Zoning and Race, from Ladue to Ferguson

Rebecca Tushnet —

When James Grimmelmann, Jeremy Sheff, Mike Grynberg, Steve Clowney and I decided to write an open source property casebook that could be shared freely with students, one of the benefits was the ability to teach the material in ways that made sense to us. The mortgage chapter, for example, is actually the “foreclosure” chapter: it focuses heavily on the foreclosure crisis of the past decade. In contrast to the casebook I used to use, it asks why lenders issued terrible loans rather than asking only why borrowers took terrible loans. Likewise, most casebooks call the topic of initial ownership “acquisition”; we call it “allocation” to emphasize that there are rarely resources that don’t lend themselves to a conflict over initial ownership.  (Not unrelated to our general orientation towards the topic, we rely on fair use for some of the material we quoted, which traditional publishers often don’t allow no matter how strong the fair use case is.)

We also tell a different story around zoning than most casebooks. Our chapter on the topic, which I wrote, explores how zoning works in practice, with a particular focus on how it is used to create and reproduce racial hierarchies. As part of this approach, we include actual zoning codes and maps, which is surprisingly uncommon in the casebooks I looked at before writing this one. (There’s a slightly more standard version of the chapter for those who don’t want to spend multiple classes on zoning.)

To keep things concrete, our casebook focuses on St. Louis. St. Louis proper is one of the most segregated cities in the country, and its surrounding county is likewise highly segregated. Zoning in and around St. Louis is illustrative of issues that recur across the country. Examining zoning laws from this area allows the chapter to illustrate how property regulation in the US is, to a first approximation, always about race.

Continue reading