Friday, May 31, 2019
In “The Liberal Commons” Michael Heller and I celebrated commons property types that mainstream property theory obscures notwithstanding their prevalence in contemporary law. In this Essay, prepared for the Cornell Law School Symposium celebrating Greg Alexander’s retirement, I maintain that the connection between liberalism and commons property types is more precise and, in a sense, more complicated.
On the one hand, I claim that a liberal property law, which is founded on and thus must be committed to individual self-determination, must proactively facilitate commons property types, in line with what I call property’s structural pluralism. On the other hand, I contend that a liberal law should not lend its support to commons property types not only if they undermine the liberal commitment to exit (as discussed in The Liberal Commons), but also if they fail to comply with the prescriptions of property’s relational justice. Relational justice, I argue, implies that commoners’ right to exclude potential entrants must not be unlimited; it furthermore requires that for law to support a commons property, its internal governance regime must not undermine the equal concern and respect of its members.
Situating commons property types at the core of liberal property law offers a better understanding of the liberal ideal of property as well as of both the promises and the dangers of the commons. Refining the proper role of commons property types and the prerequisites of their legitimacy also sets up a reformist agenda, which can push liberal property law to better comply with its autonomy-based underpinnings. It may further show why – although much of the critique of the realities of property in actual liberal systems is justified – the liberal idea of property must not be too quickly discarded. Properly conceived, I conclude, liberal property both augments people’s opportunities for (voluntary) collective self-determination and restrict their opportunities for interpersonal domination.
Friday, May 3, 2019
Legal scholars who study cities and urban governance discuss participation in a number of ways, and at various moments in the legal process. Frequently, however, less attention is placed on anticipatory participation — forward-looking, flexible, and inclusive public engagement — and its role in promoting effective and legitimate policy. The emerging concept of anticipatory governance synthesizes different notions of improving participation and places focus on how residents can best participate in society’s most difficult decisions. At the local level, such matters are often those that address land use and economic development.
The recent climate change preparedness strategic plan in New York City, known as PlaNYC, is an example of a local anticipatory governance process addressing population growth as well as global climate change. Building on the PlaNYC case, this Article illustrates ways that cities can, and in fact already are, address participation early on in the planning process to improve the quality of resident engagement. This Article offers a frame-work for how local government can use anticipatory governance concepts to promote resident participation in influencing how projects are developed in the built environment. Residents, the primary users of public space, have unique expertise and can engage with professionals to plan accessible and equitable cities. Anticipatory participation may even assist in moving beyond difficult land use decisions where compromises appear most remote. An urban anticipatory governance approach addresses society’s most complex issues, in flexible ways, allowing residents and experts to work together, with enough time for that collaboration to have a meaningful impact on decisions.