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Property Law’s Search for a Public

Publication Title

Washington University Law Review

Abstract

Public spaces—streets, sidewalks, parks, plazas, squares, and the like—form a major component of the physical environment. Therefore, disputes over the use and management of these spaces abound. Courts analyze each such dispute individually through the prism of the discrete property law doctrine that appears applicable. The result is a hodgepodge of inconsistent rulings that too often ignore the common normative principles implicated in all debates over public spaces. This Article advances a general framework for the legal treatment of public spaces. It argues that, at heart, every dispute over the use of a public space requires the law to answer one fundamental question: Who, in the case at hand, should be deemed the “public” actually holding the implicated public right? After all, the “public” is not a recognized legal entity. The law identifies disparate bodies that might stand for the “public” in a specific case—and accordingly be empowered to dictate the uses of the relevant public right. The options include the local government, the public at large, specific individuals, or a set of common law strictures. The Article constructs a test courts should employ when, in a given dispute over the use of a public space, they must pick among these alternatives. It does so by isolating the core normative concern animating the common law doctrines that deal with public spaces. The concern the Article identifies is the notion that some public spaces, but not others, have a natural use, and must thus be treated uniquely. In light of this core principle the Article develops an operative test to identify the “public” that should be afforded control over a given public space. Under the test, a court must determine whether a contested public space has a natural use, and if it does, how clearly defined that use is, who the actors funding the use are, and how trustworthy is the government when transacting in the space. To illustrate the test’s utility, it is employed to identify the pertinent publics that should control public rights in two of the most commonplace public spaces: parks and sidewalks.

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