Duhl on Customary Rights of Street Vendors

Ben beat me to a post on this.  I've been reading University of Tulsa law professor Gregory Duhl's charming Property and Custom: Allocating Space in Public Places, which has just been posted on ssrn.  I suspect you'll be hearing a lot about this article in the future.

Here's Duhl's abstract: 

Custom predates Sir William Blackstone as a source of formal property rights in the English common law. But courts in twentieth-century America have rarely applied the doctrine of custom, and when they have done so, they have used Blackstonian custom inappropriately as a justification for recognizing public rights to private property. But despite the cry of some scholars, custom is not dead.

Custom offers a justification to protect rights of private individuals to public property, such as those of the lunch truck and cart vendors around the Temple University campus to their parking spaces, squatters to their shelter, and the rights of New Mexicans to the water in acequias. Such informal property regimes often adopt and enforce communitarian practices and usages, or social norms, and, in doing so, increase efficiency and egalitarianism. Courts and legislatures should not interfere with those regimes, and should use positive law, when necessary, to protect them. Doing so affirms democratic institutions and reduces individuals' reliance on the state and positive law for social justice.

Takes this Philadelphia boy back to his youth.  Wow did I love eating from the trucks around the Penn campus.  Strange how over the years what it takes to make me happy has changed (and increased in cost, I fear).

Duhl makes effective use of the experiences of venders around Temple University as the entry point for discussion of custom in American history, as well as its role today.  Reminds me in a lot of ways of Joseph Singer's "Reliance Interest in Property."  At least the result looks rather similar (though I know that Singer was talking about acquiring a right in private property and Duhl's focused on public property).  And Duhl's analysis promises to protect merchants who need that protection and who are providing an important public service.  Plus, it's a nice summary of the recent literature on norms and the relationship between norms and judicial enforceable property rights.  Duhl concludes that "custom offers a doctrinal vehicle for society to achieve a more egalitarian and efficient distribution of public property rights.  Courts should resist looking back to Blackstone, and instead begin looking forward to using customary law to protect informal property regimes in twenty-first century American society."

Finally, I learned a lot about squatters' rights and a couple of cases that I might want to add to either my property or remedies classes: De Villar v. City of New York, 628 F.Supp. 80 (SDNY 1996) and E.13th St. Homestreaders' Coal. v. Lower E. Side Coal. Hous. Dev., 230 A.D.2d 622 (N.Y. App. Div. 1996) both on squatters' rights in New York City; and Vezey v. Green, 35 P.3d 14 (Alaska 2001) on adverse possession in Alaska.  Vezey looks like a nice follow-up to Nome.

One question that I have is do we want to provide some kind of judicially enforceable property right here?  Duhl concludes that custom ought to recognize such private claims to public property.  At some point we may want to recall the property right from the private vendors.  When, in short, do we allow the creation of private rights in public property?  How can public spaces be regulated after we recognize such custom-based claims.  Or is this yet another place where public space is turned into private space?  I think you'll enjoy it; and I'm looking forward to learning more from Duhl in the future.

Endnote: The picture of a pizza truck at the University of Pennsylvania comes from our friends at the Pennsylvania Gazette.

Alfred L. Brophy
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