Legal Commentary

The following post is from Tracey L. Meares, Deputy Dean and Walton Hale Hamilton Professor of Law, Yale Law School:

I applaud Nicole Garnett for her smart and thorough review of the relationships between land-use regulation and disorder. There is much to chew on here. As I did, I found myself reflecting on one study with which I was familiar before reading the book and which Garnett cites twice. The study, co-authored by my former colleague, Robert Sampson, and Stephen Raudenbush, is unique. Sampson and Raudenbush test the hypothesis that perceptions of neighborhood disorder are socially constructed. Specifically, they sought to determine whether, once adjusting for a measure of observed physical disorder, racial composition impacts individuals? reports of disorder.  As it turns out, neighborhood racial context helps shape residents? perceptions of disorder.  Using data collected from Chicago neighborhoods, Sampson and Raudenbush demonstrate that as the percentage of black residents in a neighborhood increased, so too did perceptions of disorder by residents in each ethnic group residing in that neighborhood including blacks.  As far as I know, this is the only study of its kind, but I don?t think it is necessary to demand several replications before pursuing the point.  People?s perceptions of disorder are fueled by the physical disorder they see, unsurprisingly.  More surprisingly, however, people?s perceptions of disorder are driven very powerfully by the number of black neighbors they have.

I think this point complicates some of the prescriptions Garnett advocates in her book. It is true that historically zoning was used to disadvantage racial and ethnic minorities ? especially African Americans, so Garnett?s skepticism of zoning is potentially congenial to a program that advances the interests of this group.  On the other hand, as racial and ethnic minorities gain political power in many urban centers, there is reason to be more sanguine about locally-controlled zoning, just as one might be more comfortable with municipal policing today than that of 40 years ago.  Garnett explains near the end of the book that the new urbanist approach is to regulate building form, rather than land use.  But given the Sampson and Raudenbush research, I worry that the aesthetic demands of the new urbanists might also be skewed by social construction.  Replacing one form of expertise-driven regulation for another might not lead to the kind of participatory regulation that is one sure solvent of the binds created by decades of disenfranchisement. Before I jump on the band wagon, I think I need to hear a bit more about how the new approaches address old and durable problems.