Volume 34, Issue 2

As rapid urbanization intensifies around the world, so do contestations over how city space is utilized and for whose benefit urban revitalization is undertaken. The most prominent sites of this contestation are efforts by city residents to claim important urban goods—open squares, parks, abandoned or underutilized buildings, vacant lots, cultural institutions, streets and other urban infrastructure—as collective, or shared, resources of urban communities. The assertion of a common stake or interest in resources shared with others is a way of resisting the privatization and/or commodification of these resources. We situate these claims within an emerging “urban commons” framework embraced by progressive reformers and scholars across multiple disciplines. The urban commons framework has the potential to provide a discourse, and set of tools, for the development of revitalized and inclusive cities. Yet, scholars have failed to fully develop the concept of the “urban commons,” limiting its utility to policymakers.

In this Article, we offer a pluralistic account of the urban commons, including the idea of the city itself as a commons. We find that, as a descriptive matter, the characteristics of some shared urban resources mimic open-access, depletable resources that require a governance or management regime to protect them in a congested and rivalrous urban environment. For other kinds of resources in dispute, the language and framework of the commons operates as a normative claim to open up access of an otherwise closed or limited access good. This latter claim resonates with the social obligation norm in property law identified by progressive property scholars and reflected in some doctrines that recognize that private ownership rights must sometimes yield to the common good or community interest.

Ultimately, however, the urban commons framework is more than a legal tool to make proprietary claims on particular urban goods and resources. Rather, we argue that the utility of the commons framework is to raise the question of how best to manage, or govern, shared or common resources. The literature on the commons suggests alternatives beyond privatization of common resources or monopolistic public regulatory control over them. We propose that the collaborative and polycentric governance strategies already being employed to manage some natural and urban common resources can be scaled up to the city level to guide decisions about how city space and common goods are used, who has access to them, and how they are shared among a diverse population. We explore what it might look like to manage the city as a commons by describing two evolving models of what we call “urban collaborative governance”: the sharing city and the collaborative city.

Almost thirty years ago, in Batson v. Kentucky, the United States Supreme Court held that prosecutors could not strike prospective jurors on account of the jurors’ race. In the most technical sense, striking a juror because of an arrest record could be considered “race neutral.” In practice, however, prosecutors use this reason to strike jurors to achieve the very end that Batson sought to prevent—a deliberately whiter jury. This Article explores whether, because of the racially disproportionate arrest rates of African Americans and Latinos compared to Whites, using a peremptory strike on a juror who is a person of color because of his arrest record or that of his loved ones, is contrary to the Supreme Court’s holding in Batson.

Despite Batson, discrimination by prosecutors in jury selection persists. Because this type of discrimination can easily be masked with an excuse that on its face is race neutral, examining whether an excuse like a juror’s arrest records is one that is truly race neutral is imperative. This Article will explore whether, because of the racially disproportionate arrest rates of African Americans and Latinos compared to Whites, using a peremptory strike on a juror who is a person of color because of his arrest record or that of his loved ones, is contrary to the Supreme Court’s holding in Batson. Part I examines how race affects the likelihood that a person will have an arrest record. Part II provides background regarding jury selection and Part III examines Batson and its progeny. Part IV discusses the constitutionality of strikes based on arrest records. This Article concludes with the common sense suggestion that questions about arrests during voir dire should be precluded, as should the practice of using a person’s arrest record as the sole basis for the exercise of peremptory strikes.

It seems like an obvious proposition that a citizen registering to vote or casting a ballot is engaging in free speech, a fundamental right entitled to full protection under the First Amendment to the United States Constitution. This simple proposition is especially fitting in light of the broad First Amendment protection extended to the dollars spent in political campaigns to influence votes. But the current Supreme Court rarely scrutinizes voting regulations as it does other speech regulations. The Court treats spending to influence voters in elections—by candidates, political parties, individuals, corporations, labor unions, and others, including anonymous contributors who might well be international terrorists—as free speech entitled to robust First Amendment protection against state and federal limitation. Any limitations on such speech are subjected to strict scrutiny. Registering and voting, on the other hand, are given short shrift by the Court. Burdens on voter registration and voting are not analyzed under strict First Amendment standards, and therefore the Court has allowed states excessive latitude to restrict voters’ access to the ballot box. The Court should change course, fully acknowledge the expressive nature of voting, and grant voting the same First Amendment protections as the money spent to influence it.

Many commentators have written about this voting rights dilemma, typically observing that (a) the right to vote has been described as “fundamental,” by Congress and the Supreme Court, but also that (b) the Supreme Court and other court decisions analyzing burdens on the right to vote do not give it the protection that fundamental rights ordinarily receive. The commentators propose various doctrinal solutions, such as fully recognizing the right to vote as fundamental, like the right to interstate travel, or treating it as a fundamental right that is modified by a calibrated speech analysis, or locating the right within the Privileges or Immunities Clause of the Fourteenth Amendment.

This Essay begins with the two premises underlying other scholarship—voting should be treated as a fundamental right, and it is not—and proposes that we find a source of constitutional protection for voting in the First Amendment. The First Amendment is a logical locus for voting protection for several reasons. One is that the casting of a vote, no matter how it has been parsed in doctrinal discussions, meets the ordinary and commonly understood definition of a speech act. Second, as discussed below, the Supreme Court has not foreclosed the First Amendment claim. The Court has routinely noted that the right to vote is the right to have a “voice” in elections and has already acknowledged the First Amendment implications of voter petitions. Therefore, taking the remaining step of ensuring full First Amendment protection for voting itself would be a markedly less dramatic doctrinal shift than remaking another clause of the Constitution. Likewise, First Amendment protection of voting fits within the Court’s jurisprudence, which has extended First Amendment protection to extraordinarily broad categories of expression.

Rather than admit defeat on disparate impact, as some scholars have suggested, I am reluctant to abandon the existing framework without first attempting to advance a proper understanding of the doctrine. Even if the practical efficacy of the doctrine remains dubious, “law’s symbolic or expressive functions are sometimes more important than its immediate practical consequences,” according to Professor Richard Primus, “and the story we tell about disparate impact doctrine still plays a significant role in shaping how we think about the nature and purposes of antidiscrimination law.” Indeed, disparate impact conveys a powerful social meaning: discrimination is less about subjective intentions and more about the objective status of historically disadvantaged populations. This “more robust” conception of disparate impact is precisely what needs to be sustained in the face of a less amenable antidiscrimination canon. Perhaps now more than ever, disparate impact’s contemplation of systemic effects is needed to ensure equality of opportunity in today’s society—a society that often overlooks enduring yet less perceptible discrimination in its desire to become post-racial.

But here this Note departs from the prevailing disparate impact literature. This Note is less about the idea of disparate impact writ large—which has been overwritten for a relatively narrow issue of law—and more about an analytic construct that offers a novel contribution to antidiscrimination scholarship. This Note looks to reconceptualize disparate impact’s doctrinal framework by extrapolating from the Third Circuit’s notion of “risk management” as an interpretation of business necessity. I define risk management as a conceptual model or procedure in which institutions must determine whether the benefits of hiring an ex-offender are reasonably proportional to the costs. This method is broader than traditional cost-benefit analysis and contemplates an evaluation of competing interests by the factfinder. Risk management provides a workable heuristic for measuring exclusionary hiring practices against ex-offenders and, quite possibly, a solution to the indeterminacy of disparate impact’s malleable doctrine.

Risk management differs from the current articulation of business necessity in two crucial ways. First, risk management offers a systematic, process-based method for adjudicating cases under Title VII. The concept lays out neutral criteria for empirically testing whether a challenged employment practice is sufficiently related to business necessity or is a mere pretext for discrimination. Second, risk management reconciles the tension underlying business necessity, striking a compromise between the “balancing” of “competing social and entrepreneurial interests” and “forc[ing] us, and the courts, to recognize the stakes of the decision.” The concept attempts a reconciliation of these interests—all while the process itself remains apathetic to the political undertones surrounding disparate impact. The truth is that imposing disparate impact liability represents a Calabresian tragic choice of sorts—between the economic risks associated with hiring an ex-offender and the moral value our society places on fair opportunity in the labor market. Risk management does not care about society’s response to this tragic choice; rather, it cares about how we arrive at that response. Indeed, getting the procedure right may at least mean minimizing the conflict inherent in tragic choices. Ultimately, risk management moves us away from a problematic doctrine and towards a more robust procedure that seeks an optimal level of liability through a clear, bright-line standard. A more robust procedural framework will, in turn, properly complement the substantive, remedial objectives of Title VII.