Public Sidewalk, Private Sidewalk

Abstract

More and more, sidewalks are public spaces. Recent events have highlighted the importance of sidewalks for public recreation, socialization, protest, journalism, and more. At the same time, however, private entities, such as restaurants, shops, and bikeshares, often have the right to spill onto sidewalks. This Article argues that regulations trying to bring order to sidewalks have increasingly allocated slices of public property to subsets of the public. This type of privatization has gone largely unnoticed and has important consequences for the nature of public life. This Article makes three contributions to the literatures in property and constitutional law. First, it provides the first comprehensive account of the tug-of-war between the dual public-private purposes of sidewalks. In particular, it shows how local governments have increasingly privatized public sidewalks. Second, this Article explores the normative choices that underly cities’ decisions to privatize sidewalks by examining the evolving set of constitutional and property rights that sidewalk implicates. Finally, it proposes three principles that would better balance the important public and private interests at stake: retaining municipal control of sidewalks for public use, eliminating any profit-making goal of municipal sidewalk management, and earmarking funds obtained from sidewalks for reinvestment sidewalks.