Brady on Cottages as Public Nuisances: The Long History of Land Use Regulation of the Poor @Harvard_Law

Maureen E. Brady, Harvard Law School, is publishing Cottages as Public Nuisances: The Long History of Land Use Regulation of the Poor in the DePaul Law Review. Here is the abstract.

In the Fourth Book of his Commentaries on the Law of England, in a chapter entitled “Offenses Against the Public Health, and the Public Police or Oeconomy,” William Blackstone sited his discussion of “common nuisances.” Although many things on this list of what we now call public nuisances are familiar—blockages of public roads, disorderly saloons, trades emitting offensive smells or sounds—one stands out. Blackstone described as a typical nuisance the erection of “cottages,” going on to discuss and even criticize the situation of these dwellings alongside uses like fireworks and the keeping of hogs in close quarters. The aim of this Essay is to examine Blackstone’s discussion of cottages in context, endeavoring to use it toward two ends. The first is to better understand the concept of public nuisance and its limits. As others have chronicled, there has been a renaissance in interest in the tort in recent years, spurred on by multimillion dollar litigation invoking it in contexts ranging from the opioid epidemic to climate change. Here, I engage in a close reading of Blackstone’s passage and its citations, examining why cottages were regulated as public nuisances in the first instance and how that history connects to broader developments in English (and later American) law and society. As it turns out, cottages bore a closer relationship in many ways to public nuisance “classics,” like road blockages and certain public health risks, than it might at first appear. Second, the story of the cottage illustrates the uneasy—and often, ineffective—ways that the state has deployed land use regulation to manage the poor. The story of the cottage evokes the old adage: “everything old is new again.” Cottages became targets because many sprung up informally on common property in an era in which the state was formalizing private title—not so different from the pressures on, and persistence of, informal settlements in some parts of the world today. Regulators sought to proscribe cottages to control the movement of labor while simultaneously limiting the accumulation of the poor, for a mix of seemingly legitimate and illegitimate reasons (compare the public health and safety risks of crowding to the notion that poverty and cohabitation leads to idleness). Centuries later, regulators and the citizens voting for them put forth a similar mix of motives to justify regulating apartment buildings and other forms of multifamily housing. The inclusion of cottages in Blackstone’s list illustrates the enduring appeal of land use law in all its forms—the tort law of nuisance, contract law, and regulation—as a means of defining and managing real and perceived social harms.

Download the essay from SSRN at the link.