PROPERTY AND THE PROBLEM OF DISUSE.

• Author: Ela, Nate

ABSTRACT

Property often lies idle, even in times of dire need. Property scholars have largely overlooked this enduring social problem. The oversight is surprising, since the same scholars often write that property's purpose is to help people put things to use. Some even contend that the right to exclude is and ought to be property's essential core because it helps serve this purpose. Yet the right to exclude empowers owners to leave resources idle, even during times of need. One influential theory suggests that conflicts over disuse should be addressed by a shift toward governance, in the form of doctrinal, legislative, and customary exceptions to the right to exclude. But when the right to exclude leads to disuse during a time of need, what happens in practice? This Article analyzes how people have repeatedly dealt with the problem of disuse in a major American city. This reveals a practice of brokering, which helps people in need by letting them use idle property. I call this practice the "use fix."

The Article introduces and analyzes the use fix through a case study of urban agriculture in Chicago. This presents a paradigmatic example of the four property practices that constitute the use fix: matching idle resources with potential users; mapping the extent and location of disuse; articulating social interests in use; and cultivating a norm against letting resources lie idle. From the Progressive Era to the present, Chicago's reformers have periodically deployed these practices, in various forms, to activate idle land and alleviate poverty and unemployment. Looking further afield, we can observe similar practices in efforts to house people in vacant homes, restart idled workplaces, and provide space for quarantine and isolation during the Covid-19 pandemic.

The use fix sheds new light both on property law and on urban governance. Urban reformers often contend with disuse that is a result of the very property rules that, at least in theory, are often said to promote use. Yet despite its ubiquity and its utility, the use fix has repeatedly failed to become an enduring institution. The political-economic circumstances of its retrenchment help to explain dynamics of governance, and the remarkable resilience of the right to exclude. For urban reformers working to activate idle resources and address urban inequality, the use fix remains a helpful if underappreciated tool. It offers a promising strategy for making cities more productive, equitable, and resilient.

TABLE OF CONTENTS I. PROPERTY, USE, AND DISUSE A. Use as Property's Purpose B. Dealing with Disuse, in Theory 1. Disuse as Use 2. Governance and (Dis)use Conflicts 3. Dealing with Disuse, in Practice II. THE USE FIX A. Four Property Practices 1. Brokering Organizations 2. Mapping Disuse 3. Articulating Social Interests in Use 4. Cultivating Social Norms Against Disuse B. The Use Fix Beyond Land 1. Vacant Housing 2. Idled Workplaces 3. Activating Space During a Pandemic III. LEARNING FROM DISUSE A. Disuse in Theory and in Practice B. Putting Cities to Use CONCLUSION INTRODUCTION

"Whenever there is in any country, uncultivated lands and unemployed poor, it is clear that the laws of property have been so far extended as to violate natural right."

--Thomas Jefferson (1)

Disuse has long posed a problem for property, especially when paired with human need. Imagine Thomas Jefferson walking the streets of Englewood, a neighborhood on Chicago's south side. What would he see? First, vacant land. In recent years, the City of Chicago held over one thousand vacant lots in Englewood alone; this inventory has accounted for nearly one-tenth of the neighborhood's total area. (2) Several thousand more vacant lots are privately owned. (3) Jefferson would likely see residents living in poverty. Nearly half of Englewood's households scrape by on income that puts them below the poverty line. (4) And he would meet people out of work. Over one-quarter of Englewood's adult residents are unemployed; others, who have stopped looking for jobs, are not counted in this figure. (5) In short, Jefferson would see a place of disused land and unemployed poor.

How could such a situation fit with property's purpose? To Jefferson, walking in the French countryside in 1785, the answer seemed clear. We allow the earth to be owned, he wrote to James Madison, "for the encouragement of industry." (6) The point of property, put simply, is to help people put resources to use. Yet as he walked among hunting lands reserved for the French king, Jefferson met a woman out of work who could not afford her daily bread. Something was amiss. As Jefferson saw it, uncultivated lands paired with unemployed poor demanded property reform. (7) Today, Jefferson's appeal to natural rights might seem quaint. But his sense that there is something amiss when disuse is paired with human need remains intuitive, almost natural.

Lately, property scholars have embraced the notion that property's purpose is to help people put resources to use. (8) This turn to thinking of property law in terms of use has motivated ongoing debates over whether property law has some essential core--whether that is the right to exclude, or the right to use. (9) Critics of this trend toward essentialism also appeal to property law's role in promoting use. Some suggest property rules should promote transfers that help maximize social welfare; others contend those rules should serve a diverse range of values and promote access to the things people need for flourishing lives. (10)

Yet even as properly theorists have become increasingly interested in use, they have largely overlooked the problem of disuse that seemed so obvious to Jefferson. (11) The oversight is puzzling, since thinking about property law in terms of use would presumably draw attention to its opposite. It is all the more puzzling because the problem has not simply disappeared--as made clear by the landscape of Englewood and many other neighborhoods in American cities.

What accounts for the oversight? Part of the story is property theorists' tendency to see disuse as just another type of intentional use. (12) This renders the existence of idle resources unproblematic, at least for the proposition that property's purpose is to help people put things to use. Yet this interpretive sleight of hand obscures the fact that, in practice, people are often troubled by resources lying disused, especially during times of need.

For scholars who argue that the right to exclude is and ought to be the essential core of property law, disuse poses a particular challenge. The right to exclude, after all, is what empowers an owner to leave property lying idle, even when others are in need. (13) Nevertheless, Henry Smith, among others, suggests that the right to exclude serves the interest in use. (14) Only when important use conflicts arise, Smith suggests, does the property law regime shift from exclusivity to what he terms "governance." (15) This catch-all term refers to legislative rules and judicial doctrines that address particular uses and users with competing interests. (16) Since disuse is considered simply another use, then, at least in theory, governance must also address disuse conflicts. Yet the move to position the right to exclude as property's core, while suggesting governance manages conflict at its supposed margins, is a conceptual one, supported by reasoning based on information costs. It does not seek to explain how people deal with disuse in practice.

This Article takes an empirically grounded approach to the problem of disuse. Rather than starting with theory and taking disuse as a residual problem, it asks how urban reformers have in fact dealt with disuse as it has appeared and reappeared in the landscape of a major American city. (17) By comparing past and present projects to let people in need use idle land that they do not own, the Article reveals patterns in the practices by which reformers have addressed the problem of disuse. (18) Working from the ground up both sheds new light on essentialist theories of property, and points to a promising if underappreciated strategy for putting idle urban resources to productive use.

America's cities, it turns out, help explain how people deal with disuse. The heart of the Article is a case study that reveals how social reformers in Chicago have periodically worked to solve the problem of uncultivated lands and unemployed poor. Drawing on archival documents and five years observing, interviewing, and partnering with people working to make land available for farms and gardens, I compare historical moments when reformers made unused land available for urban agriculture. Rather than telling this story from past to present, I proceed analytically, identifying patterns in reformers' practices across different periods.

The case study reveals four property practices that I refer to collectively as the "use fix." Through these linked practices, reformers tackle the problem of disuse by brokering access and use of idle land by people in need. First, they create organizations to match idle land with people in need. (19) Second, they map the location and extent of disused land. (20) Third, they articulate the social interests in use. (21) Finally, they work to cultivate a social norm against leaving land lying idle. (22)

The case study of urban agriculture in Chicago offers a paradigmatic example of how reformers have applied the use fix to vacant land. But the Article also looks beyond Chicago, and beyond land. I explain how reformers have developed similar strategies to reactivate vacant housing, restart idled workplaces, and provide places for isolation and quarantine during the Covid-19 pandemic. (23)

I draw lessons based on the case study for both property theory and urban governance. When the right to exclude results in widespread disuse, reformers often turn first to the use fix, rather than to legislative or doctrinal...