What is urban law today? An introductory essay in honor of the fortieth anniversary of the Fordham Urban Law Journal.

• Author: Davidson, Nestor M.

Introduction I. The Symposium and its Perspectives II. What Is Urban Law Today? Conclusion INTRODUCTION

In the spring of 2013, on the occasion of the fortieth anniversary of its founding, the Fordham Urban Law Journal convened a diverse group of leading scholars for a Symposium to reflect on four decades of urban legal scholarship. The Journal published its first issue in the fall of 1972 with a lead Article by then-New York State Attorney General Louis J. Lefkowitz on environmental concerns facing New York's Jamaica Bay. (1) Reflecting the urban ferment of the era, other articles that first year of the Journal examined tenant rights and exclusionary zoning, (2) consumer protection, (3) and criminal justice. (4) The animating idea of the Anniversary Symposium was to use these early themes as a platform to assess the state of urban law today--how has the field progressed and what is its future?

The Symposium, however, sparked a more fundamental, conceptual question: what, exactly, is urban law today? Four decades ago, the field was sufficiently well-recognized to merit the founding of the Journal and, at the time, a number of law schools offered programs and classes in urban law. (5) Today, however, the field is less prominent, with legal academics not often identifying themselves as scholars of urban law, despite researching and teaching subjects that are clearly related to any understanding of the boundaries of the discipline. (6) This shift is a lost opportunity for interdisciplinary dialogue with the vibrant discourse that urban specialists are generating in a variety of cognate fields, such as urban economics, urban sociology, urban history, and urban studies. The current state of the field of urban law is also unfortunate--for legal scholars and society--because cities and their metropolitan regions are increasingly at the forefront of many of the most important challenges that define the contemporary policy landscape and urban law is an important lens through which to engage with that reality.

The time is thus ripe for a renewed appreciation of urban law as a distinctive enterprise. This Essay sets out to trace some aspects of what that renewal might entail. To illustrate the creativity and insights of work that spans the breadth of urban law, the Essay first provides an overview of contributions to the Anniversary Symposium. It then argues for the necessity of urban law as a discipline within the legal academy, even while recognizing that this raises difficult questions of definitional boundaries. The mission of the Journal has always been to promote excellence in urban legal scholarship and that mission is more critical now than at any time since its founding. The Anniversary Symposium was an important step in recognizing a revival of interest in urban law, and the next four decades of the Journals future will hopefully be even more fruitful.

1. THE SYMPOSIUM AND ITS PERSPECTIVES

   One way to understand the field of urban law today is to reflect on the breadth of contributions to the Journals Anniversary Symposium. In organizing the Symposium, the editors of the Journal reviewed the articles that appeared in the Journals first year to identify themes that marked urban law in 1972. The editors settled on the categories of housing and exclusionary zoning, urban environmental challenges, and local government as a source of consumer protection. (7) They then asked scholars to reflect on how those themes had evolved in the intervening decades. The results illustrate the vibrancy of an approach to urban law that crosses individual legal topic areas to illuminate the intersection of law and urban life from a holistic perspective.

   On the theme of exclusionary zoning and housing in urban planning, Professor J. Peter Byrne's Essay, The Rebirth of the Neighborhood, begins the Anniversary Symposium contributions on an optimistic note, addressing the current revival of cities across the country. (8) As Professor Byrne notes, this revival has not touched all cities or all parts of even the most dynamic metropolitan areas, but is genuine and broad based nonetheless. The rebirth of cities, he argues, reflects a yearning by new urban residents for what cities, at least in their more Jane Jacobsian intimate quarters, have traditionally provided, which is collective space on a personal, pedestrian scale for casual interaction. (9) Professor Byrne argues that this desire for "a type of community properly called a neighborhood" (10) has been fostered by several changes in land use law, most notably the rise of zoning for traditional urban forms, the spread of historic district preservation, and environmental laws that have made cities more livable in recent decades. If Professor Byrne is correct, there is cause for hope in contemplating the role of law in the built environment that would have been surprising in the urban crisis of the early 1970s, even as his Essay acknowledges that gentrification has created new challenges.

   Professor Roderick Hills addresses exclusionary zoning directly in his Essay Saving Mount Laurel? (11) With its mandate for local governments to provide a fair share of regional housing needs, the New Jersey Supreme Court's Mount Laurel doctrine remains one of the best known examples of legal intervention to reorder the relationship between cities and suburbs. (12) As Professor Hills notes, however, Mount Laurel has been controversial from the outset, just a few years after the founding of the Journal, and remains highly contested today nearly forty years later. As to why, Professor Hills' diagnosis is that Mount Laurel has evolved into a bureaucratic regime that emphasizes a formula for siting specific numbers of housing units based on contestable criteria that invite municipal intransigence and homeowner resistance. Professor Hills' remedy--although I'm not sure he would characterize it quite this way--is to return Mount Laurel to its earliest roots as a doctrine that focuses on local-government distortions of the housing market rather than on specific outcomes. Professor Hills argues that the Mount Laurel obligation should become a mandate that every municipality provide a minimum level of residential density for "least-cost housing," which is "housing that uses the smallest marketable amount of land and materials to construct." (13) This would, Professor Hills posits, transform Mount Laurel into a doctrine that ensures developers would have sufficient zoning entitlements to provide housing that the market demands, potentially muting opposition and reducing the information burden now required for fair share determinations. (14) Whether a ceiling on zoning restrictiveness would necessarily do any better than the current regime--and whether the market for housing would actually function to mitigate the discriminatory effects of exclusionary zoning if this kind of strategic lowering of zoning barriers were attempted--are important questions. Regardless, Professor Hills' proposal offers significant insights into why Mount Laurel has not lived up to its promise.

   Professor Matthew Parlow's contribution, Wither Workforce Housing?, moves from one of the oldest challenges in urban housing and land use to one of its most recent responses. (15) Workforce housing is a type of affordable housing that targets middle-income workers who have been priced out of many urban areas. This is a policy dilemma not only for economic (as well as racial and ethnic) integration, but also a significant problem for the economic development of growing regions that depend on economic diversity for a strong foundation. Professor Parlow argues that in the wake of the Great Recession, with its concomitant challenges to many formerly dynamic...