PROPERTY LAW'S SEARCH FOR A PUBLIC.

• Author: Shoked, Nadav

ABSTRACT

Public spaces--streets, sidewalks, parks, plazas, squares, and the like-form a major component of the physical environment. Therefore, disputes over the use and management of these spaces abound. Courts analyze each such dispute individually through the prism of the discrete property law doctrine that appears applicable. The result is a hodgepodge of inconsistent rulings that too often ignore the common normative principles implicated in all debates over public spaces. This Article advances a general framework for the legal treatment ofpublic spaces. It argues that, at heart, every dispute over the use of a public space requires the law to answer one fundamental question: Who, in the case at hand, should be deemed the "public " actually holding the implicated public right? After all, the "public " is not a recognized legal entity. The law identifies disparate bodies that might stand for the "public " in a specific case--and accordingly be empowered to dictate the uses of the relevant public right. The options include the local government, the public at large, specific individuals, or a set of common law strictures. The Article constructs a test courts should employ when, in a given dispute over the use of a public space, they must pick among these alternatives. It does so by isolating the core normative concern animating the common law doctrines that deal with public spaces. The concern the Article identifies is the notion that some public spaces, but not others, have a natural use, and must thus be treated uniquely. In light of this core principle the Article develops an operative test to identify the "public " that should be afforded control over a given public space. Under the test, a court must determine whether a contested public space has a natural use, and if it does, how clearly defined that use is, who the actors funding the use are, and how trustworthy is the government when transacting in the space. To illustrate the test's utility, it is employed to identify the pertinent publics that should control public rights in two of the most commonplace public spaces: parks and sidewalks.

TABLE OF CONTENTS INTRODUCTION I. THE LAW OF PUBLIC SPACES A. Different Rights B. Different Publics II. WHO SHOULD THE PUBLIC BE A. The Law of Public Spaces ' Normative Theme B. Picking the Public in Light of the Law's Normative Theme... III. WHO SHOULD THE PUBLIC BE: EXAMPLES A. The Public in Parks B. The Public on the Sidewalk CONCLUSION INTRODUCTION

The former President and First Lady picked the site for the future Obama Presidential Center at the conclusion of a competition pitting against each other four proposals hailing from three different cities. (1) The winning bid singled out for the Center's location Jackson Park in Chicago's Hyde Park neighborhood, (2) the area President Obama once represented in the Illinois state legislature. An ecstatic mayor and city council approved the project in 2015. (3) The project faced a legal challenge, however. A public interest group dedicated to the protection of open spaces has questioned the project's legality. (4) The group contends that Jackson Park, originally designed in 1870 by the famed architects Frederick Law Olmsted and Calvert Vaux, is subject to the public trust doctrine. Spaces governed by that doctrine must remain publicly owned and open--free, that is, of structures. (5) The common law developed this venerable doctrine in the context of ownership rights in navigable waters and submerged land. (6) The central question the parties to the Presidential Center litigation and the many intervening amici curiae--counting among them all existing U.S. presidential libraries, (7) all major Chicago museums, (8) and numerous law professors (9)--debate is whether the public trust doctrine also covers a park. If it does, the Presidential Center is doomed. For structures may not be erected on public trust land. (10)

Other than timing, this case appears to share very little with another set of cases that has emerged recently: litigation over electric scooters. Electric scooters began appearing on city streets--starting in Santa Monica, California, and spreading to other cities in the United States and Elsewhere (11)--in September 2017. (12) Companies operating the service--first those dedicated solely to scooters, such as Lime and Bird, then those with broader transportation portfolios, such as Lyft and Uber--invite users to download a smartphone app which allows the user to locate an available scooter on a city's sidewalk and unlock it. (13) The user rides the unlocked scooter, and then drops it off when she arrives at her destination--leaving the scooter on the sidewalk to be located, and then unlocked, by the next user. Operators of the service have been embroiled in legal battles ever since its introduction. (14) Upon the scooters' first appearance, many cities issued cease-and-desist letters requiring that the scooters be removed from their sidewalks. (15) Several criminal prosecutions ensued, (16) and some cease-and-desist letters were challenged in court. (17) Operators have further disputed more recent city ordinances that regulate the scooters' access to sidewalks or cap their overall number. (18) Operators argue that cities lack the power to thereby unilaterally control sidewalks. (19) Cities respond by pointing at their general authorization to police sidewalks and by raising public nuisance tort claims against the operators. (20)

The Presidential Center and electric scooters disputes seem wholly unrelated. Courts clearly treat them as such. They involve disparate legal doctrines--the public trust doctrine in the case of the Center, (21) a city's regulatory powers (and public nuisance law) (22) in the case of the scooters. Yet, this Article will argue, behind the distinct doctrinal headings lurks a common, and foundational, question that must be settled in both the Presidential Center case and in the scooter cases.

Irrespective of their distinct doctrinal guises, in both courts are confronted with a stark choice. If the federal court in Illinois refuses to apply the public trust doctrine to the public space contested there--parks--it will thereby grant the power to draw the scope of allowable activities in that type of public space to the local government (i.e., the city will decide what structures can be built in parks). If, conversely, the court applies the public trust doctrine to parks, common law strictures will determine that scope (i.e., the court will decide which structures may, under the common law doctrine, be built in parks). If courts approve of cities' attempts to ban electric scooters from the relevant public space--sidewalks--cities will be allowed to set the contours of allowable activities on that public space. If, conversely, courts accept the operators' position, courts will allow private actors--individuals and businesses using the space--to make that determination.

In other words, in these disputes courts must decide who holds the power to determine to what use, or uses, a public space will be put. A court must identify who, or what, is the "public" in a public space--the "public" that should actually control the public right in that space.

And these two specific disputes are mere examples. The one question identified through them animates any case involving a public space. The disputes surrounding the Obama Presidential Center and the electric scooters are emblematic of prevalent, and ceaseless, conflicts over the design and regulation of public spaces--particularly when uses change or new uses are introduced. While current courts and commentators often conceive of each such dispute separately, applying to it the particular doctrinal set of rules implicated therein, (23) the resolution of each and every one of these disputes involves the need to answer that one basic inquiry identified here.

That question--who should have the power to set the course for the given public space--is raised, for example, in disputes about the power of the city to remove statues commemorating Confederate soldiers and leaders from streets and squares over the state's objections (24) or those of the soldiers' descendants; (25) in disputes over the power of private entities or neighborhood groups to place works of art of their choosing in the street or park; (26) in disputes over the power of a city to bar an owner from placing his name or logo, in huge lettering, on a skyscraper facing the city's most prominent public space; (27) in disputes over a city's power to force an owner to maintain a large advertisement sign atop a building once that sign has become closely associated with the city's skyline; (28) and more. Once we acknowledge the fact that all such disputes involve the same task of identifying the entity that should control the public space--and once we develop a principled manner of approaching that task--disputes over public spaces can be resolved in a more consistent, and rational, manner.

By approaching this task, and highlighting the stakes involved, this Article promotes a more sophisticated appreciation of the legal treatment of public spaces. Such better understanding is of the utmost importance. For public space is all around us. Not a day goes by during which the average individual does not interact with at least one public space. Merely by leaving their home, a person is confronted by the street. Even when staying indoors, the public space is inescapable--views and noises will likely invade any private space. Public spaces mold our lives--our public and private lives both.

Accordingly, over the past decades, and with enhanced urgency in the last few years, commentators in a variety of fields have tackled these spaces' treatment. (29) Following Jane Jacobs's pivotal study of cities, which tied their vitality to "[t]he ballet of the good city sidewalk," (30) scholars in sociology, psychology, and economics, as well as planners...