Goods, and the Divided American Metropolis

This essay is a review of and a response to Urban Decay, Austerity, and Rule of Law, an article written by Brent White, Simone Sepe, and Saura Masconale. Building upon an intuitively compelling social contract theory insight, the article sets out the theoretical and empirical cases for the authors’ contention that sustained investment in highly visible, essential local public goods provides crucial support for rule of law. White, Sepe, and Masconale offer their theory as a “make ‘gov’ not war” alternative to the Broken Windows Theory, which underlies order-maintenance policing strategies. In the final section of the piece, the authors employ this Urban Decay Theory (UDT) to argue that the federal and state governments should fund substantial fiscal guarantees of municipal governments’ capacities to provide urban infrastructure. In this invited response, Professor Kelly welcomes the article’s introduction of the rule of law paradigm to domestic urban policy, finds fault with its selection of public goods that purportedly influence rule of law, and contends that the UDT has far greater potential than the poor support it can offer the authors’ flawed policy proposal. By conceptualizing the domestic urban policy goal as rule of law rather than order, the authors open measurements of success to go beyond crime rates and majoritarian perceptions of personal safety. Without losing the groundedness necessary for empirical investigation, rule of law can incorporate ideal aspects of lawful order that address sustainability and inclusion of minority perceptions of legitimacy. While the article does not succeed in constructing as compelling an understanding of the most salient public goods, an improved analysis of the root causes of the fiscal degradation of America’s legacy cities can unlock a potentially valuable reframing of urban, metropolitan, and regional policy debates. ∗ Clinical Professor of Law, Notre Dame Law School. I would like to thank Nicole Garnett, Nestor Davidson and Dan Kelly for their encouragement, comments and suggestions. I am also grateful for the responses I received after sharing an earlier version of this essay with Brent White, Simone Sepe, and Saura