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University of Massachusetts - Amherst From the SelectedWorks of John Brigham Spring 1996 Law in Politics: On the Lower East Side John Brigham, University of Massachusetts - Amherst Diana Gordon Available at: http://works.bepress.com/john_brigham/22/ American Bar Foundation !"#$%&$'()%*%+,-$.*/011)2,$(32/$'/(42/*5$"&6$'07)%+$.4"+2$(&$82#$9(/:$;%*5<,$!(#2/$=",*$.%62 >0*?(/@,A-$B(?&$C/%1?"D$"&6$E%"&"$FG$H(/6(& .(0/+2-$!"#$I$.(+%")$J&K0%/5L$M()G$NOL$8([email protected]/%&1L$OPPQAL$44G$NQRSNTU '07)%,?26$75-$C)"+:#2))$'07)%,?%&1$(&$72?")V$(V$*?2$>D2/%+"&$C"/$W(0&6"*%(& .*"7)2$XF!-$http://www.jstor.org/stable/828844 >++2,,26-$YZ[YT[NYOY$YQ-RR Your use of the JSTOR archive indicates your acceptance of JSTOR's Terms and Conditions of Use, available at http://www.jstor.org/page/info/about/policies/terms.jsp. 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Blackwell Publishing and American Bar Foundation are collaborating with JSTOR to digitize, preserve and extend access to Law & Social Inquiry. http://www.jstor.org Law in Politics: Struggles over Property and Public Space on New York City's Lower East Side John Brighamand Diana R. Gordon This articleexaminespoliticson the LowerEast Sideof Manhattan, New YorkCity,for evidence level.Wesee legal of lawat theconstitutive relations overpublicspaceandhousingas foshaping grassroots struggles instrumental conrums,claims,andpoliticalpositions.Thisviewchallenges in somesocial-scientific ceptions of lawstillprominent approaches. On NewYorkCity'sLowerEastSide,politicsis omnipresent. Thispart of Manhattan hasan extraordinary racialandclassmixandthe community seemsalwaysto be in transition.In the periodof this study,roughlyfrom the economicboomof the mid-1980sto the recessionthat usheredin the 1990s,politicalconflicteruptedfrequently.BuildingsfromChinatownto St. MarksPlaceworebannersproclaiming rentstrikesor boregraffitidenouncinglocal developers.Leafletsand postersthroughoutthe neighborhood calledmeetingsor offereddistinctivepointsof view on local and international Violencebrokeout severaltimesbetween politicalstruggles. activistsandpoliceoverthe useof the Tompkins SquareParkandthe occuof pation city-ownedbuildingsby squatters.1 Althoughperhapsnot "lawless,"neitherdoesthe LowerEastSide readilysymbolizethe Ruleof Law. John Brigham is a professorof political science at the University of Massachusetts, Amherst. Diana R. Gordon is a professorof political science at the City College, City Universityof New York.This researchwas presentedto the Law and Society Colloquium Seriesat New YorkUniversity,13 April 1992, and the Lawand Society Associationmeeting in Berkeley,Cal., June 1990. The authorsthankChristineB. Harringtonand MartinShapiro for their commentsand dedicatethis articleto the memoryof David Gordon. 1. The violent confrontationscontinue, but with less frequency.See Shawn G. Kennedy, "Squattersof 13th Street vs. Powerof City Hall,"N.Y. Times,12 July 1995, at B1, and © 1996 AmericanBarFoundation. 0897-6546/96/2102-0265$01.00 265 266 LAW AND SOCIAL INQUIRY We use this seeminglyunlikely place to discuss how law in society helps constitutethe politicallandscape.While law in generaltakesthe form of rules, procedures,codes, and commandsemanatingfrom the sovereign, the "constitutive"approachto law describesa role that law playsin society. In this article, we look at law as what E. P. Thompson called "visibleor invisible structures"that define political institutionsand become the substantive basisfor politics.2Lawconstituteswhen the "mythof rights"takes on practicalsignificanceand becomesa "politicsof rights,"as describedby Stuart Scheingold.3In this role, law is more significantand more present than scholarssometimesacknowledge.When we look at the constitutionof political claims by law, it is essential to look beneath legislation and the opinionsof courtsto law in practice.4We proposeto show how local struggles over power,that is, politics, involve law in the constitutivesense. We treatlaw as an independentvariable,as a sourceratherthan a consequence. This position is in responseto the prevailingparadigmin sociolegal scholarship,which holds that politics and other social forcesdrive law and that putting law in the driver'sseat-looking at things "the other way around"-either smacksof formalismor simplyis not interesting.The "politics driveslaw"positionis often simplygroundedin an instrumentalview of law. This instrumentalview is not held to the same degree in every disciremainsquite strongin political science, and in the pline. Instrumentalism guise of "publicchoice" theory it seems to be gaining steam. In the legal academy,instrumentalismhas links with LegalRealismand growscurrently underthe bannerof Law and Economics.In Law and Society scholarship, instrumentalismis weaker,at least from the evidence of public statements and current importanceof interpretivism.But even here the prominent workwe turn to in the next section suggestsattachmentto an instrumental perspective. We don't mean by a constitutivetheoryof law that all politics, much less all social life, is law. When someonechooses to live on the LowerEast Side, we don't say that decision is constitutedby law. But when that choice involves purchaseof a house or condominiumand a politics in defense of the value in that purchasefollows, the law of propertymay featureprominently in that politics. For instance, agitatingto remove a homeless encampmentin the neighborhood-one form of politics on the LowerEast "Riot Police Remove 31 Squattersfrom Two East Village Buildings,"N.Y. Times,31 May 1995, at Al. 2. E. P. Thompson,Whigsand Hunters:The Originof the BlackAct 261 (New York: Pantheon, 1975). 3. StuartScheingold,The Politicsof Rights(New Haven, Conn.: Yale UniversityPress, 1974). 4. PatriciaWilliams'scommentaryon propertyin "AlchemicalNotes"arguesfor a conception of propertythat would include the powerheld by clerks in Manhattanstores who control the buzzerthat opens the door. PatriciaWilliams,The Alchemyof Raceand Rights (Cambridge:HarvardUniversityPress,1991). Law in Politics Side-is legally constituted.To constitute means to stand at the core. A constitutiveapproachlooks at those instancesin which law is at the core of the phenomenabeing studied. In this case we look for law at the core of variouspolitical activities. Calling attention to the constitutiverole of law is, of course,not original to us. It had been statedwell some time ago by KarlKlare5and Robert Gordon6and has been articulatedin depth by Alan Hunt more recently.7 The term is definitelybecomingmore common,8yet, we feel that the constitutive role of law is insufficientlyinstantiatedin sociolegal scholarship and deservesto be addressed.We don't say that law is alwaysan independent factorin politics.Some politicsmakeslaw.We know that. But some law makespolitics. We don't seem to know that as well. The powerof the instrumentalparadigmin sociolegalresearchreflects the successof Legal Realism.Realismbroughtpolitics into such hallowed institutionsas the SupremeCourt and spreadthe messagethat the key to law was throughdissentand disputes.The LowerEastSide seemslike a very political place. Without bringingback the pre-Realistconception of law as neutral rules, we hope to call attention to the constitutive role of law in grassrootspolitics. We begin by examining the relationshipbetween law and politics in some contemporarysociolegalanalysis.We then offerexamples of how law constitutespoliticson the LowerEastSide. We believe that this work offersa contrastto the instrumentaltraditionand hope that is providessome clues to the constitutivesignificanceof law. THE PROJECT Our projectis both jurisprudential and sociological;that is, we seek to correcta perceptionthat inhibitssocial researchon law. It is as much about the natureof law as it is abouta particularplace. In fact, what we say about law in this place we believe needs to be said aboutlaw generally.Realismin law and its other manifestations,such as Behavioralismin political science, has been so successfulthat scholarsfind it hardto move beyondthe instrumental view of law to its role in constituting social and political life. Although some social critics aspireto see law as "partof a complex social totality in which it constitutesas well as is constituted,"9much of the critical work in law, as well as the conventional understandingsthat support positivist social research,sees law in instrumentalterms. Law is equated 5. KarlKlare,"Law-Making as Praxis,"40 Telos123, 128 (1979). 6. RobertW. Gordon,"CriticalLegalHistories,"36 Stan. L. Rev. 57 (1984). 7. Alan Hunt, Explorations in Lawand Society(New York:Routledge,1993). 8. LucyE. Salyer,"TheConstitutiveNatureof Lawin AmericanHistory,"15 LegalStud. F. 61 (1991). 9. David Kairys,ed., The Politicsof Law: A Progressive Critique6 (rev. ed. New York: Pantheon, 1990). 267 268 LAWAND SOCIALINQUIRY with rules,like a 55-mph speed limit, ratherthan practices,like drivingup to 62 mph where a ticket gets more likely. Where practicesare considered relevantto law, however,as in some contemporaryversionsof interpretive we think we maybe able to help articulatethe consequencesof a research,10 constitutiveperspective. We drawfromtheoriesof interpretationin legal scholarshipand methodologicalconcerns in social science. The legacy goes back to the Realist tradition incorporatedin much legal analysisafter World War II. In the social sciences, the positivist dichotomy between theory and reality was wearing thin by 1970, and interpretationbecame a way to view law not governedsimplyby texts but by people readingtexts. Two stancesemerged. The first,a relative or indeterminacyposition, combinedfeminist scholarship such as the workof CarolGilliganwith deconstruction,legal pluralism, and a critiqueof rights."This position emphasizeddifferences,particularly But between women and men, and supportedscholarshipon marginality.12 associsocial law limited the a view of also as responsibility indeterminacy ated with rights.The second, a constitutiveapproach,was a post-Marxist alternativeto the indeterminacyposition. This approach,or at least affinities to it, were introducedinto the sociolegalcommunitythroughcritical theoryand suggestedin variousscholarlypieces, such as that on the city "as a legal concept,"13some feminism,14and CriticalRace Theory. But for the most part,the indeterminacypositionhas dominateddiscussionin the legal academy,leaving positivismand instrumentalismprettymuch intact. Positivismin scholarshipabout law and politics persistsin spite of the existence of constitutivecurrentsin the professionalliterature.Contemporaryexamplesinclude importantbooks at either end of the legal process, Model'5and EllickSegal and Spaeth'sTheSupremeCourtandtheAttitudinal son's OrderwithoutLaw.16This workhas been widely discussed,and its reception indicates continued enthusiasmfor the positive paradigm.The 10. CarolGreenhouse,PrayingforJustice(Ithaca,N.Y.: CornellUniversityPress,1986); Sally Engle Merry,GettingJusticeand GettingEven (Chicago:Universityof Chicago Press, Subjects(New York:Routledge,1993). 1990); BarbaraYngvesson,VirtuousCitizens,Disruptive and the Pact of the 11. Peter Gabel, "The Phenomenologyof Rights-Consciousness WithdrawnSelves,"62 Tex. L. Rev. 1563 (1984); PeterGoodrich,ReadingtheLaw (Oxford: Blackwell,1986);CarrieMenkel-Meadow,"ExcludedVoices:New Voices in the LegalProfession,"42 U. MiamiL. Rev. 29-53 (1987). 12. MarthaMinow, MakingAU the Difference(Ithaca, N.Y.: Cornell University Press, 1990). 13. Dirk Hartog,PublicPropertyand PrivatePower:The Corporation of the City of New Yorkin AmericanLaw, 1730-1870 (Chapel Hill: Universityof North CarolinaPress,1983). 14. MaryJo Frug,Postmodern LegalFeminism(New York:Routledge,1992); Catharine MacKinnon,FeminismUnmodified(Cambridge:HarvardUniversityPress, 1987) ("MacKinnon, Unmodified"). 15. JeffreyA. Segal & HaroldJ. Spaeth, The SupremeCourtand the AttitudinalModel (New York:CambridgeUniversityPress,1993) ("Segal& Spaeth, SupremeCourt"). 16. RobertC. Ellickson,OrderwithoutLaw:How NeighborsSettleDisputes(Cambridge: HarvardUniversityPress,1991) ("Ellickson,OrderwithoutLaw"). Law in Politics prominenceof this kind of worksuggeststhe continuingneed to presentthe constitutiveframeworkfor law. Only if it is discussedwith referenceto current debatescan it be said to have becomeacceptable.We begin by discussing this work. Three decadesago political scientist MartinShapirohelped to establish the propositionthat judges'decisionsreflectpolitical considerations.'7 Fromthis perspective,law as precedentwas manipulatedby judicial interests. Politicswas evident in the expressionof opinion, and it could be measured by dissents. In the social sciences, this work is associatedwith the "behavioral"revolution which evaluatedthe attitudesof judges against a backgroundof legal form. Insightsabout the political orientationsof the judges became commonplacein journalism,history, and political science and reinforcedthe pictureof legal text as naive formality. The traditionof seeing politics as an influence on law continues to appearin upper court scholarship.One influentialbook on the Supreme Court, StormCenter,by David O'Brien,18is indicative. O'Brien describes the SupremeCourt as the eye of the political stormin Americaand enlivens the portrayalwith storiesof political influencelike that wieldedby Justice Black over President Roosevelt. Instrumentalismis even more prominentin "the attitudinalmodel"associatedwith Segal and Spaeth19 and others.20This is a radicalempiricistconstructionin which the case votes of justicesare codedon an attitudescale and the Courtis describedin terms of the political movement on the scale. Placing the judge at the center of the law gives appellatecourts great power while narrowingthe conception of law.21 At the other end of the legal process,Ellickson'sOrderwithoutLaw examinesdisputesbetweenthe traditionalcattlemenof ShastaCounty who revere the open range and the newcomers who fence in their small "ranchettes."The generaldemeanorin the communityis "neighborliness," and Ellickson finds that the "longtimeranchersof Shasta County pride themselveson being able to resolvetheir problemson their own."22Ellickson finds the law which lawyersknow to be uncommonin cattle country, even though he studies the tension between the "pro-cattleman'fencingout' rule"(which providesthat a victim of animaltrespasscan recoverdamagesonly when he has "protectedhis landswith a 'lawfulfence' ") and Cali17. MartinShapiro,LawandPoliticsin theSupremeCourt(New York:FreePress,1964). 18. David M. O'Brien,StormCenter(New York:W. W. Norton, 1986). 19. Segal & Spaeth, SupremeCourt. 20. PaulBrace& MelindaGann Hall, "StudyingCourtsComparatively: The View from the AmericanStates,"48 Pol. Res. Q. 5 (1995). 21. John Brigham& ChristineB. Harrington,"Realismand Its Consequences:An Inquiryinto ContemporarySociolegalResearch,"17 Int'lJ. Soc. L. 41 (1989). 22. He does note, however,that "ranchetteowners... unlike the cattlemen,sometimes respondto a trespassincidentby contactinga countyofficialwho they think will remedythe problem."Ellickson,Order59. 269 270 LAWAND SOCIALINQUIRY fomia'sEstrayAct, passedin 1915 in light of increasedsettlement.23In spite of this distinctlylegal focus, he minimizesthe terrainof law by separating law fromsociety. This perspectiverevivesthe formalismwhich earlierconfined law to codes and commentaries.LikeRealismin the studyof appellate courts,we are askedto take a sociallythin slice of law as the whole thing.24 The researchequateslaw with the formalrulesand says,in effect, that law is not presentin ordinarylife. This kind qf Realismorientsstudentsof communitiesawayfrom legal material,distortingthe relationshipbetween law and politics. When disputesrangefromthe rulesof trespassto the fact of ownership,we see law in operation.In lookingat the LowerEastSide we develop that perspectiveby examiningthe formsof law in grassrootspolitics and their interactionwith economic and culturalforcesthat shapethe neighborhood.If law and political institutionsare seen only instrumentally,either as goodies to be acquiredor as processesto use, it followsthat the political actor and political activitywill only be superficiallyaffectedby the law. Yetwe know, fromthe renewed interest in institutions,that the Rule of Law, specific laws, and legal institutionsare majorinfluenceson politics.25We challengethose who would place law in the backgroundof politics and fail to note its conseand MacKinnon28have adquences. DerrickBell,26William E. Forbath,27 dressedthese consequencesin the areasof race, labor,and gender.We wish to do the same for propertyand publicspace as a way of groundingpolitics in law. THE NEIGHBORHOOD The LowerEast Side runsfrom the EastRiver to FourthAvenue and the Bowery,about a third of the way acrossManhattan,and from Chinatown to 14th Street.At its peak in the early20th century,the districthad a populationof over 500,000. It declined to 154,800 until it began to grow 23. "Oneof the most venerableEnglishcommonlaw rulesof strictliabilityin tort,"the "fencing-outrule"makes the owner of livestock liable for damageto neighboringproperty even in the absenceof negligence.Id. at 42. 24. Althoughthe landownersin ShastaCountydidknow whethertheir own landswere within the open or closedrangedesignation,Ellicksonspeculatesthat the level of knowledge wasprobably"atypicallyhigh"becausethe rangelaw had been the subjectof politicalcontroand versy.He foundthat the residentshe interviewedwereunfamiliarwith termslike "estray" "lawfulfence"and knew little aboutsubtletiesin the law. Thus, he observesthat disputing takes place "largelyindependentof formallaw."Id. at 49-51. 25. John Brigham,Property 183 (Philadelphia:TempleUniandthePoliticsof Entitlement the 'New Institutionalism'and versity Press, 1990); RogersSmith, "PoliticalJurisprudence, the Futureof PublicLaw,"82 Am. Pol. Sci. Rev. 89 (1987). 26. DerrickBell, And We Are Not Saved(New York:Basic Books, 1987). 27. William E. Forbath,"Courts,Constitutions,and Labor Politics in England and America:A Studyof the ConstitutivePowerof Law,"16 Law & Soc. Inquiry1 (1991). 28. MacKinnon,Unmodified(cited in note 14). Law in Politics 271 again in the 1980s. Roughly 20% of its population received some form of public assistance within the last decade, with 20,000 people on Aid to Families with Dependent Children (AFDC) or Home Relief. Housing is extraordinarily diverse. In 1990, the area contained 60,000 government-subsidized housing units, one of the greatest concentrations of public housing in New York City, 19th-century brownstones, tenements, condominiums, squatter settlements, homesteaders, and a significant share of the city's homeless population.29 Politics in the neighborhood involves not just party contests between Republicans and Democrats (or, rather, regular and reform Democrats, in this area) or appeals for city services, but struggles over the definition of ownership, claims to the enjoyment of public space, and appropriate neighborhood responses to economic opportunity.30One source of political conflict-government support for investment in luxury co-ops juxtaposed with reduced subsidy (and consequently a diminishing supply) for decent, affordable housing for low and moderate income people-can be easily understood by looking at residential land use in the late 1980s relative to all of Manhattan. In 1987 almost one-third (31.7%) of the district's residential space was made up of "old law" tenements, the unventilated buildings built in the early 19th century. The proportion for Manhattan as a whole was 10.2%. On the other hand, only 11.1% of the residential units were condominiums. For the rest of Manhattan, 33.7% of the residential units were condominiums.31 Another set of issues involves the use of public space. Some of the public space has been recently claimed, like the community gardens that sprung up in vacant lots, and some is more traditional, like the area's largest municipal park, Tompkins Square. In the mid-1980s, developers backed by the city and those who lived on the Lower East Side, clashed over the community gardens. Some of the gardens were communal experiments born in the 1960s, and others manifested a public life style brought by Puerto Rican residents from the Caribbean.32While state institutions from law enforcement to the Housing Authority were mobilized to enforce the dominant norms of ownership, grassroots groups and individual squatters acted on alternative claims.33 29. EmmanuelTobier,"HousingClassesof the LowerEastSide"(paperdeliveredat the LowerManhattanSeminar,New School for Social Research,1 Feb. 1990). 30. Fora provocativestudyof city politics that puts the neighborhoodin a largersocial and economic context, see John H. Mollenkopf, The ContestedCity (Princeton, N.J.: PrincetonUniversityPress,1989). 31. Dep't of City Planning,City of New York,CommunityFactsat a Glance41 (New York, 1989). 32. BlancaSilvestrini,"The WorldWe EnterWhen ClaimingRights:Latinosand the Quest for Culture"(deliveredto the AmherstSeminar,19 April 1991). 33. Fora historyof squattingin Americasee EricHirsch& PeterWood, "Squattingin New YorkCity: Justificationand Strategy,"16 N.Y.U. Rev. L. & Soc. Change605 (1988); 272 LAWAND SOCIALINQUIRY With the decline of tradeunionsand the political machines,grassroots politics have assumedimportanceas vehicles for collective action by the workingand lower-middleclassesand by minoritygroupson the LowerEast Side. Spurredby the 19th-centurylegacyof immigration,settlementhouses to serve (and discipline)them, and political activismaroundsuch issuesas joblessnessand public assistance,the activistsof recent decadeshave challenged the authorityof the state and city to define propertyrelationsand allocate land use. Although these challengeshave often been met by state coercion-the appropriationof abandonedbuildingsin defianceof neighborhoodclaims on them, police repressionof protest-citizen activistscan also cite victories in which they forced officialsto compromiseand influenced the definitionof the neighborhood.Housing,social service,and community development organizationsin the area-Cooper Square, Pueblo Nuevo, Good Old LowerEast Side, the Local EnforcementUnit, and the Joint PlanningCouncil, the coalition that has generateda comprehensive plan for the area-have succeededin returningabandonedbuildingsto the housingstock,held privatelandlordsaccountablewith strictenforcementof housing codes, and forced the city to endorsecooperativehousing that is managedby residents. In these neighborhoodconflicts,law constitutes"visibleand invisible structures"for political life. By focusing on one of the most politically chargedcommunitiesin the United States at a time when its residentswere mobilized-voting, speaking out, resisting, confronting the police-we wish to make the case for a greaterrole for law in politics at the grassroots level. Here, even the name of the areais contested.The "LowerEastSide" is geographicaland recallsthe easternEuropeanimmigrationthat give the region its identificationin Americanhistorywith the huddledmassesimmortalizedon the Statue of Liberty.In the 1960s, a vibrantcounterculture population,assistedby realestate developers,appendedthe name "EastVillage"to part of the neighborhoodin a move to link it with the Bohemian spirit and higher real estate pricesof its neighborto the west. Becausethe areais beyondFirstAvenue to the East,where the Avenues are designated by letters, it is sometimesderisivelycalled Alphabet City. Most recently, the Latino populationwas able officiallyto renamepart of Avenue C for the community'sown versionof its place. They call it Loisaida,"Spanglish" for Lower East Side. The politics of naming is a highly visible aspect of communitypolitics often involvinglaw, and when a name becomesofficial, displayedon street signs or city buses or designatinga political entity, it takes on extra significance. Researchfor this projectfocusedon severalpolitical arenas,including local CommunityBoardmeetings,the allocationby New YorkCity of lowJohn Opie, TheLawof theLand:TwoHundredYearsof Farmland Policy(Lincoln:Universityof Nebraska,1987). Law in Politics 273 income housingresources,and the anti-gentrificationmovement.Data collection over a two-yearperiod beginning in the fall of 1988 consisted of attendance at about half of the monthly community board meetings, lengthy interviewswith 11 communityactivistsof varyingpersuasions,participant observationof at least a dozendemonstrationsin the area,and the collection of dozensof fliersand other materialsintendedto encourageparticipationin grassrootspoliticalactivity.All this was informedby the experience of daily life in the community. Some Illustrations In the next sections, we describethe way law constitutesa forumfor political discourse,go on to show how legal formsshape political claims, and concludewith law'sinfluenceon politicalposition. Our categoriescapture some of the legal aspectsof politics on the LowerEastSide in the late 1980s.We call attentionto distinctiveplaceof law when we can see the law in politics moreclearlythat way.We do not, however,mean to suggestthat law in this sense operatesin the sameway we once imaginedthat precedent operatedfor the appellatejudge. Law as Forum Law structuresthe communitypolitics throughgoverninginstitutions meant to constitute a political space. Fromconstituent service to protest and mobilization,differentinstitutionsdirect,satisfy,and frustratepolitical interests.34One of the most salient institutionsfor politics on the Lower EastSide in the late 1980s was the CommunityBoard.Establishedby revision of the New YorkCity Charterin 1975, the 59 communityboardsrepresent districtswith 100,000-200,000 residentsdesignatedby the Department of City Planning to reflect the traditionalgeographicboundariesof New York'sneighborhoods.35 The approximately50 membersof each community boardare appointedby the BoroughPresidentsand the City Council and serve for two years (they are usuallyreappointed)without compensation. Technical and informationservicesto the boardsare providedby the Departmentof City Planning.The LowerEast Side is representedin this arrangement by Community Board #3.36 34. At this writing,the Speakerof the New YorkAssembly,Sheldon Silver is fromthe LowerEastSide. His prominencein the legislaturegivespoliticsin the areaheightenedsignificance and real meaningto constituentservice. 35. New YorkCity Chartersec. 84, vol. 1, pp. 41-44, New YorkCityCharterandAdministrativeCode, Annotated(Albany:WilliamsPress,1976). 36. The districtincludespartof Chinatown,which has its own distinctivecharacterand problemsand is only an occasionalparticipantin communityboardpolitics. 274 LAWAND SOCIALINQUIRY The boardsadvisethe city on planning,budgeting,and servicedelivery and can be quite powerful,37 althoughit is usuallyby coaxing or embarrassthan rather by outrightgrantsof authority.Boardsare staffedwith a ing district managerwho helps coordinate sanitation, fire, parks,and police services. These relationshipsand the manner in which membersof the boardsare appointedensurethat the communityboardsare not forces for changingpowerrelationsin the city. "Rather,they seek to gain a hearing and to attain the capacityto operatecommunityprograms."38 Community Board#3 on the LowerEastSide followsthis model (but also chafeswithin it). The board'scharacteras a "legal"arenaremindsneighborhoodpeople of the authorityof the city. Boardmeetingscall attention to the city as a coercive powerthrougha law enforcementpresenceat meetings.The service component of the city is evident in the informationand technical assistancethat comes to the boardfrom municipaldepartmentslike Parks and Recreation.Moresubtly,law constitutessome very significantpolitical activity on the LowerEast Side throughCommunityBoard#3. The board sets political constraintsand influencesformsof resistance.39 The responses to decisionsof the boardby activistswho appearat meetingsare evident in the choices they makeaboutwhat kindsof politicalclaimsare feasible.The boardconstitutesa political forumthroughlaw. Here activists shape their claims to fit legal categoriesthat have been definedby the city and state of New York (e.g., tenant co-ops) and by the legacy of the Anglo-American legal system (propertyrights,the right to assemble). Monthly boardmeetings became chargedin the late 1980s over the allocationof housingand the usesand hoursof TompkinsSquarePark.Not only werepolice in attendance,but they weresometimespositionedaround the roomwith their nightsticksout and helmets ready.Their presence(not generallydeemednecessaryat communityboardmeetings)was intended at least as much to symbolizethe city authoritybehind the boardas to keep order.As both symbol and physicalforce, the police contribute to order maintenance,and in both of these capacitiesthey delineate a distinctive forumunderthe authorityof the city. A dozenofficersmight cover a meeting attendedby as few as 20 boardmembersand an audienceof only 40 or so. Despite the police presence, tempersflared,verbal threats were common, and fist fights occasionallybroke out. 37. Peter Marcuse,"NeighborhoodPolicy and the Distributionof Power:New York City's CommunityBoards,"16 Pol'yStud.J. 277 (1987). 38. SusanS. Fainstein& NormanI. Fainstein,"TheChangingCharacterof Community politics in New YorkCity: 1968-1988,"in John H. Mollenkopf& ManuelCastells,eds., Dual New York320 (New York:RussellSage Foundation,1991). City: Restructuring 39. Fordiscussionof what counts as resistanceand the place of resistancein contempo& Susan F. Hirsch, ContestedStates rarysociolegal scholarship,see Mindie Lazarus-Black (New York:Routledge,1994). Law in Politics 275 The meeting of 22 May 1990 illustratesthe use of the community boardas a repositoryof "visibleand invisible structuresof law"that shape political life in this contentiouscommunity.It startedwith angryprotests aboutthe role of the state in disturbancesin TompkinsSquareParkon May Day. Mary,a womanfromthe squattergroup,statedthat police surveillance of the parkprovokedratherthan preventedscufflesat what was billed as a "resisters'festival"(expressingsupportfor resistanceto police effortsto put squattersout of otherwiseabandonedbuildings).A neighborhoodjournalist claimed that political people were being kept out of the park,and he decried the transformationof the neighborhoodinto a "warzone."A local block associationchairmandescribedthe heavy police presencein the park as putting the area"undermartiallaw."An artistand activist invoked the vocabularyof civil libertiesto decry beatingsby police on the night of 1 May and subsequentharassmentsof variouskinds.When the boardtook up homelessnessin the area, a speakerfrom the RevolutionaryCommunist Partysaid the police "createhomelessnessand then they attack the homeless."40A local priest describedthe fundamentalissue as "who owns the land, who has a right to the buildings."As the meeting turned to tenant evictions linked to redevelopmentand housinglegislation,the participants had been "made"into an audience. This meeting showeda communityboardprovidinga forumfor political discoursewhere the legal dimensionsof the boardinfluencedthe discourse. Mary couched her complaint about police behavior within a frameworkthat assumedthe institutionallegitimacyof those she criticized. On less alien terrain-a street corer or a parkbench, for example,where squatters'claims are often heard-Mary might have made a more extreme claim (she is an anarchist)such as abolition of the police and community control of public security.Her stance at the board meeting supportsthe view that communityboards,with their rulesand officiallysanctionedleaders, may deflect more extreme political positions.41Some housing professionals who attend meetingsfeel that the meetingsbringout the extremes of viewpoint and behavior, that the forumbecomes a stage for otherwise thwarted performers.Whether stage or channel, the legally constituted communityboardis a distinctivepolitical forum. The boardas a sanctionedsite of politics bringstogether a varietyof people-renters and landlords,homelessand squatters-with a broadrange of ethnicities and economic levels represented.Speakersset aside for the durationof their participationin the arenathe trappingsof hierarchythat make some worlds and lives more authoritativethan others. While the 40. In this view, the police who backup the boardsareequatedwith those who allocate housingresources,determinethe statusof squatters,and enforcecity policy in the parks. 41. The forumis a force not unlike the narrowingthat takes place in transforminga conflictinto a disputesuitablefor resolutionin a court.RichardAbel, "ConservativeConflict and the Reproductionof Capitalism:The Role of InformalJustice,"9 Int'lJ. Soc. L. 2 (1981). 276 LAWAND SOCIALINQUIRY marksand featuresof the homeless stand out, it is hard to tell an owner froma renterin this setting.Presentationsat boardmeetingsare also leveled by assumptionssharedby speakersand boardmembersabout the protected positionof at least some kindsof speech in a constitutionaldemocracy.The law createsthe boardas a forumthat diminishesin political space the divisions of authoritythat wouldexist betweenownerand renter,or renterand homelessat the doorstepof an apartment. The board'sauthorityis acknowledgedat the most fundamentallevel. In this setting, parliamentaryprocedureis one exampleof the constitutive dimensionof the boardas a legalforum.A characteristicof meetings-even on occasionswhen fist fightsthreatento breakout-is laboredattention to Robert'sRulesof Order.Even the neighborhood'ssmall groupof anarchist squatters,who reject the authorityof the state, acknowledgethe board's significanceby attendingand speakingat meetingswherethey think a decision will affect them. Despite their utopian strugglefor housing, in the meetings,their politics reflectsat least a nod to the prominenceof the possible. Neighborhoodactivistsdefine their orientationand their clout in relation to decisions taken by the board. In each of these instances, law operatesconstitutivelyand politics is affected. Law as Claim A good exampleof constitutivelaw on the LowerEastSide is the law of ownership.Lawdelineatesthe social relationshipof occupantsor potential occupantsto types of housing.By housing,perhapsas much as by anything else short of ethnicity42(to which housing is highly correlated), people areknownand their interestsemerge.The lawsof ownershipand the social relationsthey constituteare the terrainof politics.43The LowerEast Side has been a focus of housing politics for over 50 yearsbeginningwith the innovative "FirstHouses"constructedby the New YorkCity Housing Authority in 1935. The political manifestationof the law on ownershipis to differentiateclaimants-as homeless,or owners,or squatters. Housing on the LowerEast Side takes more formsthan most Americans can imagine:co-ops, condominiums,apartmenthouses, and brownstones;rental arrangementsincludemarket-rent,rent-controlled,and rentstabilizedapartments,sublets,subsidizedunits, conventionalpublichousing ("the projects"), and middle-class state-supportedhousing ("Mitchell- 42. The role of law in constitutingethnicityseemsto be a gooddeal smallerthan its role in definingproperty. 43. For attention to how rent control laws contributeto political mobilization.see Michael Lipsky,Protestin City Politics(Chicago:Rand, McNally, 1970). Law in Politics 277 There are other typesof ownershipbest describedas transitional, Lama").44 some strictlylegal and some not; homesteadingis in the formercategory,as are shelters.45Lofts vary. The "squats"are not legal, although the city's "thirtyday law"decreesthat a squatterwho can prove residencefor at least 30 daysis no longera trespasserunderthe law and mustbe accordedthe due process protection of formal eviction. There are also the homeless, on benches, in tents, and in doorways.The nontrivial sense in which laws "make"people homeless is the sense in which law constitutesour claims. Forthose occupyingthis panoplyof housingforms,as well as those who deal in them, the legal definitionsand the hierarchiesthey create are critical. Formsof propertyestablishingdifferingrelationsto the governmentare evident in the regulationof construction,the maintenanceof buildings,and the processesof conveyance.The law of propertyshapespeople'spolitical rights,their actualand potentialaccessto instrumentsof political leverage, and their objectivesas politicalactors.The residentsof the LowerEastSide participatein a politicsof propertyevident in their use of legal categoriesto describetheir housing.For instance, tenants can tell you that they live in "Section 8" or "old law"housing. Abandonedtenements link the area to earlierwaves of immigration,providingopportunitiesfor squattersand developers.The communitygardensin abandonedplots provideanotherfocus for claimsof entitlement.Formanyresidents,activismmayfade once he or she has acquiredlegal stability through tenancy or ownership.Here, the law's imprimaturon propertysymbolizespolitical resolution.46 We know that ownershipframesthe physicaland social world.What a politics of law needs to account for is the way that propertydemarcations, such as those betweenprivateand publicspacereflectingthe lawsof ownership, constitute social relationson the LowerEast Side. TompkinsSquare Park is terraincontested by many differentusers.Under city control, the park drawspolitical struggles.The park is a forum, like the community board,but becauseits use is contested we say that the law designatingthe land betweenAvenues A and B at 9th Street a parkmakesparticularclaims possible.Use of the parkis highly contestedcomparedto rentalpropertyor that held as "feesimple"title. The legal distinctionbetween ownershipand opportunityfor use is constantlyat issue on the LowerEast Side. Walking (down the sidewalkusually),one is madeawareof what is public and what 44. These formsof ownershipare not the only waythat buildingsmaybe constitutedin law. On the LowerEast Side one speaksof "old law tenements"to referto buildingsconstructedbeforelegislationin the late 19th centuryset minimumstandardsfor air and light in tenements.RichardPlunz,A Historyof Housingin New YorkCity 262 (New York:Columbia UniversityPress,1990). 45. Anne Clark & Zelma Rivin, Homesteading in UrbanU.S.A. (New York:Praeger Publishers,1977). 46. MarlisMomber,a participantin the homesteadingmovement,comments,"When the ownershipthing takes over, they no longercare about their fellow man."Interview,16 March 1990, with John Brigham. 278 LAWAND SOCIALINQUIRY is not. Fora homelesspersonsleeping,tentatively,on the steps of the 10th Street public library,the possibilitiescontained in the laws of propertybecome behaviors.Ownershipis representedin materialways (locks, fences, razorwire) and morediscursively(in languagethat says"Get out,""Where is the rent,""Comein"). Communityprofessionalsin the neighborhoodmobilizeand interpret the law as a partof their political life. One interpreterof this sort is Donna Ellaby,Directorof Good Old LowerEastSide, who characterizesher activism as organizingtenantsto "raisethe stakeson what it meansto be a property owner."47She says that she carriesher version of the housing code aroundin her head and rarelycalls a lawyeror the police. For Ellaby,the law is "aluxuryitem"in politics.Yet, she is keenly sensitiveto the effect of the economyon ownership.As marketsdropshe notes that ownershipshifts from individuallandlordsto banks.This is followedby federalbanking insuranceand regulatoryagencies,"the RTC and the FDICor FreddyMac or Ginny Mac." Law in politics is influencedby nonprofitgrassrootsorganizationsthat have replacedlocal party machines on the LowerEast Side as mediators between citizens and officialdom.The politics of the paid organization staffs-artists, city planners,housing and public health specialists,social workers-areshapedby their state createdstatusas professionalscertifiedto assumethe role of advisorsas to the politics of propertyclaims.48They put together tenant managementschemes and get financing to rehabilitate abandonedbuildingsinsteadof helping raisethe proverbialbarn.More importantfor politics, their planningprovidesan informationbase and forms for mobilizingpolitical demand.Where partybosseshad access to officials, the organizersadd expertisein the officialcultureof ownership.The communityprofessionalsunderstandanti-gentrificationpolitics as a function of economic developmentpressuresand the rules aroundwhich groupscan mobilize.49 Law as Position Conventionally,politics exists along a spectrumwhere intensity and comprehensivenessof claims defines the position of actors. Law plays a formativerole in giving meaning to the ideological perspectivesheld by activists in the neighborhood.Laws put some politics at the center and 47. Donna Ellaby,interview,13 Oct. 1992, with Diana Gordon. 48. ProminentLESorganizationswith communityprofessionalsusingthe law in politics includeG.O.L.E.S.(for Good Old LowerEastSide, a tenant organizinggroup),Charas(the biggestartsgroup),NENA (NortheastNeighborhoodAssociation)Health Center,Tompkins SquareParkNeighborhoodCoalition (the local homeowners),and the Joint PlanningCouncil (a coalition of all the housingorganizations-generallyreformist,professionallystaffed). 49. LisaKaplan,interviews,3 Dec. 1990 & 30 Jan. 1992, with Diana Gordon. Law in Politics some on the peripheryof the political spectrum.On the LowerEast Side, political activity covers effortsto maintain traditionalpower relations in the neighborhood,variousreforminclinations,and an imaginativearrayof transformative positions.Lawssuch as those aboutthe responsibilityof renters and the expectationsof ownersdelineate the relationshipof one political claim to others.Lawsare often the variablein reformmovementswhile they act as impedimentsin more transformativepolitics and resourcesfor those who would maintainthe statusquo. Operatingwith referenceto the legallyconstitutedhegemoniesof state and market,reformmovementson the LowerEast Side envision different practicessuch as public housing and sweat equity. The "In-Rem"housing programof New YorkCity is a characteristicreformmovement."In-Rem" refers to housing taken over by the city as a result of default on taxes owed.50Duringthe 1970s and 1980s the city took over thousandsof buildings, creatinga vast arrayof small, run-downpropertiesfor which the city was responsible.These propertieswereput to a varietyof uses, includingthe self-helpprojectsthat are at the centerof the In-Remprogram-tenant coops, for instance, and sale of the propertiesto nonprofit organizations, which develop them as low-income housing.51 Several community-based nonprofitorganizationstook advantageof the city'sdistributiveschemesto get abandonedbuildingsbackon the tax roles,adaptingScandinavianmodels of cooperativehousingto urbanAmericanneeds. Since the propertywas not commerciallyviable, reformershad an opportunityfor experimentation. Even as activismslowedin the 1990s,some reformeffortscontinuedaround the creation of a "mutualhousing association"which provides low- and moderate-incomeresidentsa kind of social ownershipthat avoids the risks of both markethousing and "the projects."52 A somewhat more radical reformeffort was the movement against or the withholding of scarce apartmentsfrom the rental "warehousing," market.53 Given the legal rightsof rentersin New YorkCity, landlordsneed to empty a building when contemplatinga change in its propertystatus, such as convertingfromrentalunits to condominiums.Housingactivistson the LowerEastSide dubbedthis activitywarehousingand challengedit as a "crime."The point is not the empiricaltruth of the claim, but ratherhow 50. This legal developmentderivesfrom the city's position as sovereign,where, in the context of defaultsfor nonpaymentof propertytaxes, the city governmentoperatesas the ultimateauthority. 51. TheIn-RemHousingProgram AnnualReport(City of New York,Departmentof Housing Preservationand Development,1985-90). 52. Mutualhousing involves a combinationof centraland tenant management,heavy involvementby communityorganizations,100%financingforconstructionplus sec. 8 subsidy for some tenants. Id. 53. PaulKneisel,"TheAnti-WarehousingMovementin New YorkCity,"Downtown,11 April 1990, at 8a. 279 280 LAWAND SOCIALINQUIRY the claim directedmany reformers'marchthroughthe institutions.54Like the chant "Abortion is Murder"or "Educationis a Right," the slogan "Warehousingis a Crime"is radicalin its rhetoricalrefusalto acknowledge the traditionalhierarchiesof legal authority.Although this slogan is often found in "illegal"contexts,such as graffiti,for the most partthe very nature of the claim, unlike that of many anti-abortionactivists,situatesthe claim in the context of reformpolitics.Those seekingreformmakeuse of rhetoric that relies on the symbolicconnotationsof legal categoriesin orderto advance a political project,ratherthan to bringformalchargesagainstwarehousing landlords. Some political activistson the LowerEast Side preferto mount more radicalattacks on the basic political economy of property.The squatters of housing, (and a few of the homeless) envisioned "decommodification" and they have been aggressivein usingforumsfromthe CommunityBoard to the New YorkTimesto state their case. They seek to establish social ratherthan individualownershipand remove housing (at least for lowerincome people) from the private market.55Here need, rather than legal right, establishesthe claim and possessionis its realization.The law, in this sense, "makes"them radicals.FrankMorales,a clergymanwho worksto organizesquatters(and is one himself),describedthe movementto take over unoccupiedbuildingsas "a logical and ethical responseto suffering"which creates"possibilitiesfor people to take chargeof their own lives."56Morales expressedbewildermentat the resistanceof liberalsto squatting,illustrating his point with a referenceto the Dinkins administrationthen in City Hall calling squatters"hardenedcriminals."Here the claim "Housingis a Right" aspiresto a transformationin propertythat goes well beyond the reach of conventional institutionsor the politics of reform.The squattersexplicitly place themselveson the peripheryof the law and wage a culturalpolitics that appropriates the languageof rightsto their own ends. ForMorales,"the of of hunger,can extinguishconceptionsof right,but people need, language areforcedto play the gameof rights"becauseclaimsbasedon expressionsof need do not receive a hearing.To the extent that the law is state power,its adoption in formsof communitypolitics is limiting. The squatterdiscourseincludesnot only legal imagesbut innovation. In a flyerproducedby the City-wideAction Committeeto End Homelessness for the "Freethe Land Mayday1990"celebration,activists made the claim that the principlesof the FifthAmendmentprovidea basisfor taking privatepropertyfor the "greaterpublicgood,"not by ordinarygovernmental 54. MaryKatzenstein& Carol McC. Mueller,The Woman'sMovementsof the United Statesand WesternEurope(Philadelphia:Temple UniversityPress,1990). 55. Emily ParadiseAchtenberg & Peter Marcuse,"Towarda Decommodificationof on Housing(Philadelphia:Temple Housing,"in RachelG. Bartet al., eds., CulturalPerspectives UniversityPress,1986). 56. FrankMorales,interview,8 Nov. 1990, with Diana Gordon. Law in Politics 281 processes,but by physicaloccupation-and not just on the LowerEastSide, but throughoutthe nation.57This aspirationalpoliticsusesthe languageand formof the law to make intelligiblea claim that would transcendthe traditional institutionsand expectationsof law.The squattersexplicitlyand consciously redefine the meaning of eminent domain. Two of the squatters defendedtheir decision to mount armedresistanceto any potential efforts by the city to remove them from their buildingsby assertingtheir right to self-defense.When challengedby reform-oriented activistsas to the lack of a positiverightto defendtheirdwellingin such a situation,the squattersfell back on a kind of natural law argumentfor which their conception of human dignity replacedpublic authority. Of course,framingan issuein legal termsis a traditionalway to defend the statusquo. Duringone of the battlesover TompkinsSquarePark,representativesof residentsnear the park,manyof them homeowners,circulated a plea, titled "BringBack the Park,"to their neighborsto attend a special meeting on the condition of the park.They urgedthat residentsinsist that the city enforcelocal law to get the homelessout of the park.Prominently appendedto the memo were the parkrules regardingstorageof materials, camping, fires, etc. Here political strategistsrelied on law to defend the propertyinterestsof homeownersand small businessproprietors.Invoking the rulesassuredless politicalresidentsa legitimatebasisfor denyingothers access to a publicspace.The parkrules,to which middle-classhomeowners and more conservativeresidentsturn, function in both instrumentaland symbolicways at least in partbecauseuses of the law allow intereststo be maskedas an expressionof belief in the statusquo. Our purposeis not to uncovera true politics behind the mask of the law. Rather,we wish to understandthe ways in which law, in the form of parksdepartmentrules,communityboards,formsof housing,and claims of rightdeterminethe sort of politics that is possible.Sometimesit seemsas if the use of legal formand vocabularymay be nothing more than a convenience in an instrumentalpolitics. And, of course,some uses of law on the Lower East Side are instrumental.As shorthand,calling warehousinga "crime"is an attemptto marshalat least imagesof law in the processesof struggle,bypassingthe role of governmentin definingwhat is "criminal." Still, these retortsare primarilyexpressive,using law to inform us about what groupswant. But law is also the terrainof politics. Indeed,enforcinga curfewin the park,an old rule whose adherencewas only proposedin the late 1980s, spawnedthe violent police riot duringthe summerof 1988. 57. Leafleton file with authors. 282 LAWAND SOCIALINQUIRY CONCLUSION Our portrayalof politics on the LowerEast Side helps us to see law whereothershave not. Lawinformspolitics in manyways.We supposethat law is alwaysmoresignificantin politicalstrugglesthan contemporarycommentarywouldhave it be. By focusingourattentionin an areaknownfor its politics we hope to establishthat law is not something that is alwaysopposed to or simplythe resultof politics.We see politicalactivistsconstituting their politicsdifferentlybecauseof the language,purposes,and strategies which exist as law-federal, state, and local. We have tried to show that these influencestake a numberof forms. Some of the work on which we rely illuminatesthe variousformsof law in the politics of such activitiesas an assertionof right (gay activismin the context of the AIDS epidemic)and the challengeto law as remedy(the legal academy'sclaim that law has no force but is merelyrationalization).58 The present study takes another perspectivewith its attention to forums, claims, and political position. The differentroles of the law in politics reveal political activity in a mutuallyconstitutiverelationwith the law. This is not a precisedetermination. Sometimessocial factorsinfluencedby law in one arena, such as divorce in familylaw, will have consequencesin anotherarea,like eviction, in the law of property.Both may contributeto alienation,which may well erupt as political dissent. Nor is the logic of legal claims an issue for us. Squattersmay simultaneouslyclaim that their right is establishedby their need and not by public authorityand also plead for concessionsfrom the government.Propertyownersbringvarioussocial connectionsand formsof wealth to bear when they struggleagainst less well heeled activists. Our point is not to mapall the influencesof law on politics or establishlimits to the political that are distinctlylegal. The point is ratherthat we sometimes ignore law by operatingat the instrumentallevel with referenceto what laws do. At the heart of our studyis a case in point, TompkinsSquarePark,"a barometerof New YorkCity'spassions."59 The parkis a 10-acresquarethat has been a public forum for a changing community since Irish and German immigrants, thrown out of work by the economic panic of 1857, demanded that the city give them jobs and tore apart the park benches for bonfires to dramatize their desperation.60 Between 1988 and 1992, many confrontations, some verbal and others violent, took place over various issues: a pro58. JohnBrigham, 2 Formsof Lawin PoliticalDiscourse," "Right,Rage,andRemedy: Stud.Am. Pol. Dev. 303 (1987). 59. MarciReaven,"Tomkins PastandPresent" (TextforExhibition, Square: Municipal ArtsSociety,1989). 60. HerbertGutman,"TheTompkinsSquareRiot in New YorkCity on January13, 6 LaborHist.44 (1965). of ItsCausesandItsAftermath," 1874:A Re-examination Lawin Politics 283 posed curfew for the park (to oust both revelers and the homeless at midnight),a tent city constructedby the homelessin the park(and housing more than 200 people duringthe summerof 1989), the use of the park's bandshellfor rockperformances,and the closingof the parkfor renovation. The park is a legally constitutedforum.In a sense analogousto the communityboards,it constitutesa politicalspace.Concertsand happenings now are the orderof the (political) day with May Day events bringingout legionsof New YorkCity Police. At anothertime campsof homelesspeople in individualsheltersoperatedunderthe cover of the park'sno curfewpolicy. Here, the parkbecamea causeor a claim. It was somethingto fight for. But in the struggle,differingpositionson its use determinedwhat side one was on and the parkbecame the basisof whether one was a radical,a reformer,or a conservative. Does that makelaw whateverone wants it to be? Is this the fallacyof the positionwe have offered?Of course,we hope not. Rather,it seems that law in the constitutiveratherthan the instrumentalsense operatesin politics without necessarilydetermininganythingin the limited sense we usually use to talk aboutpolitics.But then, the law does often determinea great deal and its limitscan be quite precisewhen it comesto the presumptiveuse of public force or a priorright to allow access on a cold winter'snight. In the end, for some reasonswe hope have been made evident, we conclude with a rejectionof the slogan "Die YuppieScum."Realizingthat many have expressedthe willingnessto die for the right flat in New York City, this is the sortof rhetoricthat tells us verylittle aboutthe constitutive role of law in politics.Likeformalsourcesof law, the highly chargedrhetoric of politicson occasiontakesus awayfromthe morefundamentalwaysin which much of politics depends on law. Sometimes, in fact, because we understandpolitics as the play of interestswe pay little attention to the waysin which the law structuresthese interests.This inattentionis a barrier to understandingthe natureof politics. On the LowerEastSide, it is also a threat to a distinctive neighborhood.