an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Richard Schragger's timely, wondrous book presses, among other things, a persuasive case that urban scholars should adopt "a certain methodological orientation -- one that emphasizes the ecological nature of human settlement, the co-existence of contingency and path dependence, and the cyclical nature of urban development -- in other words, the complexity of urban systems." Quoting Jane Jacobs, he posits that the city is a process not a product, "more like 'a developing embryo' than it is like a widget that is produced and sold in the marketplace." The city, he continues, "is self-generating. Like all networked goods, the resident-consumer of the city is both a consumer of city life and a producer of it. She and her fellow citizens are the city."
At the risk of metaphorical excess, as I reflected on Schragger's book the image that kept coming to mind was that of a garden. Plants, like people, are "resident-consumers," both consumers and producers of life. In this metaphor, a city official would assume the orientation of a gardener, positioning him or herself as a partner, tender, and servant to the city's space and citizenry, rather than as a designer trying to create the perfect, gleaming city.
A casual observer can easily attest to the infinite range of visions for garden space. Japanese gardens are designed to be seen from a diagonal, and their designers and cultivators compose scenes of contrasting right angles. By contrast, English gardens emphasize symmetrical gravel walkways, short hedges, lawns and kitchen herbs. African gardens feature extensive use of rocks or stones and exceptionally hardy plants. Chinese gardens strive to blend unique, extremely ornate buildings with the surrounding natural elements. And so on.
In our democracy, each sub-majority routinely chooses its own style of garden by expressing through the ballot box its (present) collective vision of the city. Some city majorities might choose -- Schragger would say in vain -- to have their city government focus on economic development. Others might choose a more regulatory and redistributive vision. Schragger makes a powerful case that cities should be pursuing the kinds of socially interventionist policies championed by celebrated urban leaders like Al Smith and Fiorello La Guardia. His arguments in this regard deserve and will doubtless receive the focused attention of urban scholars for some time to come.
But in this particular post, I would like to assume that Schragger is correct about what cities fundamentally are and should and should not do, and turn attention to how America's educators might raise up the army of "gardeners" needed to tend America's nearly 20,000 cities.
As anyone who has ever tried to grow a tomato knows, not all gardeners are created equal. Brown thumb types are surpassed by weekend warriors, who are surpassed by professional farmers and landscapers, who are surpassed by truly great farmers and landscapers, who are surpassed by the most superior gardeners of all, known as "Master Gardeners."
Master Gardeners bring to bear deep individual plant knowledge, full comprehension of the garden ecology, and personal qualities that include optimism, flexibility, dedication, and humility. (Humility is foundational because, to achieve true mastery, a gardener must position him or herself as a partner, tender, and servant -- rather than builder, inventor, or creator -- of the garden.)
Needless to say, not everyone who strives to mastery achieves it, but all aspirants raise their game in the effort. Which brings me to the subject of higher education. Here is my question: As a national institutional matter, are America's colleges, universities and law schools encouraging students in sufficient numbers to attain the special mastery needed to tend our cities? If not, why not?
In legal education, we tend to focus first and foremost on producing graduates who can effectively serve and thrive in the private for-profit, non-profit, and federal government economies. There are pressing reasons to maintain these priorities. And yet, assuming legal educators come to believe -- as Schragger has (and I have) -- that cities belong "at the center of economic and constitutional thinking," it stands to reason that law schools should find a way to place cities among the subjects at the center of legal educational thinking.
What would this mean as a practical matter? That is an inherently subjective question. From my own perspective, as a law professor and former city lawyer, every law school that has not already done so should shift the (often marginalized) subject of "state and local government law" closer to the center of its educational and service missions. This would mean actively encouraging scholarship related to urban law; incorporating a practical city service project; and developing a comprehensive core public law curriculum that includes:
state constitutional law (substance and structure);
state and local government law and lawyering;
public land use;
public and private finance;
state and local tax law and policy;
labor and local economic development; and
information, privacy, and technology.
Schragger's book is a welcome breath of fresh air in a tough week. Embracing his view of city-as-ecology, now is the time to consider how law schools can help raise up the Master Gardeners city inhabitants need and so richly deserve.
Kathleen S. Morris is Associate Professor of Law at Golden Gate University School of Law. You can reach her by e-mail at kmorris at ggu.edu