Homelessness at the Cathedral

70 Pages Posted: 1 Mar 2014 Last revised: 2 Apr 2014

See all articles by Marc Lane Roark

Marc Lane Roark

The Savannah Law School; Southern University Law Center

Date Written: February 28, 2014

Abstract

This Article argues that legal restraints against homeless persons are resolved by applying certain nuisance-like approaches. By drawing on nuisance restraints that adopt property-based and social-identity information, courts and decision-makers choose approaches that create conflict between homeless identities and adopted social identities. These approaches tend to relegate the social choice of whether to tolerate homeless persons to one of established social order (property) or broadly conceived notions of liberty (constitutional rights or due process rights). This Article argues for a broader conception of social identity, which may force parties to internalize certain costs of action, tolerate certain uses, or abate the full range of property rights that the law would otherwise allow in different social settings. Considering the question of “undesirable” uses of space -- both on private and public land -- helps articulate a narrative of property that moves beyond the rhetoric of economics-bound entitlements and affords a broader, more honest characterization. Conceived in this way, property entitlements represent information about how society defines, refines, enforces, and rejects its collective identity through the legal recognition of property entitlements.

Keywords: Homeless, Cathedral, Entitlements, Property Rules, Liability Rules, Inalienable, Subjective Identity, Collective Identity, Constitutional, Property, Fourth Amendment, Eighth Amendment, Fourteenth Amendment, Anti-Camping, Ordinance, Land Use, Hygiene, First Amendment, Due Process, Standing

Suggested Citation

Roark, Marc L., Homelessness at the Cathedral (February 28, 2014). Missouri Law Review, Vol. 80, No. 1, 2014. Available at SSRN: https://ssrn.com/abstract=2402925 or http://dx.doi.org/10.2139/ssrn.2402925

Marc L. Roark (Contact Author)

The Savannah Law School ( email )

516 Drayton Street
Savannah, GA 31401
United States

Southern University Law Center ( email )

2 Roosevelt Steptoe Dr.
Baton Rouge, LA 70813
United States

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