Sidewalk Nation

Michael Pollack

Harvard University Press, 2026

pp. 344

            The importance of the sorting through the competing demands for the use of public spaces is frequently overlooked. Michael Pollack, a professor and dean at Cardozo Law School has done those of us interested in public spaces a great service by writing a broad and deep survey of the various touch points between the law and the commons, specifically, sidewalks. His authoritative chapter reviewing Supreme Court precedent on the various interests at play in expressional activity in the public way will be of particular use to officials and space managers.

            Importantly, Pollack emphasizes the need for a balancing of interests and uses of the sidewalk – which is key. While he and I come out differently on some of the major issues regarding activities in the public realm, more important is his analysis of those issues. It matters less as to where you come out, then that you engage seriously in the analysis of the problems and recognize their importance.

            Pollack’s through line is that cities and towns need to establish Sidewalk Departments to coordinate their use. A similar discussion took place here in New York over the establishment of a “Chief Public Realm Officer” at the demand of local advocacy groups for public space. The Adams Administration set up such an office and chose an experienced thoughtful person to lead it. The recognition that creating the position for coordinating public space policy was valuable in and of itself. But that individual left the Mamdani City Hall and has not been replaced.

            Even with a smart and talented person in the role for four years, though, it had a limited impact. In my view, creating a new bureaucracy in additional to the layers of pre-existing dysfunctional agencies in order to solve previously unrecognized problems is a mistake. It would be better to make sure that good design and coordinated policy for parks, streets and sidewalks are part of the culture of every relevant agency, and for those responsible for public space policy at the Departments of Parks, Transportation, Police, Planning and others to work together better. City policy makers are risk averse and siloed, and unless the leadership in the Mayor’s Office reverse this pervasive dysfunctional culture, adding a new bureaucracy won’t lead to much in the way of progress.

            The Bloomberg Administration tried to solve the problem of oppositional bureaucrats by creating Mayor’s offices of this and that – to end run around the problems. The result of that was turf disputes between those offices and the relevant agencies – with a lot of wasted energy going into bickering. The Bloomberg Department of Transportation got a good deal of positive attention for its public space revitalization initiatives, which remain at the agency. But most of that work, unfortunately, was performative and remains under-resourced. The open street projects backed by DOT, as a result, are mostly lame, particularly with respect to a lack of ongoing maintenance and programming. But whether a high functioning new Sidewalks Department would make more of an impact than an attempt to improve the culture of the entire city government, is certainly an open question.

            The book contains more cliches and conventional wisdom than is ideal, and a gimlet-eyed editor at Harvard probably would have served Pollack well. Particularly when it comes to thinking about the problems arising out of people occupying the sidewalk and hustling pedestrians for money, Pollack takes the assertions of advocates for the homeless at face value. While he recognizes that the exclusive use of sidewalks by individuals, making their use less possible or desirable by others, is problematic. He characterizes municipal responses to the unhoused as “enforcement first” and romanticizes the culture of homeless encampments, as a kind of gemutlich supportive environment for the dispossessed. He does not sufficiently appreciate the threat to social order and simple hygiene that such places represent. He fails to recognize that the vast majority of those living in public spaces have likely rejected many offers of service to address their complex mental health and substance abuse issues – some of which we have yet to found ways to treat successfully.

            Similarly, he regards any attempt to impose some kind of order on the commercial use of the sidewalk as bourgeois oppression of low-income people just trying to make a buck. But the perception of lack of public safety arising out of the apparent chaos presented by informal trading on sidewalks is a non-trivial issue. In New York there has been substantial demagoguery around vending and food trucks, where more fine-grained regulation and effective enforcement would be beneficial for the use of sidewalks for the rest of us. Any visitor to 50^th Street and Sixth Avenue knows that what we are doing now isn’t working. Among other things, there is a simple issue of completive fairness between brick-and-mortar stores and restaurants paying rent and sales taxes, and what are essentially pirates occupying the people’s space for free (except for illegal under the table payments made to scurrilous operators to secure sidewalk spots and grandfathered licenses).

            With a little luck, focusing attention on sidewalks will encourage policy makers to look seriously at issues that are now being ignored:

• Delivery of internet purchases needs to be properly governed. Delivery firms should pay rent for the use of curb and sidewalk space, and in return have a designated place from which to operate their trucks. The current chaos, regulated by parking tickets, is ridiculous.
• Similarly, the ability of people to leave thousands of pounds of steel and plastic at the curb in the denser parts of the city, while others circle the block endlessly looking for parking needs to be dealt with more intelligently. Given the tremendous success of congestion pricing, dynamic pricing for the most desirable parking spaces is an idea whose time has come. Parking at the high in demand curb in commercial districts should be more expensive than parking in a lot or garage. Neighborhood residents should get priority for spots near their homes and should pay a modest amount for the privilege.
• Outreach to the homeless, on which the city spends hundreds of millions of dollars has to be reengineered to be accountable and effective. The city has spent billions of dollars on services for the homeless since the Callahandecision in 1979 – and there are still about 5,000 people living on streets as there were then. Obviously, different people, but the same number. Talk about doing the same thing over and over and expecting a different result. Prioritizing the creation of 7,500 supportive housing units, yoked to quality outreach would go a long way to eliminating people living in public spaces. Yes, it is that simple. Ending the forty-year-old Callahanconsent decree would give the city more flexibility in how it expends resources to assist people seeking housing.
• Developing an open streets program that provides support, rather than making demands on, community groups would improve neighborhoods and walkability across the city. The current program is a shell of what it should be. The DOT waves its magic wand over blocks, says the streets have been open to pedestrians, and because of lack of resources must walk away – leaving an underused, poorly designed streetscape in their wake. The city needs a seriously resourced and planned program for open streets and pedestrianization, where regular and quality programming is well-funded by DOT, and community groups are offered resources, rather than required to supply them.
• The use of the public way by large commercial enterprises, particularly those providing telecommunications services is being ignored by city and federal policy makers. Hundreds of millions of dollars are being left on the table. There is a reason Facebook and Verizon are so profitable. They don’t pay for the municipal real estate they use in delivering their products. There are lots of other ways that streets, sidewalks and parks are monetized by the private sector with providing the city with adequate compensation. Cities need to think more seriously about how to capture that revenue.
• As Powell suggests, the city should take over the obligation to maintain the sidewalks. The current hybrid situation where adjacent property owners are required to maintain sidewalks and clear them of snow, as well as being responsible for injuries caused by deterioration is both inefficient and ineffective. The Department of Transportation, which does a more than adequate job taking care of the city’s streets would do better at less aggerate cost due to economies of scale in maintaining and clearing sidewalks. Enforcement of property owner obligations through liens, judgments and fines is both annoying and ineffective.

While “Sidewalk Nation” has a national frame, my New York-centric view can be widely applicable. Most cities, large and medium-sized, face the same issues. Those issues are clearly explicated in “Sidewalk Nation” and receive the required serious attention and clear elucidation from Professor Pollack. We are fortunate that someone with Professor Pollack’s smarts and high-profile experience has decided to shine a clear and bright light on this important but under analyzed area of American law and urban policy.