Bright Laws, Big City


Much of the world population is migrating to urban areas. Fordham is helping the law make a similar move.

Revolutionaries in Bologna, Italy, have wrested parts of the city from government hands. An incendiary revolt? Not exactly. Residents are sharing responsibility with the city for overseeing a public square, a portion of Bologna’s famous portico network, and a public building. Make no mistake, though, it’s still a revolution: a new approach to urban management empowered by the Bologna Regulation on Public Collaboration for Urban Commons.

The regulation details how citizens can approach municipal government with an idea to regenerate a vacant lot, empty building, or other underutilized piece of the city and receive a contract to comanage it with local authorities. Under this rubric, residents and their representatives are collaborating as a true team, and not simply in the figurative, feel-good sense politicians often campaign on. Bologna has embraced an innovative way of handling city space that Fordham Law’s Sheila Foster calls “urban commons.”

Professor Foster developed the concept in a 2011 paper, “Collective Action and the Urban Commons,” for the Notre Dame Law Review. The article spells out how the government and the governed can run parts of a city together as a shared resource. When she discovered her idea had helped inspire the Bologna Regulation, she didn’t hesitate to pay a call to the city on a recent visiting professorship in Italy.

“It was exciting to see my work come alive and not just be theoretical,” says Foster, the Albert A. Walsh ’54 Chair in Real Estate, Land Use and Property Law and Co-Faculty Director of the Urban Law Center. “It’s satisfying when your theories can work from the bottom up instead of the top down.”

City Slickers

Foster’s experience is one of the more notable ways Fordham Law has joined the global effort to understand and guide a new course for civilization: its urbanization. More than 50 percent of the world’s inhabitants now live in urban regions; however, municipal governments don’t exactly have a guidebook for dealing with the resultant social, economic, and environmental effects of this movement. As cities become denser, there is no shortage of questions about affordable housing, public health policy, access to services, the role of law enforcement, and dozens of other issues.

“Cities and states are being called to respond with frightening speed to these changes in new ways and under different pressures,” says Nisha Mistry, Director of the Fordham Urban Law Center. “These topics are rife with inescapable legal questions. You see this in courtrooms, council chambers, and administrative offices all over the world.”

Associate Dean for Academic Affairs Nestor Davidson, who helped launch the Urban Law Center, says urban environments don’t just need change; increasingly, they are the only places able to change.

“Polarization in national politics has made it more difficult to get things done, but in local politics, you still have to get the garbage delivered on time,” he says. “Politics are more pragmatic at that level, and that’s why cities have led the charge on economic development, climate change, and so many other issues. Some of the greatest innovations in public policy have come from local government.”

A Common Goal

Only a city, then, would be game to implement Foster’s urban commons idea. Foster’s work in environmental justice naturally led her into urbanism and the urban commons concept. While representing West Harlem Environmental Action (WE ACT), Foster saw the nonprofit evolve from an adversarial group into a participatory one. Originally, WE ACT sued New York City for polluting the low-income area with a sewage plant and installing one too many bus depots in communities of color. Now the group negotiates Community Benefits Agreements with entities like Columbia University. It also renovated an abandoned brownstone to set up an environmental justice center.

“They went from reactionary, ‘Don’t put bad stuff here,’ to proactive, ‘Let’s think about how we design healthier communities and how we work with partners,’” says Foster. “Environmental justice is about not just stopping pollution but also making sure everyone gets a fair share of a resource. That’s what they were doing with their neighborhoods, telling the city and the university, ‘Let us collectively design and produce this with you.’”

WE ACT’s example got Foster thinking about Garrett Hardin’s influential 1968 article, “The Tragedy of the Commons,” which made the case that, without regulation, people are too selfish to share common resources. Foster then considered Nobel Prize winner Elinor Ostrom’s response: even self-interested people find ways to share and collectively manage common resources. Foster went a step further by applying these ideas to open-access city spaces that, because of budget problems or other reasons, fall out of the government’s care and become subject to competition among different types of users. She called this phenomenon “regulatory slippage.” If the government can’t handle such a space and no one wants it to be privatized by unaccountable businesses, locals have a third option: collective management. Community gardens, park conservancies, foot patrols, business improvement districts, and other options can improve the spaces immeasurably and keep out the crime they may otherwise attract.

“People who depend on collective goods have a stake in them,” says Foster. “An urban commons should have the benefit of the creativity of the people who use and depend on it. It’s a shared resource that shouldn’t be in the hands of one entity or private individual or group.”

The city can help promote urban commons with incentives, tax breaks for a business improvement district, or funds to help launch a community garden. It can provide a contract to make sure everyone plays by the rules and doesn’t fall into the usual community group pitfalls, such as exclusion. “Because the city is still a partner and enabler, local officials can protect public values,” says Foster. “The fact that local governments and officials are colleagues is a safeguard.”

Foster is planning a book (her third), The City as a Commons, with Professor Christian Iaione of LUISS Guido Carli University in Rome, who helped make the urban commons idea a reality in Bologna. “We are of the same mind,” she says. They are also speaking together at schools and foundations interested in new forms of urban governance and hope to generate interest internationally. “Every city is struggling with issues of contested city space,” she says. “This is a universal problem.”

Urbanism Needs You

Other Fordham Law professors have come to urbanism the same way Foster did: following an interest that dovetailed with a pressing urban need.

Professor Aaron Saiger’s focus on education has led him to write about school financing issues in cities and suburbs. Associate Professor Kimani Paul-Emile’s work on race and health law earned her a $75,000 grant from the Robert Wood Johnson Foundation to research how the criminal background checks performed by urban law enforcement affect the health and welfare of people with criminal records for low-level offenses. Clinical Associate Professor Brian Glick’s activism inspired him to found in 2000 the Law School’s Community Economic Development Clinic, which has helped low-income communities build and maintain health clinics, childcare centers, and worker co-ops in the city.

Professor Susan Block-Lieb’s research has explored commercial law at a global level, but she is just as concerned about the lack of financial protection that plagues low-income consumers, many of whom live in cities. The Cooper Family Chair of Urban Legal Studies, Block-Lieb has given talks about how cities should be empowered to provide financial protection for residents, if only as another layer of insulation against the changes of a future 2008-style financial crisis.

“When it comes to consumer protection, city governments have no regulatory authority,” says Block-Lieb. “However, they are closer to neighborhoods than federal regulators are, so they’d have a better idea of what their populace needs.”

Block-Lieb has helped fill this gap as a board member of the Coalition for Debtor Education (housed at Fordham Law), which instructs banks and other organizations such as New York City’s Office of Financial Empowerment how to teach financial literacy to low-income people.

Associate Professor Olivier Sylvain writes and teaches classes about the intersection of social justice and Internet policy. If the Internet is, by definition, located in cyberspace, what does it have to do with cities? As Sylvain points out, fundamental Internet infrastructure resides quite physically in the urban world. If cities are housing the actual equipment that powers the Internet, it is reasonable to think they would have a say in crafting Internet policy. This is not, however, the case. Sylvain and Davidson co-authored a Wall Street Journal op-ed last September about the 20 states with laws that don’t allow municipalities to operate their own broadband networks (laws, incidentally, lobbied for by national broadband providers). The pair argues that these laws squelch competition in local markets and deprive residents of choice.

“This is about access not just to raw broadband service but to the same quality service for everyone,” says Sylvain. “Democracy relies on free and open communication, and when we have a regulatory regime that makes it hard or expensive for some to participate in the same way others do, that’s unequal and arguably inconsistent with the ideal form of democracy.”

The Believer

Given the range of urgent issues that urbanism tackles, it’s hard to imagine a time when urban law wasn’t in vogue. But after a flash of popularity during the War on Poverty in the 1960s, the field fell by the wayside for a few decades. Even as urban planning, urban economics, and other disciplines within urbanism grew as established areas in their own right, urban law tended to get lumped in with local government law.

Through urban law’s tortuous history, the Fordham Urban Law Journal has never stopped carrying the torch. At 42 years old, the publication is more active than ever, producing a colloquium in the fall, a symposium in the spring, and five issues a year on topics spanning comparative urban governance, prison privatization, and equality and fairness in charter school enrollment.

“The Journal invigorates a core of students who are passionate about where law intersects with cities, whether they’re working on inequality, governance, technology, or other areas,” says Mistry.

Beyond the publication’s prestige and the popularity of its subject matter, there is a side benefit to working on the Journal: its alumni network. “There are many Fordham Law grads who worked on the Journal and now, in one way or another, really grapple with urban realities in their practices,” says Lauren Irby ’15, editor of the Journal. “We see the results of their work every day. It’s great to connect with them.”

Pulling It All Together

In 2013, the year the Urban Law Journal turned 40, Fordham launched the Urban Law Center, bringing together faculty and students to amplify the School’s ongoing conversation about urban legal issues. “It’s important for a school that’s been in the city for almost 200 years to have a hub like the Fordham Urban Law Center, actively investigating urban phenomena and legal issues,” says Mistry, a native New Yorker, lawyer, and urbanist who worked in Newark Mayor Cory Booker’s administration as a policy advisor on industrial revitalization and served as a Nonresident Fellow and Mayor’s Office Fellow with the Brookings Institution’s Metropolitan Policy Program.

Davidson conceived of the Center when he joined Fordham Law in 2011 and saw the School already had the right components to explore the subject: clinics in Community Economic Development, Housing Rights, and Policy and Legislative Advocacy; the Urban Law Journal; the Coalition for Debtor Education; and faculty and students with deep involvement in issues around the city. “Everything was already in place, it just had to be pulled together to make something unique,” says Davidson.

Mistry, hired as Director last year, has laid out an ambitious three-year plan for the Center that focuses its conferences, lectures, research, and other programming into two areas of interest: urban inequality and legal innovation in urban governance. The Center examined the former with the 2013 conference “Until Civil Gideon: Expanding Access to Justice,” run in partnership with the Urban Law Journal and Fordham’s Feerick Center for Social Justice. It investigated innovation last year with “Smart Law for Smart Cities: Regulation, Technology, and the Future of Cities,” a symposium exploring the legal issues of using digital technologies to improve transportation, energy, healthcare, and other urban services.

This year’s principal conference, in April, explored “Sharing Economy, Sharing City: Urban Law and the New Economy.” As web-based digital companies connect more and more urban consumers and “sharers” directly to individual providers of services ranging from transportation to lodging, they raise complicated regulatory questions. Mistry points out how some cities, like Portland and Los Angeles, are bringing legal actions against these sites, while other municipalities have chosen to battle them through competition. In Singapore, the land transportation authority has launched its own taxi-finding app to rival the ride-sharing start-ups. In Washington, D.C., some leaders have advocated deregulating the taxi industry rather than a wholesale assault on the car-for-hire companies. “These companies are creative, but governments are themselves responding in creative ways,” says Mistry.

For these events, the Center partners with other organizations throughout the university, including the students on the Urban Law Journal. Beyond the career advice and networking opportunities it offers, the Center has future plans for students to conduct urban law research for clients outside the School, an opportunity to run cutting-edge legal analysis in areas such as land development, access to housing, and public education.

Minding the Urban Gap

As Fordham Law has pulled together faculty, clinics, and students to form the Center, the School has reached even further, partnering with Fordham University’s Urban Studies program. The Law School encourages its students to take graduate urban studies courses, and vice versa. This cross-pollination brings new ideas and perspectives to the respective classrooms. An urban studies student may share thoughts on the social impacts of housing prices in a Land Use Law course while a law student may point out the finer details of land use law in American Suburbs: Rise and Fall.

“In classes and at the events we work on together, urban studies can contribute our own perspective and own way of understanding urban issues,” says Rosemary Wakeman, Director of the Urban Studies program. “We benefit from getting the legal perspective too. We’re grateful the Law School has been so welcoming.”

Urban Studies has also co-hosted events with the Law School, most recently working with the Urban Law Journal on its “Law, Space, and Artistic Expression” symposium last February. Wakeman anticipates developing joint curricula and other opportunities for students and faculty in the future.

Davidson is the first to admit that the small dark age in urban law’s history has left it a tad underdeveloped compared to other urban fields. Working with Urban Studies has helped fill in those gaps.

“There has been a gulf between lawyers and other urban practitioners over the past few decades, and partnering with Urban Studies gives us an opportunity to create new openings and explore common ground,” he says. “We benefit from a hand-in-hand exploration of topics of mutual concern, and we also learn from seeing each other’s methodologies and strategies. It makes us more effective urban lawyers, better prepared to go into the world and take on the urban problem solving that’s so urgent today.”


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