Transportation policy is often overlooked in the legal academy. As far as I can tell, there are no traditional casebooks on the subject, no academic law blogs focusing on it, and no courses at the major law schools whose course catalogs I just happened to search.
Yet our transportation choices are hugely important. They shape our access to jobs, housing, schools, and economic opportunity. They impact our quality of life and our independence. From whether the mayor is fixing the potholes or whether the President will pass the infrastructure bill, transportation is the subject of constant debate at all levels of government.
A recent Iowa Law Review symposium, The Future of Law and Transportation, shone new light on the array of legal issues embedded in transportation decisions. It resulted in thirteen essays covering everything from the auto loan crisis to structural subsidies of sprawl. Among these, I think Reclaiming the Streets, by Vanessa Casado Pérez is especially worth a read because it deals with something most of us encounter every day but rarely consider—sidewalks.
When it comes to sidewalks, people tend to fall into two camps. The Jane Jacobs camp romanticizes them as hosting “an intricate ballet in which the individual dancers and ensembles all have distinctive parts which miraculously reinforce each other and compose an orderly whole.”1
The Shel Silverstein camp holds the grim view expressed in the poetic childhood mainstay “Where the Sidewalk Ends”—“this place where the smoke blows black / And the dark street winds and bends. / Past the pits where the asphalt flowers grow.”2
Writing this piece at a desk overlooking a busy park, I fall into the Jacobs camp: every day, I see how sidewalk life adds charm and vitality to our shared public realm. Pérez does, too. She spends the first part of her essay selling the benefits of sidewalks. She claims that sidewalks can “make us just as happy as when we fall in love.” She also points out that sidewalks encourage people to walk, making them healthier. They positively impact real estate prices. And they save pedestrians’ lives, too.
In making these arguments, Pérez relies on planning literature too often excluded from law reviews. She swiftly dispenses of criticisms of sidewalks. She shows that fears that sidewalks bring crime are unfounded, relying on behavioral research proving Jane Jacobs’ observation that eyes on the street make it safe. Further, she addresses the critique that sidewalk pavement could have negative environmental benefits, arguing that getting people out of their cars reduces pollution, and smart sidewalk design can mitigate storm water runoff and urban heat island effects.
Pérez then observes that the COVID-19 pandemic has allowed more people to experience the value of sidewalks, which have become our shared, safe, outdoor living room. During the pandemic, cities have expanded sidewalks into street parking, often allowing outdoor dining or adding other amenities like benches or performance space. She argues that this expansion is legally consistent with the public right of way easements in the cross-section of the street.
At the same time, Pérez points out the difficulty in making these pandemic-era choices permanent. For one thing, many sidewalks are owned or controlled by private owners. For another, transportation funding structurally favors roads, leaving fiscal breadcrumbs for sidewalks.
As an additional approach, Pérez suggests zoning and other land use regulations change to support sidewalk life. Enabling denser development and mixed-use development can complement and inspire public investments in sidewalks. She examines and supports implementation of design guidelines favoring walking infrastructure, like the Urban Street Design Guide offered by the National Association of City Transportation Officials. (I reinforce her calls for these changes in my piece in the same Iowa Law Review volume.)
Pérez hints at the issue of equity in sidewalk provision, mentioning that minority and low-income neighborhoods see more pedestrian crashes than neighborhoods without those characteristics. Roads without sidewalks, or with poorly provisioned sidewalks, see more pedestrian injuries. For readers hoping to further connect the dots between infrastructure funding and equity, I recommend Transportation Policy and the Underdevelopment of Black Communities, also in the Iowa Law Review volume, by NYU professor Deborah Archer. (In another Jotwell post, Sarah Schindler wrote about Archer’s 2020 article, “White Men’s Roads Through Black Men’s Homes.”)
In sum, Pérez’s tidy essay illuminates key policy issues associated with this seemingly mundane urban feature. Scholars and practitioners must think more carefully about the kinds of reforms that can ensure that we have the kinds of sidewalks worth our arabesques, pliés, and pas de deux.
- Jane Jacob, The Death and Life of Great American Cities, Ch. 2 (1961).
- Shel Silverstein, Where the Sidewalk Ends, in Where the Sidewalk Ends 64 (1974).