NYU School of Review of Law and Social Change
Copyright (c) 2000 New York University School of Law
Review of Law and Social Change
2000 / 2001
26 N.Y.U. Rev. L. & Soc. Change 347
LENGTH: 25664 words
REVIEW ESSAY: EXPANDING METROPOLITAN SOLUTIONS THROUGH INTERDISCIPLINARITY City Making:
Building Communities Without Building Walls.
By Gerald E. Frug.
Princeton, N.J.: Princeton University Press, 1999. Pp. ix, 256.
Martha A. Lees*
* Law Clerk to the Honorable Nina Gershon, United States District Court,
Eastern District of New York. J.D., Harvard Law School, 1992; A.B., Harvard
College, 1989. Portions of this essay were completed while I was a Visiting
Assistant Professor at Rutgers University School of Law-Camden. This essay in
no way reflects the views of Judge Gershon or the United States District Court
for the Eastern District of New York. I would like to thank Amy Butler,
Rutgers-Camden Law School Class of 2001, for her excellent research assistance.
I am also grateful to Leti Volpp for her insightful comments, Andrew Gropper
for his able suggestions and tireless editorial aid, and Paul Sonn for his
ongoing advice, encouragement, and support.
... On the other hand, Frug appears to underestimate the difficulty of
translating theoretical rethinking into actual change, an impression he creates
through his proposal for a regional legislature and his support for the New
Urbanism movement's reform agenda. ... Despite these valuable insights,
however, Frug appears to overestimate the ease of bridging the gap between
theoretical re-envisioning and actual political and social change, as evidenced
by his insufficiently detailed and overly optimistic proposal for a regional
legislature, as well as his unrealistic hopes for the New Urbanism movement.
... The type of semiproportional voting Frug recommends most closely resembles
cumulative voting. ... Moreover, given the realities of the housing markets,
Frug overlooks the New Urbanism movement's potential to cause
gentrification and displacement in addition to, if not instead of, community building. ...
Frug's missteps - his unrealistic proposal for a regional legislature, his
insufficient attention to the potential pitfalls of New Urbanism, his
underestimation of the difficulty of changing the suburban consciousness and of
the ideological nature of the pastoral ideal - appear to result from
over-optimism about the ease of converting theory into practice, and about the
human capacity for altruism. ...
Ever since population centers in Britain and America shifted from the
countryside to cities with the rise of industrialization, the social and
economic problems that accompany urbanization have been a prime concern of
writers in the Anglo-American tradition.
n1 In particular, critics and reformers have focused their attention on the
inequality that often accompanies industrialization, advancing various
proposals for ameliorating socioeconomic divisions.
Central to these divisions has been geographic separation, with more affluent
metropolitanites abandoning central cities for the suburban fringe. This
process of suburbanization in the Anglo-American world began a couple of
hundred years ago,
n3 and planners and other urbanists have been characterizing
[*348] the phenomenon as
"sprawl" since the middle of the twentieth century.
n4 Yet urban sprawl may never before have alarmed observers to the extent it has
in the past decade.
Writers have examined metropolitan development patterns such as separation and
inequality using a range of methodological approaches. Some observers have used
quantitative techniques, studying various empirical indicators in an attempt to
describe urban problems and identify policy responses to them.
n6 Other writers have used more theoretical methods. The disciplines invoked
similarly have varied, from the social sciences (city planning, public policy,
political science, economics) to the humanities (literature, art,
archi-tecture), to combinations from various fields.
The prevailing modes of analysis in the legal literature to date have been
those of political science and economics,
n7 while the typical approach in monographs targeted to general readers has been
the related methodology of public policy.
n8 These approaches are intuitively sensible, since changes in metropolitan
development patterns most often result from legislative action or other
[*349] Not all analyses have been based on quantitative factors or political theory,
however. In The Culture of Cities,
n10 for example, Lewis Mumford based his prescriptions for metropolitan
improvement on a wide array of sources, with history, literature, and personal
observation playing key roles, and empirics virtually none at all. Jane
Jacobs's classic The Death and Life of Great Ameri-can Cities is similarly
n11 Gerald Frug's recent book, City Making,
n12 a compilation of four revised, previously published law review articles,
n13 follows in a comparable vein. Frug draws on disciplines as disparate as
architecture, psychoanalysis, sociology, women's studies, political theory, and
medieval history in describing his vision for an improved metropolis.
Such scholarly mixing of disciplines, or
"genre blurring" as Clifford Geertz famously has termed it,
n14 while not an invention of the twentieth century,
n15 did occur with increasing frequency by the end of that period. In 1983, Geertz
observed generally that
"there has been an enormous amount of genre mixing in intellectual life in
n16 and more recently Brian Leiter has noted the
"remarkable flourishing of interdisciplinary work bringing together law and the
humanities and social sciences."
n17 Perhaps the best known product of law and other disciplines is the law and
n18 other familiar
[*350] movements include law and literature, philosophy of law, law and society, and
The movement most plainly underlying City Making and its multidisciplinary
approach is Critical Legal Studies ("CLS"), a school of thought at its height in the 1980s.
n19 CLS is known for drawing on disparate intellectual strands such as
anthropology, literary theory, and social theory,
n20 and Frug was a major figure in the CLS movement.
n21 The article that Frug reworked to form Part One of City Making,
"The City as a Legal Concept," is considered a classic of
n22 and the work reprinted as Part Two,
n23 relies on postmodernist deconstruction, a strategy often associated with CLS
Although Frug has not been identified explicitly with other academic camps, his
multidisciplinary approach, not to mention his progressive bent, is also
characteristic of the cultural studies movement.
n25 As Naomi Mezey has
[*351] observed, though
"critical legal scholars have yet to capitalize on the full potential of
cultural studies," the latter movement's
"concern for broader his-torical, anthropological, and ideological practices,
and its ethnographic inquiry into quotidian experience," means that it
"shares much affinity with CLS' vision of law."
CLS adherents have tended to identify with the politics of the New Left
movement of the 1960s and 70s and with the movement's focus on maximizing
participatory democracy and social justice.
n27 Similarly, one of the projects of cultural studies is to
"develop a language of possibility" - specifically, the possibility of producing
"radical social change."
n28 Frug sympathizes with these concerns, and has consistently enunciated his
desire to transform society, particularly by increasing both political
participation and equality.
Cultural studies' attempt to transcend disciplinary boundaries is part of its
attempt to engender progressive social change. A foundational insight of the
school is that the strictures of a discipline tend to
"suppress[ ] critical thought."
n30 The same may be said of CLS adherents' affinity for interdisciplinarity.
Frug's own appeal to disparate influences - his own attempts to surpass
disciplinary limitations - is in keeping with his desire to transform American
social life by breaking down both physical and psychological walls between
different classes and races, the stated aim of City Making.
[*352] A danger of speaking in the
"language of possibility," however, is that one risks being dismissed as merely utopian; similarly, when
engaging in multi-disciplinarity, especially when attempting to use the
humanities to change public policy, one risks being dismissed as a dilettante
n32 or mere aesthete. One of the standard critiques of CLS has been that it is
n33 Furthermore, legal scholars employing interdisciplinary methods have been
increasingly taken to task for what is said to be their superficial command of
n34 Brian Leiter is one critic. Indeed, in attacking what he deemed to be
"sub-standard interdisciplinary work" - work that he defined as containing
"superficial and ill-informed treatment of serious ideas, apparently done for
"titillation' or to advertise, in a pretentious way, the
"sophistication' of the writer" - Leiter takes as his prime example an article by none other than Frug.
Frug's work may pose a dilemma for his intended audience (which appears to be
anyone - particularly nonlawyers and nonacademics - interested in advancing
progressive social change through urban policy).
n36 On the one hand, his readers undoubtedly will sympathize with his progressive
agenda. On the other hand, they may ask themselves whether a man who quotes
n37 and Jean Baudrillard,
n38 who speaks of
[*353] and of the
"being together of strangers,"
n40 has anything of concrete value to contribute to the urban policy battle for
Despite the pitfalls others have associated with interdisciplinary scholarship,
a number of Frug's applications of extralegal theory do work quite well, making
a serious contribution to the urban policy debate. Some of his resorts to
extra-legal sources, however, are susceptible to critique on grounds of
unrealistic idealism or incomplete analysis.
In particular, Frug's focus on the human psyche, reflected in his discussions
of decentering the self and the search for purity versus ego strength,
highlights an important causal element underlying the metropolitan problems he
decries. His reliance on postmodernist humanities scholarship leads him to make
novel and intriguing suggestions for implementing a form of semiproportional
voting in metropolitan regions, while his philosophical and psychological
"community building" provides further support for the important cause of regional coalition
On the other hand, Frug appears to underestimate the difficulty of translating
theoretical rethinking into actual change, an impression he creates through his
proposal for a regional legislature and his support for the New Urbanism
movement's reform agenda. In addition, although he is absolutely right to focus
on the importance of ideology and psychology, he at times ascribes both not
enough and too much power to them. For example, he highlights the mindset that
tends to drive affluent residents from central cities, yet fails to acknowledge
the importance of psychological
"pull factors" that contribute to suburbanization. Nor does he fully acknowledge how
difficult it would be to change the psychology of the millions of suburban
dwellers he hopes to reform.
Part One of this Essay provides some background on how Frug uses various
nonlegal sources both to examine the causes and consequences of metropolitan
fragmentation and to develop proposals for beginning to redress these problems.
Part Two assesses how well the more prominent of his interdisciplinary
n41 serve his goal of
"building communities without building walls."
[*354] Subsection A focuses on the more persuasive arguments, while subsection B
discusses the more problematic ones. The last section is a conclusion.
Part One: Frug's City Making
Frug seeks to promote two main objectives in City Making: increasing what he
"public freedom," and reducing the divisions between rich and poor in our nation economically,
spatially, and psychologically. Both goals serve his ultimate purpose of
"reinvigorating the idea of
n42 Frug describes
"public freedom," a concept he borrows from Hannah Arendt, as
"the ability to participate actively in the basic societal decisions that affect
n43 Under the classic view, which Frug endorses, such active political
participation is possible only at the local level.
n44 Only in their own municipalities do citizens feel sufficiently invested in
outcomes to make consistent efforts to participate in politics, and only at
home is it possible for citizens to see democracy in action on a regular basis.
The current level of political decentralization, fragmented though it is, does
not permit public freedom to flourish in Frug's view because municipalities
have not been accorded enough governmental power to allow this to occur.
"The City as a Legal Concept,"
n45 from which Part One of City Making is derived,
n46 describes its project as
"exploring how the law has contributed to the current powerlessness of American
n47 and advocates that
"real power must be given to cities."
n48 City power is essential to public freedom, Frug argues, because unless
residents feel that their participation makes a difference - unless there
"citizen effectiveness" - they will not bother to participate in politics even when they have the
Frug presents two main strategies for enhancing both public freedom and social
justice in metropolitan areas:
"decentering" local autonomy and
"com-munity building." The following subsections describe each of these concepts.
A. Decentering The Locality
Frug's decentering process appears to entail modifying the entitlements states
currently grant to local governments by stripping the latter entities of the
[*355] right to ignore externalities they impose on neighboring municipalities while
leaving them (or in some cases granting them) sufficient powers to make
political participation meaningful, and thus public freedom possible.
To expand thinking about ways to set localities' legal entitlements, Frug draws
upon literature analyzing the nature of human selfhood. He discusses three ways
that scholars have characterized human subjectivity: the self as
"situated subject," and
Traditionally, Frug argues, writers have depicted the human self as what he
"centered subject." Such writers believe the construction of identity to be an entirely individual
matter that does not depend on interactions with other human beings.
n50 Furthermore, these scholars believe that identity is capable of clear-cut
n51 More recently, a number of thinkers have recharacterized the self as a
"situated subject." Frug cites the work of communitarians, civic republicans, and feminists, among
others, all of whom in his view portray the self as
"formed only through a relationship with others."
With the onset of postmodernism, yet another set of thinkers has challenged
believers in both the centered and the situated self by postulating a third
view: the self as what Frug calls (for obvious reasons) the
"postmodern subject." Although the concept of the situated self presupposes the existence of both a
"others" who help to define the self, exponents of postmodern subjectivity abandon any
notion of a neatly definable self or other. Frug quotes excerpts from
postmodern psychoanalytic literature and poststructuralist linguistic theory
that present the attempt to pin down individual identity as the equivalent of a
dog chasing its tail - an endless, fruitless search.
n53 Similarly, Frug cites the postmodern feminist Judith Butler, who presents
individual identity, specifically gender identity, as a construct or
performance rather than an empirical reality.
n54 Other feminists and critical race theorists have argued that an individual's
identity may consist of multiple, and sometimes even
[*356] contradictory, selves.
n55 Postmodern scholars further postulate that, to the extent one may even speak
of a relationship between the self and others, that rela-tionship is best
described not as a two dimensional line or a circle of situated subjectivity,
but as an infinite, multidimensional matrix.
n56 In the words of Jean-Francois Lyotard,
"no self is an island; each exists in a fabric of relations that is now more
complex and mobile than ever before."
After canvassing the literature of a multitude of nonlegal disciplines,
including political theory, psychology, psychoanalysis, linguistics, feminism,
gender studies, philosophy, literary theory, and sociology (as well as a few
legal works), Frug takes the alternative conceptions of the human self that he
abstracts from these sources and transplants them to the area of local
government law, using them as guides for imagining new ways to set local
governments' entitlements under state law.
Under Frug's theory of situated subjectivity, just as human identity depends in
part on the individual's interactions with others, the existence of a locality
is bound up with the existence of those around it. For example, a wealthy
suburb's implementation of exclusionary zoning affects not only its own
identity (rendering it more homogeneous economically, ethnically, and
racially), but also that of less restrictive communities around it (by
increasing the demand for their presumably more affordable housing). Similarly,
if a suburb permits the construction of a new shopping mall and office park, it
not only increases its own tax base but also reduces that of the central city
from which it lures commercial and retail tenants. Frug contends that
"every local decision - from schools to sanitation, from housing policy to
transportation policy, from gun control to pollution control - affects
Based on the notion that any decision made by a municipality affects other
localities in its region, Frug proposes that rather than either giving
localities exclusive power over land use, school financing, and similar
decisions or reserving such power to themselves, state legislatures should
create regional legislatures and shift the power to contemplate regionally
relevant issues to the new bodies.
n59 As he envisions it, a regional legislature is different from a regional
n60 a few of which already exist in the United States.
[*357] regional government, Frug contends, actually makes decisions itself, while a
regional legislature would limit itself to engaging in
"interlocal negotiations," the goal of which would be to set the legal entitlements of local governments
by determining, for example,
"what portion of the funds derived from the property tax ... a locality [can]
use solely for its own schools."
n62 Determining subsidiary issues, such as how much of a town's property tax
allotment should go to teacher salaries and how much to computer labs, would be
left to individual localities. To discourage a regional legislature from
commandeering all decisionmaking power to itself, Frug would have
representatives elected on a neighborhood basis. This mechanism would ensure
that legislators were
"sufficiently con-nected to their communities that they would be under constant
pressure to decentralize power."
n63 Having legislative outcomes depend on negotiations rather than voting also
would preclude localities from acting selfishly, since
"no city could achieve its goals without convincing fellow legislators that its
vision of decentralization was a good idea."
n64 Since the regional legislature would permit municipalities to police their own
selfish tendencies, there would be no need for states to step in to do so.
n65 Thus, localities could still be permitted to exercise substantial power,
preserving Frug's cherished public freedom, while simultaneously being
prevented from fostering social injustice.
As with the theory of situated subjectivity, Frug draws parallels between the
postmodern theory of human subjectivity and local government law. Clear cut
distinctions between the self and others dissolve under postmodern theory; what
remains instead is a self that exists within a complex fabric of relations.
Similarly, although it can be tempting to describe central cities and suburbs
[*358] substantially different entities falling on opposite sides of a distinct line,
such a city/suburb distinction in many ways
"misrepresents life in contemporary American metropolitan areas."
n66 For example, it is common to contrast the supposedly wealthy suburbs with the
supposedly desperate central city. Yet, as Frug points out, not only are there
extremely poor suburbs, but also there are leafy, single-family residential
areas within the bounds of many major American cities.
n67 Although de facto racial separation still exists, the dividing line often
falls not so much along the city/suburb boundary as within central cities and
between different suburbs.
n68 Similarly, traditionally central cities have been depicted as the realm of
offices and shops, with suburbs being strictly residential, yet the
"Edge City" phenomenon described by Joel Garreau has led to the existence of countless
suburbs with shopping malls and office parks.
Frug argues that
"most Americans who live in [metropolitan] areas already disregard
jurisdictional boundaries ... creating their own idea of the region in which
they live by organizing it in terms of the places they know."
n70 Far from being a defined city surrounded by defined suburbs, today's American
metro-politan area is, in Michael Sorkin's term, an
n71 or what Frug calls an
"endless urban landscape" of
"highways, skyscrapers, malls, housing developments, and chain stores."
n72 Moreover, the average American has ties to any number of locations in addition
to those in which she currently resides, including the places she used to live,
the place she works, the places she shops, and the place she vacations, among
Like the theory of situated subjectivity, the theory of postmodern subjectivity
suggests various prescriptions for changing local government law, according to
Frug. If jurisdictional boundaries have lost their meaning and metropolitan
dwellers have allegiances to multiple localities in addition to those where
they reside, then
"we have to stop building local government law on residency and on the
importance of local jurisdictional boundaries."
This conclusion has several ramifications. First, Frug argues, local services
such as schools and hospitals should no longer be limited to local residents,
but should be open to anyone connected to the neighborhood, such as
[*359] who clean the residents' houses, the grocery store family who provide their
milk, and the consumers who drive to the area to shop."
n75 In addition, regional revenue sharing should replace the current allocation of
tax revenues along jurisdictional lines.
n76 To achieve such goals, Frug proposes that elections in all localities within a
region be open to any person within the region, whether she resides in the
electing locality or not.
n77 He suggests that the residents of a region each be accorded an equal number of
votes - for example, five - that
"they can cast in whatever local elections they feel affect their interest."
n78 He would permit voters to place their votes in any combination; a voter could
"cast all five votes in one locality if that's where her or his attachments are
felt to be."
n79 Among other things, this innovation would mean that, more than ever,
decisionmaking by Frug's regional legislature would require negotiation and
compromise amongst a number of different interest groups.
n80 Although he does not profess certainty, Frug suggests that
"postmodernizing" regional represen-tation would likely lead to a more equitable distribution of
municipal tax revenues and services.
B. Community Building
1. Community Building In General
A second ingredient essential to Frug's vision for transforming the American
metropolis is what he calls
"community building." As the term itself suggests, community building entails breaking down the
boundaries - both physical and psychological - that currently divide
The physical fragmentation within American cities is severe, Frug asserts. The
"overall impact of American urban policy in the twentieth century has... been to
disperse and divide the people who live in America's metropolitan areas";
"residential neighborhoods are African American, Asian, Latino, or white, and
upper-middle-class, middle-class, working-class, or poor; many are populated by
people who share a single class and racial or ethnic status."
n83 Above all, American practice and policy has been to segregate African
[*360] Americans from other metropolitan residents,
n84 both by walling the poorest residents off in central city ghettos and by
enforcing separation in suburbs.
n85 As Frug explains,
"neighborhood boundaries, city/suburb boundaries, and the boundaries between
suburbs have also divided residents of metropolitan areas along class and
n86 Furthermore, physical division has occurred by use, with residential,
commercial, and industrial uses consigned to separate areas of the metropolis.
In addition to physical divides, substantial psychological barriers separate
metropolitanites, with particular divisions between central city and suburban
"Big cities," Frug explains,
"are a prime location in America for the experience of otherness: they put
people in contact, whether they like it or not, with men and women who have
values, opinions, or desires that they find inexplicable, unsettling, even
n88 (Although suburbanites also are unlikely to know most of their neighbors,
suburbanites tend to believe that they know them, and that their neighbors hold
views similar to theirs.)
n89 Indeed, Frug avers,
"to many people ... the central city is identified, above all, with the
terrifying: the violent, the degenerate, [and] the diseased."
n90 Although the identity of those labeled the terrifying
"mob" has changed historically, they always have been poor, considered criminal,
and, in recent times, usually have been identified as African American,
n91 a state of affairs consistent with the striking degree of black
hypersegregation in American cities.
Although Frug hopes to remove both the material and mental barriers separating
metropolitan residents, he insists that he is not proposing that they share a
single set of beliefs, values, and ideals. Traditionally, opponents of
separation have characterized the only alternative as what he calls a
"romanticized sense of togetherness."
n92 This standard sense of community entails the bonding of homogeneous groups,
or, in social-psychological theorist
[*361] Richard Sennett's words, a striving towards
n93 Yet the search for such mass affinity asks too much, in Frug's view,
particularly because it would require members of various subcultures to
assimilate to majority norms with which they may disagree.
n94 Frug believes that such romantic togetherness is not a necessary prerequisite
to the attempt to remedy metropolitan problems.
Frug instead proposes a middle ground, a
"compromise between withdrawal from strangers and engagement with them."
n95 Such a compromise would not require approval of others, but merely tolerance,
"live and let live" attitude.
n96 Ideally, residents would
"engage with otherness" by
"accepting ... dif-ference, complexity, and strangeness."
n97 Thus, Frug's notion of community is what political philosopher Iris Marion
Young has termed
"the being together of strangers."
n98 Fear of engagement with the unknown, according to Sennett, is a sign of
immaturity. Frug's hope is that metropolitan residents, particularly
suburbanites, can be persuaded to outgrow such immaturity and develop instead
what Sennett has termed
"ego strength," the sense of confidence that one can handle life's inevitable encounters with
change, disorder, and complexity.
n99 Frug wishes to see diverse city and suburb dwellers become comfortable with
and work with one another, without requiring that they
"fuse with these others into a larger whole."
Frug suggests that this sort of community building serves at least three goals.
First, he argues, it will make life more enjoyable for residents currently
residing in homogeneous communities. Not only is encountering unfamiliar people
"more fun" than life in a purified community, but exposure to heterogeneity
"offers stimulation for learning, creativity, experimentation, and growth."
n101 In addition, contact with ambiguity, change, and disorder is an unavoidable
part of life, and attempts to circumvent the inevitable are doomed to
n102 Lack of recurrent exposure to strangers makes the inevitable encounter even
more anxiety provoking, whereas
"people learn to stomach a larger range of differences if they are repeatedly
exposed to a variety of cultural and social practices."
n103 Reducing metropolitan residents' suspicion and fear of each other is important
not only for increasing the metropolitan comfort level, but also for maximizing
the chances of finding a political solution to the problems of declining
central cities and inner suburbs.
n104 Unless diverse metropolitan residents can tolerate each other, they will be
unable to engage in negotiations to address regional problems, negotiations
that Frug views as the only way to preserve public freedom while still
achieving social justice.
2. Examples of Community Building
In the remainder of City Making, Frug proposes three areas in which he
believes community building is both particularly needed and likely to do the
most to combat metropolitan fragmentation. Those areas are land use, education,
and policing; each is discussed below.
a. Land Use
"City control over land use," Frug contends,
"has contributed more to the dispersal and separation of metropolitan residents
than any other city activity."
n106 In particular, Frug targets twentieth-century zoning and re-development
policies. He notes that suburbs have used exclusionary zoning to inhibit the
arrival of lower income residents for several reasons: to maintain their sense
of status, to protect themselves against the feared
"otherness" of different social strata, races, and ethnicities, and to protect property
values and tax bases.
n107 Central cities, in turn, used federal urban renewal funds in the 1950s and
1960s to build hundreds of new office buildings and other commercial spaces,
destroying huge quantities of low income housing in the process.
n108 With any replacement housing limited and generally too expensive, former
residents were forced to relocate. Whites generally were welcome elsewhere in
cities and sometimes could afford the suburbs, but black residents typically
had little alternative but to move to segregated public housing or to other
majority-black city neighborhoods, causing further racial segregation.
n109 Although development shifted in the 1970s and 1980s from commercial to retail
[*363] still added to segregation, with festival marketplaces and similar
developments displacing lower income residents through
Despite the problems caused by zoning and development policies, Frug does not
suggest abandoning them. Private measures such as restrictive covenants can
preserve homogeneity just as effectively as regulation, and abandoning
central-city development would only accelerate the hemorrhaging of jobs and
consumer dollars to the suburbs.
n111 Instead, he seeks to refashion municipal land use powers
"in a way that promotes community building rather than the dispersal and
separation of metropolitan residents."
n112 The answer he proposes is to embrace the architectural and city planning
movement known as the New Urbanism.
New Urbanist planners and architects, as Frug describes them, seek to transform
the current, car-dependent municipal pattern of separate and sprawling
residential, office, and shopping areas into one of integrated, pedestrian
friendly, higher density localities.
n114 They reject zoning that separates work, home, and shopping and that segregates
neighborhoods by income.
n115 In contrast to existing trends, New Urbanists encourage the placement of homes
above stores and the mixing of multiple and single dwellings within the same
n116 They support pedestrian friendly communities, which they advocate achieving
through car safety measures such as narrowing streets and adding sidewalks, as
well as through ambience enhancing measures, such as increasing the building of
dwellings with front porches, moving garages behind the buildings they serve,
and placing entryways flush with sidewalks.
n117 Such neighborhoods help support another New Urbanist goal: encouraging the use
of public transportation.
n118 Making walks to public transportation safer and more
[*364] enjoyable, they argue, encourages its use, as does planning new communities
around transit stops.
n119 Finally, New Urbanists advocate the importance of public space in municipal
design, making public parks, squares, and buildings
"the focal points of neighborhood life," and encouraging the building of streets on connection friendly grid patterns.
n120 Their hope is that designing muni-cipalities to encourage public interaction
will help metropolitan residents accom-modate to persons different from
n121 Indeed, Frug indicates that proposals to bring local zoning and development
policies in line with New Urbanist tenets are precisely the sort that he hopes
to see negotiated in his proposed regional legislature.
Although Frug acknowledges the argument that current zoning and redevelopment
policies would not exist without substantial popular support, he contends that
several potential constituencies may be interested in reducing income, racial,
and ethnic segregation in metropolitan areas, and thus that there is some
chance that regional land-use negotiations would result in reforms. First, he
notes that women, to the extent they are primarily responsible for child care
and housework, are disadvantaged by the decentralization and car dependence of
suburbia, which increases the time needed to reach work, shops, and recreation,
and requires them to drive children to most activities.
n123 Such women might well support policies aimed at pedestrian and public
transit-friendly neighborhoods that integrate residential, office, and retail
uses. Another group likely to support New Urbanist policies is the population
of inner suburbs, a number of which are currently undergoing the same pattern
[*365] that plagued central cities earlier in the century.
n124 Although he does not really explain this contention, Frug's argument
presumably is that inner suburbanites would embrace the New Urbanist focus on
arresting suburban sprawl, which in theory might direct development back toward
the urban core.
The elderly too, Frug suggests, would support the land use reforms he proposes.
The current suburban emphasis on low density, single-family development may
impose burdens on older residents; those on fixed incomes may be unable to
afford the cost of maintaining an entire single-family home, and those no
longer able to drive lose a vital link to the outside world.
n125 Central city and inner-suburb decline caused by suburban sprawl may also
burden older residents by increasing the perception, and perhaps reality, of
crime, which could force some to abandon their homes, and others to become
prisoners within them.
n126 Thus, the elderly are likely to support the New Urbanist emphases on
increasing mixed-use zoning, which would permit renting out the unneeded
portion of a home, integrating retail and residential uses, which would reduce
car-dependency, and encouraging greater density of development, which could
help stop the cycle of urban decline.
Finally, Frug believes many African Americans would benefit from a change in
current land use policy. Certainly, as he points out, black residents too poor
to leave central cities or inner suburbs have not benefited from
sprawl-friendly policies that have drained urban cores of both their
residential and commercial tax bases.
n127 African Americans able to move to more prosperous suburbs still tend to end up
segregated from similarly well-to-do whites, for reasons of discrimination as
well as choice.
n128 Thus black metropolitan dwellers, too, are likely to support New Urbanism's
focus on increasing both neighborhood density and the interaction of diverse
According to Frug, although public schools could be used for community
building, they are used instead to divide metropolitan residents by race and
class, in particular through the use of school district boundaries and ability
Frug makes two key proposals to combat these problems. First, he suggests that
the current state policy of permitting localities to keep property tax revenues
[*366] raised within their borders, which
"empowers some neighborhood schools while disempowering others,"
n129 should be abandoned. Instead, local property taxes would be collected
region-wide, and should be distributed via regional negotiations.
In addition, Frug would
"revise the current entitlement that now enables school districts to define who
is eligible for admission to their schools."
n130 He proposes a school choice plan that would allow parents to send their child
to any public school in the region
"as long as diversity, and not segregation, was promoted by their choice."
n131 He also would abolish tracking, which he believes promotes segregation by
race, ethnicity, and class.
n132 According to Frug, these reforms would increase community building and
fortuitous associations, and thus reduce tensions and increase learning.
Frug anticipates that critics may deem his proposals coercive and
redistributive, but claims that his suggestions are no more or less unfair than
the current system. On the first page of Chapter One, he asserts that
"states have absolute power over cities," and notes that
"the extent of that power has been extravagantly emphasized by the Supreme Court
of the United States" in the leading case of Hunter v. City of Pittsburgh.
n134 If one accepts Hunter's holding that states are free to grant localities as
much or as little power as they wish, then the status quo is not set in stone,
but rather represents merely one of several possible delegations of authority.
Just as the states were free in the past to make the current delegations, they
are free to withdraw or alter them.
Frug contends that altered policing strategies, in addition to land use and
education reforms, could contribute to metropolitan community building. Such
reforms are sorely needed, he asserts, because Americans are plagued with a
rampant fear of otherness, which contributes to a widespread fear of crime.
These two elements operate in a vicious circle, he believes, as the fear of
crime simply refuels the fear of otherness. Unfortunately, both fears are
especially heightened with respect to black males.
The typical current response of white Americans, Frug argues, is to give in to
"us vs. them mentality" and to isolate themselves as much as possible. This mindset has fed the flight
to the suburbs and a get-tough-on-crime attitude that has fueled the
"current enthusiasm for building prisons."
n136 These strategies only increase the divisions between classes, races, and
ethnicities. Although the divisiveness of white flight is evident,
zero-tolerance law enforcement also creates fragmentation, according to Frug,
because it engenders hostile police relationships with minorities that do not
make crime fighting any easier.
Again, Frug proposes two reforms, one of which relies on the tax revenue
sharing tactic that he also recommends in the educational arena. First, he
suggests metropolitan-area-wide funding for police services,
n138 with resources used for
"crime prevention, rather than isolation and withdrawal."
n139 Pursuant to a crime prevention approach, metropolitan residents would stop
fleeing poor, high crime areas, and isolating criminals through prison
building, toughening criminal laws, and expenditures on private security.
n140 Instead, these residents would focus on
"becoming familiar with the range of people who live in the metropolitan area," and learning how to distinguish between
"potential troublemakers" and harmless strangers.
n141 These efforts would bolster residents' self-confidence and resilience when in
public, and thereby help to free them from the limitations self-imposed by fear
n142 In turn, metropolitan residents would feel free to return to the (no longer)
high crime city and inner-suburban neighborhoods, which could help reverse the
economic decline that their flight in earlier decades engendered.
Frug's second proposal is that traditional law enforcement strategies be
replaced with the use of community policing, which is a way of
[*368] police-community antagonism by allowing people with very different views to
participate in the effort to formulate crime-prevention programs."
n144 Regardless of whether this strategy would have much impact on the crime rate,
at a minimum
"the police could demonstrate for the public at large how to lower the crime
rate by working with people different from oneself."
Part Two: Potential and Problems
Frug's method of drawing on a variety of nonlegal, theoretical sources -
primarily from the humanities - to craft relatively concrete legal and policy
reform proposals is certainly distinctive, at least within local government law.
n146 Yet only some of the arguments and proposals he generates through his
inter-disciplinary methods are persuasive.
His discussion of the effect of consciousness on human behavior accentuates a
significant influence on the metropolitan problems he seeks to alleviate. In
addition, his readings in postmodernism enable him to showcase his innovative
electoral reform proposals, while his multidisciplinary discussion of community
building helps advance the worthwhile cause of regional coalition building.
Despite these valuable insights, however, Frug appears to overestimate the ease
of bridging the gap between theoretical re-envisioning and actual political and
social change, as evidenced by his insufficiently detailed and overly
optimistic proposal for a regional legislature, as well as his unrealistic
hopes for the New Urbanism movement. Moreover, although he devotes appropriate
at-tention to the significance of intellectual influences on the urban scene as
a general matter, in a couple of instances his analysis could be more
persuasive. For example, while acknowledging the mindset behind white flight,
he overlooks the influence of pastoral ideology in pulling families toward the
suburbs. He also understates the difficulties of reforming the suburban
A. The Promise of City Making
Frug's commitments to fairness and public freedom are unquestionable, and his
proposals for achieving those goals show promise in several respects. In
particular, his focus on the influence of ideology and psychology in shaping
the inequities of our current metropolitan system brings to light causal
factors that are ignored all too often in urban policymaking. His suggestion
that local and regional offices be filled through semiproportional voting is
intriguing and could hold real potential for amplifying the voices of
metropolitan minorities. Moreover, his advocacy of community building drives
home the necessity of
[*369] coalition formation to the achievement of progressive change in metropolitan
1. Focus on Intellectual Influences
In advocating methods to combat the forces - centralization and metropolitan
fragmentation - that he believes hinder the achievement of his two main goals -
public freedom and social justice - Frug focuses to a significant degree on the
intellectual underpinnings of those forces. In other words, he analyzes how the
way people think contributes to the current state of metropolitan America,
focusing particularly on the mindsets of suburbanites and the affluent. Because
understanding metropolitan development trends requires an understanding of the
world views and psyches of the individuals whose decisions contribute to such
patterns, this attention to consciousness makes a valuable contribution to the
local government literature.
In the first two parts of his book, Frug devotes significant attention to
describing Americans' predominant understanding of localities: as autonomous
entities, or what he calls
"It is considered obvious" by the average local resident, particularly the typical suburbanite,
"that the only relevant decision-makers are those who live within city
boundaries, and that outsiders affected by the decisions have no voice in the
n148 Where local residents obtained this understanding is no mystery, he maintains;
they understand localities as autonomous because state courts and legislatures,
as well as the United States Supreme Court, have enabled localities to act
selfishly in shaping local government law.
The layperson's understanding of municipalities as autonomous is neither idle
nor rootless, Frug emphasizes; rather, it forms an ideology of autonomy. The
significance of municipal autonomy's status as an ideology is at least twofold.
First, the understanding is deeply interwoven into the American con-sciousness.
n150 Residents feel not only that localities are autonomous, but also that they
ought to be, that they are entitled to be, that that is how the world is.
"suburban consciousness" incorporates
"the felt legitimacy of suburban separation."
[*370] Second, because the perceived right of local separation forms part of their
world view, residents benefiting from local autonomy are likely to resent
intensely, and resist strongly, any reforms that impinge on local self
interest. Reform legislation that forbade exclusionary zoning or required
tax-base sharing, for instance, most likely would appear to unsympathetic
suburban residents as not simply an ordinary political loss, but as an
overturning of their normative vision of the world.
Recognizing the depth and strength of the ideology of autonomy helps one to
understand the extent of opposition to metropolitan reform and assists in the
shaping of change. For example, as Frug notes, the circumstances surrounding
the New Jersey Supreme Court's Mount Laurel cases
n154 demonstrate the
[*371] difficulties that arise when judicial and legislative reform initiatives
conflict with the world views of their constituents.
n155 Constance Perin has pointed out the importance of comprehending the
"conventions and understandings" of a society, for although
we understand them less well than we can see the political and economic
patterns they result in, if left unexamined ... [they] can continue to produce
the less-than-ideal conditions so clearly manifested in the built landscape of
metropolitan areas, still best described in older metropolitan areas ... as a
white noose around the blacks and poor of central cities.
Considering residents' shared understandings of the world in addition to
eco-nomic and political factors
n157 permits policymakers both to appreciate what they are up against and, to the
extent possible, to incorporate elements that speak to residents' mindsets into
As for his efforts to promote community building, Frug again turns to
intellectual factors, suggesting that residents likely to oppose this reform
(most often suburbanites) may suffer from a psychological condition -
specifically, a lack of
"ego strength" and an excessive fear of the
n158 According to Frug, this ego frailty and fear is so encoded in suburbanites'
neurons that it is no simple thing to root out. Enabling the
"being together of strangers," whether in already heterogeneous cities or in suburbs newly open to
integration by inclusionary zoning and affordable housing plans, requires close
[*372] these issues. Reforms that make economic or political sense are unlikely to
succeed if they do not take into account what makes their subjects tick,
whether such forces are rational or not. Frug's thorough illumination of the
often overlooked influence of psychology, as well as ideology, on patterns of
metro-politan development, thus performs a valuable service to urban planning
2. Semiproportional Voting
Frug also makes interesting use of extralegal sources to propose that seats in
his regional legislature, and perhaps all local government elective offices
within a region, be filled through a semiproportional representation scheme.
n159 He suggests that this methodology would permit nonresidents with an interest
in a municipality to participate in electing the locality's officials. Although
the general concept of semiproportional voting is familiar in law and political
science, Frug draws on readings from postmodern theorists to develop the novel
idea of expanding the metropolitan voting jurisdiction so that it is regionwide.
n160 Under the right circumstances, his proposal could have the positive effect of
increasing minority voice in sub-state elections.
The type of semiproportional voting Frug recommends most closely resembles
n161 Under cumulative voting, instead of dividing a legislative jurisdiction into
multiple districts, each of which is entitled to a single representative,
districts are merged into fewer, larger voting sectors, each of
[*373] which is entitled to the same aggregate number of representatives.
n162 The result will be larger, multimember districts instead of smaller,
single-member districts. Each voter is given as many votes as there are seats
to be filled and is permitted to spread those votes among several candidates or
use them all on one candidate (in contrast to single-member district voting,
where voters may vote only once for a particular candidate).
n163 The candidates receiving the most votes are then declared the winners of the
open positions. If used wisely, cumulative voting permits cohesive interest
groups that do not command a majority in a particular jurisdiction to gain
representation in multimember bodies.
n164 The method helps to mitigate the winner-take-all nature of electoral systems
that permit interest groups commanding fifty-one percent of the electorate to
control 100 percent of the electoral seats.
Cumulative voting was first notably used in the United States in 1870s
Illinois, when the state revised its constitution to require cumulative voting
for the election of candidates to the lower house of the state legislature.
n165 The chair of the constitutional convention's Committee on Electoral and
Rep-resentative Reform (and editor of the Chicago Tribune), Joseph Medill, was
influenced in his advocacy of cumulative voting by John Stuart Mill's recent
writings on minority representation.
n166 The convention subsequently proceeded to require cumulative voting for the
election of directors of private corporations, at Medill's urging.
Although cumulative voting did not become widespread in the public, legislative
n168 it did become quite popular in the corporate sector. According to Jeffrey
Gordon, by 1880 seven states had followed Illinois in requiring corporations to
elect their directors via cumulative voting; by 1900 a total of eighteen had
such a requirement; and by 1945 twenty-two did.
n169 In the 1950s, however, states began to switch from requiring cumulative voting
[*374] corporate directors to merely permitting it,
n170 presumably since cumulative voting has the capacity to reduce the power of the
shareholding majority. This shift reduced its usage.
n171 By the early 1990s, only six states retained mandatory cumulative voting,
while forty-three (plus the District of Columbia) permitted, but did not
require, cumulative voting.
Just as the pendulum swung against cumulative voting in the corporate arena,
scholars began to call for its reintroduction on the American political scene.
Most notably, Lani Guinier has advocated replacing the currently preferred
method of electing legislators - majority-rule, single-member dis-tricting -
with cumulative voting.
n173 Historically, multi-member districts have been used effectively to
disenfranchise American minority groups.
n174 In a majority-takes-all system, diluting small minority enclaves into a large,
majority-dominated, multi-member district essentially precluded minority
candidates from ever being elected.
n175 Dividing large, multi-member districts into smaller, single-member districts -
as long as some districts were drawn to ensure a majority of minority voters -
was seen as an effective remedy for the problem of minority vote dilution.
Guinier has argued that using single-member districting in this way creates its
own problems for minorities: reduced voter participation, reduced legislator
responsiveness, and isolation of minority representatives.
n177 She argues that cumulative voting would ameliorate these problems and increase
the likelihood that minority groups would have
"a fair chance to have their policy preferences satisfied."
Frug's proposals regarding metropolitan elections appear to draw directly on
Guinier's advocacy of cumulative voting, although Frug does not explicitly
identify his proposal as a cumulative voting scheme.
n179 Like Guinier, Frug
[*375] recommends expanding the scope of the electorate eligible to fill local
offices - in his case, to encompass the entire region.
n180 In a manner similar to Guinier, Frug suggests giving voters multiple votes
(five) to reflect the expanded jurisdiction, and permitting them to cast those
votes as they choose, with cumulation of votes permitted.
n181 Both share the goal of permitting voters to define for themselves what
interests they wish to join with others to support, rather than leaving it to
the lawmakers who draw district lines to define appropriate
"communities of interest."
n182 One distinction between the two approaches is that Guinier's proposal is
firmly rooted in the context of increasing the representational effectiveness
of people of color (although it clearly invites expansion to aid the
representation of any type of minority), while Frug's proposal is broad based
from the start.
Frug is careful to state that he is not trying to produce ready-to-implement
policy proposals, but simply to catalyze thinking about creative alternatives
to current local government law.
n183 Nonetheless, his voting proposal is defined in so little detail that it risks
eliciting dismissive reactions rather than sparking imaginative brainstorming
about such innovations. For example, in proposing to give each regional
resident five votes to cast in whatever local elections she wishes, does Frug
mean to decrease the relative voting power of some residents? Under traditional
voting methods such as single-member districting, residents are entitled to
vote for every elective office or body that has jurisdiction over them. The
more elective offices or bodies that govern someone, the more voting
opportunities she is entitled to have. Cumulative voting (unlike limited
voting) does not change one's number of voting opportunities; it simply affects
the way that one exercises them.
[*376] Yet Frug's proposal to allocate an equal number of votes to every regional
resident does not seem to account for the different numbers of jurisdictions to
which different residents are subject. Some residents would end up having more
relative power over their lives than others - any resident currently entitled
to vote in more than five elections would suffer a reduction in voting power.
On the other hand, because of the disparity in number of governing
jurisdictions per resident, removing the limited voting aspect of Frug's
proposal presumably would mean allocating each metropolitan resident as many
votes as those residents governed by the highest number of jurisdictions. This
step would engender its own injustice, by according an unfair advantage to
residents governed by fewer authorities than the maximum, essentially granting
These problems could be remedied without abandoning the benefits of
semiproportional voting by using Frug's region-wide voting scheme only for
offices or bodies that all municipalities have in common, and exempting
"excess" elections from the regional process; those elections could be conducted via
intra-local cumulative voting.
n185 Frug's analysis would have been more persuasive if he had addressed this
In suggesting that his voting scheme be extended to areas outside a region,
n186 Frug raises complications that he fails to address. In particular, it seems to
violate basic principles of fairness if outsiders are permitted to vote in a
region's elections but regional residents cannot vote in the outsider's
juris-diction. To elaborate on Frug's hypothetical,
n187 it would not be fair if a resident of San Juan, Puerto Rico could vote in
Yonkers, New York but a Yonkers resident could not vote in San Juan. Frug
neither raises the issue of reciprocity nor suggests ways to resolve it.
Ensuring reciprocity at the state level may be feasible, since a state
legislature willing to authorize regional legislatures also may be willing to
impose statewide semiproportional voting. Reciprocity between two or more
states, however, raises issues of interstate compacts,
n188 and federal action to mandate nationwide reciprocity might raise difficult
questions concerning the scope of Congressional authority in this area.
Although Frug does not provide specific examples of New Yorkers voting in
Australia or Finns voting in Minnesota, his metric - that people be permitted
to vote in those places where they
n189 - would encompass such voting. Obviously, en-forcing reciprocity on an
international level presents enormous political as well as legal problems.
Reciprocity on a state level in fact may be legally feasible,
[*377] but it would aid his argument to acknowledge the issue and the complications
that it would produce above the state level.
The primary critique of Frug's voting proposal to date has focused not on the
relative voting power or reciprocity issues, but rather on the fact that the
expansion of a voting jurisdiction by semiproportional voting, at least as Frug
proposes it, would permit extra-local voting. Briffault has argued that, as
ap-plied to a metropolitan area containing a central city surrounded by
suburbs, Frug's proposal actually would harm the ability of minorities to
achieve policy outcomes they favor, resulting in the exact opposite effect
cumulative (or limited) voting is intended to have.
n190 Because a central city generally has high visibility within its surrounding
region, and because that city's policies in many areas (such as taxes on the
city income of commuters) affect its entire region, suburban residents are
likely to exercise their right to vote in city elections, according to
n191 Suburbanites, Briffault suggests, may vote down proposals (such as tax
increases) needed to provide critical city services. In theory central city
residents should be equally able to vote in suburbs on significant issues such
as affordable housing, but the large number of suburbs makes determining each
suburb's policies more time consuming, and means that attacking those policies
takes substantial coordination and time.
n192 The votes of lower income central city residents therefore may not be
exercised at all in suburbs, or may be rendered ineffective due to lack of
coordination. On balance, Briffault suggests, under Frug's cumulative voting
proposal, disadvantaged metropolitan residents would give up more than they
The force of Briffault's critique depends greatly on the demographics of the
particular region for which metropolitan-wide cumulative voting is proposed.
Briffault's argument holds the most sway in regions where minorities are
heavily concentrated in central cities and reside hardly at all in the
surrounding suburbs. Yet where minorities are more spread out, a cumulative or
other semi-proportional voting scheme might provide real benefits because
minorities outnumbered in their own suburbs could combine their votes with
other scattered minorities and elect representatives of their choice.
Which scenario more accurately reflects the empirical reality? There are still
heavy minority concentrations in America's central cities, as recently released
data from the 2000 census demonstrates.
n195 Frug concedes this fact
[*378] from the beginning;
n196 indeed, it is a key premise of his work. Frug also con-cedes that even when
minorities live in suburbs, those suburbs themselves are often segregated.
n197 Yet many people of color who can afford to do so have moved to the suburbs,
n198 and not all suburbs where people of color live are wholly made up of
n199 In addition, the concentration of poor people of color in central cities has
depended to a degree on federal housing policy, which traditionally has favored
warehousing minorities in segregated projects.
[*379] In recent years, however, government housing policy has begun to favor
dispersal rather than concentration of those needing housing.
n201 Minority resi-dents now, or in the not too distant future, may be more spread
out than Briffault acknowledges, such that the benefits of region-wide
semiproportional voting may be greater and the dangers less than he suggests.
Even with a segregated suburbia, semiproportional voting would benefit
minorities in supralocal elections. Furthermore, to the extent that Frug's
other proposals are implemented and do reduce regional segregation,
semiproportional voting schemes such as cumulative voting would be necessary
complements in order to ensure that the de-ghettoizing of minorities does not
reduce their political efficacy.
n202 Regardless of whether semiproportional voting would work in American cities as
they are configured today, it may well work - and indeed, be necessary - in the
not-so-distant future. Considering ways to implement such a system seems
eminently sensible. Thus, although Frug overlooks some signi-ficant
complications raised by his voting discussion, on balance his analysis makes a
worthy contribution to the urban policy debate.
Finally, although Briffault makes an excellent point about the transaction
costs of cross-border voting, those inefficiencies can operate in more than one
direction. It may be that suburban voters would have an easier time becoming
aware of and forming a desire to vote on central city affairs than city voters
would with respect to suburban affairs, but we must not forget that under a
cumulative or limited voting system, each time a suburbanite voted in a city
election, she would forfeit one vote that otherwise could be used in her own
community's elections. She may be faced with the choice between voting on her
community's affordable housing ordinance and in the central city's mayoral
election. She may be willing in theory to use her vote on the latter rather
than on the former if confident that enough others will vote her way on the
housing ordinance, but in practice she can never be sure. In short, the attempt
to ensure suburbanites' preferred outcomes in metropolitan elections likely
would entail its own collective action problems, including the cost of
coordinating suburban voting to ensure desired pluralities in multiple
jurisdictions and of preventing
[*380] defections from any such coordinated plan.
n203 Because suburban and central city attempts to achieve desired outcomes through
semiproportional, cross-border voting would involve similar costs, such voting
likely poses less danger to lower income city dwellers than scholars have
3. Need for Coalitions
Frug's consultation of nonlegal sources - in this case, Iris Young's
philosophy and Richard Sennett's writings on psychoanalysis - also leads him to
develop the concept of community building. Of the several reasons Frug gives
for promoting community building, perhaps the most significant is the notion
that making people comfortable with those different from themselves will assist
in producing a consensus around solutions to urban problems through
negotiations in his regional legislature. Although the likely efficacy of his
re-gional legislature is questionable, as discussed earlier, his instinct that
improving metropolitan America will require the cooperation of heretofore
disparate constituencies is accurate.
More than ever before, America is a suburban nation. In 1950 almost seventy
percent of Americans lived in central cities; by 1990 more than sixty percent
lived in suburbs,
n204 and the 2000 census reflects an even greater degree of suburbanization. Those
who live in more affluent suburbs are unlikely, on average, to welcome measures
that negatively affect their bottom line - measures such as tax-base sharing,
which may be viewed as redistributive, or affordable housing initiatives, which
could bring in residents who use more in services than they contribute in
taxes. Although city dwellers, particularly those of lower income who may have
been most affected by resource-starved public schools and exclusionary zoning,
may support such reforms, the proposals will not prevail in the political arena
without, at a minimum, the endorsement of re-sidents of less wealthy, inner
suburbs. Since these suburban residents are unlikely to see eye to eye with
central city dwellers on many issues, enhancing the ability of these different
groups to find some common ground with one another is a necessary prerequisite
Minnesota state legislator Myron Orfield has written a book describing the
potential for forming political coalitions between inner-suburban and central
city constituencies in order to enact progressive legislation, a form of
cooperation he has dubbed
n205 In the early 1990s, Orfield was seeking ways to strengthen Minnesota's 1971
tax-base sharing plan for the Minneapolis-St. Paul
n206 and to implement other regionalist measures, such as a fair share affordable
housing statute for the Twin Cities region.
n207 Undertaking extensive research, Orfield determined that a small sector of new,
wealthy suburbs at the outskirts of the metropolitan area - a district he
"favored quarter" - was drawing a disproportionate share of new jobs and infrastructure
development funds at the expense not only of the two central cities but also of
the less affluent, inner-ring suburbs.
n208 Recognizing that their constituents were being disadvantaged equally by this
skewed pattern, state legislators representing the inner suburbs joined
together with representatives of urban communities to enact Orfield's
legislative proposals, which they understood as serving the common economic
interests of their respective communities. The reforms were thwarted only by
Republican Governor Arne Carlson's vetoes.
Frug's suggestion that it takes the cooperation of several different groups -
women, inner-suburbanites, the elderly, and African Americans - to provide a
groundswell sufficient to implement New Urbanism-related reforms reflects
perfectly Orfield's findings and experience in Minnesota. Indeed, New Urbanism
itself, a movement started by architects and town planners, has expanded into a
phenomenon embraced by a range of groups, with its flagship organization, the
Congress for the New Urbanism or
"CNU," serving as an all-purpose umbrella under which an eclectic variety of
environmental, historic preservation, transportation equity, and other
advocates have gathered with an interest in arresting suburban sprawl and
improving central city wellbeing.
n209 Orfield's work demonstrates that it is possible to formulate the concept of
coalition building without forays into philosophy and psychoanalytic theory.
That said, Frug's discussion of the importance of community building both
reinforces and provides additional depth to Orfield's ideas.
B. The Pitfalls of City Making
Although Frug has used his interdisciplinary methodology to generate some
valuable insights and useful proposals, not all of his ideas seem likely to
advance his goals. First, his proposal for a regional legislature lacks
clarity. On one hand, it is difficult to see how the proposal, on its face,
would improve the fragmented metropolitan status quo given the realities of
negotiating when there is a substantial imbalance of bargaining power among
localities. On the other hand, if one interprets the proposal in a way that
leads to improvements, it is difficult to see how the proposal differs from
those advocated by the regional
[*382] government advocates from whom he emphatically tries to distinguish himself.
Moreover, given the realities of the housing markets, Frug overlooks the New
Urbanism movement's potential to cause
gentrification and displacement in addition to, if not instead of, community building.
Although he thoroughly documents the intellectual dynamics driving middle class
residents out of central cities, Frug pays insufficient attention to the
ideological and psychological
"pull" factors of suburbanization. Finally, he never fully acknowledges how difficult
it would be to change the world view of the millions of suburban dwellers he
hopes to reform.
1. Regional Legislature
Frug uses his readings in political, psychoanalytic, and literary theory to
generate one of his primary recommendations for reducing local selfishness and
permitting decentralized power to coexist with distributional fairness: the
establishment of a regional legislature responsible for determining the legal
entitlements of local governments, such as how much of their property taxes
localities could retain for their own school expenditures or whether they would
be required to maintain a certain amount of affordable housing. To ensure that
the legislature did not retain more power than would be conducive to fostering
public freedom, Frug asserts that its mandate would not go beyond setting such
entitlements; municipalities would be left to decide how to carry out duties or
allocate benefits. Regional representatives would be elected either on the
basis of neighborhood districts or region-wide cumulative voting, and would
deter-mine entitlements via
Because Frug does not spell out his proposal in any greater detail than this,
several interpretations are possible. Under any interpretation, the state would
have to act to some degree to carry out his proposal; under Hunter
n210 and its progeny, localities simply cannot agree to form a regional legislature
without state authorization.
n211 Even if localities had the power to implement such an agreement as a
contractual matter, the agreement could not be binding on dissenters without
state enforcement. It is unclear, however, whether Frug intends for current
entitlements to remain or for the state to step in and remove currently
existing entitlements. It also is unclear whether by
"negotiations" he literally means that the legislature could take action only by consensus,
as is the case in contractual negotiations, or whether, after engaging in
debate and com-promise, the regional legislators would take action by majority
vote, as in the traditional American legislature.
If entitlements remain the same and actions are taken purely by negotiation,
the regional legislature would seem to favor those who most benefit from the
status quo, since in the absence of consensus the status quo would remain. Frug
[*383] concedes that, under current local government law, localities are
"entitled to walk away from ... negotiations whenever it seems in their
self-interest to do so."
n212 In the current metropolitan context, therefore, wealthier suburbanites would
be the winners, since they could not be compelled to agree to redistributive
measures sought by legislators from disadvantaged neighborhoods. Frug probably
did not envision this scenario, but the vagueness of his proposal does lend
itself to such an interpretation. Even if representatives of
"favored quarter" neighborhoods acted altruistically in voting on matters that effectively
redistributed wealth from their neighborhoods to less affluent ones, there is a
strong likelihood that wealthy constituents might refuse to reelect
"gave too much away."
If entitlements remain the same and actions are taken by voting, then whether
the creation of a regional legislature would ease metropolitan frag-mentation
or not would depend on the types of coalitions formed by legislators. Myron
Orfield's experiences in the Minnesota legislature provide some insight into
how coalitions might form; legislators from central city and inner suburban
neighborhoods might be able to outvote legislators from wealthier suburbs,
particularly if Orfield is correct in his assertion that such suburbs form only
roughly one-quarter of the average metropolis. If this scenario were accurate,
implementing a regional legislature empowered to alter entitlements over
regionally significant matters such as housing and school finance could improve
region-wide equity. Frug's determined attempts to distance himself from
advocates of regional government, however, would seem unwarranted then, since
this type of organization - a region-wide body with power to decide matters of
regional but not local concern - is precisely the type that traditional
regionalists wish to implement.
Briffault suggests a third possible reading of Frug's proposal - namely, that
Frug intended his
"interlocal negotiations" (with action taken by consensus, as in the first interpretation) to take place
against a background from which all previously granted entitlements were
removed. With legislators from the entire economic, ethnic, and racial spectrum
of neighborhoods placed in what John Rawls would call their
n214 there would be more of an incentive to work out mutually acceptable
entitlements since the
"favored quarter" legislators would not have the preexisting entitlements of being
[*384] permitted to retain all property tax revenues within local boundaries, or
being able to retain exclusionary zoning regulations in the event that
As Briffault points out, however, only one entity has the power to remove
entitlements: the state, and having the state exercise such power over
localities is precisely the sort of centralization that Frug seems at pains to
n215 Additionally, there is the enormous difficulty of determining what, if
anything, would constitute an
"original position" of municipal entitlements. One locality's lack of rights or positive
obligations - not being able to retain all of its property tax revenues, not
being able to use exclusionary zoning, having to build affordable housing - are
simply the flip side of other metropolitan residents' entitlements - the right
to use of other towns' property taxes, to be free from exclusionary zoning, or
to have affordable housing in desirable suburbs. Certainly a state government
could implement these changes in theory, but doing so in practice would be a
politically charged move that would involve a substantial intrusion on local
2. New Urbanism
Based on his concept of community building, which he developed in part from
his readings of psychological and philosophical theory, Frug advocates greater
implementation of New Urbanist urban planning methods in designing (and
redesigning) metropolitan areas. Although Frug's forays from legal theory into
the humanities and social sciences make him one of the earliest legal advocates
of New Urbanism, and although the movement may have an intuitive appeal, the
way its tenets have been followed in practice has sometimes been troubling.
Frug alludes to the movement's problematic aspects only in passing; closer
scrutiny of some of the New Urbanists' actual projects would have produced a
more realistic portrait of New Urbanism's limitations.
Many New Urbanist principles seem eminently sensible. It is hard to fault New
Urbanism's emphasis on using architecture to enhance residents' oppor-tunities
to interact with one another.
n216 New Urbanism's commitment both to
[*385] reducing traffic congestion and to promoting alternatives to transportation by
car certainly is praiseworthy,
n217 and their belief in the importance of public space in municipal design is
In practice, however, New Urbanism has demonstrated less promise than would
seem likely in the abstract. Although its adherents express genuine interest in
reducing metropolitan class segregation, and advocate mixing multi-ple and
single dwellings together and permitting above-garage apartments,
n219 those New Urbanist communities that have been created - Kentlands, Maryland;
Seaside, Florida; and Disney-sponsored Celebration, Florida, to name a few -
tend to be upscale suburbs unaffordable to those of modest means.
n220 To some degree, New Urbanism has come to resemble what Professor Vincent
Scully has dubbed the
n221 The limitations of New Urbanism seem inherent in the nature of the movement
itself. Because New Urbanism advocates a comprehensive reshaping of the
n222 and because it is a movement in city planning in addition to individual
architecture, its vision is most readily realized where communities are planned
and built from the ground up, in formerly undeveloped areas.
n223 Except in situations where municipalities are in a position to demolish entire
neighborhoods (a position few have been in since the urban renewal days of the
1950s and 60s), newly built New Urbanist
[*386] communities tend to be on the edges of metropolitan areas, and thus, by
definition, are suburban.
New Urbanist communities also have been inaccessible to lower income residents
because the New Urbanist vision itself is grounded in middle class, suburban
assumptions. For example, New Urbanists suggest that developers replace
cul-de-sacs with grid streets. The cul-de-sac street itself, however, is a
phenomenon of the newer, outer suburbs; more often than not, central cities and
inner suburbs where lower income residents are concentrated were built on the
traditional grid pattern.
n224 In addition, the advocacy of front porches and garage apartments presupposes
single-family dwellings and lots large enough to contain freestanding
outbuildings, elements that would tend to make housing un-affordable to lower
income residents. Frug acknowledges only in a single paragraph the essential
suburban orientation and potential elitism of New Urbanism, instead devoting
far more attention to its perceived promise.
n225 A more studied analysis would have made more of a contribution than his
largely uncritical support does.
Where advocates have attempted to build lower income housing on New Urbanist
principles, they have done so in ways that raise the twin specters of
gentrification and displacement. In fairness, proponents of New Urbanism have been sensitive
to charges of elitism, and the movement officially supports usage of its
"infill" development in central cities. Indeed, the CNU has a Development and Project
Implementation Task Force which takes as one of its primary goals
"ensuring that development is equitable for a diverse demo-graphic population,
particularly in urban areas."
n226 One of that task force's initiatives has been trying to examine
"the kinds of policies and principles that are succeeding at bringing infill
into existing neighborhoods around the country."
n227 The initiative's aims include
"adding to the discussion of appropriate strategies for avoiding
gentrification and displacement."
n228 In another effort, CNU, in cooperation with the federal Department of Housing
and Urban Development ("HUD"), has developed a set of guidelines for the design of central city housing.
n229 HUD has drawn heavily on these guidelines, and on
[*387] New Urbanism generally, in designing a new public housing renovation program
known as HOPE VI.
The HOPE VI program ("HOPE VI") has two goals: improving the design of public housing developments by
applying the tenets of New Urbanism; and including onsite supportive services
for public housing residents.
n231 HUD implements the program by providing grants to applicants (generally local
housing authorities) to help them achieve both elements. The supportive
ser-vices aspect of HOPE VI seems an obvious benefit to residents of HOPE VI
projects; the services typically offered, such as job training and child care,
n232 can aid residents in obtaining employment, advancement, and ultimately, more
desirable, private-market housing.
The benefits of rebuilding public housing along New Urbanist lines are more
ambiguous. According to New Urbanist principles, the typical newer sub-urb
should be more densely packed, yet the typical twentieth-century housing
project of barren highrise towers is excessively dense and, according to many,
should be replaced by lower density, more interaction-conducive row houses.
This is precisely the model that HUD has been favoring with its HOPE VI grants.
Reducing the density per acre of public housing no doubt has its appeal.
Three-story townhouses may be less alienating to residents than
larger-than-life highrises, and often blend in better with surrounding
private-market housing than highrises, reducing the stigma sometimes associated
"in the projects." Yet reducing the density of a project presents an enormous problem: It reduces
the number of residents that can be housed and use the new supportive services
there. This problem could be alleviated somewhat if the overflow of residents
were accommodated at nearby developments with similar supportive services.
Residents would still be inconvenienced, however, by being uprooted from their
n233 In addition, the evidence obtained so far suggests that in
[*388] many cases, overflow residents are simply diverted to the private market, and
at best given Section 8 housing vouchers, thus depriving them of the benefit of
HOPE VI's supportive services and undoubtedly displacing many people entirely
from their neighborhoods.
The fear of such displacement caused residents of Chicago's Cabrini-Green
housing project to file suit in 1996 to stop the city's plan to knock down the
development's notorious highrise towers and replace them with more
aesthe-tically appealing New Urbanist-style lowrise townhouses. Residents were
concerned not only that the new townhouses would not accommodate them all, but
also that the city might change its plans and sell the land to be used for
market-rate housing - a plan that would be very profitable for the city since
the Cabrini-Green area lies within a short distance of Chicago's downtown Loop
district. Even if the townhouses were built for the use of lower income
residents as planned, unless the city expressly protected the townhouses as
public housing, they probably would fall prey to the forces of
gentrification and shortly become unaffordable to those of modest income.
Another potential problem with the HOPE VI-New Urbanist approach to aiding
lower income residents is that it focuses architectural and social service
energies on existing (or remaining) inner-city populations rather than on
dispersing concentrations of poor residents and helping them relocate to
[*389] wealthier communities. Advocates of
"mobility" rather than
"place-based" strategies argue that the key to fighting poverty is reducing the
hyper-segregation of poor minorities in central cities
n236 by dispersing such residents around the metropolitan region. James Rosenbaum
and Stefanie DeLuca, for example, re-cently studied Chicago's Gautreaux program,
n237 which between 1976 and 1998 helped thousands of inner city, low income black
families relocate to new neighborhoods, both elsewhere within the city and in
the outlying suburbs. They found that although the families participating were
receiving the most common welfare benefit, Aid to Families with Dependent
Children ("AFDC"), at an equal rate at the start of their assignment to new homes, the families
assigned to neighborhoods with more educated neighbors
"were much less likely to be on AFDC at the end of the period" studied.
n238 Thus, they concluded that
"resi-dential mobility programs have great potential for freeing people" from the negative influences of neighborhoods with high concentrations of
"helping them to become self-sufficient."
n240 Work such as Rosenbaum and DeLuca's suggests that New Urbanists and their
followers may be misdirected in placing so much reliance on place-based design
changes to transform inner city neighborhoods rather than focusing on mobility
n241 As those scholars put it,
"demolishing high-rise public housing may have minimal benefits if families
merely move from high-rise vertical ghettos to less dense horizontal ghettos."
It may be tempting to discount potential problems with New Urbanism because of
the obvious good intentions of its advocates, who plainly are fervently
interested in helping to improve American society. We should not
[*390] forgot, however, that at least some of the architects and planners responsible
for the now disdained public housing towers themselves had more than mere
economic ambitions for their structures. For example, in a 1985 interview,
Cabrini-Green Architect Lawrence Amstadter explained that
"we thought we were doing ... a lot of innovative design things, like putting
open galleries on each floor so kids could play right in front of their
apartments. We didn't forsee the kids throwing each other off them."
n243 Even the modernist architect Le Corbusier, reviled by some as a planning
"Rasputin" because his
"Radiant City" model was transmuted into monolithic glass skyscrapers and concrete slab
n244 appears to have based his advocacy of the tower-in-the-park building, at least
to some degree, on utopian ideals.
Why the gap between ideal and reality? First, as Keith Aoki has observed of Le
Corbusier and Frank Lloyd Wright,
"in the translation from
"high' archi-tectural discourse to the
"low' marketplace, much of the progressive social vision underlying these
schemes was lost."
n246 The same process may well be taking place in the case of New Urbanism. Second,
there is a limit to how much design alone can change people's lives; as David
Harvey suggests, it is simplistic to suppose
"that proper design and architectural qualities will be the saving grace not
only of American cities but of social, economic, and political life in general."
n247 Advocates of New Urbanism should take care not to rely exces-sively on design
changes where evidence indicates that improved access to social services and/or
deconcentration of poverty may be at least as important in improving the lives
of lower income metropolitan dwellers.
3. Suburbanization Pull Factors
As discussed in Part Two A.1. supra, Frug's focus on the intellectual causes
of metropolitan fragmentation provides a much needed supplement to the
economic, social, and political approaches others have taken. Although he
provides a penetrating analysis as to why cities have been accorded
insufficient powers and why individuals have acted in ways that foster
metropolitan frag-mentation, his discussion is incomplete. In particular,
despite the fact that he has provided persuasive ideological and psychological
explanations for local
[*391] selfishness and for why metropolitan residents tend to avoid cities, he has
overlooked the intellectual reasons that draw city residents to the suburbs.
Others have noted missing elements in Frug's discussion of metropolitan
fragmentation. For example, in commenting on the article that became Part III
of City Making,
"The Geography of Community," Vicki Been pointed out that a major reason wealthier metropolitan residents
move from central cities to outer suburbs, and then attempt to discourage lower
income residents from moving in, is that poorer residents tend to spend more
municipal funds in the form of services than they pay in taxes.
n248 Merely combating suburbanites' prejudices will not eradicate measures such as
exclusionary zoning, Been suggests, when these residents support such measures
for economic reasons as well.
I agree with Been that Frug's analysis would have been more persuasive had he
dug more deeply into the causes of metropolitan fragmentation. However, I
believe that Been's analysis also stops short, in that neither she nor Frug
acknowledge the ideological influences that play a significant role in getting
city residents to migrate to the suburbs. Many other scholars have addressed
the issue of how fiscal zoning has contributed to suburban sprawl and income
segregation; what distinguishes Frug, as discussed in Part Two A.1. supra, is
his attention to the often neglected questions of intellectual influences on
metro-politan areas. Thus, it is less disappointing that City Making is not an
in-depth economic analysis than that it only partially addresses the
intellectual undercurrents behind metropolitan fragmentation. Specifically, it
"push" factors behind suburban sprawl but no
"pull" factors. Trying to conquer suburban sprawl and regional income segregation
without a complete understanding of its causes obviously would be problematic;
it is therefore important to examine fully the range of factors that lead so
many Americans to aspire to life in suburban subdivisions.
Americans today love nature. Every summer millions spend their vacations in
mountains, at seashores, and at lakes, hiking, camping, fishing, and swimming.
People enjoy the outdoors for varying reasons: for its beauty, its quiet, its
fresh air, and other qualities. Many would live in rural areas per-manently if
they could, but cannot because their jobs are too far away. Others would miss
the cultural attractions of being within commuting distance of a major city.
Suburbs were invented to resolve this dilemma.
n251 For those who
[*392] prefer rural surroundings, a single-family home with a patch of lawn, a
backyard, trees and flowers offers the next best thing: their own little piece
of Eden. For those who appreciate nature and culture equally, suburbs are the
perfect compromise as they are neither fully urban nor fully rural. The judges
that upheld early twentieth-century zoning ordinances preserving
single-family-only neighborhoods - the epitome of the suburban milieu - did so
in language that indicated their reverence for the
"pastoral ideal" of wilderness tempered by civilization,
n252 an ideal held by many Americans since at least Thomas Jefferson's time.
n253 Americans' enduring preference for suburbs suggests that the pastoral ideal
still holds sway.
To the extent that pastoral ideology still influences metropolitan residents,
they are unlikely to warm to any plan that ignores their deep-seated preference
"bourgeois utopia" of a detached house with a yard.
n255 As in the case of the ideology of autonomy and the fear of otherness, it would
behoove progressive urban reformers to be aware of and take into consideration
the pastoral ideal when envisioning new approaches. Frug would have provided a
greater service had he done more than dismissing the yearning for a bourgeois
utopia as mere
4. Underestimating the Difficulty of Changing Consciousness
Although Frug admirably gives appropriate weight to the significance of
suburbanites' world view in perpetuating metropolitan divisions, he seems to
underestimate the ease with which that consciousness may be changed.
A central thesis of his book is that it is possible for metropolitan dwellers
to enjoy both public freedom - which requires decentralization - and social
[*393] justice - which necessitates some mechanism to prevent selfish behavior by
more powerful localities vis a vis weaker ones. The typical proponent of
region-alism argues that some exercise of state power is necessary; Frug
"local government law could replace this reliance on state power with rules that
make intercity negotiation and compromise, rather than state control, the
mechanism for curbing local selfishness."
n257 Although Frug obscures the identity of the actor that would
"replace" the current
"rules" by making the subject of his sentence simply the abstraction
"local government law,"
n258 that actor clearly would have to be the state legislature. In other words, a
prerequisite for his proposed reform (the regional legislature) is state
Yet as he himself has argued, state imposed solutions that are inconsistent
with the ideology of autonomy can run into great difficulty:
"neither state policy nor suburban consciousness is easy to change, as the
difficulties in imple-menting Mt. Laurel demonstrate."
n260 Since many state legislators themselves are residents of neighborhoods
benefiting from exclusion, they too are likely to buy into the ideology of
autonomy and may refuse to enact reforms in the first place. As Briffault
observed, there is a
""chicken and egg' conundrum at the heart" of efforts to rein in local selfishness through regionalization:
"A metropolitan government is unlikely to be adopted without some prior sense of
metropolitan community, but a sense of metropolitan community is unlikely to
exist without some prior political definition of the area, that is, some
To be fair, Frug does recognize to some degree the circularity of his
arguments, noting that
"not only is the experience of interdependence a pre-requisite to changing legal
rules but, paradoxically, changing legal rules is a prerequisite to creating
the experience of interdependence."
n262 Beyond stating that
"legal doctrine must recognize and break through this paradoxical structure,"
n263 however, he offers little guidance as to how to do so.
As a matter of common sense, the only way to proceed, other than settling for
the status quo, would be to alternate doctrinal change with intellectual
change, in the hope that advances in each feed advances in the other.
n264 In choosing which step to take first, reformers need to compare the
[*394] changing minds and hearts with that of obtaining the political majority
necessary to enact progressive legislation. If Myron Orfield's research is
illustrative, focusing on legislative change initially may be the most feasible
approach. Given the issues Frug himself raises by focusing on the significance
of world view, his discussion should have addressed such issues, and would have
been substantially more satisfying had he done so.
As Vicki Been observed recently, all of Frug's work
"is incredibly rich, drawing upon literatures and disciplines that all of us
aspire to follow, but regrettably few of us do."
n265 City Making is no exception to this assessment. Yet it is important to ask
whether Frug's exploration of terrain that most local government and urban
policy scholars skirt serves his goal of aiding
"those interested in exploring alternatives to an America built on the
separation of different kinds of people."
n266 Is City Making more than a utopian dream, more than an ivory tower
intellectual's desultory musings? Does its interdisciplinary methodology
advance the debate in local government law and urban policy, or merely provide
decoration for an already self-sufficient text?
While not a flawless work, City Making stands up quite well to these questions.
By according an unusual amount of attention to the role of ideology and
psychological factors in the lives of local residents, Frug highlights the
significant influence that intellectual forces have on metropolitan
development. Furthermore, although it is obviously possible to arrive at the
conviction that progressive metropolitan change will require coalition building
between central city residents and sprawl-weary suburban dwellers without
consulting the work of philosophers and psychological theorists, Frug's
examination of nonlegal, non-political science sources enriches the coalition
building argument, and at a minimum, provides an added reason to pursue
"Metropolitics." In addition, his consultation of postmodern theory leads him to suggest
regionwide semiproportional voting, a proposal that could hold promise in
improving representational effectiveness for minorities, to the extent that
their dispersion increases. Because Frug's interdisciplinary methodology makes
contributions in all of these ways, his extralegal consultations can hardly be
"super-fluous" or mere pretentious
Frug's missteps - his unrealistic proposal for a regional legislature, his
insufficient attention to the potential pitfalls of New Urbanism, his
underestimation of the difficulty of changing the suburban consciousness and of
the ideological nature of the pastoral ideal - appear to result from
over-optimism about the ease of converting theory into practice, and about the
[*395] for altruism. Yet even the flawed portions of City Making are thought
provoking, and the more solid portions, as discussed above, provide urban
policy progressives with blueprints for real, transformative change. Given the
extent to which income, ethnic, and racial division and inequality persist
today, the fact that Frug's catholic methodology generates any such
contribution is something for which to be thankful.
n1. See, e.g., Peter Hall, Cities of Tomorrow: An Intellectual History of Urban
Planning and Design in the Twentieth Century (updated ed. 1996).
n3. See Robert Fishman, Bourgeois Utopias: The Rise and Fall of Suburbia 5, 9
(1987) (arguing that suburbanization as the resettlement of middle class
residents beyond the city core began in late eighteenth century London);
Kenneth T. Jackson, Crabgrass Frontier: The Suburbanization of the United
States 13 (1985) ("Suburbanization as a process involving the systematic growth of fringe areas at
a pace more rapid than that of core cities, as a lifestyle involving a daily
commute to jobs in the center, occurred first in the United States and Great
Britain, where it can be dated from about 1815.").
According to recent archeological research, the middle class suburbanization
phenomenon may date back even further than the last two centuries. Two
archeologists recently reported that their excavations in Belize suggest that
ancient Mayan civilizations had their own version of urban sprawl one thousand
to two thousand years ago. See John Noble Wilford, In Maya Ruins, Scholars See
Evidence of Urban Sprawl, N.Y. Times, Dec. 19, 2000, at F1.
n4. See, e.g., William H. Whyte, Urban Sprawl, in The Exploding Metropolis (1958);
Robert W. Burchell
& Naveed A. Shad, The Evolution of the Sprawl Debate in the United States, 5
Hastings W.-Nw. J. Envtl. L.
& Pol'y 137, 140 (1999) (noting that the word
"sprawl" as a planning term did not enter the literature
"until roughly the late 1950s and early 1960s").
n5. Indeed, the number of books and articles published the past few years alone
with sprawl as their central subject is astonishing. See, e.g., Peter Calthorpe
& William Fulton, The Regional City: Planning for the End of Sprawl (2001);
Andres Duany, Elizabeth Plater-Zyberk, and Jeff Speck, Suburban Nation: The
Rise of Sprawl and the Decline of the American Dream (2000) [hereinafter Duany
et al., Suburban Nation]; Sprawl City: Race, Politics, and Planning in Atlanta
(Robert D. Bullard, Glenn S. Johnson
& Angel O. Torres, eds. 2000); Robert H. Freilich, From Sprawl to Smart Growth
(1999); F. Kaid Benfield et al., Once There Were Greenfields: How Urban Sprawl
Is Undermining America's Environment, Economy, and Social Fabric (1999);
& Carter Willkie, Changing Places: Rebuilding Community in the Age of Sprawl
(1997); James Howard Kunstler, Home From Nowhere: Remaking Our Everyday World
for the Twenty-First Century (1996) [hereinafter Kunstler, Home From Nowhere];
Kunstler, The Geography of Nowhere: The Rise and Decline of America's Man-Made
n6. See, e.g., David Rusk, Cities Without Suburbs (2d ed. 1995) [hereinafter Rusk,
Cities Without Suburbs] (using census data); Myron Orfield, Metropolitics: A
Regional Agenda for Community and Stability (1997) (using census, state, and
municipal data); David Rusk, Inside Game/Outside Game: Winning Strategies for
Saving Urban America (1999) [hereinafter Rusk, Inside Game/Outside Game]
n7. See, e.g., Richard Briffault, The Local Government Boundary Problem in
48 Stan. L. Rev. 1115 (1996) [hereinafter Briffault, Boundary Problem]; William W. Buzbee, Urban Sprawl,
Federalism, and the Problem of Institutional Complexity,
68 Fordham L. Rev. 57 (1999); Sheryll D. Cashin, Localism, Self-Interest, and the Tyranny of the Favored
Quarter: Addressing the Barriers to New Regionalism,
88 Geo. L.J. 1985 (2000); Clayton P. Gillette, Opting Out of Public Provision,
73 Denv. U.L. Rev. 1185 (1996).
n8. Rusk, Cities Without Suburbs, supra note 6; Rusk, Inside Game/Outside Game,
supra note 6; Orfield, supra note 6.
n9. For example, advocates of zoning reform, tax-base sharing, transportation
planning, and school finance reform often have focused on legislative change.
n10. Lewis Mumford, The Culture of Cities (1938).
n11. Jane Jacobs, The Death and Life of Great American Cities (1961).
n12. Gerald E. Frug, City Making: Building Communities Without Building Walls
(1999) [hereinafter Frug, City Making].
n13. The four articles are reproduced in chronological order and each corresponds
to one of the four parts of the book. The articles, in order, are Gerald E.
Frug, The City as a Legal Concept,
93 Harv. L. Rev. 1057 (1980) [hereinafter Frug, Legal Concept]; Jerry Frug, Decentering Decentralization,
60 U. Chicago L. Rev. 253 (1993) [hereinafter Frug, Decentering Decentralization]; Jerry Frug, The Geography of
48 Stan. L. Rev. 1047 (1996); Gerald E. Frug, City Services,
73 N.Y.U. L. Rev. 23 (1998). See Frug, City Making, supra note 12, at ix. The last chapter of City Making,
"Choosing City Services," also draws significantly on Gerald E. Frug, Property and Power: Hartog on the
Legal History of New York City,
3 Am. B. Found. Res. J. 673, 687-90 (1984) (reviewing Hendrik Hartog, Public Property and Private Power: The Corporation
of the City of New York in American Law, 1730-1870 (1983)). See Frug, City
Making, supra note 12, at 214-16. Although Frug revised these essays for
inclusion in his book and added a few previously unpublished remarks, the
greatest change he appears to have made was to delete textual portions and
footnotes that he presumably believed unnecessary for a general audience to
understand his basic arguments. See Frug, City Making, supra note 12, at ix,
n14. Clifford Geertz, Blurred Genres: The Refiguration of Social Thought, in Local
Knowledge 19, 19 (1983) [hereinafter Geertz, Blurred Genres].
n15. See, e.g., id. at 20 (stating that
"to a certain extent this sort of thing [genre blurring] has always gone on").
n16. See, e.g., id. at 19 (describing works integrating, for example, philosophy
and literary criticism, or history and mathematics).
n17. Brian Leiter, Intellectual Voyeurism in Legal Scholarship,
4 Yale J.L. & Human. 79, 79 (1992); see also Francis J. Mootz III, Law and Philosophy, Philosophy and Law,
26 U. Tol. L. Rev. 127, 127 n.1 (1994) ("The past several decades have witnessed tremendous growth in the breadth of
interdisciplinary legal scholarship.").
n18. See, e.g., Leiter, supra note 17, at 79 (describing law and economics movement
"the most visible manifestation" of the rise in legal interdisciplinary work); Jay P. Moran, Postmodernism's
Misguided Place in Legal Scholarship: Chaos Theory, Deconstruction, and Some
Insights from Thomas Pynchon's Fiction, 6 S. Cal. Interdisc. L.J. 155, 156 n.2
(1997) (suggesting that it
"is hard to imagine a legal scholar who is not acquainted with the mass of
relatively recent literature supporting connections between law and economics").
n19. See Guyora Binder, Critical Legal Studies, in A Companion to Philosophy of Law
and Legal Theory 280, 280 (Dennis Patterson ed., 1996) (describing CLS as
spanning the late 1970s to the early 1990s, and indicating that the CLS
movement had become quite influential in legal scholarship by the end of the
n20. See, e.g., Joan C. Williams, Critical Legal Studies: The Death of
Transcendence and the Rise of the New Langdells,
62 N.Y.U. L. Rev. 429, 455-69 (1987) (describing diverse influences on CLS); see also
id. at 471 (stating that one of CLS'
"striking contributions" is its
"success at opening up legal scholarship to fields outside the law."); Moran, supra note 18, at 158 (contending that
"CLS relies heavily on an interdisciplinary approach to law").
n21. See, e.g., Williams, supra note 20, at 477 (deeming the article underlying
Part One of City Making, The City as a Legal Concept, to be
"extremely influential in CLS circles").
n22. The term
"crit" is a common shorthand for
"critical legal scholar," used throughout the legal literature by both CLS supporters and critics. The
term apparently originated with CLS scholars themselves, although some CLS
scholars have indicated their discomfort with the term, given that it has also
been used by detractors of the movement. See, e.g., Naomi Mezey, Book Note,
Legal Radicals in Madonna's Closet: The Influence of Identity Politics, Popular
Culture, and a New Generation on Critical Legal Studies,
46 Stan. L. Rev. 1835, 1837 (1994); Mark Tushnet, Critical Legal Studies: A Political History,
100 Yale L.J. 1515, 1517 n.10 (1991) (noting that author
"finds the term
n23. Frug, Decentering Decentralization, supra note 13.
n24. See, e.g., James T. Kloppenberg, The Theory and Practice of American Legal
106 Harv. L. Rev. 1332, 1334 (1993) (book review).
n25. The cultural studies movement originated in the 1960s in England, where
scholars established the Centre for Contemporary Cultural Studies at the
University of Birmingham. See Jerry Leonard, Introduction: (Post)Modern Legal
Studies as (Critical) Cultural Studies, in Legal Studies as Cultural Studies: a
reader in (post)modern critical theory 1 (Jerry D. Leonard ed., 1995); Kenneth
B. Nunn, Illegal Aliens: Extraterrestrials and White Fear,
48 Fla. L. Rev. 397, 398-99 (1996). Cultural studies gained ground in the United States later on,
"proliferating ... through the 1980s and 1990s." Janet Wolff, Cultural Studies and the Sociology of Culture, 1 In[ ]visible
Culture 1, 7 (1999), at http://www.rochester.edu/in<uscore>visible<uscore>culture/ issue1/wolff/. Kenneth Nunn has defined cultural studies as
"the interdisciplinary, politically conscious study of culture in its broad
anthropological sense." Nunn, supra, at 398.
n26. Mezey, supra note 22, at 1859; see also Leonard, supra note 25, at 1 (noting
"philosophically and politically overlapping arenas" of CLS and cultural studies, and both movements'
"untiring insistence on the possibility of global social justice").
n27. See, e.g., Binder, supra note 19, at 280 (stating that
"many [CLS] members identified with the leftist politics of the student
movements of the 1960s."); Maurice Isserman, The Not-So-Dark and Bloody Ground: New Works on the 1960s,
94 Am. Historical Rev. 990 passim (1989) (describing commitment of New Left
groups such as Students for a Democratic Society to participatory democracy,
civil rights, and antipoverty efforts); Mezey, supra note 22, at 1844
(describing CLS as
"a school dedicated to radical egalitarianism and the eradication of social
hierarchy"). For a contemporaneous statement of New Left goals by a seminal New Left
organization, see Students for a Democratic Society, Port Huron Statement of
the Students for a Democratic Society (1962). For an interesting recent account
of the movement, see Doug Rossinow, The Politics of Authenticity: Liberalism,
Christianity, and the New Left in America (1998).
n28. Henry Giroux et al., The Need for Cultural Studies: Resisting Intellectuals
and Oppositional Public Spheres, at http://eserver.org/theory/need.html, at PP
38, 41; see also Nunn, supra note 25, at 399 (noting that cultural studies
"was an overtly political movement from the beginning," and
"retains a political thrust that aligns it with the aspirations of the
n29. See, e.g., Gerald E. Frug, The Ideology of Bureaucracy in American Law,
97 Harv. L. Rev. 1277, 1278, 1295, 1386 (1984) [hereinafter Frug, Ideology of Bureaucracy] (stating that he considers his
"a necessary part of a larger project designed to promote full democratic
participation in all aspects of American life"; that his article takes aim at bureaucracy because it
"is the primary form of organized power in America today, and it is therefore a
primary target for those who seek liberation from modern forms of human
domination"; and that his goal is
"the joint reconstruction of social life" through the
"quest [for] participatory democracy").
n30. Giroux et al., supra note 28, at P 1.
n31. Frug, City Making, supra note 12, at 9, 11.
n32. Giroux et al., supra note 28, at P 13.
n33. See, e.g., Mezey, supra note 22, at 1840 (noting that
"Critical race theorists ... routinely criticize CLS for its idealistic claims"); Eugene D. Genovese, Critical Legal Studies as Radical Politics and World
3 Yale J.L. & Human. 131, 148 (1991) (criticizing CLS scholars'
"facile utopianism"); Williams, supra note 20, at 477 (criticizing CLS'
"tendencies to idealism and reductionism"). But see Robert W. Gordon, New Developments in Legal Theory, in The Politics
of Law: A Progressive Critique 413, 422 (David Kairys ed., rev. ed. 1990)
(responding to utopianism critique by arguing that, while
"reimagining the world" cannot alone cause progressive change,
"reimagination ... is a necessary first step"). Frug obviously is aware of the utopianism charge, as he has tried to rebut
it in City Making and elsewhere. See, e.g., Frug, City Making, supra note 12,
at 222-23 (anticipating and attempting to counter the charge that his arguments
"even evangelical"); Frug, Ideology of Bureaucracy, supra note 29, at 1386-88 (noting that
"one might object" that his article
"is utopian and farfetched," then arguing otherwise).
n34. See generally, e.g., Leiter, supra note 17; Charles W. Collier, The Use and
Abuse of Humanistic Theory in Law: Reexamining the Assumptions of
Interdisciplinary Legal Scholarship,
41 Duke L.J. 191 (1991).
n35. Leiter, supra note 17, at 80 (citing Jerry Frug, Argument as Character,
40 Stan. L. Rev. 869 (1988)). City Making does not include any portion of Argument as Character, the article
Perhaps in an effort to mitigate his harsh criticism of Frug, Leiter later
"elsewhere [Frug] has written interestingly and intelligently on diverse areas
of the law." Id. at 91
& n.41. Leiter does not limit his criticism to Frug, suggesting that many legal
scholars use nonlegal sources inappropriately. Id. at 102.
Although Leiter concentrates on the perceived misuse of philosophy in
progressive legal scholarship, the implications of his critique are not limited
to that setting. He focuses on philosophy because of his own expertise in that
field, in which he has a Ph.D. Id. at 80 n.3.
n36. See Frug, City Making, supra note 12, at 13.
n37. Id. at 96.
n38. Id. at 95.
n39. Id. at 71-112.
n40. Id. at 116.
n41. Critical legal scholars are known to use the term
"moves" to refer to the rhetorical steps a legal writer takes to advance her
arguments. See, e.g., Duncan Kennedy, Strategizing Strategic Behavior in Legal
1996 Utah L. Rev. 785, 787, 810, 814. That the term conjures up images of a chess game reflects the typical CLS
conviction that judges and legal scholars, rather than being constrained to
route their arguments along a path preordained by objective truth, instead are
free to choose the direction that best suits their subjective political
agendas. See id., passim; cf. Gary Minda, The Jurisprudential Movements of the
50 Ohio St. L.J. 599, 614 n.66 (1989) (characterizing later CLS scholarship as focused on
"the study of argument, rhetoric, and conversation"). To suggest that a CLS scholar, such as Frug, is playing with forms of
argumentation in service of his convictions is consistent with the insights of
CLS. Critical legal scholars tend to admit freely that their observations about
legal discourse generally apply to their own writings as well as to those they
scrutinize. See, e.g,
id. at 616 n.81 (noting Martha Minow's observation that critical legal scholars
"seek to express claims of textual ambiguity and historical contingency" - elements they are known for critiquing in the writings of others -
"in the very methods of their work") (citation and internal quotation marks omitted).
n42. Frug, City Making, supra note 12, at 60.
n43. Id. at 20 (citing Hannah Arendt, On Revolution 30-31, 114-15, 119-20 (1962)).
n44. See, e.g., Robert A. Dahl and Edward R. Tufte, Size and Democracy (1973).
n45. Frug, Legal Concept, supra note 13.
n46. See supra note 13.
n47. Frug, Legal Concept, supra note 13, at 1059.
n48. Id. at 1150; cf. Frug, City Making, supra note 12, at 23.
n49. Frug, City Making, supra note 12, at 23 ("Power and participation are inextricably linked: a sense of powerlessness tends
to produce apathy rather than participation, while the existence of power
encourages those able to participate in its exercise to do so."). For a discussion of the concept of citizen effectiveness, see Dahl
& Tufte, supra note 44, at 20-21, 41.
n50. Frug, City Making, supra note 12, at 66.
n51. Id. at 66, 68.
n52. Id. at 73. For example, Frug notes communitarian political theorist Michael
Sandel's argument that humans
"conceive their identity ... as defined to some extent by the community of which
they are a part." Id. (quoting Michael Sandel, Liberalism and the Limits of Justice 150 (1982)).
Civic republican Frank Michelman has explained that in the strongest form of
"the self is understood as partially constituted by ... [political] engagement" with others. Id. at 74 (quoting Frank Michelman, Law's Republic,
97 Yale L.J. 1493, 1503 (1988)). In addition, Frug portrays psychologist Carol Gilligan's In a Different Voice
as providing a
"relationship-centered version of the self" as an alternative to the prevailing individualist depiction. Id. at 75 (citing
Carol Gilligan, In a Different Voice 35, 62, 173 (1982)).
n53. Id. at 92-93 (quoting Mikkel Borch-Jacobsen, The Freudian Subject, from
Politics to Ethics, in Who Comes After the Subject? 61, 66 (Eduardo Cadava et
al. eds. 1991); Kaja Silverman, The Subject of Semiotics 158 (1983); Emile
Benveniste, Problems in General Linguistics 224 (Mary Elizabeth Meek trans.
1971); Roland Barthes, The Rustle of Language 51, 53 (Richard Howard trans.
n54. Id. at 94 (quoting Judith Butler, Gender Trouble: Feminism and the Subversion
of Identity 136-140 (1990)).
n55. Id. at 96-97 (quoting Angela P. Harris, Race and Essentialism in Feminist
42 Stan. L. Rev. 581, 584, 608 (1990)); Id. at 97 (citing Patricia Williams, The Alchemy of Race and Rights: Diary of
a Law Professor (1991); Bell Hooks, Postmodern Blackness, in Yearning: Race,
Gender, and Cultural Politics 23-31 (1990)).
n56. Id. at 94-96 (quoting postmodern philosophy, literary, and sociology theorists
Jean-Francois Lyotard, Umberto Eco, Jean Baudrillard, Brian McHale, and Michel
n57. Jean-Francois Lyotard, The Postmodern Condition: A Report on Knowledge 15
(Geoff Bennington and Brian Massumi trans., 1984) (1979), quoted in Frug, City
Making, supra note 12, at 94.
n58. Frug, City Making, supra note 12, at 85.
n59. Id. at 85-86.
n60. Id. at 86.
n61. Few United States metropolitan areas are administered by governments that are
"regional" in the strictest sense. See, e.g., Rusk, Cities Without Suburbs, supra note 6,
at 89-90, 99 (defining
"true metro government" as not only general purpose, but also exercising
"exclusive powers within its jurisdiction," covering
"at least 60 percent of the area's population," and containing the region's central city, and discovering comparatively few
cities meeting this definition). A few prominent local governments, however,
are seen as exemplars of regionalism. Portland, Oregon's Metropolitan Services
"Metro," for example, is one such entity. Rusk, Inside Game/Outside Game, supra note 6,
at 157. Metro's jurisdiction extends to the city of Portland, three contiguous
counties, and twenty-three other municipalities. Id. at 157-58. An elected
body, Metro has home rule powers and jurisdiction over an unusually wide array
of functions, including regional land use planning, transportation planning,
solid waste management, and air and water quality management. Rusk, Cities
Without Suburbs, supra note 6, at 108. Another notable regional entity is
Minnesota's Twin Cities Metropolitan Council. Although not general purpose or
elected, the Met Council is empowered, among other things, to develop regional
land use policies. Rusk, Inside Game/Outside Game, supra note 6, at 226-27,
244-46; Cities Without Suburbs, supra note 6, at 106-07.
n62. Frug, City Making, supra note 12, at 86.
n63. Id. at 87.
n65. Id. at 88. By contrast, unless municipalities desist from selfish localism (or
what Frug would call
"centered selfhood"), more centralized entities may step in to force them to behave more
altruistically. The only way to prevent this incursion on public freedom, in
Frug's view, is for municipalities to police themselves, handling questions of
regional resource allocation through negotiation and compromise.
"City residents need to learn that, to the extent that cities fail to agree
among themselves, they will be subject to centralized control." Id. at 63.
n66. Id. at 97.
n67. Id. See also Georgette C. Poindexter, Beyond the Urban-Suburban Dichotomy: A
Discussion of Sub-Regional Poverty Concentration,
48 Buff. L. Rev. 67 (2000) (describing problems of suburban poverty concentration).
Id. at 97-98.
n69. Joel Garreau, Edge City: Life on the New Frontier (1991); see Frug, City
Making, supra note 12, at 98.
n70. Frug, City Making, supra note 12, at 99.
n71. Michael Sorkin, Introduction to Variations on a Theme Park: The New American
City and the End of Public Space xi, xi (Michael Sorkin ed., 1992), quoted in
Frug, City Making, supra note 12, at 100.
n72. Frug, City Making, supra note 12, at 100.
n73. Id. at 100-01.
n74. Id. at 102.
n75. Id. at 102-03.
n76. Id. at 104-05.
n77. Id. at 106-07.
n78. Id. at 106.
n79. Id. at 107.
n80. The need for compromise would exist because this voting scheme, a form of
semiproportional voting, would give minority groups a greater chance to elect
candidates of their choice. See infra notes 164, 173-78 and accompanying text.
n81. Frug, City Making, supra note 12, at 107. See infra notes 159-99 and
accompanying text for a fuller discussion of Frug's electoral reform proposal.
n82. Frug, City Making, supra note 12, at 132.
n83. Id. at 3.
n84. Id. at 130 (noting that
"African Americans are segregated today in a manner that no other minority in
the United States is now or has ever been segregated"). See, e.g., Douglas S. Massey
& Nancy A. Denton, American Apartheid: Segregation and the Making of the
Underclass 2 (1993) ("No group in the history of the United States has ever experienced the sustained
high level of residential segregation that has been imposed on blacks in large
American cities for the past fifty years."); Paul A. Jargowsky, Poverty and Place: Ghettos, Barrios, and the American
City 16, 139 (1997) (stating that
"black ghettos are the most common type of high-poverty neighborhood" in the United States, and noting that in the 1990s,
"racial segregation between blacks and whites in U.S. metropolitan areas
remained extremely high").
n85. Frug, City Making, supra note 12, at 130.
n86. Id. at 132.
n88. Id. at 116.
n89. Id. (asserting that, although they know little about each other,
"strangers who live in a suburb often think of themselves as constituting a
n90. Id. at 129.
n91. Id. at 129-30.
n92. Id. at 140.
n93. Richard Sennett, The Uses of Disorder: Personal Identity and City Life 39
(1970), quoted in Frug, City Making, supra note 12, at 116. The concept of
"we-ness" has a long history in sociology and psychology. See, e.g., John R. Logan
& Harvey L. Molotch, Urban Fortunes: The Political Economy of Place 61-62 (1987)
(citing sociologist's use of term
"we feelings" in 1922 neighborhood study); Emily Talen, Sense of Community and Neighbourhood
Form: An Assessment of the Social Doctrine of New Urbanism, 36 Urban Studies
1361, 1371 (1999) (noting two different scholars' uses of the
"we-ness'" in 1969 and 1974 monographs on community).
n94. Frug, City Making, supra note 12, at 141.
n96. Id. at 127.
n97. Id. at 118.
n98. Iris Marion Young, Justice and the Politics of Difference 237 (1990); see
Frug, City Making, supra note 12, at 11.
n99. Frug, City Making, supra note 12, at 120-21; see Sennett, supra note 93, at
116-18, 126 (introducing concept of ego strength, and asserting that
"interpersonal pain and disorder are inevitable in any society").
n100. Frug, City Making, supra note 12, at 116.
n101. Id. at 121, 128.
n102. Id. at 120.
n103. Id. at 127.
n104. Id. at 137, 140.
n105. Id. at 142.
n106. Id. at 143.
n107. Id. at 145.
n108. Id. at 146-47.
n109. Id. at 133.
n110. Id. at 147.
n111. Id. at 149.
n113. Another common term for this movement is
"neotraditionalism." See Duany et al., Suburban Nation, supra note 5, at 254-55 (explaining usage
"neotraditionalism" in lieu of
n114. Frug, City Making, supra note 12, at 150-52; see, e.g., Peter Calthorpe, The
Region, in The New Urbanism: Toward an Architecture of Community, xi, xv (Peter
Katz ed., 1994) [hereinafter The New Urbanism].
n115. Frug, City Making, supra note 12, at 151; see, e.g., Andres Duany
& Elizabeth Plater-Zyberk, The Neighborhood, the District and the Corridor, in
The New Urbanism, supra note 114, at xvii, xviii-xix.
n116. Frug, City Making, supra note 12, at 151; see Duany
& Plater-Zyberk, supra note 114, at xix.
n117. Frug, City Making, supra note 12, at 151; see, e.g., Peter Calthorpe, The Next
American Metropolis: Ecology, Community, and the American Dream 17, 27, 42, 84,
96 (1993) [hereinafter Calthorpe, Metropolis]; Elizabeth Moule
& Stefanos Polyzoides, The Street, the Block, and the Building, in The New
Urbanism, supra note 114, at xxi, xxii.
n118. Frug, City Making, supra note 12, at 151-52; see, e.g., Calthorpe, Metropolis,
supra note 117, at 41-42, 46-49, 56, 62 (explaining centrality of public
transit to author's vision for new form of metropolitan growth, which he terms
"transit-oriented development" or
"TOD"); Duany et al., Suburban Nation, supra note 5, at 145 (asserting that
"transit-based development" is
"the ideal way to organize growth").
n119. Frug, City Making, supra note 12, at 151-52; see, e.g., Calthorpe, Metropolis,
supra note 117, at 41-42, 56 (maintaining that a
""walkable' environment" helps reinforce transit use, and noting that organizing development around
transit stop increases convenience of transit use); Duany et al., Suburban
Nation, supra note 5, at 145 ("Whenever possible, future development should be organized along a transit
corridor, in the manner of our historic streetcar suburbs.").
n120. Frug, City Making, supra note 12, at 152; see, e.g., Duany et al., Suburban
Nation, supra note 5, at 15-16, 60, 190-91 (praising Alexandria, Virginia for
its grid-pattern streets, and asserting importance of
"walkable public places - streets, squares, and parks," as well as civic buildings); Duany
& Plater-Zyberk, supra note 115, at xix (advocating that neighborhoods
"structure[ ] building sites and traffic on a fine network of interconnecting
streets"); Calthorpe, Metropolis, supra note 117, at 90, 93 (stating that
"public parks and plazas are fundamental features of livable and enjoyable
higher-density communities," and that
"civic services, such as community buildings ... should be placed in central
locations as highly visible focal points").
n121. Frug, City Making, supra note 12, at 153; see, e.g., Calthorpe, Metropolis,
supra note 117, at 37 (noting that central to author's proposal to make
communities more open and integrated through New Urbanist planning is his
"the more diverse and open a community is, the less people come to fear one
another"); Duany et al., Suburban Nation, supra note 5, at 46-47 (maintaining that
neighborhoods whose variety of housing types accommodate income diversity
permit residents to
"shar[e] the same public realm," allowing them to
"interact, and thus come to realize that they have little reason to fear each
n122. Frug, City Making, supra note 12, at 162-63.
n123. Id. at 154-56.
n124. Rusk, Inside Game/Outside Game, supra note 6, at 331; see Orfield, supra note
6, at 30-32 (describing decline of inner suburbs in Twin Cities region).
n125. See Frug, City Making, supra note 12, at 158.
n126. See id. at 158-59.
n127. Id. at 160.
n128. Id. at 161; john a. powell, Addressing Regional Dilemmas for Minority
Communities, in Reflections on Regionalism 218, 226 (Bruce Katz ed., 2000); see
also Sheryll D. Cashin, Middle-Class Black Suburbs and the State of
Integration: A Post-Integrationist Vision for Metropolitan America,
86 Cornell L. Rev. 729 (2001) (articulating various causes and consequences of African American
suburbanization) [hereinafter Cashin, Middle-Class Black Suburbs].
n129. Frug, City Making, supra note 12, at 186.
n132. See id. at 193-94.
n133. See id. at 189-90.
n134. Id. at 17. See
Hunter v. City of Pittsburgh, 207 U.S. 161 (1907). Hunter provides, in pertinent part, that
"municipal corporations are political subdivisions of the State, created as
convenient agencies for exercising such of the governmental powers of the State
as may be entrusted to them... . The number, nature and duration of the powers
conferred upon these corporations and the territory over which they shall be
exercised rests in the absolute discretion of the state."
Id. at 178. Although close to one hundred years old, Hunter has retained its weight as a
matter of black letter law. See, e.g., Briffault, Our Localism: Part One - The
Structure of Local Government Law,
90 Colum. L. Rev. 1, 85 (1990) [hereinafter Briffault, Our Localism I] (noting that Hunter is
"usually treated as the purest statement of the black-letter position" and that it
"remains fundamental to the federal constitutional status of local governments").
n135. Frug, City Making, supra note 12, at 188-89. It may seem ironic that Frug
relies for defense of his proposals on Hunter, given his fervent commitment to
preserving local power and long held dissatisfaction with the case. He begins
the book with a critique of the Supreme Court's
"extravagant" rhetoric in Hunter which is taken essentially verbatim from the chapter's
original source, his 1980 article The City as a Legal Concept. See Frug, Legal
Concept, supra note 13, at 1062-63 n.9. In part, this anomaly stems from the
inconsistency between Part One of City Making, in which Frug suggests that
municipalities are utterly powerless, and the rest of the book, where he seems
to acknowledge that at least some localities - principally, wealthy suburbs -
have been permitted to exercise substantial power in spite of Hunter, as
reflected by their tendency to enact exclusionary zoning ordinances and retain
all their property tax revenues. Richard Briffault has explored in detail the
extent to which municipalities have in reality been accorded far more power
than Hunter would seem to allow. See Briffault, Our Localism I, supra note 134.
The passage of time since 1980 may explain Frug's suggestion that certain
localities might need to be reined in, at least to some degree, in the spirit
n136. Frug, City Making, supra note 12, at 199.
n137. Id. at 200.
n138. Id. at 201-03.
n139. Id. at 201.
n140. Id. at 196, 199, 201.
n141. Id. at 202.
n142. Id. at 201-02.
n143. Id. at 202-03.
n144. Id. at 206.
n145. Id. at 207.
n146. In this connection, Frug asserts that other areas of the law already have been
subjected to the
"deconstructive critique," but not local government law. Id. at 65-66.
n147. Id. at 64; see supra notes 50-51 and accompanying text.
n148. Frug, City Making, supra note 12, at 7, 61-62.
n149. Id. at 7, 62, 64, 77.
n150. Indeed, Frug refers to this ideology, to the extent held by suburban dwellers,
"suburban consciousness." See, e.g., id. at 77, 78.
n151. I use the term
"ideology" in the Geertzian sense to mean a
"schematic image of social order," a
"map of problematic social reality and matrix for the creation of collective
conscience." Clifford Geertz, Ideology as a Cultural System, in The Interpretation of
Cultures 193, 218, 220 (1973). Another common term for this concept is
"world view." See, e.g., Constance Perin, Everything in its Place: Social Order and Land Use
in America 5 (1977).
n152. Frug, City Making, supra note 12, at 77.
n153. As Frug explains, an attempt to reduce metropolitan fragmentation
"would be experienced by the people who benefit from it as an astonishing
invasion of their personal freedom." Id. at 80.
n154. The New Jersey Supreme Court's landmark exclusionary zoning case,
Southern Burlington County NAACP v. Township of Mount Laurel, 336 A.2d 713 (N.J. 1975), is known as Mount Laurel I. In that case, the court held that
"developing" municipalities are obliged under the New Jersey constitution to plan and
provide, through their land use regulations, for their
"fair share" of the regional need for low and moderate income housing.
Id. at 728.
Despite this mandate, the case returned to the New Jersey Supreme Court eight
years later after the plaintiffs appealed the trial court's decision on remand,
resulting in a second opinion,
Southern Burlington County NAACP v. Township of Mount Laurel, 456 A.2d 390 (N.J. 1983), known as Mount Laurel II.
Id. at 411. The court found it necessary to
"put some steel into [the Mount Laurel I] doctrine" in its new opinion because it found that
"ten years after the trial court's initial order invalidating its zoning
ordinance, Mount Laurel remains afflicted with a blatantly exclusionary
Id. at 410. Indeed, the court believed
"that there is widespread non-compliance with the constitutional mandate of" Mount Laurel I within New Jersey. It therefore strengthened its earlier
holding, making it applicable to any municipality designated by the state as a
"growth area"; clarifying that municipalities must take action making it
"realistically possible for lower income housing to be built"; and mandating that, if rezoning in a less restrictive matter would not create
such a possibility, a town would have to take affirmative measures such as
implementing mandatory set-asides for low income units or permitting mobile
Id. at 417-18, 441-52. See Naomi Bailin Wish
& Stephen Eisdorfer, The Impact of Mount Laurel Initiatives: An Analysis of the
Characteristics of Applicants and Occupants,
27 Seton Hall L. Rev. 1268, 1270 (1997).
In response to the two Mount Laurel cases, the New Jersey Legislature in 1985
enacted the Fair Housing Act.
N.J. STAT. ANN. 52:27 D-301 et seq. (1986). The statute's main purpose was to transfer control over
the state's affordable housing policy from the courts to the legislature. It
created a state agency, the Council on Affordable Housing ("COAH"), with the power to determine municipalities' fair share housing obligations,
as well as to certify on request that a municipality's fair share housing plan
is in compliance with its duties. See Wish
& Eisdorfer, supra, at 1271. Such certification would preclude litigation
against the municipality for six years. Id. at 1271. The Act also authorized
one municipality to transfer to another, in exchange for payment, up to fifty
percent of its fair share housing obligation, pursuant to what it termed a
"regional contribution agreement."
Hills Development Co. v. Township of Bernards, 510 A.2d 621, 640-41 (N.J. 1986). Finally, the Act provided for the transfer of pending and future Mount Laurel
litigation to the COAH.
Id. at 631.
In Hills Development Company v. Township of Bernards, known as Mount Laurel
III, the New Jersey Supreme Court upheld the Fair Housing Act as consistent
with the constitutional requirements it enunciated in the first two Mount
Id. at 642-46. Nonetheless, the Fair Housing Act, and its approval in Mount Laurel III, is
generally seen as having appreciably, though not fatally, weakened the cause of
affordable housing in New Jersey. See, e.g., David L. Kirp et al., Our Town:
Race, Housing, and the Soul of Suburbia 153-55 (1995) (maintaining that
"the creation of COAH neutered affordable housing as a political issue"). At a minimum, the Fair Housing Act's authorization of regional contribution
agreements may bear significant responsibility for the low level of success, to
date, in reaching one of the core goals of the Mount Laurel cases: improving
racial and ethnic segregation by enabling people of color to move from heavily
minority urban areas to mostly white suburbs. Wish
& Eisdorfer, supra, at 1276. A recent empirical study based on data collected
from New Jersey's affordable housing database indicated that eighty-one percent
of suburban units in the database were occupied by white households, while
eighty-five percent of urban units in the database were occupied by black or
Latino households, and that only seven percent of database households changing
residence moved from urban areas to suburbia, with sixty-six percent of that
fraction being white. Id. at 1303. The authors thus concluded that
"the judicial and legislative attempt to eliminate exclusionary zoning has not
enabled previously urban residents to move to suburban municipalities and has
not enabled Blacks and Latinos to move from heavily minority urban areas to the
suburbs." Id. at 1305.
n155. Frug, City Making, supra note 12, at 78-80.
n156. Perin, supra note 151, at 4, 26.
n157. The predominant modes for analyzing metropolitan difficulties throughout the
twentieth century have been economic, political, and social, and while these
approaches provide invaluable insights, they do not tell the entire story. For
example, as I have discussed elsewhere, although the causes of
protoexclusionary zoning were many, and included economic factors as well as
racial, ethnic, and class animosity, various middle class ideologies -
including the cult of domesticity and the pastoral ideal - played an important
role as well. See Martha A. Lees, Preserving Property Values? Preserving Proper
Homes? Preserving Privilege?: The Pre-Euclid Debate Over Zoning for Exclusively
Private Residential Areas, 1916-1926,
56 U. Pitt. L. Rev. 367, 415 (1994).
n158. See Frug, City Making, supra note 12, at 119-21, 129-30, 162; supra notes
88-105 and accompanying text (explaining psychoanalytic concepts of ego
strength and fear of otherness).
n159. The term
"proportional representation" refers to electoral systems that permit the percentage of representatives in a
legislative body with a particular point of view to match closely the
percentage of voters in the overall electorate with that viewpoint. As Mary
Under a typical proportional representation scheme, each individual votes for
one party: the Greens, the Reds, the Blues, or the Oranges. If the Green Party
gets twenty percent of the votes in an election for a hundred-member
parliament, then twenty members of the new parliament will be Greens: the top
twenty on the Green's list of candidates. If the Reds get thirty percent, then
thirty members of parliament are the top thirty individuals on the Red's list,
and so on.
Mary Becker, Towards a Progressive Politics and a Progressive Constitution,
69 Fordham L. Rev. 2007, 2026-27 (2001) (citation omitted). Likewise, the term
"semiproportional representation" refers to voting methods that permit the percentage of legislative
representatives with certain views to approximate, somewhat more roughly than
with proportional representation, the percentage of the electorate sharing
those views. See, e.g., Richard Briffault, Lani Guinier and the Dilemmas of
95 Colum. L. Rev. 418, 437 (1995) (book review) [hereinafter Briffault, American Democracy] (noting that
political scientists refer to electoral schemes producing less than
"full proportional representation" with the term
"semiproportional") (citations and internal quotation marks omitted).
n160. Richard Ford also has advocated this reform, citing Frug as an influence.
Richard Thompson Ford, The Boundaries of Race: Political Geography in Legal
107 Harv. L. Rev. 1841, 1904, 1909 (1994) (proposing that local elections be open to nonresidents) (citing Frug,
Decentering Decentralization, supra note 13, at 324-25, 329-30).
n161. In at least one respect, however, Frug's proposed voting system resembles
another form of semiproportional voting known as limited voting, rather than
cumulative voting. See infra note 179.
n162. Briffault, American Democracy, supra note 159, at 432-34.
n163. Paul L. McKaskle, Of Wasted Votes and No Influence: An Essay on Voting Systems
in the United States,
35 Houston L. Rev. 1119, 1150 (1998) (citation omitted).
n164. Becker, supra note 159, at 2027-28 (quoting Lani Guinier, Lift Every Voice:
Turning a Civil Rights Setback into a New Vision of Social Justice 258-61
n165. Jeffrey N. Gordon, Institutions as Relational Investors: A New Look at
94 Colum. L. Rev. 124, 142 (1994) [hereinafter Gordon, Cumulative Voting]; see also Briffault, American
Democracy, supra note 159, at 433 n.53 (describing Illinois use of cumulative
"the one major use of cumulative voting in American political history").
n166. Gordon, Cumulative Voting, supra note 165, at 142 n.44.
n167. Id. at 142 n.45.
n168. See Briffault, American Democracy, supra note 159, at 420
& n.14 (noting that semiproportional and proportional representation systems are
"relatively unknown in political elections in the United States" and citing sources). In contrast, many countries outside the United States use
electoral schemes that are semiproportional (like cumulative voting) or
proportional. See, e.g., Briffault, American Democracy, supra note 159, at 428
"most democratic countries, and virtually all non-English-speaking democracies,
use some form of semi-proportional or proportional representation that requires
n169. Gordon, Cumulative Voting, supra note 165, at 143-45.
n170. Id. at 145.
n171. See, e.g., Franklin A. Gevurtz, Corporation Law 5.2.1 (2000).
n172. Gordon, Cumulative Voting, supra note 165, at 145-46. The fiftieth state,
Massachusetts, did not permit cumulative voting at all. Id.
n173. Lani Guinier, The Triumph of Tokenism: The Voting Rights Act and the Theory of
Black Electoral Success,
89 Mich. L. Rev. 1077, 1136-40 & nn.288-301 (1991).
Id. at 1094.
Id. at 1081, 1098.
Id. at 1102, 1110-12, 1115-17.
Id. at 1136; see also Briffault, American Democracy, supra note 159, at 425.
n179. In one respect, its reliance on the mechanism of limiting the number of votes
cast per voter rather than on vote cumulation alone, Frug's scheme resembles
another form of semiproportional voting - limited voting - more than cumulative
voting. Briffault provides a helpful discussion on the difference between these
two forms of semiproportional voting:
"Like cumulative voting, limited voting avoids districting. But instead of
allowing voters to cumulate their votes, limited voting limits the number of
votes a voter can cast to fewer than the number of seats to be filled in the
election. This can prevent the same majority from dominating the election for
every seat and can enable a sufficiently large and cohesive minority to win a
seat." Briffault, American Democracy, supra note 159, at 437 n.67.
n180. Frug, City Making, supra note 12, at 106-07. Frug suggests that the electorate
for metropolitan-area elections could extend beyond the area itself.
"There is ... no reason to assume," he muses,
"that the constituency would be limited solely to those who live in the region." Id. at 107.
n181. Id. at 106-07. Because Frug's proposal permits the cumulation of votes, it
shares a defining trait of cumulative voting. Yet since the proposal
contemplates limiting the number of votes a resident has to five, the resident
could end up being able to vote in fewer elections - and thus have a say in the
filling of fewer seats - than under current, nonproportional voting (not to
mention cumulative voting). As Briffault notes,
"limited voting deprives voters of the op-portunity to vote for a separate
candidate for each seat to be filled. Cumulative voting, by con-trast, gives
voters options," in that it grants as many votes as seats and allows voters to decide how to
allocate them. Briffault, American Democracy, supra note 159, at 437 n.67.
Thus, in granting potentially fewer votes than seats, Frug's proposal resembles
limited voting rather than cumulative voting.
n182. Frug, Decentering Decentralization, supra note 13, at 330 n.329. Frug cites to
Guinier's Triumph of Tokenism article in Decentering Decentralization, the
article from which his voting proposal is drawn, although he removed the
citation in editing his footnotes for a nonacademic audience.
n183. See Frug, City Making, supra note 12, at 112.
n184. For an explanation of the differences between cumulative and limited voting,
see supra notes 179, 181.
n185. Conducting such elections on a local basis presumably would remove the need to
impose a limit on the number of votes per resident, since residents of a single
municipality generally are governed by the same number of jurisdictions.
n186. See supra note 180.
n187. See Frug, City Making, supra note 12, at 107.
n188. See, e.g., Briffault, Boundary Problem, supra note 7, at 1167.
n189. Frug, City Making, supra note 12, at 107.
n190. Briffault, Boundary Problem, supra note 7, at 1158-59. See Guinier, supra note
173, at 1136-40
n191. Briffault, Boundary Problem, supra note 7, at 1158-59.
n192. See id. at 1158.
n193. Id. at 1158-59.
n194. See, e.g., powell, supra note 128, at 234 (observing that
"cumulative voting in a metropolitan region would protect the political
interests of people of color even when a mobility policy results in their
n195. Two of the most influential studies that drew their latest data from the 1990
census indicated that African American residents were heavily concentrated in
cities. See, e.g., Massey
& Denton, supra note 84, at 61, 223 (asserting that
"by 1970, racial segregation in U.S. urban areas was characterized [by] a
largely black central city surrounded by predominantly white suburbs," and that little progress had been made through 1990); Jargowsky, supra note
84, at 65 (providing 1990 census data indicating that in all U.S. metropolitan
areas of population 500,000 or more, at least fifty percent of blacks live in
high poverty neighborhoods).
Although scholars are still analyzing census data from 2000, and differ as to
how optimistically to view small declines in African American segregation, a
consensus is emerging that a substantial number of people of color still live
in highly segregated central city neigh-borhoods. See, e.g., Lewis Mumford
Center, Ethnic Diversity Grows, Neighborhood Integration Is at a Standstill, at
20 (April 3, 2001), available at http://www.albany.edu/mumford/census
[hereinafter Ethnic Diversity] (noting that 2000 census figures indicate that
average black central city resident in 2000 lived in a neighborhood that was
59.8% black (versus 64.5% in 1990), 11.7% Hispanic (versus 8.7% in 1990), 3%
Asian (versus 2.1% in 1990), and only 24.5% white (versus 24.3% in 1990));
Edward L. Glaeser
& Jacob L. Vigdor, Racial Segregation in the 2000 Census: Promising News, at 4
(Brookings Institution Survey Series, April 2001) (observing that the
"large number of American metropolitan areas with extremely high levels of
segregation remains quite striking.").
n196. See, e.g., Frug, City Making, supra note 12, at 130 (noting segregation of
poor blacks in central cities).
n197. See Cashin, Middle Class Black Suburbs, supra note 128, at 741-43 (describing
recent growth in number of all black, middle class suburbs).
n198. See, e.g., Ethnic Diversity, supra note 195, at 1 (observing that 2000 census
"substantial shift of minorities from cities to suburbs" in 1990s); David J. Dent, The New Black Suburbs, N.Y. Times, June 14, 1992, at
6, at 18 (stating that
"in 1990, 32 percent of all black Americans in metropolitan areas lived in
suburban neighborhoods");William Julius Wilson, The Truly Disadvantaged 143 (1987) (describing post
"exodus" of black middle class and stably employed working-class residents from inner
cities to higher income city neighborhoods and suburbs); Garreau, supra note
69, at 144, 150 (asserting that substantial number of American blacks now live
n199. See, e.g., Ethnic Diversity, supra note 195, at 20 (noting that 2000 census
figures show average black suburbanite living in a neighborhood that is 47.6%
white, 36.5% black, 11.4% Hispanic, and 3.5% Asian); Cashin, Middle-Class Black
Suburbs, supra note 128, at 736, 769 (suggesting that
"most black suburbanites locate in areas with a large number of whites," although subsequent racial transition may reduce integration produced by this
n200. See, e.g., Florence Wagman Roisman, Intentional Racial Discrimination and
Segregation by the Federal Government as a Principal Cause of Concentrated
Poverty: A Response to Schill and Wachter,
143 U. Penn. L. Rev. 1351, 1357-60 (1995) (noting that federal government
"intentionally established the public housing program on a de jure racially
segregated basis," that
"segregation in public housing and other federal [housing] programs continues," and that
"racial discrimination in ... federal housing programs [such as the Section 8
rental assistance voucher program] has helped to confine blacks to public
& Denton, supra note 84, at 57 (averring that
"by 1970, after two decades of urban renewal, public housing projects in most
large cities had become black reservations, highly segregated from the rest of
society and characterized by extreme social isolation," and that this
"new segregation of blacks" was
"the direct result of an unprecedented collaboration between local and national
government"); Arnold R. Hirsch, Making the Second Ghetto 254-55 (1983) (asserting that
"with the emergence of redevelopment, renewal, and public housing... government
took an active hand not merely in reinforcing prevailing patterns of
segregation but also in lending them a permanence never seen before").
n201. See generally James E. Rosenbaum and Stefanie DeLuca, Is Housing Mobility the
Key to Welfare Reform? Lessons from Chicago's Gautreaux Program, at 2
(Brookings Institution Survey Series, September 2000).
n202. For example, Georgette Poindexter has observed that while the vast majority of
America's poor live within metropolitan areas, forty-five percent of that group
(presumably including a fair number of minorities) live outside the central
city in the suburbs. Poindexter, supra note 67, at 71-72. It is difficult for
the suburban poor to form effective political alliances, she asserts, because
they are geographically separated from others like them, and their poverty
separates them from their fellow townspeople. Id. at 68, 72. Such
"dilution mutes the voice of the suburban poor as they are scattered throughout
the suburbs in pockets of poverty." Id. at 68. As powell has observed, a cumulative or other semiproportional
voting scheme would help increase the voice of the poor and other minorities.
See powell, supra note 128.
n203. See Saul Levmore, Precommitment Politics,
82 Va. L. Rev. 567, 604-05 (1996) (explaining that
"precommitments by a like-minded group" of citizens to vote in a particular way would tend to
"collapse because of collective action problems," including voter defection). Levmore suggests that voters seeking the benefits
of coordinated voting could enter ex ante contracts to solve the defection
problem, but he concedes that courts would be unlikely to enforce such
Id. at 606-10.
n204. Rusk, Cities Without Suburbs, supra note 6, at 5.
n205. Orfield, Metropolitics, supra note 6.
n206. Metropolitan Fiscal Disparities Act, Exec. Sess., 473F (Minn. 1971); see also
Burnsville v. Onischuk, 22 N.W.2d 523 (1974) (upholding constitutionality of Metropolitan Fiscal Disparities Act); Orfield,
supra note 6, at 87, 143-44.
n207. Orfield, supra note 6, at 114, 137-39; see generally id. at 104-55.
n208. Id. at 5-6, 8-9, 104-05; see also Margaret Weir, Coalition Building for
Regionalism, in Reflections on Regionalism, supra note 128, at 139.
n209. See Duany et al., Suburban Nation, supra note 5, at 253-54 (describing
founding of CNU).
207 U.S. 161 (1907).
n211. See supra note 134.
n212. Frug, City Making, supra note 12, at 9.
n213. See, e.g., Briffault, Boundary Problem, supra note 7, at 1165-67 (advocating
"limited regionalism" that,
"rather than consolidating all local government powers and responsibilities at
the regional level," would shift to regional institutions
"only those functions necessary for metropolitan governance"); powell, supra note 128, at 220 (advocating system of
"federated regionalism" that
"gives cities or communities a way to maintain appropriate control of their
political and cultural institutions while sharing in regional resources and
balancing participants' concerns").
n214. See Briffault, Boundary Problem, supra note 7, at 1154; John Rawls, A Theory
of Justice (rev. ed. 1999).
n215. Briffault, Boundary Problem, supra note 7, at 1154-55. As demonstrated in his
advocacy for a regional legislature, Frug skirts this issue by conceiving of
the actor that is to implement his proposals as the abstract entity of
"local government law." For instance, at one point he states,
"local government law could replace this reliance on state power with rules that
make intercity negotiation and compromise, rather than state control, the
mechanism for curbing local selfishness." Frug, City Making, supra note 12, at 63. Using
"local government law" as an abstract proxy for the concrete institutions, such as state legislatures
and courts, that actually implement change in that law, he glosses over
entirely the entitlement-shifting problem highlighted by Briffault. This
problem occurs throughout the book. See, e.g., id. at 8, 108 (referring to
"local government law's privatized version of local autonomy"; and asserting that a
"local government law based on a postmodern subjectivity ... need not respect
the current territorial boundaries of cities and towns"); infra note 258 and accompanying text.
n216. For example, New Urbanist architects advocate such methods as placing dwelling
walls as close as possible to the street edge and including front porches, all
to increase residents' chances to interact informally. See supra note 117 and
n217. The New Urbanist preference for using grid street patterns in residential
neighborhoods rather than cul-de-sacs connected to a few main arterial roads is
designed to reduce traffic congestion by providing multiple, alternative routes
and to encourage mixing of uses in the city. See Duany
& Plater-Zyberk, supra note 115, at xix; Moule
& Polyzoides, supra note 117, at xxii. As a means of encouraging people to walk
rather than drive, New Urbanist architects also support including sidewalks on
all nonarterial streets and protecting pedestrians from moving traffic by
permitting on-street parking. See Calthorpe, Metropolis, supra 117, at 97;
Kunstler, Home From Nowhere, supra note 5, at 120, 126-29; Moule
& Polyzoides, supra note 117, at xxii. One New Urbanist, Peter Calthorpe, is
known for making public transit stops the focal point of the communities he
plans. See supra note 118 and accompanying text.
n218. See supra note 120 and accompanying text.
n219. Duany et al., Suburban Nation, supra note 5, at 43-49, 51-52 (advocating that
neighborhoods include diverse housing types to serve range of income levels and
encouraging use of
"granny flats"); Calthorpe
& Fulton, The Regional City, supra note 5, at 46-47, 78 (same).
n220. Kunstler, Home From Nowhere, supra note 5, at 150-52, 191 (noting that
Seaside, Florida is a
"resort town" by the ocean where lot and house prices have
"soared astronomically" since they first went on sale, and that the resale value of homes in
Kentlands, Maryland was high relative to home prices in rest of D.C. suburbs);
Andrew Ross, The Celebration Chronicles: Life, Liberty, and the Pursuit of
Property Value in Disney's New Town 32 (1999) (observing that average price of
single-family home in Celebration, Florida was almost twice the median for a
single-family home in the surrounding Orlando region).
n221. See Vincent Scully, The Architecture of Community, in The New Urbanism, supra
note 114, at 221, 221.
n222. Calthorpe, The Region, in The New Urbanism, supra note 114, at xi.
n223. Id. at xiv (although advocating that principles of New Urbanism should be
applied to all areas in a metropolitan region, also indicating that aspects of
New Urbanist communities, such as a
"transit-and pedestrian-oriented" design, are more easily implemented in formerly undeveloped areas).
n224. See Duany et al., Suburban Nation, supra note 5, at 34 (suggesting that
curvilinear and cul-de-sac roads came to predominate in suburbs built in the
past fifty years).
n225. The paragraph is at Frug, City Making, supra note 12, at 153-54.
n226. Congress for the New Urbanism, Task Forces: Development
& Project Implementation Task Force, at
http://www.cnu.org/aboutcnu/index.cfm?formAction=Development&ta sk<uscore>force<uscore>id =2&CFID=1179560&CFTOKEN=45923729.
n227. Congress for the New Urbanism, Initiatives: Neighborhood Redevelopment Case
Studies, at http://www.cnu.org/aboutcnu/index.cfm?formAction=initiative<uscore>deta il&initiativeid=9& CFID=1179560&CFTOKEN=45923729.
n229. Congress for the New Urbanism
& U.S. Department of Housing and Urban Development, Principles for Inner City
Neighborhood Design (2000).
"HOPE" is an acronym for
"Housing Opportunities for People Everywhere." Charles C. Bohl, New Urbanism and the City: Potential, Applications and
Implications for Distressed Inner-City Neighborhoods, 11 Hous. Pol'y Debate
761, 762 (2000). When created by Congress in 1992, HOPE VI was formally titled
"Urban Revitalization Demonstration Program." See Jerry J. Salama, The Redevelopment of Distressed Public Housing: Early
Results from HOPE VI Projects in Atlanta, Chicago, and San Antonio, 10 Hous.
Pol'y Debate 95, 95-96 (1999). The program was provisional for its first few
years, but in October 1988, Congress made it permanent through the Quality
Housing and Work Responsibility Act. Id. at 96-97.
n231. Arthur J. Naparstek et al., HOPE VI: Community Building Makes a Difference 2
(2000). A third, implicit component of HOPE VI is the dispersal of minority
populations from inner-city ghettos throughout metropolitan areas. A dispersal
strategy is inherent in the HOPE VI program because the program contemplates
the replacement of high-density public housing structures with low-density, New
Urbanist-inspired housing, and intends those public housing residents for whom
there is no room in the new public housing to find homes on the private market
with the help of Section 8 housing vouchers. Salama, supra note 230, at 97-98,
105 n.12 (noting that dispersal of very poor public housing residents is
apparent goal of HOPE VI).
n232. Naparstek et al., supra note 231, at 2, 5.
n233. A recent survey of residents forced to move when HUD closed four highly
distressed developments and given Section 8 vouchers to assist their relocation
revealed that, despite the poor conditions at their former homes, less than
half of the residents stated that they were
"happy to move." David P. Varady
& Carole C. Walker, Vouchering Out Distressed Subsidized Develop-ments: Does
Moving Lead to Improvements in Housing and Neighborhood Conditions?, 11 Hous.
Pol'y Debate 115, 133 (2000).
n234. See, e.g., Chester Hartman, Letter to the Editor, San Francisco Exodus, N.Y.
Times, August 9, 2001, at A20 (noting the large number of low income housing
projects in San Francisco torn down under Hope VI, and stating that, while
"the goal [of Hope VI] in principle is laudable... in city after city, San
Francisco being only one example, the stock of low-rent housing is severely
reduced in the process"). Hartman is the Executive Director of the Poverty and Race Research Action
Council. See also Norman Lockman, City's Displaced Poor Become County's Worry,
The News J. (Wilmington, Delaware), Aug. 15, 1999, at
http://www.delawareonline.com/ newsjournal/opinion/lockman/08151999 (describing
Wilmington, Delaware Housing Authority's plan to use HOPE VI grant to demolish
267 apartments, of which 193 were still in use, and replace them with
ninety-five owner-occupied homes
"made available to a broad income range" and eighty public housing rental units; and noting that at best, 113 families
will likely be dispersed to
"other public and Section 8 housing") (internal quotation marks omitted); Salama, supra note 230, at 105 n.12
(noting that, without new affordable housing construction,
"households displaced by the demolition of public housing may face difficulties
in finding alternative housing on the private market using Section 8 assistance").
n235. One reason such
gentrification is likely is that New Urbanist design is purposely quaintly traditional, a
style that middle-class city dwellers often favor. See, e.g., Keith Aoki, Race,
Space, and Place: The Relation Between Architectural Modernism, Post-Modernism,
Urban Planning, and
20 Fordham Urb. L.J. 699, 823-25 (1993) (arguing that affluent residents during the 1980s had a preference for
"quaintness and subtle historical eclecticism" as an architectural style, and that
gentrification was enhanced
"as much wealthier and better educated residents began desiring neighborhoods
"historical ambience'" and displaced former, poorer residents of such neighborhoods). In addition,
the new dwellings' proximity to downtown would make them worth more, making
them unaffordable to poorer residents.
n236. For a discussion of hyper-segregation, see generally Massey
& Denton, supra note 84.
n237. The Gautreaux program resulted from a 1976 United States Supreme Court consent
decree in a lawsuit brought on behalf of Chicago public housing residents
against the Chicago Housing Authority and the United States Department of
Housing and Urban Development, charging that the agencies had administered
Chicago's public housing in a racially discriminatory manner. See
Hills v. Gautreaux, 425 U.S. 284 (1976).
& DeLuca, supra note 201, at 4.
n239. In support of their references to these negative influences, Rosenbaum and
DeLuca cite William Julius Wilson's well known work, The Truly Disadvantaged.
& DeLuca, supra note 201, at 1
& n.3, 5; see Wilson, supra note 198.
& DeLuca, supra note 201, at 5.
n241. It is true, as noted above, that the HOPE VI program implicitly contemplates a
dispersal strategy, in the sense that those residents displaced from public
housing due to HOPE VI-engendered downsizing by definition will have to leave
the immediate area, and such displacement could be considered a form of
mobility. However, HOPE VI places no emphasis on ensuring that residents
displaced from public housing are able to use their Section 8 vouchers to
relocate in more educated neighborhoods, rather than being forced to find homes
in neighborhoods just as starved for social capital as the projects they came
from. Indeed, a recent study of residents
"vouchered out" of four condemned projects suggests that, unless offered extensive counseling
like that available to Gautreaux families, residents will tend to move to homes
in the same or nearby areas, and will not move to areas where they would be in
the economic, racial, or ethnic minority. See Varady
& Walker, supra note 233, at 115, 117, 154.
& DeLuca, supra note 201, at 2.
n243. Blair Kamin, The Latest Chapter in the Cabrini-Green Saga: Can Public Housing
Be Reinvented?, 185 Architectural Record 84, 84 (Feb. 1997).
n244. Hall, supra note 1, at 5, 227-40; see also Calthorpe, in The New Urbanism,
supra note 114, at xv (arguing that Modernist principles espoused by Le
Corbusier and Frank Lloyd Wright have
"ability to evolve into vital communities").
n245. See Aoki, supra note 235, at 728-31 (describing Le Corbusier's vision and
"at the core of [his] unrealized utopia[ ] was a ... faith in technology's
simultaneously creative and destructive power to transform society and the
physical environment in the name of the ultimate social good").
n246. Id. at 735.
n247. David Harvey, The New Urbanism and the Communitarian Trap, 1 Harv. Design
Magazine 2, Winter/Spring (1997), available at
n248. Vicki Been, Comment on Professor Jerry Frug's The Geography of Community,
48 Stan. L. Rev. 1109, 1110-11 (1996).
Id. at 1111 ("Fiscal motivations warrant more attention than Professor Frug gives them" because it is unclear that the solutions he offers
"[fit] the problem of fiscal motivations.").
n250. As Constance Perin has mused,
"comprehending the many meanings in American society of the
single-family-detached house seems to me prerequisite to remedies for reducing
discrimination and making new departures for improving both the availability
and quality of living environments." Perin, supra note 151, at x.
n251. See Jackson, supra note 3 (discussing the first suburbs in America); Fishman,
supra note 3 (same).
n252. Lees, supra note 157, at 421-24.
n253. See Leo Marx, The Machine in the Garden: Technology and the Pastoral Ideal in
America 73-75 (1964).
n254. See, e.g., Emily Talen, Sense of Community and Neighbourhood Form: An
Assessment of the Social Doctrine of New Urbanism, 36 Urban Studies 1361, 1373
(1999) (noting that
"New Urbanist ideology challenges longstanding suburban ideals, two centuries in
the making, which are still widespread"); Peter Gordon
& Harry W. Richardson, A Critique of New Urbanism, available at
http://rcf.usc.edu/<diff>pgordon/urbanism.html (stating that, according to Fannie Mae surveys over the
"regardless of income, race or current tenure status, 75-80 percent of
households would prefer to live in a single family home with a private yard").
n255. See Fishman, supra note 3.
n256. See Frug, City Making, supra note 12, at 123-24. Although the concept of
"sentimental pastoralism" may sound redolent of ideology, Frug appears to mean it negatively. He borrows
the term from Leo Marx, who distinguishes sentimental pastoralism, which is
characterized by a simplistic rejection of the city, from the pastoral ideal,
"imaginative and complex." Marx, supra note 253, at 5. Although Frug dismisses the widespread societal
yearning for a house with a yard as simplistic sentimentalism, he also notes
"most [of his] family vacations have been taken in the same house in Westport,
Massachusetts," a suburban/rural town. Frug, City Making, supra note 12, at 101; see
Massachusetts Department of Housing and Community Development, Westport Bristol
County, at http://www.state.ma.us/dhcd/ iprofile/334.htm (describing Westport
"a town of farms, of beautiful scenery, of people who live from the water, of
small businesses and of homes").
n257. Frug, City Making, supra note 12, at 63.
n258. As previously noted, Frug frequently implements this glossing device. See
supra note 215.
n259. See supra note 210 and accompanying text.
n260. Frug, Decentering Decentralization, supra note 13, at 285 n.163; see supra
note 154 and accompanying text.
n261. Briffault, Boundary Problem, supra note 7, at 1169.
n262. Frug, City Making, supra note 12, at 80-81.
n263. Id. at 81.
n264. See, e.g., Briffault, Boundary Problem, supra note 7, at 1169-70 ("Metropolitan community consciousness and metropolitan governance structures
will have to develop in tandem, each reinforcing the other, each making the
other more possible.").
n265. Been, supra note 248, at 1109.
n266. Frug, City Making, supra note 12, at 13.
n267. See supra notes 34-35 and accompanying text.
Prepared: January 24, 2003 - 5:02:29 PM
Edited and Updated, January 25, 2003
Kristen A. Stelljes