Legal Commentary

Of Snowstorms and Privately Enforced Property Rights

By Ilya Somin

The massive ?Snowmageddon? snowstorm is a good time to consider this interesting 2001 article about snowstorms and parking space property rights by Northwestern University law professor Fred McChesney [HT: Alex Tabarrok]:

Before snowfalls, a parking space belongs to the one who occupies it: you leave it, you lose it. In wintertime Chicago, however, excavating one?s car changes the system of property rights. Once car owners dig themselves out of their snow cocoon (Chicagoans carry snow shovels in their trunks for this), they claim the place they cleared as their own. How? Diggers routinely place lawn furniture, buckets, two-by-fours, bar stools, orange highway construction cones and other markers in the space they have just dug out. That means the space now belongs to the excavator. When he leaves, the markers dictate that the space must sit empty until the owner returns. ?People do look at these spaces as their own property,? a local law professor comments.

The space belongs to the original snow-mining engineer until the snow melts along the curb. Woe betide anyone who would take that space while its owner is away. Others in the neighborhood?who have undertaken similar excavations and staked out their own spaces?will protect the space for its absent owner. Broken windows, scratched paint, deflated tires and other punishments often follow parking in a space designated by whatever debris marks the excavator?s property....

The Chicago snow system is an interesting story in its own right, but better, it teems with economic lessons about property rights. First, there must always be some mechanism to allocate scarce goods. But sometimes, private property (either a formal legal claim or an informal right respected by others) is not necessarily required, nor necessarily desirable. Property is costly to define and enforce. In good weather, open access to street parking requires no definition or enforcement of property, and allocation on a first come, first served basis works well enough. However, open access as a property-rights system works less well when scarcity increases. No one claims parking spaces on the street except in winter, when conditions reduce the number of parking spaces.

Second, government is not necessary for the definition and enforcement of personal property rights. The Chicago system operates totally privately....

The tough issue is whether the Chicago system is better than any real-world alternative. Writers who condemn the practice treat the situation as one of mere distribution of a given amount of parking space. But an economist would predict that permitting private property would incite others to expand the amount of space. And so it does. Not only do those who dug out their cars the first morning have a space thereafter, but neighbors whose cars were not on the street begin to hack away the snow masses created by city plows to make a space for themselves. As black patches increase, the snow melts fast along the cubs. In both respects, the result is not just distribution of a given quantity of space, but creation of more space.

Over the last twenty years, legal scholars have chipped away at the traditional view that property rights must necessarily be created and enforced by government. McChesney?s article was a good contribution to this growing literature. Yale lawprof Bob Ellickson?s book Order Without Law was a milestone in the same field, as was recent Nobel Prize winner Elinor Ostrom?s work on private creation and enforcement of collective property rights.

It will be interesting to see whether Chicago-style parking space rights will develop in the DC area in the aftermath of the present storm. I predict that one winter of massive storms won?t be enough to get the system started, especially if a long time passes before another big storm occurs.

Full post as published by The Volokh Conspiracy on February 11, 2010 (boomark / email).