LAW IN PLACE: REFLECTIONS ON RURAL AND URBAN LEGAL PARADIGMS.

• Author: Davidson, Nestor M.

Introduction 201 I. The Value and Limits of Rural and Urban as Paradigms of Place 204 A. Rural as a Paradigm 205 B. Urban as a Paradigm 208 II. Place and Context in the Legal System 210 A. The Influence of Place and Context on the Nature of Legal Conflicts 211 B. Place and Context in the Substance of Relevant Legal Norms 212 C. Grounded Authority Structures 218 III. Embracing Place: Cross-Disciplinary and Interdisciplinary Bridges Across the Urban-Rural Divide 220 Conclusion 222 INTRODUCTION

A ruralist and an urbanist walk into a bar--or, rather, a conference. That may sound like the opening of a bad academic joke, but it is actually how this Essay began. At a gathering several years ago, we met and found ourselves talking over lunch, only to discover that one of us directs something called the Rural Law Center and the other something called the Urban Law Center. What are the chances?! And what, more importantly, could we learn from a mutual commitment to exploring the legal dimensions of very specific, and paradigmatically different, kinds of places?

The conversations that followed sparked reflections on how legal academics engage not just with place--the important, long-standing, grounded work of law and geography--but with paradigms of place, however contested. What value is there in thinking about "rural law" and "urban law"? And what insights might we gain from peering out from across our respective sinecures--Wyoming and New York City, to play to type-and seeing what law and place looks like on the other side?

This Essay, which grew out of our conversations, offers reflections about ways in which the nature of a place shapes law and its application there. How might questions of density and diversity and resources and the like intersect with law? As we discuss below, these aspects of place matter in the types of conflicts that the legal system confronts, which in turn helps shape what is salient in law. Courts, legislatures, and other lawmakers likewise consider relevant characteristics in making and applying the law in context, at times using paradigms of place--heuristic short-hands--to describe patterns of relevant characteristics, identify where certain rules apply, and decide how rules apply in ways that reflect those different kinds of places.

We share a commitment to caution about reductionist stereotypes, recognizing that distinctions blur in many important ways, and there are equally critical differences within rurality and urbanism. That said, patterns that define rural and urban paradigms are sufficiently coherent to find value in highlighting what is distinctive about each, particularly because law does sometimes engage them directly. As we understand them today in the United States, then, rural places tend to have relatively smaller populations and less development, which of course means more open space, but also often fewer public and private resources. Critical characteristics in urban places-again, relatively speaking--include the density of the built environment and the corresponding population that facilitates; social realities, such as diversity, anonymity, and mobility; and the cultural resonances that flow from those physical and social conditions. Of course, suburbs and exurbs and other types of places have elements of each of these overly simplified paradigms but starting with polar opposites can shed light on deeper patterns.

Legal geographers have long argued--and we take as a given at this juncture--that "nearly every aspect of law... is located, takes place, is in motion, or has some spatial frame of reference." (1) And the discourse on law and geography recognizes that the "place" of law encompasses not just the bounded nature of jurisdiction in territorial terms, but also the constitutive interplay between legal practice and social reality. (2) Indeed, as Nick Blomley has noted, "the legal and the spatial are, in significant ways, aspects of each other." (3)

For scholars focused on the rural and the urban, then, engagement with the rich geographic, social, and cultural texture of specific types of places can help find shared concerns within disparate strands of legal scholarship. Focus on the rural and the urban invites consideration of how place affects the conflicts that drive legal change; the texture of the resulting legal norms; and the conditions for the structures of authority that create and embody law.

As each of us have found, moreover, situating law in particular paradigms of place can also be an interdisciplinary bridge. So much scholarship in cognate fields, from sociology to economics to geography to history and beyond, finds common ground around the nature of the "urban" and the "rural." (4) Paradigms of place at a high level of generality, perhaps ironically, can thus make legal scholarship more salient to scholars of place in other fields as well as help the legal academy absorb--and challenge--insights from other geographically informed disciplines. (5)

Written by two scholars who share a fascination with the manifold nuances of the places we each call home, but come at that fascination from different ends of the rural-urban spectrum, this Essay is an exercise in finding common ground. It turns out, as we will see, there is a surprising amount of it--in the questions we ask, the answers that emerge, and the traps awaiting the wary and unwary.

1. THE VALUE AND LIMITS OF RURAL AND URBAN AS PARADIGMS OF PLACE

   Before turning to ways in which law broadly intersects with the rural and the urban, we want to pause first to explain how we each approach our respective areas of focus. Paradigms of place in the sense that we are using the concept in this Essay inevitably involve a spectrum of characteristics that defy simple summary, but ideal types describing the ends of that spectrum are useful, nonetheless. Thus, "rural" and "urban" are by no means a hard dichotomy; (6) they overlap, bleed together at the margins, and interact. The categories also risk obscuring the importance of types of places that share elements of each--the suburbs, which is where most Americans live today, most notably. (7) And many friction points that generate legal change take place at the margins--as with nuisance claims where the nature of place as urban or suburban or rural is itself conflicted. (8)

   The point is not to have some ur-image of either paradigm, but to recognize that each end of the spectrum can stand as a useful heuristic for certain social, cultural, and geographic facts, and that what constitutes either end has value as a conceptual frame. To name and identify these paradigms for legal scholars is to refine the questions we ask, to link otherwise disparate phenomena through the lens of types of place (crossing scholarly silos through how various domains interact in a context), and to build interdisciplinary bridges to other fields where the focus on place categories is more accepted (rural sociology, urban economics, etc.).

   We are not oblivious to the irony of foregrounding sensitivity to place and context while then making arguments based on very general categorizations of places like urban, suburban, and rural, without regard to significant differences in their places and contexts. Reasoning based on place stereotypes can produce error just as much as disregarding the nature of place can. (9) Such reasoning is tempting because applying a stereotype is easier than painstakingly examining relevant individual characteristics. And often the perception of a place obliterates the reality, as when people make assumptions about urban dysfunction or rural isolation or the like. So, one might question whether categorizing places does more harm than good, given the endless variety of places and the tendency to improperly rely on stereotypes.

   But just as with other variables that influence legal rules and legal outcomes, it is still useful to identify common attributes and analyze how they are relevant to legal rules and outcomes. An analysis of the relevance of place to particular issues certainly cannot be complete simply by classifying the place as urban or rural or something else, but those paradigms help draw attention to relevant place characteristics, patterns, and issues. Urban and rural paradigms can help identify legal cases considering similar issues, even though specific place characteristics may differ. These paradigms can help lawmakers consider appropriate laws and policies across a range of places, despite their differences. Paradigms can also help find insights from other disciplines.

   Urban places may--and indeed often do--differ from other urban places, and rural places may differ from other rural places, in ways that are relevant to particular legal issues. So, applying an urban or rural paradigm to a locality is a starting point for identifying issues to consider, and a way to identify common patterns across legal issues, but any given legal analysis must consider whatever place characteristics might be relevant. (10)

   1. Rural as a Paradigm

      Rural places are generally defined by smaller populations. Simple definitions of rural communities, such as for governmental programs, may define a rural town as one with less than a specified maximum population. (11) But low population density and distance from urban areas primarily characterize rural places. The U.S. Census Bureau considers population density and distance from urban areas in classifying areas as urban. (12) The Census Bureau also includes in urban areas impervious surfaces with lower population density within a quarter mile of urban areas, such as airports. (13) All other areas are rural. (14)

      Since rural generally just means less developed and populated, rural communities vary widely. (15) But while relevant differences certainly must be considered, identifying the general characteristics of rural places can provide a useful paradigm for identifying legal patterns, problems, and solutions.

      A...