Ellickson on "Chronic Misconduct" in Urban Spaces: Of Panhandlers, Bench Squatters, and Day Laborers
![handle is hein.journals/hcrcl32 and id is 9 raw text is: ELLICKSON ON CHRONIC MISCONDUCT IN URBAN
SPACES: OF PANHANDLERS, BENCH SQUATTERS, AND
DAY LABORERS*
Stephen R. Munzer**
Introduction
In a provocative article,' Professor Robert C. Ellickson suggests that
panhandling and bench squatting qualify as misconduct in city spaces. He
recommends that such behavior be treated as a problem in the manage-
ment of public land and offers two solutions. The best solution is to have
good police officers use their discretion to enforce community norms in
urban spaces. Ellickson's next-best solution is public space zoning. He
suggests dividing urban spaces into three types of zones with the follow-
ing percentages of total public land in a city: Red Zones (5%), Yellow
Zones (90%), and Green Zones (5%). Chronic panhandling and bench
squatting would be allowed only in Red Zones. These activities would be
barred altogether in Green Zones. Yellow Zones would permit episodic
panhandling.2
Two intertwined normative constitutional themes are played out in
Ellickson's article. One is that neither of his solutions violates the Con-
stitution. The other is that courts should construe the Constitution to give
local governments wide scope in managing public spaces.
I disagree with Ellickson's proposed solutions and his accompanying
normative themes. That fact is not enough to justify writing a response.
But Ellickson writes on a topic of great legal and social importance. He
is a professor at Yale Law School, and his work, including his book Order
without Law,3 is justly viewed with high regard. In light of his topic,
* Copyright © 1997 Stephen R. Munzer.
**Professor of Law, University of California, Los Angeles. For their help I thank
James Benn, Sandra Bernal, Gary Blasi, Evan Caminker, Ann Carlson, John Fogarty,
Robert D. Goldstein, Joel Handler, Julia Heron, Gillian Lester, Martha Matthews, James
W. Nickel, Richard H. Sander, and Gary T. Schwartz. Special thanks go to Robert C.
Ellickson. His gracious and perceptive comments on a draft clarified the issues that engage
us, and increased the prospects of a fruitful intellectual exchange and a contribution to the
public debate. I have benefited, too, from presenting versions of this Article to the Center
for Human Values at Princeton University, where Jennifer Hochschild served as an astute
commentator, and to the Law and Philosophy Discussion Group in Los Angeles. For
financial support I am grateful to the Academic Senate and the Dean's Fund at UCLA.
I Robert C. Ellickson, Controlling Chronic Misconduct in City Spaces: Of Panhan-
dlers, Skid Rows, and Public-Space Zoning, 105 YALE L.J. 1165 (1996) [hereinafter
Ellickson, Chronic Misconduct]. His article and this Response deal with nonaggressive
rather than aggressive panhandling. See id. at 1169, 117-78.
21d. at 1220-22.
3 ROBERT C. ELLICKSON, ORDER WITHOUT LAW: How NEIGHBORS SETTLE DISPUTES
(1991) [hereinafter ELLICKSON, ORDER WITHOUT LAW].](ViewImageLocal?handle=hein.journals/hcrcl32&div=7&collection=&method=preview&ext=.png&size=3)
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Ellickson on "Chronic Misconduct" in Urban Spaces: Of Panhandlers, Bench Squatters, and Day Laborers
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