Moving from “Broken Windows” to Healthy Neighborhood Policy: Reforming Urban Nuisance Law in Public and Private Sectors

Abstract

Speculations on the Limits of Legal Change, Mark Galanter hypothesizes that the legal experience of the parties, which he characterizes as “one shotters” and “repeat players,” plays a fundamental role in their success in the legal system generally. 11 His conclusion about the systemic bias of the legal system is every bit as applicable to the public nuisance laws that pit the resources of powerful state actors against unorganized and often economically disadvantaged defendants. This Note proposes statutory reforms at the state and local level to eliminate the undesirable legal and social consequences of current uses of public nuisance statutes. In addition, this Note sets forth an accompanying private attorney general prosecution structure to reintroduce market mechanisms and prevent abuse by overeager neighbors. Part I introduces the common law origins of nuisance law, the evolution of the doctrine in cities during the Progressive Era, and the usage of nuisance law in the modern urban renewal context. Part II argues that the current use of public nuisance law by cities as a civil injunctive remedy is unsound in both its assumptions and methodology; violative of modern takings jurisprudence; contrary to economic efficiency; ineffective as an urban renewal strategy; and unable to safeguard the vulnerable populations it claims to protect.