Posted
August 9, 2005

Property in the New Millennium

The commons is not lost in big gulps, but in little nibbles. Closing a public park for a day to accommodate a corporate meeting is the start of trouble.

After a relatively quiet and enormously successful summer season, Chicago’s Millennium Park is poised to open the fall with a new controversy involving the slowly eroding commons. In February, David Bollier nicely chronicled the controversy regarding copyright and other fees for photographing park icons like Anish Kapoor’s 110-ton sculpture “Cloud Gate” — affectionately known as “The Bean” by Chicago’s public. On September 8, the city of Chicago will allow further inroads on the public’s right to its public park by essentially leasing all but the corners of the park’s 24.5 acres to Toyota Motor Sales USA for a private corporate convention. With the exception of the Crown Fountain, the Lurie Garden, and Wrigley Square, Chicago’s $490 million jewel of a public space will be closed to the public for the entire day while Toyota’s dealers and corporate personnel privately enjoy Cloud Gate, Pritzker Pavilion, Harris Theater, and even Frank Gehry’s beautiful bridge over Columbus Drive — officially known as the “BP” (as in British Petroleum) Bridge. Toyota will pay the city $300,000 to rent the park and will contribute an additional $500,000 for future public programming in the park (public programming that will, of course, bear Toyota’s name on brochures, signs, and web site advertising).

While there has been enormous public hand-wringing and fulminating public commentary about the alleged inroads on private property precipitated by the Supreme Court’s recent eminent domain decision in Kelo v. New London, it is interesting to note the comparatively mild reaction to the seemingly much greater threats to public property covered by OntheCommons.org for some time now. After all, the legal issue broached by the closing of Chicago’s commons — the public trust doctrine — is in many ways the mirror image of the issue at the heart of takings law. Whereas eminent domain concerns the taking of private property for public use, public trust concerns the taking of public property for private use. Ask yourself — which of these two scenarios seems most prone to abuse given the structure and incentives in the early 21st century American economy and polity?

While the public costs and benefits of the Toyota Parkathon are debatable (and plenty of good people will rationally conclude that Toyota’s $800,000 will more than compensate the public for one day of park closure), the legal principle at issue remains an interesting one. The just compensation requirement is not as well established in public trust law as it is in eminent domain law. And the hard question remains somewhat open: is some property (and the public square or public park would be the classic case) so inherently public that it cannot (and should not) be given away at all by public officials to private groups or individuals no matter what kind of compensation is offered in return? What kind of case would a Chicagoan have upon being denied entry to almost all of Chicago’s great public park on September 8 for something as quintessentially private as a corporate automobile convention?

Somewhat surprisingly, in the first years of the American republic (supposedly a time of intense concern for private property, free enterprise, and laissez-faire economics), American courts were intensely hostile to attempts to sell off pieces of the public square to private individuals or groups no matter what the temporary economic advantages might be. More on this alternative history in my next post.