Tear It All Down: Highways as Racist Monuments

In recent months, citizens and elected officials around the country have been tearing down or ordering the removal of monuments that symbolize white supremacy and subjugation. While many of the targeted monuments are statues of people who supported or espoused racist ideologies, another set of more innocuous monuments to racial segregation still stand: America’s Highways

Comments on When God Isn\u27t Green

Thank you for the opportunity to participate in the symposium and provide comments about Jay Wexler’s great new book, When God Isn’t Green. Given that Jay is both a humorist and a serious legal scholar with a penchant for taking trips, it should come as no surprise that this book reads like a mix between a travel guide, a humorous ethnography, and an adventure memoir. In addition to raising important questions about conflicts between two important, competing issues, Jay provides vivid imagery of his trips overseas. I especially appreciated the image of Jay sitting at a bar drinking with a cat

Architectural Exclusion: Discrimination and Segregation Through Physical Design of the Built Environment

The built environment is characterized by man-made physical features that make it difficult for certain individuals — often poor people and people of color — to access certain places. Bridges were designed to be so low that buses could not pass under them in order to prevent people of color from accessing a public beach. Walls, fences, and highways separate historically white neighborhoods from historically black ones. Wealthy communities have declined to be served by public transit so as to make it difficult for individuals from poorer areas to access their neighborhoods. Although the law has addressed the exclusionary impacts of racially restrictive covenants and zoning ordinances, most legal scholars, courts, and legislatures have given little attention to the use of these less obvious exclusionary urban design tactics. Street grid layouts, one-way streets, the absence of sidewalks and crosswalks, and other design elements can shape the demographics of a city and isolate a neighborhood from those surrounding it. In this way, the exclusionary built environment — the architecture of a place — functions as a form of regulation; it constrains the behavior of those who interact with it, often without their even realizing it. This Article suggests that there are two primary reasons that we fail to consider discriminatory exclusion through architecture in the same way that we consider functionally similar exclusion through law. First, potential challengers, courts, and lawmakers often fail to recognize architecture as a form of regulation at all, viewing it instead as functional, innocuous, and pre-political. Second, even if decision makers and those who are excluded recognize architecture’s regulatory power, existing jurisprudence is insufficient to address its harms

Reconsidering the Strength of the Boundary Line

I was thrilled when I discovered Property’s Edges, a recent article by David Dana and Nadav Shoked, who are both at Northwestern University School of Law. Their article sets up an extremely helpful framework to think about boundaries, borders, and the liminal spaces in between purely public and purely private. Specifically, Dana and Shoked suggest that property law distinguishes the borders of an asset from its center. Thus, we have (or should have) weaker rights of ownership in the edges of an asset, which are close to its boundary with private property, than we do at its core

Equalizing Exactions

Some exactions are just bad. By this, I mean that they fail to mitigate the harms they were created to internalize. This struck me recently while I was researching privately owned public open spaces (POPOS), which are often exacted in exchange for a density bonus. Through my research, I determined that POPOS often fail to achieve the goals of good public space, in part because they are often exclusionary. I found myself wondering whether the citizens who were stuck with new dense buildings that block light and air, and who received only a poorly functioning POPOS in exchange, had any legal recourse

Questions of Citizenship and the Nature of The Public

This essay is taken from a talk given at a symposium discussing Professor Ken Stahl’s book, Local Citizenship in a Global Age.1 It is not a traditional book review, but rather a series of musings inspired by the ideas in the book. Professor Stahl’s new book, Local Citizenship in a Global Age, addresses a number of important issues, many of which have been the focus of my prior work: the existence of boundaries, borders, and the spaces in between; who we include in those boundaries and who we exclude; public space, private space, and the lines between them; spaces of production versus those of consumption; and questions of place and authenticity. Thus, I was excited to participate in a discussion of the book. This essay focuses specifically on Part III of Stahl’s book, which addresses “Race, Space, Place, and Urban Citizenship.” In addition to the topics I mentioned above, Professor Stahl’s book is about citizenship. Indeed, it is primarily about citizenship. But, as Professor Stahl describes various conceptions of citizenship, it is clear that the reader has to grapple with all of the other issues I noted—boundaries, place, exclusion—in order to fully understand citizenship. This essay provides no broad critiques or sweeping analysis. Rather, it will discuss the concepts that struck me in the book and the ideas it made me think about. Thus, what follows are some thoughts, organized generally in the order in which they came to me as I was reading Part III of the book

Following Industry\u27s LEED: Municipal Adoption of Private Green Building Standards

Local governments are beginning to require new, privately constructed and funded buildings to be “green” buildings. Instead of creating their own, locally-derived definitions of green buildings, many municipalities are adopting an existing private standard created by members of the building industry: LEED (Leadership in Energy and Environmental Design). This Article explains and assesses the privately promulgated LEED standards. It argues that the translation of LEED standards, which were intended to be voluntary, into law raises several theoretical and practical problems. Specifically, private green building ordinances that rely on LEED do not ensure a reduction in the negative local environmental impacts of buildings, nor do they provide any assurance that those standards were created through a legitimate process. The Article concludes by offering an alternative approach, suggesting that municipalities should instead enact green building ordinances that have been promulgated by public governmental bodies, rather than private, industry-based organizations, and done so locally, taking into account specific local building-related and environmental concerns

Access, Exclusion, and Value

The concepts of exclusion and access occupy the minds of many property scholars. We regularly debate the problems with, and benefits of, exclusion. We talk about how foundational the right to exclude is, and should be. We talk about whether and when the right to exclude should bend to accommodate other interests. And we talk about the value of exclusion. While these debates have filled many pages in law journals and hours of panel discussions, Professors Jonathan Klick and Gideon Parchomovsky noticed that something was missing from the discourse: empirical evidence

Pardoning Dogs

Professor Sarah Schindler, of University of Maine School of Law, presented Pardoning Dogs. This work analyze the limits of the pardon power, and specifically the power of the chief executive to pardon a dog.https://ecollections.law.fiu.edu/faculty-workshops/1043/thumbnail.jp

Technology and Nonhumans

This section provides a summary of the legal history and current status of transgenic animals, animal patents, and animal cloning, and examies many of the ethical and legal questions that these and related technologies raise