INTRODUCTION I. THE URBAN COMMONS "PROBLEM" A. Cooperative Commons Management: Preconditions and Benefits B. Urban Public Space as a Commons II. URBAN PUBLIC-SPACE MANAGEMENT: A SHORT EVOLUTIONARY HISTORY A. The Re-Regulation of the Urban Commons B. The Partial Privatization of Public Spaces C. The Public-Space Management Compromise III. THE FUTURE OF URBAN COMMONS MANAGEMENT A. Increased Privatization B. Cooperative Management of the Urban Commons CONCLUSION: TOWARD A CROSS-COMMONS PERSPECTIVE INTRODUCTION
In July 2010, following failed labor negotiations and facing a mounting budget crisis, the Oakland, California, Police Department fired eighty police officers and announced that it would no longer respond to reports of certain crimes, including burglary, vandalism, theft, and a host of low-level offenses. (1) Oakland is not the only community to have limited--or considered limiting--police services in response to local budget woes. Cities across the country--small and large, urban and suburban--have been forced to scale back the size of their police forces. While some have joined Oakland in explicitly pairing budget cuts with service cuts, (2) others have vowed to redouble their efforts to stretch scarce resources even further. Upon assuming office, for example, Chicago Mayor Rahm Emanuel asked his police chief to freeze hiring and cut $190 million from his budget. (3) Emanuel, however, assured an anxious public that he "remain[ed] committed to putting more officers on the streets," insisting that the budget cuts would come from the central office bureaucracy. (4) Currently, the Chicago Police Department has over 1400 unfilled positions. (5)
For obvious reasons, reductions in police force size and service levels raise serious questions about public safety, especially in major cities. These reductions also bring to the surface questions about policing priorities, including the debate over so-called "ordermaintenance policing" policies, which have, over the past few decades, refocused police resources on restoring order in urban public spaces following years of relative neglect. (6) An important catalyst for this "ordermaintenance revolution" was the 1982 publication of James Q. Wilson and George Kelling's influential essay, Broken Windows: The Police and Neighborhood Safety, which urged urban leaders to reassert authority over, and restore order to, urban public spaces] But it is fair to say that, by the time Wilson and Kelling published Broken Windows, many Americans had already concluded that the "comedy of the commons" (8) was not funny anymore. A dramatic decline in decorum in urban public spaces--combined with an equally dramatic economic disinvestment in American cities--led to disillusionment with the laissez-faire approach to public space management that had dominated urban policy since the 1960s. (9) Moreover, a colorable case can be made that the renewed attention to the quality of life in urban public spaces helped spur the unexpected urban resurgence of the past few decades. (10)
At least since the publication of Garrett Hardin's 1968 article The Tragedy of the Commons, (11) most policymakers and social scientists have assumed that resources held in common--including the urban commons of sidewalks, streets, and parks--are doomed to exploitation. (12) These same social scientists and policymakers also have become sharply divided over how to prevent the commons from descending into tragedy. Some join Hardin in asserting that centralized, governmental control of the commons is necessary. (13) Others argue that privatization is the simplest and most effective way to avoid the tragedy of the commons because (to borrow from Henry Smith) exclusion is a more effective means of resource management than governance. (14) But in recent years, economists and property theorists, led most prominently by Nobel Laureate Elinor Ostrom, have challenged the axiomatic proposition that the commons inevitably descends into tragedy or that "unowned" property is doomed to overuse. (15) While Ostrom's work suggests that cooperative management of common-pool resources is not only possible but also can arise organically, other scholars have emphasized the undertheorized and underappreciated benefits of shared ownership. For example, Hanoch Dagan and Michael Heller's 2001 article, The Liberal Commons, demonstrated that joint ownership arrangements, with elements of both private and commons property, can have significant benefits over individual ownership. (16)
Over the past several decades, discussions about the appropriate tools of commons management have played out in a particularly illuminating way in policy debates about the management of urban public spaces. Urban public spaces are not a pure commons per se, as they have owners (i.e., local governments). However, political and constitutional limitations placed on those owners dramatically curtail the extent to which they control those spaces, resulting in streets, parks, and sidewalks very strongly resembling commons. These public-space management discussions tend to map themselves neatly onto theoretical debates about commons resource management. Some commentators urge, a la Hardin, (17) that government coercion is needed to restore order to the urban commons: Broken Windows is of this ilk, as are portions of Robert Ellickson's work on public-space zoning. (18) Others urge the privatization of urban public spaces to transform them into some thing akin to Dagan and Heller's "liberal commons." (19)
On the ground in American cities, these theoretical arguments have been translated into concrete policies, including policing strategies (for example, order-maintenance and community policing) and urban development strategies (for example, business improvement districts (BIDs)). The former clearly instantiates the view that successful commons management depends on government coercion, and the latter represents a conviction that the quasi privatization of the commons is advisable. While, legally, the management of urban common spaces remains the purview of the police, quasi-privatization mechanisms such as BIDs also perform public-space management functions, especially the funding of infrastructure improvements and supplemental public services. The much celebrated (and debated) urban rebound of the past two decades suggests that this compromise has been partially successful, insofar as success is measured by a resurgent urban population base and the renewal of central-city neighborhoods. (20)
This is an opportune time to reexamine the commons-management questions raised by these policies. As this Article's opening anecdote suggests, the current economic crisis is forcing cities to scale back law enforcement efforts, and it is limiting the financing available to fund sublocal investments in urban public spaces. It is possible that these pressures will lead the current urban-commons compromise to unravel, resulting in less public regulation of urban public spaces, more pressure for private regulation, or both. Using these tensions as a starting point, this Article will draw upon the literature on commons-space management from multiple disciplines--especially law, economics, and sociology--to reflect critically upon the optimal regulation of urban public spaces and the possibility of cooperative commons management arising in the absence of government regulation.
This Article proceeds in three parts. Part I briefly outlines the commons debate. It focuses particularly on arguments that either coercive regulation or privatization is necessary for efficient commons management and on Ostrom's work suggesting that cooperative management regimes may arise organically. Part I also argues that the lessons from the literature can be fruitfully applied to the question of urban public-space management. Part II describes the evolution of the regulation of the urban commons, with an emphasis on the connections between these theoretical arguments and urban policy innovations in recent decades. Drawing upon legal and social science literatures, Part III analyzes whether greater privatization or cooperative management of urban public spaces is advisable or possible. The Article concludes by asking whether the lessons of urban space management can be exported to questions of commons management in other contexts.
THE URBAN COMMONS "PROBLEM"
In his influential 1968 article, The Tragedy of the Commons, Garrett Hardin argued that coercive government regulation is necessary to prevent the degradation of common-pool resources, because individual resource appropriators receive the full benefit of their use and bear only a share of their cost. (21) Analogizing to game theory, the tragedy of the commons is a prisoner's dilemma. (22) Since no individual has the right to control or exclude others, each appropriator has a very high discount rate and little incentive to efficiently manage the resource in order to guarantee future use. In Hardin's words,
[T]herein is the tragedy. Each man is locked into a system that compels him to increase his [use] without limit--in a world that is limited. Ruin is the destination toward which all men rush, each pursing his own best interest in a society that believes in the freedom of the commons. (23) Hardin's conclusion that coercive, centralized government regulation represents the only way to avoid tragic overuse of commons resources is embedded in many concrete public policies, including environmental regulations and many of the order-maintenance policies reviewed below. (24)
In contrast, the conventional wisdom among many economists and legal scholars holds that privatization, not regulation, is the most effective solution to the problem of the commons. The stylized and elegant version of the argument, set forth in the work of Harold Demsetz, suggests that privatization internalizes the costs of resource appropriation, thereby creating incentives to...