Below is the abstract for “Sidewalk Government,” available for download on SSRN.
This Article is about one of the most used, least studied spaces in the country: the sidewalk.
It is easy to think of the sidewalks simply as spaces for pedestrians, and that is exactly how most scholars, policymakers, and laws treat them. But this view is fundamentally mistaken. In big cities and small towns, sidewalks are also where we gather, demonstrate, dine, exercise, rest, and shop. They are host to commerce and infrastructure. They are spaces of public access and sources of private obligation. And in all of these things, sidewalks are sites of underappreciated conflict. The centrality of sidewalks in our day-to-day lives is rooted in the fact that they are open to everyone and to all of these varied uses, every hour of every day, but it is that very vibrancy which risks being their undoing. As competing claims on sidewalks increase in both number and intensity due to cultural shifts, technological advances, climate change, and more, the sidewalks we take for granted may crumble—both literally and figuratively—under the weight of contradictory and self-defeating governing principles and uncoordinated governmental oversight.
This Article is the first to systematically examine the incoherence of the property law of sidewalks and of the fragmented regulatory architecture that municipalities have built to manage them. Drawing on insights from both property and local government law, as well as first-person interviews with current and former municipal officials, it demonstrates how both legal regimes have in fact deepened sidewalk conflict and have confused and undermined accountability for the quality and accessibility of the sidewalks. With these shortcomings in mind, this Article charts a new course and reconstructs from the ground up a new municipal agency to administer the sidewalks—one that would be better positioned to protect and foster the utility and vitality of these critical social, economic, and political spaces.