Legal Commentary

Thanks to Matt for the invitation to participate in this book club on Nicole Stelle Garnett?s Ordering the City.  Thanks also to Nicole for writing such an engaging and enjoyable book.

Ordering the City is refreshingly non-doctrinaire.  If there is one overriding theme in the book, it is that the problems facing cities are complex, and that the solutions to these problems, if they can be found, are likely to be equally complex and multi-faceted.  There is a tendency among academics, government officials, and pundits to make categorical arguments about cities (and, I suppose, about pretty much everything else), and it isn?t hard to find smart people advocating opposite sides of any give issue.  Community policing reduces crime!  Community policing doesn?t reduce crime!  Eminent domain should never be used as a tool for redevelopment!  Eminent domain is an important tool for redevelopment!  Let the market make all land use decisions!  Use planning to avoid market failures! 

I have personally held, at various points in my life, fairly strong and doctrinaire positions about these issues one way or another.  And I have been thinking about these issues for almost my entire life.  My mother was a city planner, first for Pittsfield, a small city in western Massachusetts, and later for the Boston Redevelopment Authority.  From the time I was in elementary school, dinner table conversation was frequently about urban renewal, zoning, historic preservation, and the various idiocies occurring at City Hall.  I was probably one of the few American children who could identify Jane Jacobs.  When my mother died last year, I inherited her author-signed copy of The Death and Life of Great American Cities, a classic book that seems to be one of the biggest influences on Ordering the City.

Reading Ordering the City crystallized something that has been in the back of my mind for the last few years:  the doctrinaire positions that I and others have held about these issues are not so much right or wrong, but instead often miss the point.  There are no easy answers, and it is a mistake to approach any broad and complex issue from one narrow perspective.  This isn?t to say that theories or big ideas aren?t important ? they are.  It?s just that context matters, and what works in one situation might not work in another.

Take, for example, Jane Jacob?s influential idea that ?economic activity will increase, not undermine, neighborhood-social ties and will suppress disorder.? (OTC, p. 5). 

Jacob?s position always made a great deal of intuitive sense to me, and I think it has a lot of truth to it.  But it is a mistake to reason from this important observation directly to the conclusion that economic activity is always a good thing for a neighborhood.  I lived for 13 years in New York City?s West Village, just south of the Meatpacking District.  In the early- and mid-1990s, the Meatpacking District was largely vacant at night, and did not feel safe at all.  By the early 2000s, the Meatpacking District was a hopping commercial district that was vibrant and that felt safe.  But the same kind of economic activity, just two blocks south, might seem problematic in established residential areas where noise and crowds raised quality of life concerns.  The economic activity surrounding a restaurant might be welcome, where the economic activity surrounding a nightclub might not.  The right answer for Little West 12th Street might not be the right answer for Jane Street, even though the distance between the two is only a couple of hundred feet.  And, of course, what might be the right answer for the affluent West Village might not be the right answer for a poor neighborhood somewhere else in New York City, or somewhere else in the world.

Community policing is another example.  There is some debate about whether community policing reduces crime.  As the discussion in Ordering the City emphasizes, however, focus on crime reduction alone would miss important parts of the story.  Community policing makes people feel safer, and that feeling of safety might matter as much or more to people than actual safety measured in statistical crime rate data.  Regardless of their specific impact on crime rates, community policing and other order-maintenance policies might ?make cities more attractive places to live, thereby improving the lives of current residents and helping them compete with suburban alternatives.? (OTC, p. 129).  Focusing on crime rates alone ? a logical and intuitive thing to do in considering policing strategies ? would be a mistake.

Faced with a highly complex balance of competing social goods and preferences, it is tempting to try to rely on the market to order the land use of a city, because the market would generally be better than the government in reflecting the varied preferences of the city?s residents.  The organic growth of vibrant city neighborhoods championed by Jane Jacobs was largely the product of market forces, not government planning.  But markets fail, and pretty much everyone except the most hard-core libertarian would concede some role for the government in ordering the city.  The difficulty comes in trying to get government actors to use a light hand, and to free up space for the market to create the vibrancy that make cities amazing places.

Even if complexity makes it a mistake (or at least risky) to rely on broad and categorical theories to order the city, academics can give important advice to policymakers.  As I noted above, ideas are important, even if careful thought is required before these ideas are applied in any given context.  Two lessons from Ordering the City deserve special note.

First, small government interventions might be better than big government interventions.  Take, for example, the use of eminent domain.  The sad history of urban renewal counsels against the broad use of eminent domain for mega-development projects.  More recent takings like those in New London that led to the Kelo litigation suggest that this lesson has not been fully internalized by government actors.  On a more modest scale, though, the selective use of eminent domain can spark the organic revival of an entire neighborhood.  New York?s Upper West Side is probably a better place now than it would have been if the use of eminent domain to clear the space for Lincoln Center had been much broader in scope.  Mega-projects also tend to lead to a kind of group-think that can be incredibly dangerous.  My mother?s graduate school thesis was on the relationship between mega-project urban planning and madness-of-crowds phenomena like the Dutch tulip craze, and the comparison has always struck me as apt.

Second, it is a mistake to base urban policy on intuition and on reasoning by anecdote.  Government officials, especially, need to be cognizant of how their own backgrounds can color their views on policy issues.  The different preferences of people from different backgrounds comes up in various contexts in Ordering the City ? Nicole, for example, notes that ?My parents, who both grew up in rural Kansas, are likely to have lower thresholds [for background noise] than someone who grew up on Manhattan?s Upper East Side.? (p. 75).  (I have long had a working, and purely anecdotal, theory that vacationing Americans from big cities like Rome, where suburbanites tend to prefer Florence.)  Policy makers need to take these preferences into account not only in evaluating what city residents want, but in how their own background and upbringing might shape their views of ideal city environments.  In both Ordering the City and her other work, Nicole has noted the potential for conflict between the values of the urban elites who make the plans and the non-elite residents whose neighborhoods are being planned.  Elites, for example, might place a higher value on certain environmental and aesthetic qualities than on conflicting qualities such as affordability.  It should be a fairly trivial point that the preferences of the residents of a community should be the focus of efforts to order the city.

Ben Barros