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Univ. of San Diego School of Law

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Saturday, August 23, 2014

Swan on Home Rules

Sarah Lynnda Swan has posted Home Rules (Duke Law Journal, Forthcoming) on SSRN. Here is the abstract:

Thousands of American cities and towns are responding to social problems like bullying, drug abuse, and criminality by passing ordinances that hold individuals responsible for the wrongful acts of their family members and friends. For example, parental liability ordinances impose sanctions on parents when their children engage in bullying or other targeted behaviors; mandatory terms in rental housing leases require the eviction of tenants whose family members, friends, or guests engage in unlawful acts; and nuisance ordinances require evictions when a threshold number of calls to police is exceeded, even though calls are often related to another person’s wrongful or abusive behavior.

Cities typically rely on home rule authority to pass these ordinances, and these ordinances in turn create new “home rules” for the households affected. These new home rules are a form of third-party policing, and through them, the city is becoming an increasingly significant player in governing families and regulating intimate spaces.

These home rules cut against the standard understanding of the home as mostly private and self-governed, and instead configure it as a site of state-required risk management and crime prevention. These ordinances can destabilize families and disrupt kinship structures, regardless of whether one is able to comply with them or not. Further, the ordinances allocate the burdens of preventing crime and managing risk in a manner inflected with gender, race, and class issues. Fortunately, the dynamism of localism can promise a better solution to the social problems that initially prompted these ordinances.

http://lawprofessors.typepad.com/crimprof_blog/2014/08/swan-on-home-rules.html

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