Managing the urban commons

University of Pennsylvania Law Review

Volumn 160, Issue 7, 2012, Pages 1995-2027

  Garnett, Nicole Stelle ^a  

^a NOTRE DAME LAW SCHOOL   (United States)

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EID: 84864032472     PISSN: 00419907     EISSN: 19428537     Source Type: Journal    
DOI: None     Document Type: Review

References (134)

1. See, e.g., Lori Preuitt & Kris Sanchez, Suffer These Crimes in Oakland? Don't Call the Cops, NBC BAY AREA (July 13, 2010, 12:17 PM), http://www.nbcbayarea.com/news/local/Suffer-These-Crimes-in-Oakland-Dont-Call- the-Cops-98266509.html (providing a par-tial list of the forty-four situations to which Oakland police will no longer respond).
2. Kevin Johnson, Home Burglarized? Fill Out a Form; Cutbacks Force Police to Curtail Calls for Some Crimes, USA TODAY, Aug. 25, 2010, at 1A.
3. Emanuel Vows Police Budget Cuts Won't Hurt Safety, CBS CHI. (Aug. 31, 2011, 2:48 PM), http://chicago.cbslocal.com/2011/08/31/emanuel-vows-police- budget-cuts-wont-hurtsafety.
4. See NICOLE STELLE GARNETT, ORDERING THE CITY: LAND USE, POLICING, AND THE RESTORATION OF URBAN AMERICA 9-17 (2009) (recounting the history of the "ordermaintenance revolution").
5. James Q. Wilson & George L. Kelling, Broken Windows: The Police and Neighborhood Safety, ATLANTIC MONTHLY, Mar. 1982, at 29, 29-38.
6. Carol M. Rose, The Comedy of the Commons: Custom, Commerce, and Inherently Public Property, 53 U. CHI. L. REV. 711, 723 (1986). The "comedy of the commons" postulates that defining certain property as "public" could create "infinite 'returns to scale'" and create wealth for all.
7. See GEORGE KELLING & CATHERINE COLES, FIXING BROKEN WINDOWS: RESTORING ORDER AND REDUCING CRIME IN OUR COMMUNITIES 70-108 (1996) (discussing the collapse of laissez-faire policing strategies);
8. Robert C. Ellickson, Controlling Chronic Misconduct in City Spaces: Of Panhandlers, Skid Rows, and Public-Space Zoning, 105 YALE L. J. 1165, 1209-17 (1996) (discussing the causes and effects of deregulation of urban public spaces).
9. See, e.g., Edward L. Glaeser & Joshua D. Gottlieb, Urban Resurgence and the Consumer City, 43 URB. STUD. 1275, 1286-93 (2006) (arguing that urban resurgence is attributable in part to increasing demand for the consumer amenities and opportunity for social interactions that cities provide).
10. Garrett Hardin, The Tragedy of the Commons, 162 SCIENCE 1243 (1968).
11. See, e.g., Sheila R. Foster, Collective Action and the Urban Commons, 87 NOTRE DAME L. REV. 57, 60 (2011) ("The quality of a neighborhood commons-of its street life, sidewalks, open spaces, and public parks-might begin to decline through increasing demands by different users and uses of the space.");
12. Lior Jacob Strahilevitz, The Right to Abandon, 158 U. PA. L. REV. 355, 364 (2010) (noting that cities do not typically leave dumpsters near urban parks or sidewalks because it will invite people to abuse the dumpsters and dispose of their negative-value assets in them).
13. This view pervades the literature on environmental regulation. See, e.g., WILLIAM OPHULS, ECOLOGY AND THE POLITICS OF SCARCITY 148-52 (1977) (linking commons theory in the environmental context to the work of Thomas Hobbes);
14. George C. Coggins, Regulating Federal Natural Resources: A Summary Case against Devolved Collaboration, 25 ECOLOGY L. Q. 602, 604 (1999) (reaffirming the need for a strong governmental role in natural resource management).
15. See Henry E. Smith, Exclusion Versus Governance: Two Strategies for Delineating Property Rights, 31 J. LEGAL STUD. S453, S467 (2002) (arguing that governance and exclusion are the two extremes of a spectrum of rules with different types of property rights falling between them).
16. See ELINOR OSTROM, GOVERNING THE COMMONS: THE EVOLUTION OF INSTITUTIONS FOR COLLECTIVE ACTION 14 (1990) (arguing that individuals in a commons are not "inevitably caught in a trap from which they cannot escape" and insisting that the ability to avoid a tragedy of the commons "varies from situation to situation") (emphasis omitted);
17. see also John Tierney, The Non-Tragedy of the Commons, N. Y. TIMES (Oct. 15, 2009, 12:41 PM), http://tierneylab.blogs.nytimes.com/2009/10/15/the-non- tragedy-ofthe-commons (arguing both that "too often⋯ commons ended up in worse shape once they were put under the control of distant bureaucrats", and, based on Ostrom's research, that a lack of government interference can actually preserve resources).
18. See Hanoch Dagan & Michael A. Heller, The Liberal Commons, 110 YALE L. J. 549, 581-87 (2001) (maintaining that the cooperation, room for autonomy, and right to exit inherent in an "ideal" liberal commons produce less overuse, underinvestment, and waste than individual ownership).
19. see also Robert C. Ellickson, New Institutions for Old Neighborhoods, 48 DUKE L. J. 75, 87-88 (1998) (urging the creation of "Neighborhood Improvement Districts" as a "mandatory-membership organization of property owners" empowered to decide distribution of public goods within the neighborhood);
20. Robert H. Nelson, Privatizing the Neighborhood: A Proposal to Replace Zoning with Private Collective Property Rights to Existing Neighborhoods, 7 GEO. MASON L. REV. 827, 833 (1999) (arguing that state governments should pass legislation to "allow self-governance [by neighborhood associations] in these neighborhoods, through new collective private ownerships").
21. See, e.g., Patrick A. Simmons & Robert E. Lang, The Urban Turnaround (analyzing the urban population increase in thirty-six U. S. cities throughout the 1990s), in 1 REDEFINING URBAN AND SUBURBAN AMERICA 51, 51 (Bruce Katz & Robert E. Lang eds., 2003);
22. Rebecca R. Sohmer & Robert E. Lang, Downtown Rebound (contending that, while most central cities are "losing population to their surrounding metropolitan area,⋯ most downtowns within those central cities are gaining a larger share of metropolitan statistical area population"), in 1 REDEFINING URBAN AND SUBURBAN AMERICA: EVIDENCE FROM CENSUS 2000, supra, at 63, 63;
23. But cf. Richard C. Schragger, Rethinking the Theory and Practice of Local Economic Development, 77 U. CHI. L. REV. 311, 323-31 (2010) (challenging the assumption that redevelopment efforts are causally linked to the urban resurgence).
24. See, e.g., ARISTOTLE, POLITICS bk. 2, ch. 1, § 10 (Jeffrey Henderson ed., H. Rackham trans., Harvard Univ. Press rev. ed. 1944) ("Property that is common to the greatest number of owners receives the least attention⋯.");
25. H. Scott Gordon, The Economic Theory of a Common-Property Resource: The Fishery, 62 J. POL. ECON. 124, 135 (1954) ("Wealth that is free for all is valued by none because he who is foolhardy enough to wait for its proper time of use will only find that it has been taken by another.").
26. See Harold Demsetz, Toward a Theory of Property Rights, 57 AM. ECON. REV. 347, 350 (1967) ("[P]roperty rights develop to internalize externalities when the gains of internalization become larger than cost of internalization. ").
27. Robert C. Ellickson, Property in Land, 102 YALE L. J. 1315, 1327-35 (1993).
28. Louis Uchitelle, 2 U. S. Social Scientists Share Nobel in Economics, N. Y. TIMES, Oct. 13, 2009, at B1.
29. On special purpose local governments, see RICHARD BRIFFAULT & LAURIE REYNOLDS, STATE AND LOCAL GOVERNMENT LAW 269-77 (7th ed. 2009).
30. See also Ball v. James, 451 U. S. 355, 367-70 (1981)
31. See generally Gregory Alexander, Governance Property, 160 U. PA. L. REV. (2012).
32. Carol M. Rose, The Several Futures of Property: Of Cyberspace and Folk Tales, Emission Trades and Ecosystems, 83 MINN. L. REV. 129, 155 (1998).
33. See JEREMY WALDRON, THE RIGHT TO PRIVATE PROPERTY 40 (1988) (defining stateowned resources as "collective property").
34. See generally, e.g., Michael Seth Benn, Comment, Towards Environmental Entrepreneurship: Restoring the Public Trust Doctrine in New York, 155 U. PA. L. REV. 203 (2006).
35. Blair Kamin, How to Correct Chicago's Open Space Shortage: 10 Ideas That Could Help City's Park-Poor Neighborhoods Away from the Lakefront, CHI. TRIB. (Oct. 14, 2011, 10:30:06 PM), http://featuresblogs.chicagotribune.com/ theskyline/2011/0/how-to-correct-chicagos-open-space-shortage-10-ideas-that- could-help-citys-park-poorneighborhoods-a.html.
36. See, e.g., Papachristou v. City of Jacksonville, 405 U. S. 156, 165, 171 (1972) (invalidating a city vagrancy ordinance on due process-related grounds and suggesting that the Constitution protects the right to "loaf");
37. Powell v. Texas, 392 U. S. 514, 531-35 (1968) (upholding a prohibition of public drunkenness, but questioning whether such laws might be invalid criminalizations of "a mere status").
38. See Dan M. Kahan & Tracey L. Meares, Twenty-Seventh Annual Review of Criminal Procedure-Foreword: The Coming Crisis of Criminal Procedure, 86 GEO. L. J. 1153, 1167 (1998) (showing that many Warren Court-era standards now frustrate the policies designed to fix social problems that had been identified by the Warren Court);
39. Stephen F. Smith, Taking Lessons from the Left?: Judicial Activism on the Right, 1 GEO. J. L. & PUB. POL'Y 57, 62 (2002) (noting the Rehnquist Court's retrenchment from the Warren Court's constitutional criminal procedure jurisprudence).
40. See, e.g., Ry. Express Agency, Inc. v. New York, 336 U. S. 106, 107-09 (1949) (giving great deference to local legislators in regards to laws governing public advertising).
41. See ERWIN CHEMERINSKY, CONSTITUTIONAL LAW 1127 (3d ed. 2006) (summarizing permissible restrictions on speech in public fora).
42. See City of Chicago v. Morales, 527 U. S. 41, 64 (1999) (citing "too much discretion to the police" and "too little notice to citizens who wish to use the public streets" as reasons for striking down an antigang ordinance for vagueness).
43. See, e.g., Nunez v. City of San Diego, 114 F.3d 935, 944-49 (9th Cir. 1997) (invalidating a juvenile curfew on right-to-travel grounds).
44. *9-15 (E. D. Pa. Mar. 21, 2012) (affirming a jury finding that a resolution that attempted to evict the Boy Scouts from a city-owned building for violating a municipal nondiscrimination law violated the group's right to expressive association).
45. See, e.g., Jones v. City of Los Angeles, 444 F.3d 1118, 1138 (9th Cir. 2006) (holding that a law criminalizing sitting, lying, or sleeping on public streets or sidewalks violated the Eighth Amendment's prohibition on cruel and unusual punishment)
46. vacated, 505 F.3d 1006 (9th Cir. 2007).
47. Johnson v. City of Cincinnati, 310 F.3d 484, 487 (6th Cir. 2002) (internal quotation marks omitted).
48. E.g., Nunez v. City of San Diego, 114 F.3d 935, 940-44 (9th Cir. 1997).
49. See Loper v. NYPD, 999 F.2d 699, 706 (2d Cir. 1993) (invalidating an antipanhandling statute on freedom of speech grounds);
50. Berkeley Cmty. Health Project v. City of Berkeley, 902 F. Supp. 1084, 1094-95 (N. D. Cal. 1995) (same)
51. vacated in part, 966 F. Supp. 941 (N. D. Cal. 1997) (approving a stipulated settlement repealing the offending ordinance).
52. See Pottinger v. City of Miami, 810 F. Supp. 1551, 1554, 1583 (S. D. Fla. 1992) (enjoining Miami's "pattern and practice of arresting homeless people for the purpose of driving them from public areas" on Fourth Amendment, Eighth Amendment, due process, and right-to-travel grounds).
53. See, e.g., PAUL S. GROGAN & TONY PROSCIO, COMEBACK CITIES: A BLUEPRINT FOR URBAN NEIGHBORHOOD REVIVAL 152 (2000) ("Out-of-control crime was the nearly universal expectation for the inner city. Any other positive trend there⋯ was sharply hemmed in by the prospect of continued crime and, just as important, an all-butunshakable fear of crime.").
54. See, e.g., Debra Livingston, Police Discretion and the Quality of Life in Public Places: Courts, Communities, and the New Policing, 97 COLUM. L. REV. 551, 595 (1997) ("Many citizens were rendered almost perpetually subject to arrest pursuant to catchall vagrancy laws.");
55. William J. Stuntz, Crime Talk and Law Talk, 23 REVS. AM. HIST. 153, 157 (1995)
56. (reviewing LAWRENCE M. FRIEDMAN, CRIME AND PUNISHMENT IN AMERICAN HISTORY (1993)) ("Prior to the 1960s, vagrancy and loitering laws made it possible for police to arrest pretty much anyone⋯.").
57. See JAMES Q. WILSON, VARIETIES OF POLICE BEHAVIOR: THE MANAGEMENT OF LAW AND ORDER IN EIGHT COMMUNITIES 31 (1968) (explaining that the patrolman "approaches incidents that threaten order not in terms of enforcing the law but in terms of 'handling the situation'") (emphasis removed).
58. See Egon Bittner, The Police on Skid-Row: A Study of Peace Keeping, 32 AM. SOC. REV. 699, 702-03 (1967);
59. See HOWARD M. BAHR, SKID ROW: AN INTRODUCTION TO DISAFFILIATION 227-28 (1973) (recounting statistics showing that, during the 1960s, public drunkenness, disorderly conduct, and vagrancy accounted for a substantial percentage of arrests).
60. See, e.g., David Cole, Twenty-Eighth Annual Review of Criminal Procedure-Foreword: Discretion and Discrimination Reconsidered: A Response to the New Criminal Justice Scholarship, 87 GEO. L. J. 1059, 1060 (1999) (asserting that the police's "abuse of the criminal law to reinforce racial subordination" influenced the Court's rulings in the 1950s and 1960s);
61. See Caleb Foote, Vagrancy-Type Law and Its Administration, 104 U. PA. L. REV. 603, 604-09 (1956) (recounting judicial abuses during summary proceedings in the Philadelphia magistrates' courts).
62. See WESLEY G. SKOGAN, DISORDER AND DECLINE: CRIME AND THE SPIRAL OF DECAY IN AMERICAN NEIGHBORHOODS 65-84 (1990) (finding a causal connection between disorder and robbery rates, specifically, that "[p]erceived crime problems, fear of crime, and actual victimization all [are] limited to social and physical disorder" in a given urban area);
63. see also GEORGE L. KELLING & WILLIAM H. SOUSA, JR., DO POLICE MATTER? AN ANALYSIS OF THE IMPACT OF NEW YORK CITY'S POLICE REFORMS 6-9(2001), available at http://www.manhattan-institute.org/pdf/cr-22.pdf (attributing a dramatic decline in crime in New York City to an aggressive misdemeanor arrest policy);
64. Hope Corman & Naci Mocan, Carrots, Sticks, and Broken Windows, 48 J. L. & ECON. 235, 256-59 (2005) (analyzing data from New York City and finding that an aggressive misdemeanor arrest policy led to a decrease in incidents of violent crime).
65. But see BERNARD E. HARCOURT, ILLUSION OF ORDER: THE FALSE PROMISE OF BROKEN WINDOWS POLICING 59-78 (2001) (challenging Skogan's findings-"that neighborhood disorder had a statistically significant relationship with the level of robbery victimization"-and reinterpreting the data to show that no support exists for the broken windows hypothesis);
66. Bernard E. Harcourt & Jens Ludwig, Broken Windows: New Evidence from New York City and a Five-City Social Experiment, 73 U. CHI. L. REV. 271, 287-300 (2006) (casting doubt on the accuracy of both the Kelling and Sousa and the Corman and Mocan New York City studies);
67. see also Robert J. Sampson & Stephen W. Raudenbush, Systematic Social Observation of Public Spaces: A New Look at Disorder in Urban Neighborhoods, 105 AM. J. SOC. 603, 637-39 (1999) (finding that disorder was correlated with robbery in a Chicago study, but questioning even a weak causal connection between disorder and other serious crime).
68. See generally URGENT TIMES: POLICING AND RIGHTS IN INNER-CITY COMMUNITIES (Tracey L. Meares & Dan M. Kahan eds., 1999) (containing essays by authors-including Margaret Burnham, Alan Dershowitz, Carol Steiker, and Tracey Meares and Dan Kahan-engaging in a debate over the proper scope of police empowerment, as contrasted with legal safeguards protecting individual rights);
69. See, e.g., Norimitsu Onishi, Police Announce Crackdown on Quality-of-Life Offenses, N. Y. TIMES, Mar. 13, 1994, at 33 (explaining that behind Giuliani's campaign was "the idea that leniency toward these minor infractions⋯ raises fears and leads to greater crimes").
70. See MICHAEL J. PALMIOTTO, COMMUNITY POLICING: A POLICE-CITIZEN PARTNERSHIP 99 (2011).
71. (quoting DAVID H. BAYLEY, POLICE FOR THE FUTURE 106 (1994)) (internal quotation marks omitted).
72. See, e.g., Dan M. Kahan, Privatizing Criminal Law: Strategies for Private Norm Enforcement in the Inner City, 46 UCLA L. REV. 1859, 1866-68 (1999) (focusing on the utility of deputizing juveniles as private criminal law enforcers in order to "create an environment in which juveniles can efficiently signal to each other their own contempt for criminality" and therefore effectuate crime reduction);
73. Tracey L. Meares & Kelsi Brown Corkran, When 2 or 3 Come Together, 48 WM. & MARY L. REV. 1315, 1360-61 (2007) (concluding that police officers' speaking to a community in approachable terms, such as religious language, may facilitate communication and agreement between the community and the police).
74. Harold Demsetz, Toward a Theory of Property Rights, 57 AM. ECON. REV. (Papers & Proc.) 347 (1967).
75. See Richard Briffault, The Most Popular Tool: Tax Increment Financing and the Political Economy of Local Government, 77 U. CHI. L. REV. 65, 67-69 (2010) (explaining the structure of TIF funds and discussing their relation to tax laws);
76. Richard Briffault, The Rise of Sublocal Structures in Urban Governance, 82 MINN. L. REV. 503, 512-14 (1997) (describing the operation of TIFs). (Pubitemid 127423567)
77. Richard Briffault, A Government for Our Time: Business Improvement Districts and Urban Governance, 99 COLUM. L. REV. 365, 409-14 (1999).
78. See Stephen Diamond, The Death and Transfiguration of Benefit Taxation: Special Assessments in Nineteenth-Century America, 12 J. LEGAL STUD. 201, 204 (1983) (noting that the first sustained American appearance of the special assessment occurred at the end of the eighteenth century);
79. cf. ROBERT C. ELLICKSON & VICKI L. BEEN, LAND USE CONTROLS 630 (3d ed. 2005) ("Special assessments appeared as early as 1250, when an English statute apportioned by acreage the costs of repairing a seawall around Romney Marsh.").
80. See Richard Briffault, The Business Improvement District Comes of Age, 3 DREXEL L. REV. 19, 19 (2010) (stating that the first BID in the United States was the Downtown Development District of New Orleans-established in 1975-and maintaining that "2010 mark[ed] the completion of two decades of⋯ the BID movement").
81. See, e.g., Kessler v. Grand Cent. Dist. Mgmt. Ass'n, 158 F.3d 92, 103-04 (2d Cir. 1998) (holding that because a BID had a "limited purpose" its management association was exempt from one-person, one-vote requirements and that the "special purpose" government exception to equal suffrage did not apply because the district's activities did not "disproportionately affect narrow classes of persons within the district").
82. Nicole Stelle Garnett, Governing? Gentrifying? Seceding? Real-Time Answers to Questions about Business Improvement Districts, 3 DREXEL L. REV. 35, 38-43 (2010) (warning that "the closer that BIDs come-in structure and function-to general purpose local governments, the more vulnerable they are to equal protection challenges.").
83. See Göktug Morçöl, Center City District: A Case of Comprehensive Downtown BIDs, 3 DREXEL L. REV. 271, 279-81 (2010) (discussing the expansive current functions of the Center City District, which include "transportation, land-use planning, streetscape and infrastructure improvements, social services for the homeless, and operation of a community court");
84. Thomas J. Vicino, New Boundaries of Urban Governance: An Analysis of Philadelphia's University City Improvement District, 3 DREXEL L. REV. 339, 350-51 (2010) (examining the budget for the University City district, as well as the different types of activites funded by it, including infrastructure improvements and public safety initiatives);
85. CENTER CITY PHILA., http://www.centercityphila.org/ (last visited Apr. 15, 2012) (listing news events, as well as office, retail, and residential space advertisements);
86. UNIV. CITY DIST., http://www.universitycity.org/ (last visited Apr. 15, 2012) (providing information regarding restaurants, activities, accommodations, community service, and other events and listings).
87. See generally Symposium, Business Improvement Districts and the Evolution of Urban Governance, 3 DREXEL L. REV. 1, 109-372 (2010).
88. Safe: Community Service Representatives, CENTER CITY PHILA., http://centercityphila.org/about/CSRs.php (last visited Apr. 15, 2012).
89. See Nicole Stelle Garnett, Relocating Disorder, 91 VA. L. REV. 1075, 1085-88 (2005) (explaining that much of the controversy centers on the perception that these services work to keep the homeless out of the sight of the other members of the community).
90. Beautiful: Overview, CENTER CITY PHILA., http://www.centercityphila.org/ about/Beautiful.php (last visited Apr. 15, 2012).
91. For examples of the challenges facing the state and municipal levels, see Jon Hilsenrath & Neil King Jr., Bernanke Rejects Bailouts: Fed Chief Says State and Local Governments Shouldn't Expect Federal Loans, WALL ST. J., Jan. 8-9, 2011, at A2.
92. See also Tracy Gordon, Buy and Hold (On Tight): The Recent Muni Bond Rollercoaster and What It Means for Cities 2-5 (Sept. 19, 2011), available at http://www.brookings.edu/~/media/Files/rc/papers/2011/0919-muni-bonds-gordon/ 0919-muni-bonds-gordon.pdf (noting that "uncertainty remains" in the municipal bond market after the financial crisis, but that "widespread municipal bankruptcies and defaults have not come to pass");
93. Richard Posner, State and Local Government: The Fiscal Crisis, BECKER-POSNER BLOG (Dec. 19, 2010, 5:02 PM), http://www.becker-posner-blog.com/ 2010/12/state-and-local-governmentthe-fiscal-crisisposner.html (maintaining that the financial crisis "caused a sharp decline in state tax revenues, which [were] 12 percent below their pre-downturn levels", and discussing different proposals to ameliorate the situation).
94. See, e.g., Michael Clark, Atlantic City Special Improvement District Dissolves, PRESS ATLANTIC CITY (N. J.), Apr. 18, 2011, available at 2011 WLNR 765521 (describing the dissolution of a nineteen-year-old BID in Atlantic City and the subsequent transfer of assets to the state's Casino Reinvestment Plan Authority);
95. David Garrick, Escondido: City Eliminates Downtown Merchant Fees, N. COUNTY TIMES (Cal.), Sept. 16, 2011, http://www.nctimes.com/news/local/ Escondido/article-9333c90a-a8ee-5fff-9a7b-89b1cfd2a6667.html (reporting on the dissolution by the City Council of Escondido of a twenty-two-year-old BID due to economic woes). The financial pressures on TIF districts, which rely directly on property taxes and municipal bonds backed by them, are even more severe.
96. See Kay James, Dells Officials Told City's TIF Districts Short of Repaying City for Bonds, PORTAGE DAILY REG. (Wis.), Sept. 24, 2010, http://www.wiscnews.com/portagedailyregister/news/article-42f37c7a-c860-11df- 9db2-001cc4c002e0.html?mode= story (reporting on a TIF district's inability to repay its municipal bonds and averaging the city's debt at nearly $20, 000 per resident);
97. Joseph Ruzich, Riverside Considers Raising Taxes, CHI. TRIB., June 6, 2007, at 4 (noting that the failure of a TIF plan resulted in calls to raise taxes on businesses and residents);
98. Elisha Sauers, City Needs to Borrow Another $10M, CAPITAL (Md.), May 20, 2011, available at 2011 WLNR 10113020 (characterizing the $2 million in payments Annapolis owes to its TIF custodian as a "crushing expense").
99. See, e.g., Role of Public Employee Pensions in Contributing to State Insolvency and the Possibility of a State Bankruptcy Chapter: Hearing Before the Subcomm. on Courts, Commercial & Admin. Law of the H. Comm. on the Judiciary, 112th Cong. 41 (2011) (statement of Joshua Rauh, Associate Professor of Finance, Kellogg School of Management, Northwestern University) ("Using valuations consistent with financial economics,⋯ the already-promised part of these unfunded liabilities actually amounts to over $3 trillion. ");
100. Omer Kimhi, Chapter 9 of the Bankruptcy Code: A Solution in Search of a Problem, 27 YALE J. ON REG. 351, 388 (2010) (explaining how those structural impediments can be overcome with the help of state intervention);
101. see also PEW CTR. ON THE STATES, THE WIDENING GAP: THE GREAT RECESSION'S IMPACT ON STATE PENSION AND RETIREE HEALTH CARE COSTS 1-2(2011), available at http://pewcenteronthestates.org/uploadedfiles/Pew-Pensions-retiree-benefits.pdf (estimating that unfunded state pension liabilities as of, in most cases, June 2009, were between $1.26 and $2.4 trillion depending on the discount rate applied, an increase of 26% over the previous year);
102. Girard Miller, Benefits, Bankruptcy, and Baloney, GOVERNING (July 8, 2010), http://www.governing.com/columns/public-money/state-retiree-Benefits- Bankruptcy-and-Baloney.html ("Retirees' claims would be the most difficult benefits to set aside in a municipal bankruptcy⋯.");
103. Mary W. Walsh, A Path is Sought for States to Escape Debt Burdens, N. Y. TIMES, 1Jan 21, 2011, at A1 (discussing structural and political constraints, including insolvent state pension funds, preventing states and local governments from declaring bankruptcy as a way to solve their financial difficulties).
104. The city initially retained a public easement for the surface that expressly empowered the Church to restrict access of anyone "engaging in any illegal, offensive, indecent, obscene, vulgar, lewd or disorderly speech, dress or conduct." First Unitarian Church v. Salt Lake City Corp., 308 F.3d 1114, 1117-18 (10th Cir. 2002). The Tenth Circuit invalidated this restriction on First Amendment free-speech grounds, reasoning that the reservation of the easement preserved the status of the encumbered property as a public forum upon which it could not limit speech.
105. Subsequently, the City transferred the easement to the Church; a challenge to that transfer on Establishment Clause grounds was rejected. Utah Gospel Mission v. Salt Lake City Corp., 425 F.3d 1249, 1258-61 (10th Cir. 2005).
106. See John C. Crees, Note, The Right and Wrong Ways to Sell a Public Forum, 94 IOWA L. REV. 1419, 1435-39 (2009) (providing examples of issues that prevent municipalities from privatizing public fora). In development agreements, a developer and local government agree to a negotiated package of regulatory and development concessions in order to streamline a development process.
107. Alejandro E. Camacho, Mustering the Missing Voice: A Collaborative Model for Fostering Equality, Community Involvement and Adaptive Planning in Land Use Decisions (pt. 1), 24 STAN. ENVTL. L. J. 3, 22 (2005).
108. See ROBERT H. NELSON, PRIVATE NEIGHBORHOODS AND THE TRANSFORMATION OF LOCAL GOVERNMENT 301-03 (2005)
109. Robert B. Reich, Secessssion of the Successful, N. Y. TIMES, Jan. 20, 1991, § 6 (Magazine), at 16.
110. See, e.g., Mamta Badkar, The 13 States Still Drowning in Underwater Mortgages, BUS. INSIDER (Nov. 30, 2011), http://www.businessinsider.com/12- states-with-mortgagesunderwater-q3-negative-equity-2011-11;
111. Half of Commercial Mortgages to Be Underwater: Warren, CNBC (Mar. 29, 2010), http://www.cnbc.com/id/36085517/Half-of-Commercial-Mortgages-to-Be- Underwater-Warren.
112. See Kessler v. Grand Cent. Mgmt. Ass'n, 158 F.3d 92, 105, 108 (2d Cir. 1998)
113. See generally ROBERT C. ELLICKSON, ORDER WITHOUT LAW: HOW NEIGHBORS SETTLE DISPUTES 191-208 (1991) (discussing how the practices of high-seas whalers in the eighteenth and nineteenth centuries "powerfully illustrate how nonhierarchical groups can create welfare-maximizing substantive norms").
114. Nicole Stelle Garnett, Private Norms and Public Spaces, 18 WM. & MARY BILL RTS. J. 183, 185-86 (2009).
115. See Dan M. Kahan, Between Economics and Sociology: The New Path of Deterrence, 95 MICH. L. REV. 2477, 2479-81 (1997) (supporting policing theories that keep valuable and fragile social support networks intact);
116. Dan M. Kahan, Reciprocity, Collective Action, and Community Policing, 90 CALIF. L. REV. 1513, 1527-30, 1535-38 (2002) (contrasting authoritarian policing, which alienates the citizenry, with "New Community Policing", which builds consensus and support for law and order);
117. Tracey L. Meares, Praying for Community Policing, 90 CALIF. L. REV. 1593, 1612-19 (2002) (retelling how police officers and religious leaders worked to hold prayer vigils and providing a model for publicprivate alliances);
118. Tracey L. Meares & Dan M. Kahan, Law and (Norms of) Order in the Inner City, 32 LAW & SOC'Y REV. 805, 812 (1998) ("Law enforcement policies should have as a goal the promotion of social organization⋯. ").
119. ROBERT D. PUTNAM, BOWLING ALONE: THE COLLAPSE AND REVIVAL OF THE AMERICAN COMMUNITY 19 (2000). Social capital is the subject of a voluminous and somewhat contentious literature, and Putnam's formulation is itself contested by other social scientists.
120. See, e.g., DAVID HALPERN, SOCIAL CAPITAL 1-40 (2005) (reviewing literature on the topic). Putnam's "lean and mean" formulation, however, suffices here.
121. See Robert J. Sampson et al., Neighborhoods and Violent Crime: A Multilevel Study of Collective Efficacy, 277 SCIENCE 918, 918 (1997) (defining collective efficacy as "social cohesion among neighbors combined with their willingness to intervene on behalf of the common good").
122. See JANE JACOBS, THE DEATH AND LIFE OF GREAT AMERICAN CITIES 46 (1961)
123. See, e.g., Stephanie W. Greenberg et al., Safety in Urban Neighborhoods: A Comparison of Physical Characteristics and Informal Territorial Control in High and Low Crime Neighborhoods, 5 POPULATION & ENV'T 141, 149-54 (1982) (correlating commercial land use and crime rates);
124. Ralph B. Taylor et al., Street Blocks with More Nonresidential Land Use Have More Physical Deterioration: Evidence from Baltimore and Philadelphia, 31 URB. AFF. REV. 120, 121-22 (1995) (explaining that nonresidential uses remove residents that could have helped manage the block and introduces strangers to the area).
125. RALPH B. TAYLOR, HUMAN TERRITORIAL FUNCTIONING 185 (1988);
126. See OSCAR NEWMAN, DEFENSIBLE SPACE: CRIME PREVENTION THROUGH URBAN DESIGN 5-11 (1972) (illustrating architectural features that enable surveillance by nearby residents of semipublic spaces).
127. See generally Neal Kumar Katyal, Architecture as Crime Control, 111 YALE L. J. 1039 (2002)
128. LAWRENCE LESSIG, THE FUTURE OF IDEAS: THE FATE OF THE COMMONS IN A CONNECTED WORLD 86 (2001)
129. For an excellent, recent discussion of this problem, see Michael J. Madison et al, Constructing Commons in the Cultural Environment, 95 CORNELL L. REV. 657(2010), and the responses included in the volume.
130. See generally JAMES BOYLE, THE PUBLIC DOMAIN: ENCLOSING THE COMMONS OF THE MIND 179-204 (2008);
131. MICHAEL HELLER, THE GRIDLOCK ECONOMY: HOW TOO MUCH OWNERSHIP WRECKS MARKETS, STOPS INNOVATION, AND COSTS LIVES 23-48 (2008)
132. See, e.g., ROBERT P. MERGES, JUSTIFYING INTELLECTUAL PROPERTY 1-27 (2011) (discussing this debate and outlining a defense of intellectual property);
133. Peter S. Mennell, Intellectual Property and the Property Rights Movement, REGULATION, Fall 2007, at 36 (discussing the property rights debate in intellectual property).
134. See, e.g., David F. Fahrenthold, SOPA Protests Shut Down Web Sites, WASH. POST (Jan. 18, 2012, 9:00 AM), http://www.washingtonpost.com/politics/sopa- protests-toshut-down-web-sites/2012/01/17/gIQA4WYl6P-story.html (discussing various websites that protested proposed Internet privacy regulations).