September 2005, Volume 91, Issue 5|
91 Va. L. Rev. 1075 (2005)
Judicial challenges to order-maintenance policing apparently are leading some city officials to adapt the tools of property regulation to a task traditionally reserved for the police—the control of disorderly people. Examples of efforts to regulate disorder, ex ante, through land-management strategies include homeless campuses that centralize housing and social services, neighborhood exclusion zone policies that empower local officials to exclude disorderly individuals from struggling communities, and the selective targeting of inner-city neighborhoods for aggressive property inspections. These tactics employ different management techniques—some concentrate disorder and others disperse it—but they have same goal: to relocate urban disorder from one place (where it is perceived to be harmful) to another (where it hopefully will be more benign). These developments are not surprising. Urban policymakers long assumed that regulations ordering land uses effectively curb disorder (an assumption that I have questioned). And, moreover, the broad deference granted to the government-qua-regulator makes disorder-relocation policies particularly attractive. Unfortunately, these new disorder-relocation policies may create what Dan Kahan has called a cost of rights problem: In an effort to avoid constitutional challenges, local governments may adopt policies that impose costs at least as significant as their order-maintenance-policing substitutes. This Article seeks to understand what those costs might be.
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