Private Norms and Public Spaces

For two semesters during law school, I worked as Bob Ellickson's research assistant. One day, he asked me if I had considered the legal academy. I said yes, although I chose not to disclose why: my soon-to-be husband very much wanted to teach, and I figured that, if we ended up in some obscure town like South Bend, Indiana, I would probably need a job. He then asked what I might like to teach. "I like Property," I replied. He probably thought I was being obsequious - I would have thought as much - but he nevertheless assured me of his support if I ever did decide to test the academic waters. This exchange turned out to be a providential one. I realized as I left his office that, actually, the idea of teaching and writing about the law did appeal to me more than I had previously admitted to myself. And I realized that I was not being obsequious. I did like Property very much, thanks, of course, to Bob Ellickson, who all agree is an exceptionally gifted teacher. In his Property class, I had come to understand the problem of resource allocation as the problem in the law - the one problem that I would most want to ponder with students should the opportunity present itself someday. And so it was that three years later, when the appointments chair at Notre Dame Law School asked me what I would like to teach, I replied, "I like Property." And, as a law professor, I fmd myself trying to emulate Bob Ellickson as both a teacher and mentor. Of course, my intellectual pedigree is hardly unique. Undoubtedly, many law professors trace their scholarly interests back to their days in his Property class, and many more checked the "Property" box on the AALS form because they were inspired by his scholarship. Still, I am very grateful to Bob Ellickson for his encouragement, both in my law school days and many, many, times since I started teaching and writing about "his" subj ect. It is therefore a particular privilege to have been invited to this conference honoring his work as a scholar and a teacher. It is a special privilege to comment on the role of social norms as rules of property allocation. After all, Ellickson's work on this subject revolutionized not only the field of property law but legal scholarship generally. As Richard McAdams has observed, "Order Without Law created, or at least anticipated, a burgeoning new subfield of legal studies."1 Indeed, the subfield has so burgeoned that I am going to take the liberty of focusing on one sub-subfield of it - the role social norms play in the allocation of public space such as city streets, sidewalks, and parks. I choose this subsubfield for three related reasons. First, Bob Ellickson's 1996 article Controlling Chronic Misconduct in City Spaces is undoubtedly one of the most important scholarly treatments of the issue.2 Second, I have written about the question, in part because of his encouragement: he suggested that I consider writing about public-space allocation when I began teaching, and the suggestion coincided with my own interest in the topic.3 Third, city governments have become increasingly interested in enforcing norms of decorum in public spaces and, in so doing, allocating a scarce and critically important resource to those citizens who choose to play by the rules. My essay explores an important development arising out of the renewed focus in recent years on urban disorder: after several decades of relative inattention to rules of conduct in public spaces, city governments have become norm-entrepreneurs and norm-enforcers. This is, in once sense, nothing new. As Ellickson and others have shown, until the final decades of the last century, urban police officers maintained decorum in our public spaces primarily by enforcing informal norms of conduct.4 And even when official policies downplayed the enforcement of public-space rules of conduct, many police officers still found the role an impossible one to avoid.5 But modern order-maintenance policies differ in important respects from these antecedents. …