My recent work examines how social reformers reimagine and rework the rules that define urban life, in efforts to make cities more equitable, sustainable, and democratic. My writing on property and urban land use flows out of my dissertation research, which received support from the National Science Foundation, the Social Science Research Council, the Lincoln Institute for Land Policy, the Mellon-Wisconsin Dissertation Fellowship, and the Community and Regional Food Systems Project (USDA grant 2011-68004-30044).
Previous work has explored the dilemmas raised by strategies that seek to use law, and human rights litigation in particular, as a tool for political mobilization.
(* = peer-reviewed)
Nate Ela. “Property and the Problem of Disuse.” Forthcoming 2023, Washington University Law Review, vol. 100 (SSRN)
Property often lays idle, even in times of dire need. Property scholars have largely overlooked this enduring social problem. The oversight is surprising, since the same scholars often write that property’s purpose is to help people put things to use. Some even contend that the right to exclude is and ought to be property’s essential core because it helps serve this purpose. Yet the right to exclude empowers owners to leave resources idle, even during times of need. One influential theory suggests that conflicts over disuse should be addressed by a shift toward governance, in the form of doctrinal, legislative, and customary exceptions to the right to exclude. But when the right to exclude leads to disuse during a time of need, what actually happens in practice? This Article analyzes how people have repeatedly dealt with the problem of disuse in a major American city. This reveals a practice of brokering, which helps people in need by letting them use idle property. I call this practice the “use fix.”
The Article introduces and analyzes the use fix through a case study of urban agriculture in Chicago. This presents a paradigmatic example of the four property practices that constitute the use fix: matching idle resources with potential users; mapping the extent and location of disuse; articulating social interests in use; and cultivating a norm against letting resources lay idle. From the Progressive Era to the present, Chicago’s reformers have periodically deployed these practices, in various forms, to activate idle land and alleviate poverty and unemployment. Looking further afield, we can observe similar practices in efforts to house people in vacant homes, restart idled workplaces, and provide space for quarantine and isolation during the Covid-19 pandemic.
The use fix sheds new light both on property law and on urban governance. Urban reformers often contend with disuse that is a result of the very property rules that, at least in theory, are often said to promote use. Yet despite its ubiquity and its utility, the use fix has repeatedly failed to become an enduring institution. The political-economic circumstances of its rollback help to explain dynamics of governance, and the remarkable resilience of the right to exclude. For urban reformers working to activate idle resources and address urban inequality, the use fix remains a helpful if underappreciated tool. It offers a promising strategy for making cities more productive, equitable, and resilient.
Nate Ela. “The Duty to Vote in an American City.” Forthcoming 2022, Howard Law Journal, vol. 66 (SSRN | download)
The duty to vote is making a comeback. Legal scholars and political scientists have long considered compulsory voting to be an appealing reform that is unimaginable in the United States. However, recent proposals have suggested that it is both urgent and achievable—and that American cities could lead the way toward making voting a universal civic duty.
This article tells the forgotten story of the only instance when voting actually became a duty in the United States. In 1889, voters in Kansas City, Missouri approved a city charter that created a poll tax for all adult male residents, waivable by voting in city elections. This duty to vote was in effect during four election cycles between 1890 and 1896, when the Missouri Supreme Court struck it down in Kansas City v. Whipple.
How did voting come to be a duty in Kansas City, and what happened when this singular experiment was in effect? The article identifies key proponents of the reform, and their motivations. Led by William Rockhill Nelson, publisher of the Kansas City Star, promoters claimed that mandatory voting would reduce the purported dangers of universal suffrage and urban machine politics. However, bureaucratic conflict and legal uncertainty meant the poll tax was never enforced. It did not substantially increase turnout—either among the responsible businessmen that promoters believed were failing to do their civic duty, or more generally among the city’s residents.
Kansas City’s experience offers lessons for people today who would hope to bring compulsory voting back to America’s cities. Some of these lessons are practical and political. The way in which states allocate the labor of election administration would limit which cities could implement such a duty. At the same time, the reform might receive political support in places that progressive proponents might find surprising, and even problematic. Another set of lessons are legal. The article identifies how a range of state constitutional provisions—concerning home rule, free elections, uniform taxation, and the right to assemble–would influence which cities could make voting a duty. It also suggests how compulsory voting could raise novel claims of vote dilution, and dismisses recent arguments that an enforceable duty to vote violates the 24th Amendment’s prohibition on poll taxes.
The story of how Kansas City made voting a duty sheds light on a key moment in the largely untold history of compulsory voting in the United States. It also suggests how and where the duty to vote might emerge once again in an American city.
This article explains how and why community organizers in Chicago’s Englewood neighborhood have found promise in the opportunities that property law provides for addressing community problems. Drawing on interviews and ethnographic fieldwork, it examines the creation of neighborhood institutions for Chicago’s first urban agriculture district. These institutions have been informed by memories of slavery and sharecropping, and of the role played by food production and economic cooperation in struggles for African American self-determination. To keep ownership, use, and benefits of urban farmland local, organizers in Englewood founded a community land trust as a way to cultivate a sense of community ownership and control, and as a way to chip away at the alienation that blocks residents from addressing local problems. Prior studies have linked collective efficacy and residents’ individual sense of ownership; the experience in Englewood points to how collective efficacy could also be fostered by institutions that demonstrate collective, African-American ownership of community resources. The article discusses why organizers and residents in race-class subjugated communities may find promise in the sense of sovereignty and legal agency afforded by property.
- Best article by a graduate student in volumes 42 & 43 of Social Science History (2020)
Use-based welfare achieves redistribution by reallocating rights to use and benefit from idle resources, rather than via tax and transfer. How and why has this form of welfare provision emerged as an urban institution, and what affects whether it endures? This article compares projects to grant poor and unemployed Chicagoans access to land for gardens and small farms between 1895 and 1935, explaining how this form of social support came about through experiments with rules, norms, and forms of property. While social policy is typically understood as emerging through the realization of rights to public support, use-based welfare turns instead on efforts to create a legal privilege for the needy to use idle resources. During the Progressive Era and the Great Depression, this form of relief was pitched as both an alternative and a complement to welfare based on tax and transfer. Yet efforts to establish it as a permanent institution repeatedly failed, due to implementation challenges, opposition from people committed to treating land and food as commodities, and the non-emergence of a social movement to defend land access. Recognizing the historical dynamics of use-based welfare offers a new perspective on the contemporary resurgence of urban farming as a strategy for addressing unemployment and poverty.
- Distinguished Graduate Student Paper Award, ASA Sociology of Law Section (2016)
- Honorable Mention, Best Scholarly Article Award, ASA Section on Human Rights (2017)
How do activist plaintiffs experience the process of human rights litigation under the Alien Tort Statute (ATS)? Answering this question is key to understanding the impact on transnational legal mobilization of Kiobel v. Royal Dutch Petroleum Co., in which the US Supreme Court sharply limited the scope of the ATS. Yet sociolegal scholars know remarkably little about the experiences of ATS litigants, before or after Kiobel. This article describes how activist litigants in a landmark ATS class action against former Philippine President Ferdinand Marcos faced a series of strategic dilemmas, and how disagreements over how to resolve those dilemmas played into divisions between activists and organizations on the Philippine left. The article develops an analytical framework focused on litigation dilemmas to explain how and why activists who pursue ATS litigation as an opportunity for legal mobilization may also encounter strategic dilemmas that contribute to dissension within a social movement.
Over the past decade, scholars of law and geography have been foraging in America’s cities, hunting for the commons. Along the way, a new common sense has cropped up, which takes urban farms and community gardens as prototypical examples of the urban commons. Farm fields and garden plots produce not only vegetables, the argument goes, but also opportunities for residents to access and use land as a shared, decommodified resource. As both social practice and emergent institutional reality, such urban commons challenge and are challenged by the logics of public and private property that dominate our cities’ legal landscapes.
This Article, rather than assuming that urban farms and gardens are examples of the urban commons, poses this as a question. Are they in fact cases of commons governance? And if so, how do people bring this about? I explore these questions from the ground up, through a socio-legal mapping of how people have gained access to and sought to govern land for a community garden and an urban farm in two neighborhoods on Chicago’s South Side. This mapping suggests that we should conceive of urban farms and gardens as sites where people experiment with the rules, norms, and forms of property that govern urban land. Municipal policies can promote property experiments that seek to treat urban land as a shared community resource.
Nate Ela, Edo Navot, and Emanuel Ubert. 2012. “Reviewing Walker’s First Year: An Agenda for the One Percent.”Social Policy 42(1):12-19. (scan)
Lauren Coyle, Nate Ela, and Zinaida Miller. 2007. “Introduction: Reveling in Resistance, Imagining Reconstruction.” Unbound: Harvard Journal of the Legal Left 3:i-v. (Unbound)
Nate Ela and Greg Rosenberg. 2017. “Land Tenure for Urban Farming: Toward a Scalable Model.” In Community and Regional Food Systems: Identifying Innovations and Promoting Successes, Steve Ventura and Martin Bailkey, eds. Iowa City: University of Iowa Press. (MUSE)
- Reprinted in On Common Ground: International Perspectives on the Community Land Trust, John Emmeus Davis, Line Algoed, and María E. Hernández Torrales, eds. (Terra Nostra Press, 2020)
Nate Ela. 2018. “Reclaiming the Commons” (SocArXiv)
- A previous version of this paper received an honorable mention from the Social Problems Theory Division of the Society for the Study of Social Problems, 2016 graduate student paper award.
Urban agriculture has been theorized by social scientists, and even some urban growers, as a means of reclaiming the commons. But what does “reclaiming the commons” entail? A longue-durée genealogy reveals distinct socio-legal imaginations of the commons and visions of how it might be reclaimed. Social thinkers and reformers have split over how to address the key problem of private property identified by John Locke: landless people who can’t find paid employment. One vision, proposed by Thomas Jefferson, would reclaim the commons by activating space – reuniting the unemployed with unused land. Another, proposed by Thomas Paine, takes such a reunion as impracticable; it would reclaim the commons by taxing property and transferring the proceeds. The genealogical analysis helps understand contemporary urban agriculture as consistent with a Jeffersonian “land fix” mode of reclaiming the commons, and by contrast to state-led “tax fix” strategies for addressing unemployment and poverty.
Nate Ela, Satya Rhodes-Conway, and Marion Reitz. 2012. “Assessing Food Systems Sustainability and Resilience.” Report by the Mayors Innovation Project to the City of Portland (OR) Bureau of Planning and Sustainability.
“Cultivos Contaminados, Culturas Amenazadas: La Situación de los Transgenicos y Los Derechos Humanos en Pueblos Indígenas de Colombia.” 2009. [Lead author of report submitted by Colombian indigenous and environmental groups to the United Nations Special Rapporteur for Indigenous Issues.] (online)
- English translation, “Contaminated Crops, Threatened Cultures: Genetically Modified Organisms and the Human Rights of Indigenous Peoples in Colombia,” submitted as parallel report to the 44th Session of the United Nations Committee on Economic, Social and Cultural Rights, May 2010. (CESCR archive)