The Power to Exclude and the Power to Expel

Donald J. Smythe

June 2018

Law Review Article

Article Abstract: Property laws have far-reaching implications for the way people live and for the opportunities they and their children will have. They also have important consequences for property developers and businesses, both large and small. It is not surprising, therefore, that modern developments in property law have been so strongly influenced by political pressures. Unfortunately, those with the most economic resources and political power have had the most telling influences on the development of property laws in the United States during the twentieth century. This Article introduces a simple game—the “Not-In-My-Backyard Game”—to illustrate the motivations of various parties with interests in the direction of American property law. As the analysis indicates, affluent residents and owners of upscale businesses have incentives to pressure suburban governments for zoning regulations that effectively exclude less affluent residents from their neighborhoods. Affluent residents and corporations who want to relocate into urban neighborhoods have incentives to pressure city governments to use eminent domain to facilitate urban redevelopment projects, and the takings that ensue often effectively expel many less affluent residents and smaller businesses from their neighborhoods. The analysis accords with the historical evidence. In the early twentieth century, suburban governments began to use zoning ordinances to exclude poor and less affluent residents from suburban neighborhoods. Around the middle of the twentieth century, city governments began to use takings to effectively expel less affluent residents and smaller businesses from urban neighborhoods. The United States Supreme Court upheld the powers of local governments to exclude and expel, and state courts acquiesced to them. The consequences are high and rising land prices, unaffordable housing, homelessness, and the perpetuation of the de facto segregation of the American people by income, wealth, race, ethnicity, religion, and national origin.

United States of America

Engaged Scholarship at Cleveland State University / Cleveland State Law Review