Homelessness at the cathedral.

Author:Roark, Marc L.
Position:Introduction through II. The Visible Yet Legally Invisible Homeless A. Homeless in Public Space 1. Trespass and Anti-Camping Ordinances as Protections of Property, p. 53-94


This Article argues that legal restraints against homeless persons are resolved by applying certain nuisance-like approaches. By drawing on nuisance restraints that adopt property-based and social-identity information, courts and decision-makers choose approaches that create conflict between homeless identities and adopted social identities. These approaches tend to relegate the social choice of whether to tolerate homeless persons to one of established social order (property) or broadly conceived notions of liberty (constitutional rights or due process rights). This Article argues for a broader conception of social identity, which may force parties to internalize certain costs of action, tolerate certain uses, or abate the full range of property rights that the law would otherwise allow in different social settings. Considering the question of "undesirable " uses of space--both on private and public land --helps articulate a narrative of property that moves beyond the rhetoric of economics-bound entitlements and affords a broader, more honest characterization. Conceived in this way, property entitlements represent information about how society defines, refines, enforces, and rejects its collective identity through the legal recognition of property entitlements.

TABLE OF CONTENTS INTRODUCTION PART I: COLLECTIVE IDENTITY IN LEGAL ACTION A. Collective Identity in Legal and Sociological Terms 1. Establishing Social Identity Through Rule Creation a. Social Identity Creation b. Ideology c. Power Relationships 2. Establishing Group Identity Through Rule-Enforcement B. How Space Exclusion Leads to Collective Identity PART II: THE VISIBLE YET LEGALLY INVISIBLE HOMELESS A. Homeless in Public Spaces 1. Trespass and Anti-Camping Ordinances as Protections of Property 2. Hygiene Ordinances and Rules as Means of Excluding Homeless Persons 3. Seizure of Homeless Property B. Homeless Activities in Public Spaces C. Homeless Control and the "Not in My Backyard" Mentality 1. Homeless Persons as Nuisances to Property Owners 2. Claims That Other Government Ordinances Render the Homeless Service Provider a Nuisance 3. Government Acts Towards Property Owners Attracting Homeless Persons a. The Right to House Homeless Persons b. Administrative Limitations on Housing Homeless Persons PART III: HOMELESSNESS AND INFORMATION A. Homelessness at the Cathedral B. Asserting Subjective Homeless Identity in Legal Decision Making CONCLUSION INTRODUCTION

The law of property is entrenched with information--information about markets, information about wealth, and information about social identity. (1) It is well regarded as a catalyst for economic stability through systematic transfer of information. (2) It is shaped by political power and expectations of social entrenchment. (3) It communicates what is important by being the canvas of our creativity. (4) It says something about what we value by how we manage it when it's scarce (5) and how we do not when it's plentiful. (6) We remember why we acquired it and tell stories about why it remains meaningful. (7) Property captivates our attention as a measure of prosperity and as a signal of power (and its opposite--powerlessness). (8) It remains--as Blackstone noted--a catalyst of our imaginations and our emotions, whether acquired by hook or crook, and then honored as the thing that validates our social life. (9) The law of property reflects our collective identity--what we value, what we do not and why we think it matters.

Property, at its core, is also about social approval of one's occupancy of space. (10) The law of property reflects a collective identity of the society that recognizes its resource value, enforceability, or import. Laws and decisions relating to land-use, whether criminal, contractual, or tort-based, reflect society's approval or disapproval of individual or group actions in public and private spaces. (11) As a broad matter, space allocation is important because society collectively recognizes one person's entitlement over another's to space. (12) It is also important because in recognizing property entitlements, property systems say something about our collective identity--a cultural contract soto-speak. (13) Cases involving homeless persons demonstrate the way collective identity shapes court decisions.

In homelessness cases, courts allocate space (and take away space) according to how they perceive the purported use in relation to collective identities. (14) Those cases also speak to our collective identity by relating society's choices to not recognize an entitlement to space. (15) Tacking on another layer, the actual use of a space, whether constituting property or not, is often shaped by collective social judgments that reflect a social identity. (16) In other words, it may not be just the creation of the legal entitlement that tells us something about our collective values. It may be the collective judgment to reject a particular use in a particular place that tells us the most about our social identity. Calabresi and Melamed's iconic One View of the Cathedral, (17) describes property decisions as those that advance individual ownership by preserving one's power of marketable exclusion (property rules), (18) shift individual ownership by implementing an objective damages rule (liability rules), (19) or limit transfers through state action (inalienability rules). (20) At the core of these rules is the conception of an entitlement--what Calabresi and Melamed describe as the state's choice of which interest to prefer in the face of conflict. (21) But this conceptual framework is merely the extension of other broader principles through forced means. (22) That is, legal entitlements reflect perceptions of shared consensus for how a particular space should be used and who should get to decide. (23) This shared consensus constitutes information about what society values, what it doesn't value, and how it chooses to express those values.

Sometimes, that consensus conveys information that the space is reserved for public use. (24) For example, scholars have attempted to explain why the law recognizes public space in the face of systems that prefer private ownership. (25) Within that sphere, groups seek to carve out their own identity against the backdrop of collective approval. The presence of "informal norms," the recognition of rules, and the choices to occupy one space over another reflect more broadly a collective choice to tolerate or not tolerate an individual or group's occupation of a particular space. (26) And sometimes, the consensus is found in the limitation of certain undesirable groups from accessing the public space. (27)

This Article describes how space-claiming in both private and public spheres functions as a means of defining our collective identity. In particular, how our choices to limit one claimant's occupation or use of particular space imports a collective identity through rule recognition. Rule recognition is the information that reflects one's validity to use space. (28) For example, homeless persons may occupy territories according to hierarchies established by might and bargaining." (29) But the lack of a legal entitlement to occupy the space leaves these individuals subject to society's choice to no longer tolerate either their occupancy of certain space or the means by which they deny others the right to share the space. (30)

Likewise, courts allow property owners freedom to use their property in whatever manner they may choose--until those expectations interfere with a different collective judgment for how far a property owner's right should extend. (31) Courts can stop the harmful acts, require compensation to continue the acts, approve of the acts with no compensation, or approve of the act subject to compensation. (32) Courts may also decide that the property owner's right can't interfere with a different collective right. (33) In all these instances, collective identity is reflected in the actions that courts and legislatures will tolerate in a particular space.

Rule recognition (or choices of one entitlement over another) reflect collective norms of the society and locality where applied. Collective norm-creation performs three primary functions for society: (1) it represents sectional interests as universal interests; (2) it denies or transmutes contradictions; and (3) it naturalizes or reifies existing social structures. (34) This Article argues that these three strands of norm-creation appear in homelessness cases relating to control of space.

First, space control tends to reflect collective expectations for space-use through both behavioral norms and formal rules that are respected or not respected within that particular space. (35) For example, in every setting there are behaviors that are condoned by the dominant culture of the space, and there are behaviors that are not. (36) Sometimes, the rules are formally applied, and, other times, the rules are merely acted upon by participants in the space, with no overt acknowledgement of the rules' existence. (37) When norms and behaviors that are associated with an area are conformed to, the individual becomes part of a group whose identity is linked to the geographic space they occupy. (38) Much of this conforming happens informally and is usually acknowledged only when a breach of the decorum becomes apparent. (39) For example, in Occupy Nashville v. Haslam, protestors staged overnight demonstrations at Nashville's War Memorial Plaza (the "Plaza"), which was under no stated curfew. (40) The court said "the Old Rules permitted overnight use of the Plaza ..." though the local government encouraged the passage of new rules "to reduce urination, defecation, and vandalism from homeless individuals who, at times, used the Plaza as a 'sanctuary' for overnight accommodation." (41) The local government eventually passed new rules that limited Occupy Nashville's ability to remain...

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