Over the past several decades, discussions about the appropriate tools of commons management have played out in a particularly illuminating way in policy debates about the management of urban public spaces. Urban public spaces are not a pure commons per se, as they have owners (i.e., local governments). However, political and constitutional limitations placed on those owners dramatically curtail the extent to which they control those spaces, resulting in streets, parks, and sidewalks very strongly resembling commons. These public-space management discussions tend to map themselves neatly onto theoretical debates about commons resource management. Some commentators urge, à la Hardin, that government coercion is needed to restore order to the urban commons: Broken Windows is of this ilk, as are portions of Robert Ellickson’s work on public-space zoning. Others urge the privatization of urban public spaces to transform them into some-thing akin to Dagan and Heller’s “liberal commons.”
On the ground in American cities, these theoretical arguments have been translated into concrete policies, including policing strategies (for example, order-maintenance and community policing) and urban development strategies (for example, business improvement districts (BIDs)). The former clearly instantiates the view that successful commons management depends on government coercion, and the latter represents a conviction that the quasi privatization of the commons is advisable. While, legally, the management of urban common spaces remains the purview of the police, quasi-privatization mechanisms such as BIDs also perform public-space management functions, especially the funding of infrastructure improvements and supple-mental public services. The much celebrated (and debated) urban re-bound of the past two decades suggests that this compromise has been partially successful, insofar as success is measured by a resurgent urban population base and the renewal of central-city neighborhoods.
This is an opportune time to reexamine the commons-management questions raised by these policies. As this Article’s opening anecdote suggests, the current economic crisis is forcing cities to scale back law enforcement efforts, and it is limiting the financing available to fund sublocal investments in urban public spaces. It is possible that these pressures will lead the current urban-commons compromise to unravel, resulting in less public regulation of urban public spaces, more pressure for private regulation, or both. Using these tensions as a starting point, this Article will draw upon the literature on commons-space management from multiple disciplines—especially law, economics, and sociology—to reflect critically upon the optimal regulation of urban public spaces and the possibility of cooperative commons management arising in the absence of government regulation.