The recent blizzard in the Northeast and a funny article in the New York Times reminded me of a practice I had long forgotten. When I lived in Boston many years ago, I always found snowfalls amazing. The snow itself was wonderful, at least at first, but what really amused me was seeing people claiming parking spots they had shoveled out—no matter how light the snow—with lounge chairs, traffic cones, Elvis busts, and sofas so ratty you’d think only an exhausted and demented college freshman could sleep on them. These items marked what the shovelers considered their “property.”
More amazing still, other people, including the government itself, appeared to recognize these shoveled-out spots of public asphalt as no longer public. Somehow the snow and the effort of removing it had converted the parking commons to private property.
At the time I just smiled uncomprehendingly. Imagine that happening in Kentucky, where I grew up, or even in deepest suburban New York, where my family had moved when I entered high school. It was simply not possible. The public streets, paid for by everyone’s taxes and shoveled out by public plows, belonged to everyone—the parking spots included.
Now that I’ve been indoctrinated into law, however, I see something different. Shoveling out parking spaces raises one of the most fundamental issues about law: how do traditional “hard law” and informal social norms interact. Do they reinforce or undermine each other? Does one arise only in the gaps left by the other? Robert Ellickson’s Order Without Law famously opened up the subject, which we’ve been wrestling with ever since. This issue generates many interesting questions, as snow-shoveling suggests.
First, why do these norms about property arise in some places and not others? I can understand why the shoveling norm would not develop in Atlanta, where it doesn’t snow that much that often, but why in Boston and not in Minneapolis? (Or do these seemingly odd property “rights” arise there too? If they do, my view of the Midwest will be forever changed.) Does their appearance depend on how tight parking is? Or is it cultural? Even in Boston, I imagine, there are outliers. It’s hard to imagine a Harvard law professor dragging out a piece of furniture, let alone the toilet the New York Times notes, to mark the results of her work. Perhaps class makes a difference?
Second, what, if anything, justifies these norms? How do the owners and others, including the government, defend them? Is it just an odd example of Locke’s labor theory of value? That by mixing the labor of their own bodies, which everyone owns, with something in the state of nature the space becomes the shoveler’s? Yet, how could snowfall place everyday parking spots back in the state of nature where everything is unowned? And would people recognize “property” in a space that I shoveled out that contained someone else’s car? Would the space become mine as soon as the person left? I doubt it. More likely, its status as private property would depend on the happenstance of whose car I liberated—my own or someone else’s.
Perhaps law and economics can help explain the right. Do others recognize people’s property in their shoveled-out parking spaces because doing so is conducive to economic efficiency? That hardly seems intuitive. Even if granting someone this property right led to the sides of the streets being cleared more quickly, it would do so at great social cost since no one would be able to use the space for the many hours of the day that the “owner” went to work or out to party. And how would this theory explain the fact that even if I shoveled out all the parking spots on my street I would gain the right to exclude others only from the space that contained my own car? Or perhaps the property right can be explained by the freedom it gives people to go about their day and work. Without it would people stay at home fearing that if they moved their car they’d lose their spot? If so, why don’t people feel the same elsewhere?
Third, how do these norms, which seem not to exist in some places, become so strongly entrenched in others that even hard law seems powerless to displace them? The New York Times article describes Boston’s failed efforts to reclaim its public streets through law. When in 2004 the mayor ordered city workers to remove the markers, the city councilman from Southie, a neighborhood where the practice is particularly deeply entrenched, responded that residents had “more cones and barrels” than the city had “trucks to haul them away.” End of story.
Fourth, what explains the duration of the property right? As the unofficial rules for saving parking spots during a snowstorm in Southie suggest, the property right can extend long beyond the end of the snowstorm despite any official rules against it. So long as you’re not the last on your street to remove your markers, you can keep the space with impunity, it seems. Honest!
Finally, how vigorously can one enforce one’s rights, especially in the face of hard law’s hostility? To matter, these property rights must be enforceable, even though the law rejects them. They get no respect from the court system. A person seeking to eject someone else’s car from a space he shoveled would get no hearing. Still, unofficial but effective enforcement mechanisms give these norms much bite. Slashed tires, broken windows, screaming arguments, and violent fights all work to sort these rights out. But that just raises another question. Doesn’t the law exist in large part to keep people from each others’ throats?
But perhaps I’m mad to see all these questions lurking in a snowfall.