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Spotlight on Scholarship: Nadav Shoked on Property and Local Government Law

June 17, 2019

Nadav Shoked

Nadav Shoked, professor of law, works in the fields of property law and local government law. Property and local government law regulate the most foundational, and vital, elements of our lives: where, and thus how, we all live. Though they are often conceived separately, both bodies of law work to structure the built environment, which means that they inevitably police the relationships between neighbors. Therefore, the two fields should not, and cannot, be addressed separately. The distinction setting them apart in the eyes of many—one (property) being private and the other (local government) being public—is wholly artificial. 

These themes are apparent in much of Shoked’s work. His upcoming article, Property Law’s Search for a Public (97 Wash. U. L. Rev. __ (2020)), highlights the incoherence of American property law’s treatment of public spaces. It aims to show that judges and lawmakers often ignore the key question involved in each dispute over a public space, regardless of the dispute’s specific doctrinal guise. The question is not whether the given space is publicly owned, but rather who the actual public owning it is. The “public,” after all, is not a legal entity. The public which gets to set the contours of a public space’s use can be different entities, therefore: the local government, the public at large, specific private owners (for example, owners of adjacent lots), or the court. Seeing that, as the article establishes, this is the key legal determination to be made in contests involving public spaces, the article develops tests that can settle the choice between the entities that can stand for the public in any given dispute respecting such spaces. 

The “public” is thus a complicated legal category in local government law and property. Misleading reliance on a supposedly clear, and distinct category of “public,” often generates detrimental results. Reclaiming Fiduciary Law for the City, which Shoked co-authored with his Northwestern colleague Max Schanzenbach, explores such an instance. It argues that as American law stopped treating local governments as a form of private corporations, it also ceased to subject their decisions to fiduciary analysis. Such analysis is meant to treat the problem generated by the separation of ownership from management characteristic of corporations, and of local governments.  Schanzenbach and Shoked thus argue that cities should be, like the private corporations the law used to view them as, subject to fiduciary duties of sound management towards their residents when selling their major assets—as when Chicago sold its parking meters to private investors.

While such works detect supposedly private duties that can, or should be, found in "public" local government law, in other articles Shoked identified supposedly public duties that are present in the "private" realm of property. The Duty to Maintain shows that a property owner is subject to obligations to actively act to keep her land up to a certain standard, for the benefit of others, mostly neighbors. Property’s Edges, co-authored with Northwestern’s David Dana, exposes the diverse levels of protection the law affords an owner’s land, with weaker private rights—and, accordingly, stronger obligations towards the public—close to the land’s boundary.

The complexity of the law regulating property holding and city living has also led Shoked to investigate innovative, or merely peculiar, institutions in American local government law. Shoked authored histories of the special district, and of the school district, stressing the need to reform these vital, yet oft-ignored, institutions. He has also explored the growing reliance of the law on entities operating below the city level—“micro local” bodies, as well as the recent rise, and judicial embrace, of local excise taxation (local “sin taxes”).