chronic Misconduct, supra note 1, at 1169, 1175, 1184-89.
114. Id. at 1244.
115. Id. at 1245.
116. See id. at 1245-46.
117. Id. at 1245.
118. Ellickson, Chronic Misconduct, supra note 1, at 1245.
119. Id.
120. See, e.g., David Ferrell & John L. Mitchell, Tapes Mean More Hard Questions for LAPD, L.A. TIMES, Aug. 18, 1995, at A1 (reporting alleged racial slurs and acts of misconduct by Detective Mark Fuhrman).
121. See. e.g., Jim Newton, Can LAPD Root Out Every Racist in Its Ranks?, L.A. TIMES, Sept. 10, 1995, at B1 (quoting a veteran officer as stating, "'You can only train so much; you can only monitor so much.'").
122. Ellickson, Chronic Misconduct, supra note 1, at 1245.
123. Cf. Donna Horowitz, In San Rafael It's Homeless vs. Cops, S.F. EXAMINER, May 27, 1996, at A6 (recounting allegations of differential enforcement of jaywalking law against and harassment of the homeless).
124. See, e.g., Sarah Lubman, Change of Heart: Santa Monica Grows Hostile to the Homeless Who Consider It Home, WALL ST. J., Nov. 9, 1992, at A1 (business owners and city residents press city attorney and police to enforce laws against homeless persons).
125. See infra text accompanying notes 97-98, 193-201, 211.
126. See Ellickson, Chronic Misconduct, supra note 1, at 1243-46.
127. Id. at 1246.
128. Id. at 1175.
129. Id. at 1184 n.88.
130. See id. at 1220-22. This move is noteworthy because, earlier in his career, Ellickson made his mark by offering insightful criticisms of zoning private land and by stressing the economic advantages of other privately placed restrictions such as covenants. See Ellickson, Zoning, supra note 16. In the present article, he takes pains to distinguish his public zoning proposal from the features of zoning private land that were vulnerable to his earlier attack. See Ellickson, Chronic Misconduct, supra note 1, at 1225 n.327; cf. id. at 1184 n.88.
131. See id. at 1220-22. This move is noteworthy because, earlier in his career, Ellickson made his mark by offering insightful criticisms of zoning private land and by stressing the economic advantages of other privately placed restrictions such as covenants. See Ellickson, Zoning, supra note 16. In the present article, he takes pains to distinguish his public zoning proposal from the features of zoning private land that were vulnerable to his earlier attack. See Ellickson, Chronic Misconduct, supra note 1, at 1225 n.327; cf. id. at 1184 n.88.
132. See id. at 1220-22. This move is noteworthy because, earlier in his career, Ellickson made his mark by offering insightful criticisms of zoning private land and by stressing the economic advantages of other privately placed restrictions such as covenants. See Ellickson, Zoning, supra note 16. In the present article, he takes pains to distinguish his public zoning proposal from the features of zoning private land that were vulnerable to his earlier attack. See Ellickson, Chronic Misconduct, supra note 1, at 1225 n.327; cf. id. at 1184 n.88.
133. See Ellickson, Chronic Misconduct, supra note 1, at 1185.
134. See id. at 1185 n.93.
135. See infra text accompanying notes 199-201, 213.
136. Ellickson, Chronic Misconduct, supra note 1, at 1175.
137. See H.L.A. HART, THE CONCEPT OF LAW 121-22 (Penelope A. Bulloch & Joseph Raz eds., 2d ed. 1994) (1961).
138. See, e.g., RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 45-58 (rev. ed. 1978) (criticizing Hart's social rule theory); JOSEPH RAZ, THE CONCEPT OF A LEGAL SYSTEM: AN INTRODUCTION TO THE THEORY OF LEGAL SYSTEM 147-50, 157-58, 165-66, 198-200, 212-13 (2nd ed. 1980) (revising Hart's account of social rules).
139. See, e.g., RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 45-58 (rev. ed. 1978) (criticizing Hart's social rule theory); JOSEPH RAZ, THE CONCEPT OF A LEGAL SYSTEM: AN INTRODUCTION TO THE THEORY OF LEGAL SYSTEM 147-50, 157-58, 165-66, 198-200, 212-13 (2nd ed. 1980) (revising Hart's account of social rules).
140. ELLICKSON, ORDER WITHOUT LAW, supra note 3, at 132-36, 184-264.
141. See id. at 167-83.
142. See Ellickson, Chronic Misconduct, supra note 1, at 1168, 1169, 1172, passim.
143. DWORKIN, supra note 92, at 48-58.
144. On using preferences and preference-satisfaction, see MUNZER, supra note 6, at 196-98, 203-06.
145. See id. at 198-202.
146. Ellickson's use of the word "chronic" - which appears throughout his article and in its title - is problematic. The word is loaded in that "chronic" and "chronically" tend to be applied to undesirable things or qualities. For example, people speak of chronic illness or chronic smoking, but do not say that someone is chronically wise or chronically moral. Given the earlier reservations about labeling certain behavior as "misconduct," prefixing the adjective "chronic" to that behavior is prejudicial. It would be more nearly neutral to substitute such words as "extended" or "protracted."
147. Ellickson, Chronic Misconduct, supra note 1, at 1169.
148. HARLAN W. GILMORE, THE BEGGAR 30 (1940); see also Brackette F. Williams, The Public I/Eye: Conducting Fieldwork to Do Homework on Homelessness and Begging in Two U.S. Cities, 36 CURRENT ANTHROPOLOGY 25, 26-29 (1995) (describing such fundraising efforts as saxophone playing, passing out cards "in a style borrowed from blind and deaf beggars," and selling stickers). Williams terms these efforts "bargain pinches." Character beggars can provide bargain pinches precisely "because they stand in opposition to the brother-can-you-spare-a-dime type." Id. at 28.
149. HARLAN W. GILMORE, THE BEGGAR 30 (1940); see also Brackette F. Williams, The Public I/Eye: Conducting Fieldwork to Do Homework on Homelessness and Begging in Two U.S. Cities, 36 CURRENT ANTHROPOLOGY 25, 26-29 (1995) (describing such fundraising efforts as saxophone playing, passing out cards "in a style borrowed from blind and deaf beggars," and selling stickers). Williams terms these efforts "bargain pinches." Character beggars can provide bargain pinches precisely "because they stand in opposition to the brother-can-you-spare-a-dime type." Id. at 28.
150. Ellickson, Chronic Misconduct, supra note 1, at 1177.
151. Id.
152. Id. at 1176 n.43.
153. Id.
154. Id.
155. Id. at 1234.
156. Ellickson, Chronic Misconduct, supra note 1, at 1220.
157. Id. at 1221.
158. Id.
159. Id.
160. Id.
161. Id.
162. Id. at 1233.
163. Id. at 1228-38. In a prominent article, Helen Hershkoff and Adam S. Cohen argue that under the First Amendment begging is protected speech. Helen Hershkoff & Adam S. Cohen, Begging to Differ: The First Amendment and the Right to Beg, 104 HARV. L. REV. 896 (1991). To them and others Ellickson makes a sustained reply. The gist is that, if panhandling is speech at all, it is almost always low-level commercial speech. Hence, panhandling should receive little protection under the First Amendment. Ellickson, Chronic Misconduct, supra note 1, at 1228-38. The well-nigh universal commercial message is: "I would like you to give me money." Id. at 1234. This Article takes up Ellickson's First Amendment analysis later. See infra text accompanying notes 214-233.
164. Id. at 1228-38. In a prominent article, Helen Hershkoff and Adam S. Cohen argue that under the First Amendment begging is protected speech. Helen Hershkoff & Adam S. Cohen, Begging to Differ: The First Amendment and the Right to Beg, 104 HARV. L. REV. 896 (1991). To them and others Ellickson makes a sustained reply. The gist is that, if panhandling is speech at all, it is almost always low-level commercial speech. Hence, panhandling should receive little protection under the First Amendment. Ellickson, Chronic Misconduct, supra note 1, at 1228-38. The well-nigh universal commercial message is: "I would like you to give me money." Id. at 1234. This Article takes up Ellickson's First Amendment analysis later. See infra text accompanying notes 214-233.
165. Ellickson, Chronic Misconduct, supra note 1, at 1234-35.
166. Id. at 1235.
167. Id.
168. See, e.g., Joseph P. Shapiro & Jennifer Seter, Welfare: The Myths of Charity, U.S. NEWS & WORLD REP., Jan. 16, 1995, at 39.
169. See Peter Marin, Homelessness Mostly Affects Single Men, in THE HOMELESS: OPPOSING VIEWPOINTS 46, 49-50 (Tamara L. Roleff ed., 1996) (noting that individual states and localities provide aid through general assistance and relief on a temporary or emergency basis, and "in those few places where it is available . . . it is often so grudging, so ringed round with capricious requirements and red tape, that it is of little use to those in need"); see also Jamshid A. Momeni, No Place to Go: A National Picture of Homelessness in America, in 2 HOMELESSNESS IN THE UNITED STATES: DATA AND ISSUES 165, 178 (Jamshid A. Momeni ed., 1990) ("Stringent new criteria to meet the eligibility requirement for public assistance has also contributed to . . . homelessness."). Cf. Steven De Salvo, Chula Vista Wants Health Checks on Shelters at Churches, SAN DIEGO UNION-TRIB., Sept. 1, 1988, at B6 (discussing how five local churches' efforts to provide services to the homeless are complicated by proposed city regulations that present "more red tape and more hoops to jump through").
170. See Peter Marin, Homelessness Mostly Affects Single Men, in THE HOMELESS: OPPOSING VIEWPOINTS 46, 49-50 (Tamara L. Roleff ed., 1996) (noting that individual states and localities provide aid through general assistance and relief on a temporary or emergency basis, and "in those few places where it is available . . . it is often so grudging, so ringed round with capricious requirements and red tape, that it is of little use to those in need"); see also Jamshid A. Momeni, No Place to Go: A National Picture of Homelessness in America, in 2 HOMELESSNESS IN THE UNITED STATES: DATA AND ISSUES 165, 178 (Jamshid A. Momeni ed., 1990) ("Stringent new criteria to meet the eligibility requirement for public assistance has also contributed to . . . homelessness."). Cf. Steven De Salvo, Chula Vista Wants Health Checks on Shelters at Churches, SAN DIEGO UNION-TRIB., Sept. 1, 1988, at B6 (discussing how five local churches' efforts to provide services to the homeless are complicated by proposed city regulations that present "more red tape and more hoops to jump through").
171. See Peter Marin, Homelessness Mostly Affects Single Men, in THE HOMELESS: OPPOSING VIEWPOINTS 46, 49-50 (Tamara L. Roleff ed., 1996) (noting that individual states and localities provide aid through general assistance and relief on a temporary or emergency basis, and "in those few places where it is available . . . it is often so grudging, so ringed round with capricious requirements and red tape, that it is of little use to those in need"); see also Jamshid A. Momeni, No Place to Go: A National Picture of Homelessness in America, in 2 HOMELESSNESS IN THE UNITED STATES: DATA AND ISSUES 165, 178 (Jamshid A. Momeni ed., 1990) ("Stringent new criteria to meet the eligibility requirement for public assistance has also contributed to . . . homelessness."). Cf. Steven De Salvo, Chula Vista Wants Health Checks on Shelters at Churches, SAN DIEGO UNION-TRIB., Sept. 1, 1988, at B6 (discussing how five local churches' efforts to provide services to the homeless are complicated by proposed city regulations that present "more red tape and more hoops to jump through").
172. See generally JAMES T. BENNETT & THOMAS DILORENZO, UNHEALTHY CHARITIES: HAZARDOUS TO YOUR HEALTH AND WEALTH (1994); MARVIN OLASKY, THE TRAGEDY OF AMERICAN COMPASSION (1992).
173. See generally JAMES T. BENNETT & THOMAS DILORENZO, UNHEALTHY CHARITIES: HAZARDOUS TO YOUR HEALTH AND WEALTH (1994); MARVIN OLASKY, THE TRAGEDY OF AMERICAN COMPASSION (1992).
174. Ellickson, Chronic Misconduct, supra note 1, at 1235.
175. Id. (footnote omitted).
176. For the point that commercial speech receives some protection under the First Amendment, see, for example, Bates v. State Bar of Ariz., 433 U.S. 350 (1977); Bigelow v. Virginia, 421 U.S. 809 (1975).
177. Cf. Ellickson, Chronic Misconduct, supra note 1, at 1230-34.
178. See supra text accompanying notes 115-122.
179. Ellickson, Chronic Misconduct, supra note 1, at 1191-93.
180. Id. at 1193 (quoting Goldstein, supra note 49, at 308).
181. Although in-depth research on daytime bench squatting is scarce, a "true" homeless bench squatter can be distinguished from a fleeting or occasional bench squatter by comparing their appearance. The former may appear "dirty," "unkempt" or "shabbily dressed," PETER H. ROSSI, DOWN AND OUT IN AMERICA 93 (1989), and have a full shopping cart or assortment of bags, while the latter may be somewhat better dressed and have a shopping cart with only cans and odds and ends. For an insightful distinction, see CHRISTOPHER JENCKS, THE HOMELESS 4 (1994): [T]he homeless can be divided into two groups: those who sleep in free shelters (the "shelter homeless") and those who sleep in places not intended for human habitation . . . . Those who sleep outside shelters are generally known as the "street homeless," even though many sleep in abandoned buildings, bus stations, and other indoor locations. Jencks advocates defining homelessness in a narrow sense that concentrates "on the people whose existence most worries the public." Id. at 7. This does not include those in jails or institutions. See id. at 7, 21-40.
182. Although in-depth research on daytime bench squatting is scarce, a "true" homeless bench squatter can be distinguished from a fleeting or occasional bench squatter by comparing their appearance. The former may appear "dirty," "unkempt" or "shabbily dressed," PETER H. ROSSI, DOWN AND OUT IN AMERICA 93 (1989), and have a full shopping cart or assortment of bags, while the latter may be somewhat better dressed and have a shopping cart with only cans and odds and ends. For an insightful distinction, see CHRISTOPHER JENCKS, THE HOMELESS 4 (1994): [T]he homeless can be divided into two groups: those who sleep in free shelters (the "shelter homeless") and those who sleep in places not intended for human habitation . . . . Those who sleep outside shelters are generally known as the "street homeless," even though many sleep in abandoned buildings, bus stations, and other indoor locations. Jencks advocates defining homelessness in a narrow sense that concentrates "on the people whose existence most worries the public." Id. at 7. This does not include those in jails or institutions. See id. at 7, 21-40.
183. As a matter of common sense, no one would consider a nighttime bench squatter who sleeps under a bridge to be an urban recreational camper. A nighttime bench squatter may not sleep in a free shelter or other indoor locations due to reasons ranging from fear of violence to unease with a shelter's rules or philosophy. The incidence of nighttime bench squatting may be high if the victimization rate is low and the police let the homeless sleep in parks. See JENCKS, supra note 137, at 4.
184. See Ellickson, Chronic Misconduct, supra note 1, at 1192-93.
185. See e.g., Jennifer Burroughs et al., Health Concerns of Homeless Women, in UNDER THE SAFETY NET: THE HEALTH AND SOCIAL WELFARE OF THE HOMELESS IN THE UNITED STATES 139, 147-49 (Philip W. Brickner et al. eds., 1990).
186. Cf. Maxene Johnston, Skid Row Streets Are Meaner Today, With a New Breed of Homeless, L.A. TIMES, Aug. 25, 1991, at M6 (discussing a businessman in Central City East who reports retail trade adversely affected by "homeless" who use drugs in his parking lot and are perceived as threatening).
187. See John N Lozier et al., Overcoming Troubled Relationships Between Programs and the Community, in UNDER THE SAFETY NET, supra note 140, at 32 (discussing programs for the homeless in Seattle, Nashville, and the Los Angeles beachfront suburb of Venice). "The local [Venice] business community thought that the food program caused further deterioration of their business environment because of its visibility, the numbers being served, the trash on the beachfront, and the public inebriants who utilized the program." Id. at 35. When a homeless service center planned to open a site in Nashville, "[t]he immediate neighbors of the site had organized other business owners and employees in the South Loop Merchants Association and had published a newsletter devoted entirely to attacks on the service center, which it prominently characterized as a bathhouse." Id. at 41. See also Ellickson, Chronic Misconduct, supra note 1, at 1181 n.71 and accompanying text (acknowledging that merchants believe that panhandling is bad for business). The business owner's reactions may be explained by a recent study of attitudes toward the homeless. The researchers found that "[n]et effect of graduate school education was positively associated with tolerance for homeless people, negatively associated with support for economic aid, and unrelated to support for the civil liberties of homeless people" Jo Phelan et al., Education, Social Liberalism, and Economic Conservatism: Attitudes Toward Homeless People, 60 AM. SOC. REV. 126, 136 (1995).
188. See John N Lozier et al., Overcoming Troubled Relationships Between Programs and the Community, in UNDER THE SAFETY NET, supra note 140, at 32 (discussing programs for the homeless in Seattle, Nashville, and the Los Angeles beachfront suburb of Venice). "The local [Venice] business community thought that the food program caused further deterioration of their business environment because of its visibility, the numbers being served, the trash on the beachfront, and the public inebriants who utilized the program." Id. at 35. When a homeless service center planned to open a site in Nashville, "[t]he immediate neighbors of the site had organized other business owners and employees in the South Loop Merchants Association and had published a newsletter devoted entirely to attacks on the service center, which it prominently characterized as a bathhouse." Id. at 41. See also Ellickson, Chronic Misconduct, supra note 1, at 1181 n.71 and accompanying text
189. See John N Lozier et al., Overcoming Troubled Relationships Between Programs and the Community, in UNDER THE SAFETY NET, supra note 140, at 32 (discussing programs for the homeless in Seattle, Nashville, and the Los Angeles beachfront suburb of Venice). "The local [Venice] business community thought that the food program caused further deterioration of their business environment because of its visibility, the numbers being served, the trash on the beachfront, and the public inebriants who utilized the program." Id. at 35. When a homeless service center planned to open a site in Nashville, "[t]he immediate neighbors of the site had organized other business owners and employees in the South Loop Merchants Association and had published a newsletter devoted entirely to attacks on the service center, which it prominently characterized as a bathhouse." Id. at 41. See also Ellickson, Chronic Misconduct, supra note 1, at 1181 n.71 and accompanying text (acknowledging that merchants believe that panhandling is bad for business). The business owner's reactions may be explained by a recent study of attitudes toward the homeless. The researchers found that "[n]et effect of graduate school education was positively associated with tolerance for homeless people, negatively associated with support for economic aid, and unrelated to support for the civil liberties of homeless people" Jo Phelan et al., Education, Social Liberalism, and Economic Conservatism: Attitudes Toward Homeless People, 60 AM. SOC. REV. 126, 136 (1995).
190. Cf. Sandy Shore Proposed Homeless Housing at Air Force Base Turns Into Battleground, L.A. TIMES, Apr. 24, 1994, at B6 (reporting neighboring property owners negative reaction to plan to house "homeless" at Lowry Air Force Base after closure).
191. 810 F. Supp. 1551 (S.D. Fla. 1992), remanded for limited purposes, 40 F.3d 1155 (11th Cir. 1994). Cf. Tobe v. City of Santa Ana, 892 P.2d 1145, 1165 (Cal. 1995) (holding that the constitutional right to travel does not require city to make public property available for camping by homeless), rev'g 27 Cal. Rptr. 2d 386 (Cal. Ct. App. 1994).
192. Ellickson, Chronic Misconduct, supra note 1, at 1238-42.
193. See Gary L. Blasi, What's a Theory For?: Notes on Reconstructing Poverty Law Scholarship, 48 U. MIAMI L. REV. 1063, 1065-68 (1994) (describing homeless camps behind high steel fences in an industrial area of Los Angeles); Brett Mahoney, Homeless Still Skeptical of Plans for Drop-In Center, L.A. TIMES, Jan. 29, 1995, City Times, at 3 (describing attitudes and concerns of homeless regarding a proposed drop-in center near downtown Los Angeles).
194. See Gary L. Blasi, What's a Theory For?: Notes on Reconstructing Poverty Law Scholarship, 48 U. MIAMI L. REV. 1063, 1065-68 (1994) (describing homeless camps behind high steel fences in an industrial area of Los Angeles); Brett Mahoney, Homeless Still Skeptical of Plans for Drop-In Center, L.A. TIMES, Jan. 29, 1995, City Times, at 3 (describing attitudes and concerns of homeless regarding a proposed drop-in center near downtown Los Angeles).
195. Ellickson, Chronic Misconduct, supra note 1, at 1221 n.306.
196. Ellickson could respond that this conclusion helps to explain why he prefers good police with broad discretion. See id. at 1243-46. This response, though, just takes the reader back to his first-best solution, which Part IV of this Article justifiably rejects.
197. MUNZER, supra note 6, at 227-53.
198. See id. at 227.
199. See id. at 241.
200. See supra text accompanying notes 54-57.
201. "Most of the homeless are utterly destitute, and many are not able to present attractive appearances. In many instances the homeless are physically unclean or infested with lice, the result of living on the streets or moving from shelter to shelter." Philip W. Brickner & Brian C. Scanlan, Health Care for Homeless Persons: Creation and Implementation of a Program, in UNDER THE SAFETY NET, surpa note 140, at 12; see also supra note 137.
202. See generally UNDER THE SAFETY NET, supra note 140; Irving Piliavin et al., Health Status and Health-Care Utilization among the Homeless, 68 SOC. SERV. REV. 236 (1994) (analyzing health care of homeless persons using predictors of health status and health care utilization).
203. See generally UNDER THE SAFETY NET, supra note 140; Irving Piliavin et al., Health Status and Health-Care Utilization among the Homeless, 68 SOC. SERV. REV. 236 (1994) (analyzing health care of homeless persons using predictors of health status and health care utilization).
204. See, e.g., PHILIP MICHAEL BULMAN, CAUGHT IN THE MIX: AN ORAL PROTRAIT OF HOMELESSNESS 40, 150, 169 (1993) (illustrating the panhandler's daily routine through interviews).
205. Ellickson, Chronic Midconduct, supra note 1, at 1189; cf. id. at 1203-07 (analyzing the "underclass" as those with extreme economic poverty and extreme social poverty).
206. See MUNZER, supra note 6, at 227, 229, 247-53.
207. See, e.g., KEVIN PHILLIPS, THE POLITICS OF RICH AND POOR (1990); Daniel H. Weinberg, Press Briefing on 1995 Income, Poverty, and Health Insurance Estimates (Sept. 26, 1996) 〈http://www.census.gov/hhes/income/income95/prs96asc.html〉; Daniel H. Weinberg, A Brief Look At Postwar U.S. Income Inequality (last modified Oct. 10, 1996) 〈http://www.census.gov./hhes/income/incineq/p60asc.html〉.
208. See, e.g., KEVIN PHILLIPS, THE POLITICS OF RICH AND POOR (1990); Daniel H. Weinberg, Press Briefing on 1995 Income, Poverty, and Health Insurance Estimates (Sept. 26, 1996) 〈http://www.census.gov/hhes/income/income95/prs96asc.html〉; Daniel H. Weinberg, A Brief Look At Postwar U.S. Income Inequality (last modified Oct. 10, 1996) 〈http://www.census.gov./hhes/income/incineq/p60asc.html〉.
209. See, e.g., KEVIN PHILLIPS, THE POLITICS OF RICH AND POOR (1990); Daniel H. Weinberg, Press Briefing on 1995 Income, Poverty, and Health Insurance Estimates (Sept. 26, 1996) 〈http://www.census.gov/hhes/income/income95/prs96asc.html〉; Daniel H. Weinberg, A Brief Look At Postwar U.S. Income Inequality (last modified Oct. 10, 1996) 〈http://www.census.gov./hhes/income/incineq/p60asc.html〉.
210. Cf. MUNZER, supra note 6, at 247-52 (statement of, argument for, and illustrative violations of the second clause).
211. Ellickson, Chronic Misconduct, supra note 1, at 1171.
212. Id. at 1168 passim.
213. Id. at 1170.
214. See MUNZER, supra note 6, at 380-418 (proposing such a plan in regard to gratuitous transfers).
215. See, e.g., Efrain Hernandez, Jr., Ladera Heights: Law Slows, Doesn't Stop Day Laborers, L.A. TIMES, Sept. 11, 1994, City Times, at 10 (neighborhood complaints); cf. infra notes 174-176 (suggesting solutions to such complaints).
216. See, e.g., Mark L. Adams, Fear of Foreigners: Nativism and Workplace Language Restrictions, 74 OR. L. REV. 849 (1995) (language differences as basis for opposition); Kevin R. Johnson, Los Olvidados: Images of the Immigrant, Political Power of Noncitizens, and Immigration Law and Enforcement, 1993 BYU L. REV. 1139 (opposition to immigrants); No Más, La Raza, CAL. LAW., Oct. 1995, at 28 (allegation that City of San Mateo discontinued funding of Latino legal aid group because of the group's actions on behalf of day laborers).
217. See, e.g., Mark L. Adams, Fear of Foreigners: Nativism and Workplace Language Restrictions, 74 OR. L. REV. 849 (1995) (language differences as basis for opposition); Kevin R. Johnson, Los Olvidados: Images of the Immigrant, Political Power of Noncitizens, and Immigration Law and Enforcement, 1993 BYU L. REV. 1139 (opposition to immigrants); No Más, La Raza, CAL. LAW., Oct. 1995, at 28 (allegation that City of San Mateo discontinued funding of Latino legal aid group because of the group's actions on behalf of day laborers).
218. See, e.g., Mark L. Adams, Fear of Foreigners: Nativism and Workplace Language Restrictions, 74 OR. L. REV. 849 (1995) (language differences as basis for opposition); Kevin R. Johnson, Los Olvidados: Images of the Immigrant, Political Power of Noncitizens, and Immigration Law and Enforcement, 1993 BYU L. REV. 1139 (opposition to immigrants); No Más, La Raza, CAL. LAW., Oct. 1995, at 28 (allegation that City of San Mateo discontinued funding of Latino legal aid group because of the group's actions on behalf of day laborers).
219. Tom Berg, Lake Forest Labor Law Point of Contention, ORANGE COUNTY REG. (Cal.), Feb. 10, 1994, at B4; Barbara Diamond, Council Prohibits Hiring Day Laborers off City Streets, ORANGE COUNTY REG. (Cal.), Feb. 17, 1993, at B10 (Costa Mesa, Dana Point, Laguna Beach, and the City of Orange); Tracey Kaplan, Supervisors Ban Curbside Job Solicitation, L.A. TIMES, May 25, 1994, at B1 (unincorporated areas of Los Angeles County). When an Agoura Hills ordinance was challenged in April 1994, the California Court of Appeals upheld it. Xiloj-Itzep v. City of Agoura Hills, 29 Cal. Rptr. 2d 879 (Cal. Ct. App. 1994) (holding that the city may prohibit day laborers from asking passing motorists for work).
220. Tom Berg, Lake Forest Labor Law Point of Contention, ORANGE COUNTY REG. (Cal.), Feb. 10, 1994, at B4; Barbara Diamond, Council Prohibits Hiring Day Laborers off City Streets, ORANGE COUNTY REG. (Cal.), Feb. 17, 1993, at B10 (Costa Mesa, Dana Point, Laguna Beach, and the City of Orange); Tracey Kaplan, Supervisors Ban Curbside Job Solicitation, L.A. TIMES, May 25, 1994, at B1 (unincorporated areas of Los Angeles County). When an Agoura Hills ordinance was challenged in April 1994, the California Court of Appeals upheld it. Xiloj-Itzep v. City of Agoura Hills, 29 Cal. Rptr. 2d 879 (Cal. Ct. App. 1994) (holding that the city may prohibit day laborers from asking passing motorists for work).
221. Tom Berg, Lake Forest Labor Law Point of Contention, ORANGE COUNTY REG. (Cal.), Feb. 10, 1994, at B4; Barbara Diamond, Council Prohibits Hiring Day Laborers off City Streets, ORANGE COUNTY REG. (Cal.), Feb. 17, 1993, at B10 (Costa Mesa, Dana Point, Laguna Beach, and the City of Orange); Tracey Kaplan, Supervisors Ban Curbside Job Solicitation, L.A. TIMES, May 25, 1994, at B1 (unincorporated areas of Los Angeles County). When an Agoura Hills ordinance was challenged in April 1994, the California Court of Appeals upheld it. Xiloj-Itzep v. City of Agoura Hills, 29 Cal. Rptr. 2d 879 (Cal. Ct. App. 1994) (holding that the city may prohibit day laborers from asking passing motorists for work).
222. Diamond, supra note 166, at B10.
223. Cf. Nancy Luna, Council Approves Laborers Center, ORANGE COUNTY REG. (Cal.), May 4, 1995, at 4.
224. Catherine Gottlieb, Malibu: Coastal Colony's Response to its Day-Worker Dilemma, L.A. TIMES, May 9, 1994, at B1.
225. Theresa Walker & Paula Kriner, Working: Crowds at a Day-Labor Site in Laguna Canyon Have Residents Concerned about Traffic Dangers, ORANGE COUNTY REG. (Cal.), Jan. 27, 1994, at B1. See also Tom Berg, Lake Forest Bans Day Laborers Gathering on Jeronimo Road, ORANGE COUNTY REG. (Cal.), Apr. 21, 1993, at B7; Berg, supra note 166, at B4 (contractor issued ticket for allegedly trying to hire a day laborer); Kaplan, supra note 166, at B1; Frederick M. Muir, Supervisor Defends Vote to Restrict Day Laborers, L.A. TIMES, May 26, 1994, at B1 (unincorporated areas of Los Angeles County).
226. Theresa Walker & Paula Kriner, Working: Crowds at a Day-Labor Site in Laguna Canyon Have Residents Concerned about Traffic Dangers, ORANGE COUNTY REG. (Cal.), Jan. 27, 1994, at B1. See also Tom Berg, Lake Forest Bans Day Laborers Gathering on Jeronimo Road, ORANGE COUNTY REG. (Cal.), Apr. 21, 1993, at B7; Berg, supra note 166, at B4 (contractor issued ticket for allegedly trying to hire a day laborer); Kaplan, supra note 166, at B1; Frederick M. Muir, Supervisor Defends Vote to Restrict Day Laborers, L.A. TIMES, May 26, 1994, at B1 (unincorporated areas of Los Angeles County).
227. Theresa Walker & Paula Kriner, Working: Crowds at a Day-Labor Site in Laguna Canyon Have Residents Concerned about Traffic Dangers, ORANGE COUNTY REG. (Cal.), Jan. 27, 1994, at B1. See also Tom Berg, Lake Forest Bans Day Laborers Gathering on Jeronimo Road, ORANGE COUNTY REG. (Cal.), Apr. 21, 1993, at B7; Berg, supra note 166, at B4 (contractor issued ticket for allegedly trying to hire a day laborer); Kaplan, supra note 166, at B1; Frederick M. Muir, Supervisor Defends Vote to Restrict Day Laborers, L.A. TIMES, May 26, 1994, at B1 (unincorporated areas of Los Angeles County).
228. Theresa Walker & Paula Kriner, Working: Crowds at a Day-Labor Site in Laguna Canyon Have Residents Concerned about Traffic Dangers, ORANGE COUNTY REG. (Cal.), Jan. 27, 1994, at B1. See also Tom Berg, Lake Forest Bans Day Laborers Gathering on Jeronimo Road, ORANGE COUNTY REG. (Cal.), Apr. 21, 1993, at B7; Berg, supra note 166, at B4 (contractor issued ticket for allegedly trying to hire a day laborer); Kaplan, supra note 166, at B1; Frederick M. Muir, Supervisor Defends Vote to Restrict Day Laborers, L.A. TIMES, May 26, 1994, at B1 (unincorporated areas of Los Angeles County).
229. Theresa Walker & Paula Kriner, Working: Crowds at a Day-Labor Site in Laguna Canyon Have Residents Concerned about Traffic Dangers, ORANGE COUNTY REG. (Cal.), Jan. 27, 1994, at B1. See also Tom Berg, Lake Forest Bans Day Laborers Gathering on Jeronimo Road, ORANGE COUNTY REG. (Cal.), Apr. 21, 1993, at B7; Berg, supra note 166, at B4 (contractor issued ticket for allegedly trying to hire a day laborer); Kaplan, supra note 166, at B1; Frederick M. Muir, Supervisor Defends Vote to Restrict Day Laborers, L.A. TIMES, May 26, 1994, at B1 (unincorporated areas of Los Angeles County).
230. See, e.g., D.C. CODE ANN. § 22-3312 (b)-(h) (1981) (amended 1996). See generally NATIONAL LAW CTR. ON HOMELESSNESS & POVERTY, THE RIGHT TO REMAIN NOWHERE: A REPORT ON ANTI-HOMELESS LAWS AND LITIGATION IN 16 UNITED STATES CITIES 14-15, 116-20 (1993) (discussing how enforcement of anitpanhandling ordinance in the District of Columbia has targetted nonaggressive as well as aggressive panhandling); NATIONAL LAW CTR. ON HOMELESSNESS & POVERTY, GO DIRECTLY TO JAIL: A REPORT ANALYZING LOCAL ANTI-HOMELESS ORDINANCES 19-20, 64-66 (1991).
231. See, e.g., D.C. CODE ANN. § 22-3312 (b)-(h) (1981) (amended 1996). See generally NATIONAL LAW CTR. ON HOMELESSNESS & POVERTY, THE RIGHT TO REMAIN NOWHERE: A REPORT ON ANTI-HOMELESS LAWS AND LITIGATION IN 16 UNITED STATES CITIES 14-15, 116-20 (1993) (discussing how enforcement of anitpanhandling ordinance in the District of Columbia has targetted nonaggressive as well as aggressive panhandling); NATIONAL LAW CTR. ON HOMELESSNESS & POVERTY, GO DIRECTLY TO JAIL: A REPORT ANALYZING LOCAL ANTI-HOMELESS ORDINANCES 19-20, 64-66 (1991).
232. See, e.g., William Tuohy, Major Under Fire for Calling Panhandlers an "Eyesore," L.A. TIMES, May 30, 1994, at A4 (remarks of British Prime Minister).
233. See Ellickson Chronic Misconduct, supra note 1, at 1208 (itinerant workingmen from Skid Rows in the period 1880-1920), 1220 n.304 (citing Xiloj-Itzep v. City of Agoura Hills, 29 Cal. Rptr. 2d 879 (Cal. Ct. App. 1994)).
234. Conversation with Day Labor Activist Pablo Alvarado, L.A. TIMES, Sept. 7, 1996, at B7.
235. Id.
236. Steve Ryfle, 2-Pronged Plan for Street-Side Job Seekers, L.A. TIMES, Sept. 13, 1996, at B4 (ordinance effective Sept. 27, 1996).
237. See MUNZER, supra note 6, at 206-14, 219-21.
238. Cf. id. at 206-09.
239. See supra text accompanying notes 149-163.
240. Cf. MUNZER, supra note 6, at 245, 252, 253.
241. See id. at 254-91.
242. See JOHN LOCKE, THE SECOND TREATISE OF GOVERNMENT, ch. 5, especially § 27, in TWO TREATISES OF GOVERNMENT 305-06 (Peter Laslett ed., 2d ed., Cambridge Univ. Press 1967) (3d ed. 1968).
243. See JOHN LOCKE, THE SECOND TREATISE OF GOVERNMENT, ch. 5, especially § 27, in TWO TREATISES OF GOVERNMENT 305-06 (Peter Laslett ed., 2d ed., Cambridge Univ. Press 1967) (3d ed. 1968).
244. See NOZICK, supra note 25, at 150-82.
245. See Stephen R. Munzer, The Acquisition of Property Rights, 66 NOTRE DAME L. REV. 661, 665-66, 685 (1991).
246. See MUNZER, supra note 6, at 256-57; cf. id. at 280-83.
247. For complications, see id. at 280-85, 289-91.
248. See Ellickson, Chronic Misconduct, supra note 1, at 1210-11.
249. See supra text accompanying note 71.
250. See supra notes 68-70 and accompanying text.
251. See supra notes 70-71 and accompanying text.
252. 405 U.S. 156 (1972).
253. See id. at 162.
254. See Robert C. Post, Reconceptualizing Vagueness: Legal Rules and Social Orders, 82 CAL. L. REV. 487, 495-507 (1994). See also Cline v. Frink Dairy Co., 274 U.S. 445, 453, 458 (1927) (voiding Colorado antitrust law for vagueness because an exception to the law left it without a fixed criterion of guilt), discussed in Post, supra, at 499-503, 507.
255. Post, supra note 193, at 498.
256. Papchristou, 405 U.S. at 165; cf. id. at 168 (finding that it places "unfettered discretion . . . in the hands of the Jacksonville police").
257. Id. at 170.
258. See supra notes 52-57, 152-156 and accompanying text.
259. See supra note 82 and accompanying text.
260. See supra note 90 and accompanying text.
261. Papchristou, 405 U.S. at 162, 163.
262. See supra notes 51-59 and accompanying text.
263. Ellickson, Chronic Misconduct, supra note 1, at 1227-28.
264. Id. at 1227.
265. 413 U.S. 528 (1973).
266. Id. at 530.
267. Id. at 538 (emphasis in original). The legislative history suggested that the statute might target "hippies" and members of "hippie communes." Id. at 534.
268. 116 S. Ct. 1620 (1996).
269. Id. at 1628. See also City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 447-48 (1985) (holding that requiring a special use permit for a group home for the mentally retarded violates equal protection, as such a requirement seems to rest on unsubstantiated fears or negative attitudes towards the retarded).
270. See, e.g., Harris v. McRae, 448 U.S. 297, 323 (1980).
271. See Johnson v. City of Dallas, 860 F. Supp. 344, 355 (N.D. Tex. 1994), rev'd on other grounds, 61 F.3d 442 (5th Cir. 1995).
272. Cf. Cass R. Sunstein, Interest Groups in American Public Law, 38 STAN. L. REV. 29, 49 (1985) (footnote omitted) ("The rationality requirement may, however, be underwood precisely as a requirement that regulatory measures be something other than a response to political pressure.").
273. See, e.g., City of Seattle v. Webster, 802 P.2d 1333, 1340-41 (Wash. 1990) (holding that the Seattle "pedestrian interference ordinance" does not violate equal protection rights of the homeless).
274. See supra note 90 and accompanying text.
275. See Ellickson, Chronic Misconduct, supra note 1, at 1228-38.
276. See Village of Schaumberg v. Citizens for a Better Env't, 444 U.S. 620, 633 (1980) (citations omitted); see also Int'l Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 677 (1992).
277. See, e.g., Loper v. New York City Police Dep't, 999 F.2d 699 (2d Cir. 1993) (enjoining enforcement of New York statute prohibiting public loitering for begging purposes); Blair v. Shanahan, 775 F. Supp. 1315 (N.D. Cal. 1991) (striking down California antibegging statute), aff'd in part, rev'd in part, and remanded on other grounds, 38 F.3d 1514 (9th Cir. 1994), cert. denied, 115 S. Ct. 1698 (1995), vacated on other grounds after remand, 919 F. Supp. 1361 (N.D. Cal. 1996); C.C.B v. State, 458 So.2d 47, 50 (Fla. Dist. Ct. App. 1984) (striking down the city's ban on all begging).
278. See, e.g., Young v. New York City Transit Auth., 903 F.2d 146, 148 (2d Cir. 1990) (sustaining prohibition on begging in subways); People v. Zimmerman, 19 Cal. Rptr. 2d 486 (Cal. App. Dep't Super. Ct. 1993) (holding a California antibegging statute constitutional).
279. See Hershkoff & Cohen, supra note 123, at 898-902.
280. See Ellickson, Chronic Misconduct, supra note 1, at 1229-31.
281. See, e.g., Loper, 999 F.2d at 704.
282. See Ellickson, Chronic Misconduct, supra note 1, at 1229.
283. See id. at 1229-31.
284. Id. at 1229 (footnote omitted).
285. Id.
286. Id. at 1231 (footnotes omitted).
287. Id. at 1229.
288. See id. at 1231 n.361. The exception is Nicholas Dawidoff, The Business of Begging, N.Y. TIMES, Apr. 24, 1994, (Magazine), at 36, 41, 52 (discussing lies by New York subway panhandlers in the 1990s).
289. Ellickson, Chronic Misconduct, supra note 1, at 1231 n.361 (citation omitted).
290. Id. at 1189; cf. id. at 1185 n.93 ("many" rather than "most").
291. 999 F.2d 699 (2d Cir. 1993).
292. Id. at 705.
293. Id.
294. See also Int'l Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678 (1992) (dictum) (requiring strict scrutiny for a ban on solicitation by charity in a public forum).
295. See Ellickson, Chronic Misconduct, supra note 1, at 1213, 1214, 1226, 1235 n.400, 1238, 1242, 1248.
296. See JOEL F. HANDLER, DOWN FROM BUREAUCRACY: THE AMBIGUITY OF PRIVATIZATION AND EMPOWERMENT 10-11, 19-77 (1996).
297. Ellickson, Chronic Misconduct, supra note 1, at 1213.
298. See Roulette v. City of Seattle, 850 F. Supp. 1442, 1447-48 (W.D. Wash. 1994), aff'd, 78 F.3d 1425 (9th Cir. 1996) (holding that a Seattle ordinance concerning sitting on public sidewalks does not violate the right to travel).
299. Ellickson, Chronic Misconduct, supra note 1, at 1242.
300. 892 P.2d 1145 (Cal. 1995), rev'g 27 Cal. Rptr. 2d 386 (Cal. Ct. App. 1994).
301. Ellickson, Chronic Misconduct, supra note 1, at 1241 (emphasis in original) (discussing Tobe, 892 P.2d at 1165).
302. See id. at 1213-14, 1238.
303. See id. at 1238, 1242, 1248.
304. See JEREMY WALDRON, THE RIGHT TO PRIVATE PROPERTY (1988); Waldron, Homelessness supra note 13; Waldron, Need, supra note 57. Ellickson briefly criticizes Waldron, Homelessness, supra note 13, in regard to the uniformity of municipal bans on sleeping in public places Ellickson, Chronic Misconduct, supra note 1, at 1219 n.301. Ellickson's criticism does not address the more detailed arguments presented in this Article.
305. See JEREMY WALDRON, THE RIGHT TO PRIVATE PROPERTY (1988); Waldron, Homelessness supra note 13; Waldron, Need, supra note 57. Ellickson briefly criticizes Waldron, Homelessness, supra note 13, in regard to the uniformity of municipal bans on sleeping in public places Ellickson, Chronic Misconduct, supra note 1, at 1219 n.301. Ellickson's criticism does not address the more detailed arguments presented in this Article.
306. See JEREMY WALDRON, THE RIGHT TO PRIVATE PROPERTY (1988); Waldron, Homelessness supra note 13; Waldron, Need, supra note 57. Ellickson briefly criticizes Waldron, Homelessness, supra note 13, in regard to the uniformity of municipal bans on sleeping in public places Ellickson, Chronic Misconduct, supra note 1, at 1219 n.301. Ellickson's criticism does not address the more detailed arguments presented in this Article.
307. See JEREMY WALDRON, THE RIGHT TO PRIVATE PROPERTY (1988); Waldron, Homelessness supra note 13; Waldron, Need, supra note 57. Ellickson briefly criticizes Waldron, Homelessness, supra note 13, in regard to the uniformity of municipal bans on sleeping in public places Ellickson, Chronic Misconduct, supra note 1, at 1219 n.301. Ellickson's criticism does not address the more detailed arguments presented in this Article.
308. See JEREMY WALDRON, THE RIGHT TO PRIVATE PROPERTY (1988); Waldron, Homelessness supra note 13; Waldron, Need, supra note 57. Ellickson briefly criticizes Waldron, Homelessness, supra note 13, in regard to the uniformity of municipal bans on sleeping in public places Ellickson, Chronic Misconduct, supra note 1, at 1219 n.301. Ellickson's criticism does not address the more detailed arguments presented in this Article.