Politics of Parking: Rights, Identity, and Property 9781317078456, 1317078454

Table of contents :
Cover
Contents
List of Figures and Maps
Preface and Acknowledgments
1 Parking and Power: Law in the Everyday
2 Construction of a Political Text: The Built Environment as Public Good
3 Citizenship and Community: Authority of the Local
4 Semiotics of the Terrain: The Aesthetics
of Justice
5 Embodiment of Jurisdiction: The Biopolitics of Parking Space
6 Consumption and the Built Environment: Parking and Social Need
7 Law Personified: Images of Parking Enforcement
8 Emblematic Folk Legality: Crafting of Law Through Parking Appeals
9 Legality Beyond the Scope of Policy: A Constitutive Approach to Parking
Bibliography
Index

Citation preview

Politics of Parking

To Jon, Olive, and Harriet

Politics of Parking Rights, Identity, and Property

Sarah Marusek University of Hawaii at Hilo, Hawaii, USA

First published 2012 by Ashgate Publishing Published 2016 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN 711 Third Avenue, New York, NY 10017, USA Routledge is an imprint of the Taylor & Francis Group, an informa business Copyright © Sarah Marusek 2012 Sarah Marusek has asserted her right under the Copyright, Designs and Patents Act, 1988, to be identified as the author of this work. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing in Publication Data Marusek, Sarah. Politics of parking : rights, identity, and property. 1. Automobile parking--Law and legislation. 2. Automobile parking--Social aspects. I. Title 343'.0982-dc22 Library of Congress Cataloging-in-Publication Data Marusek, Sarah. Politics of parking : rights, identity, and property / by Sarah Marusek. p. cm. Includes bibliographical references and index. ISBN 978-0-7546-7971-4 (hardback) 1. Automobile parking--Law and legislation--Social aspects--United States. I. Title. KF2236.M37 2011 343.7309’82--dc23 ISBN 9780754679714 (hbk) ISBN 9781315601298 (ebk)

2011030412

Contents List of Figures and Maps   Preface and Acknowledgments  

vii ix

1

Parking and Power: Law in the Everyday  

2

Construction of a Political Text: The Built Environment as Public Good  

23

3

Citizenship and Community: Authority of the Local  

43

4

Semiotics of the Terrain: The Aesthetics of Justice  

61

5

Embodiment of Jurisdiction: The Biopolitics of Parking Space  

77

6

Consumption and the Built Environment: Parking and Social Need  93

7

Law Personified: Images of Parking Enforcement  

109

8

Emblematic Folk Legality: Crafting of Law Through Parking Appeals  

125

9

Legality Beyond the Scope of Policy: A Constitutive Approach to Parking  

137

Bibliography   Index  

1

151 159

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List of Figures and Maps Figures Figure 2.1 Chancellor’s Reserved Parking, University of Hawaii at Hilo, Hilo, HI   Figure 2.3 Book return, Forbes Library, Northampton, MA   Figure 2.2 Library book fund, Forbes Library, Northampton, MA   Figure 3.1 Bank of America teller drive-thru windows, Amherst, MA    Figure 3.2 ‘Kokua’ sign at Kaumana City public spigot near Hilo, Hawaii    Figure 4.1 Handicapped parking space   Figure 4.2 On April 1, 2003, lava engulfed the chain of craters road near Kalapana, Hawaii    Figure 6.1 Customer with Infant Parking, Hadley, MA   Figure 6.2 Expectant Mothers, Babies “Я” Us, Ingleside Mall, Holyoke, MA   

29 35 35 52 55 62 72 100 101

Maps Map 8.1 Map 8.2 Map 8.3

Spatial analysis of appeal language, Mount Holyoke College, South Hadley, MA   Spatial analysis of person status, Mount Holyoke College, South Hadley, MA    Spatial analysis of student rank, Mount Holyoke College, South Hadley, MA  

132 134 135

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Preface and Acknowledgments This is a book about law. More specifically, this is a book about how law works in our everyday lives here in the United States. More generally, this is a book about parking. Parking is one of those aspects of everyday life that we do every time we drive a car. Law is also one of those things that we do in our everyday lives, from driving to parking to even riding a bicycle. When I say that we ‘do’ law, I mean that we make law happen. However, when we make law happen, we also have an idea of what law is and how it works. Through something as banal as parking, we can understand what law is and how we make law work because of how we ‘do’ it. The seeds for the project were generously planted by John Brigham at the University of Massachusetts Amherst while I was a student in his 2004 Seminar “Street Level and Sovereignty.” With an idea for a final paper that began with “Why do I think that people who park in handicapped parking spaces without a handicapped parking permit are such assholes?” Professor Brigham worked to channel my self-righteous hostility into an innovative project and exciting academic career in Political Science exploring the constitutive approach to law. With much affection, I thank him with my heart and soul for everything he has given me, including my present and my future. My ideas on parking have been shaped by many people and places. I have presented aspects of this project at the International Roundtable for the Semiotics of Law in Montreal and in Bolougne-sur-Mer, France, the Law and Society Association Meeting in Montreal, the New England Political Science Association Meeting in Portsmouth, NH, the Association of American Geographers Meeting in Boston, the Association for the Study of Law, Culture, and Humanities Meeting in Boston, the Western Political Science Association Meetings in Vancouver and San Francisco, as well as public talks at the University of Massachusetts Amherst Political Science and Legal Studies Departments and at the University of Hawaii Hilo. For the 2007–2008 year, I was a Research Associate at the Five College Women’s Studies Research Center at Mount Holyoke College where I attempted to balance scholarship with a new baby. Thank you, Elizabeth Cahn and E.B. Lehman for making this possible and expanding my opportunities as well as my horizons. I would like to express my appreciation to Charlyn Puza, Director of Parking at Mount Holyoke College and to the members of the Parking Ticket Appeals Committee. I would also like to thank Dr. Eugenio Marcano, GIS Specialist in the Department of Geology and Geography at Mount Holyoke College for helping me to map out my ideas. Additionally, I would like to thank all those involved with these conference venues who advanced my thinking through the presentation and critique of my work.

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Portions of the project have been published elsewhere. Parts of Chapter 4 previously published in Law Text Culture 9: 177–88 have been reprinted with permission of the LTC 9 Managing Editor, Desmond Manderson. Parts of Chapter 5 have been published in International Journal for the Semiotics of Law 20(3), 251-61 with permission from Springer. Parts of Chapter 9 have been reprinted by permission of the Publishers from “Legality beyond the scope of policy,” in Diversity and Tolerance in Socio-Legal Contexts, ed. Anne Wagner and Vijay K. Bhatia (Farnham: Ashgate, 2009), pp. 137–47 (Copyright © 2009). I would like to express my appreciation for these permissions. Scholarship is truly a collaborative conversation involving a variety of perspectives and experiences, lots of laughter, and an abundant supply of good food and hot beverages. There are so many people who shared their encouragement, offered their critique, and guided me throughout the writing of this book. In particular, I wish to offer a special thanks to Desmond Manderson, Anne Wagner, and Renee Ann Cramer for their extensive support throughout the project. While by no means an exhaustive list that is in no particular order, I would also like to thank Mariana Valverde, Rebecca Johnson, Alan Gaitenby, Elizabeth Markovits, Iza Hussin, Christine Harrington, Diane Curtis, Britt Halvorson, Kathryn Besio, Marilyn Brown, Lauren Rosenberg, Diana Yoon, Todd Belt, Marcia Curtis, Sheldon Goldman, Eduardo Guardiola, Rick Castberg, Enbao Wang, Max Page, Aaron Lorenz, Jenner Bestor, Penny Gill, Pamela Brandwein, Chris Pyle, Fiona McCormack, Chris Freuh, Amy Gregg, Phil Taylor, Kate Longley, Zeynep Inann, Dan Kirsch, Paul Ominksy, and Elvira Guardiola for their creative insights and personal warmth. Thank you also to Biff, Anna, Matt, Helen, and Paul for their endless love and support as well to Babci for lots of babysitting! And lastly, thanks to Jon for being there simply all the time, wherever and whenever, with lots of love and a continual willingness to ‘get riled up’ about parking.

Chapter 1

Parking and Power: Law in the Everyday “In my tribe, when it comes to parking, a man takes charge. A man finds spots” (Raskin 2007). In a comedic article about parking, writer Andy Raskin discusses his own inherited talent for hunting down parking spaces on the streets of New York City in order to impress his date. He equates the ability to find a spot with being able to provide for one’s family, for as his father always said, “a parking space was not some gift from the gods, [and] not in any way dependent on personal good luck (i.e. parking karma). Rather, finding it was the direct result of hard work, carefully honed skills, and yes, raw talent” (Raskin 2007). In this case, the fundamental skill of finding and claiming a parking space can be attributed to the level of basic survival in contemporary vehicular society where parking spots become prey to voracious drivers. However, we do not live in prehistoric times, and parking, as Raskin tells us, is a vital, yet mundane, aspect of our contemporary lives. Because it is so ubiquitous and banal, parking is a unique site of law with everyday qualities. These qualities speak to the fundamental redefinition of what law can be considered to be by those who create it. Here, law happens on the street and not in courtrooms or law offices. Here, law happens by actors who have no formalized legal training and who interact with signage and symbolism lacking formalized legal jargon. Therefore, the type of law generated by parking can be termed ‘law in the everyday’ in which formal legal authority is often absent and nonlegal actors (i.e. regular people) make and enforce the rules and boundaries of justice in a variety of ways. Precisely because parking is so quotidian and, as such, a fact of our everyday lives, parking enlivens this phenomenon of law in the everyday in ways that everyday people in everyday places produce legality through the contest over rights, identities, and property. Nonetheless, parking and the fight for survival are not that distantly linked. For example, 19-year-old Boris Albinder was killed over a parking space in front of a nightclub near Golden Gate Park, San Francisco, California. On September 16, 2006, a friend of Albinder’s was standing in the middle of a parking space in order to reserve it for Albinder who was on his way to park. While he was waiting, a van pulled up and struck Albinder’s friend with the van in order to make him leave the space. Upon arriving, Albinder and his friend engaged in a struggle with those in the van. Albinder was stabbed to death (McKinley 2007; Van Derbeken 2006). Such violent rage was the result of a pedestrian’s claim to property typically reserved for automobiles. Here, the right to occupy this particular parking space pitted vehicle against person in the struggle for the recognized legitimate identity of ownership

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As ordinary as it is, parking invokes rage as a response to the dimensions of power found in parking. Such levels pertain to different demonstrations of authority, whether informal as the previous example attests, or more formal, as the following example illustrates. In Kirkwood, Missouri, Charles Lee ‘Cookie’ Thornton, irate over thousands of dollars in parking tickets and citations which had amassed against him, gunned down five people at a city council meeting (www. mercurynews.com/crime/ci_8215790?nclick_check=1). Thornton’s response characterizes a challenge to the formalized authority found in parking law, namely the parking enforcement personnel that administer parking tickets and fines. Additionally, Thornton’s actions convey a misguided version of renegade justice involving the individualized violent response to legal authority. Whether on the street or at a public meeting, the ordinariness of parking engenders it as a sociolegal discourse in which the hierarchy of law is reframed to include non-traditional actors. In this way, parking spaces show us how law in the everyday happens in cultural, economic, and political arenas. Parking engenders and sustains a notion of law, or as John Brigham (2009: 381) asserts, “Law is in society.” Brigham describes the constitutive approach to law in which law and society are mutually interactive, or as a way “to ‘see’ law in society without necessarily relying on the traditional markers. It seeks to bring law to the forefront of our visual field too so that we actually observe social phenomenon as law” (Brigham 2009: 382). Sally Engle Merry (1995) also contributes to this relationship between law and society in her study of the cultural power of law. She reminds us that “the constitutive power of law and a broad definition of its cultural effectivity and representational power suggest the importance of research on the cultural meanings produced by law in the habitual, possibly resistant, practices of everyday life as well as through major social movements” (Merry 1995: 26). Using these two frameworks of law, parking produces legality as law in the everyday as the habitual practices we culturally, socially, and legally engage in. This approach to law, known as constitutive legal theory, involves the relationship between law and society that happens on an individual as well as community level. This book examines parking according to constitutive legal theory. With that being said, the culture of parking is a social as well as legal culture. Likewise, the resistance to parking is a social as well as legal resistance. Discursive realms of parking include places and signs that constitutively frame what law is and show us how the law in the everyday that parking fosters is a contest over power. In parking, the contest over power is the power to exert and to challenge legal as well as social notions of rights, presentations of identity, and claims of ownership to sites of property. Robert Dahl (2005) tells a story of politics by contrasting direct and indirect political influence in a New England city rife with wealth and influence disparities. By arguing that socioeconomic homogeneity is in fact, political homogeneity, Dahl discusses the social history of New Haven, Connecticut as a story of representation. By answering ‘who rules’ in a pluralist democracy, Dahl considers the political system to be a system of noncumulative equalities. These dispersed disparities contribute to exactly who is actually in charge. For example, rituals that

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give legitimacy to a democratic creed are those rituals of citizen involvement and the process of political nominations that reflect the interests of the represented in re-election. Dahl’s story of how politics work, namely as a function of influence and inequality in which the direct influence of small groups counters the indirect influence of the represented larger group and often wins out, speaks to the degrees of equality and social disparities that prevail in everyday life. Dahl’s description of the struggle for power is particularly applicable when considering a place to park. Similar to Dahl’s story, themes of equality pertaining to status, ability, wealth, race, and gender expand notions of governance and citizenship that depend not only upon formalized institutions of law, such as the parking attendant, parking signage, or the parking appeals process, but the social reactions and responses from one driver, passenger, or onlooker to another. Culturally, semiotically, and geographically, the parking space invokes law and politics through the contest for power found in direct rather than indirect influence. Parking is messy and rife with the inequalities that Dahl speaks of regarding political power. This messiness is ironic as superficially, parking may seem to be the solution to chaos. With its presumed uniformity in lines and impartial enforcement of parking standards, parking might appear to be devoid of politics and power. However, as this book will detail, such uniformity and detachment are an illusion when looking deeper into how parking is a source of everyday law where people hunt and people die. Stuart Scheingold (2004) examines a similar juxtaposition between theory and praxis in his examination of the myth of rights versus the politics of rights. He details the common perception of what rights are, i.e. the myth of rights, with the actuality of making those rights into a reality, i.e. the politics of rights. “At the core of the myth of rights is the legal paradigm – a social perspective which perceives and explains the human interaction largely in terms of rule and of the rights and obligations inherent in rules” (Scheingold 2004: 13). Therefore, the construction and contestation of rights are themselves the politics of law if law is the rules and rights are the social perspective on those rules. With parking, the rules are not always clear and are often determined on the spot by those who park. More often than not, the rights of parking are a socially determined practice that uphold, reject, or redefine the rules of parking. In this way, the rules of parking shape a practice of law that is based upon immediate perceptions and everyday enforcement between people who park. As a result, the formal rules that do exist in parking are often ignored or violently resisted. Working with this structural paradigm, the story of governance as told through the localized politics of the parking space is a story of rules and regulations that, as formally understood law, only takes us so far. In the context of the parking space, law is much more expansive than just policy concerned with where and when to park cars. As sites of everyday law, parking spaces play host to social and legal contestation in which governance operates on many levels. Whether at the level of official parking enforcement or at the level of car versus car (driver versus driver), the parking space is a nexus of conflict in which the socio-legal intersection of

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governance can range from the parking ticket to shouting to vehicular aggression, even murder over who is entitled to occupy that prime piece of property. Socio-legal scholars Patricia Ewick and Susan Silbey (1998) recognize the territorial aspects of rights discourse and legal consciousness on the socially semiotic and culturally geographic levels. Pictured on the cover of their pivotal book, The Common Place of Law: Stories from Everyday Life, is a snowy city street with a lone wooden chair resting next to an overturned milk crate (Ewick and Silbey 1998). Both the chair and the crate are positioned in the middle of a shoveled out parking space in order to designate the shoveler’s ownership of that space. On public streets, there are no ‘owned’ spaces; however, on this street, there are. Ewick and Silbey comment on this display of informal governance as illustrating a type of legal consciousness that is established according to a localized notion of property that mimics traditional notions of ownership. Here, rights associated with property and ownership are altered through the labor, time, and effort invested in the shoveling of the space. The message is clear to other parkers: find your own spot to shovel and claim as your own and leave my shoveled out space well enough alone! Here, notions of property and right are crucially linked to the idea of governance and citizenship as the people who shovel actively animate what law is. Likewise, those people who either respect or refute such designations of space also animate the counter to law, resistance. Through parking, law in the everyday transforms the physical exertion of the shovel into claims of property ownership and identity recognition. Interestingly, in Boston, formal policy actually reflects social practice as those who shovel out parking spaces have 48 hours to save a parking space under city rules. Space savers may include milk crates, orange cones, lawn chairs, recycling bins, or any other bulky object (www.boston.com/news/local/breaking_ news/2008/02/as_snow_melts_i.html). However, as of February 2008, in response to angry residents, the city of Boston began to crack down on space markers that violated this timeframe as the mayor’s office ordered that these space savers be picked up as trash. Constitutively, we can see the law in the everyday of parking working through a variety of channels: the shoveling of parking spaces on the street as described by Ewick and Silbey, the city ordinance recognizing shoveled parking spaces within timed limits, and the response of the Boston mayor’s office to resident complaints concerning the disregard of the timeframe. Parking spaces produce legality. As the space is clearly defined by painted lines on the pavement and demarcating signs of intended usage, the construction of parking spaces develops further regulation and enforcement. The architecture and semiotic markers of the space yields a political text. As a political text, this space is one in which public and private notions of enforcement sometimes blend, but more often butt heads over jurisdictional claims predicated upon ownership and identity. The visibility of law through signs and markings engenders the visibilitybased constructions of legitimacy. This legitimacy constructs a sense of belonging, in which the theme of community presents us with our place as citizens. Here, the social dimensions of parking are often tied to forms of legal consciousness

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characterized as the marginalized fringes of legality, or vigilante justice, as the book’s opening anecdotes show. The generic quality of the parking space concerns the spatiality of law and the territoriality of rights. Parking spaces engender spatial reserve as ownership for the primary reason that cars have to be parked when not being driven. These parkedon spaces are marked as such in ways that tie the user to the usage. Examples of this include parking spaces reserved for visitors, handicapped parkers, customers with infants, expectant mothers, judges only, employees of the month, faculty and staff, city officials, store customers, physician only, 15 minute parking … the list is quite extensive. One of the interesting problems that arises is what happens when the space isn’t clearly designated or if it is inappropriately used. What happens when the parking space isn’t used for parking in the first place? Margaret Kohn (2004) expands the thinking about space and its usage in her book Brave New Neighborhoods. Kohn examines the increasing privatization of public space through the impact on First Amendment free speech abilities. She examines spatiality according to its politics and the laws that shape these places. She discusses the hierarchy imposed by private ownership onto the public’s ability to communicate with each other politically as well as legally. Kohn’s (2004: 2) reminder that “public life is undermined by the growing phenomenon of private government” is a way of considering disappearing public venues such as parks and community gathering places as dangerous to democracy. For Kohn (2004: 25), “public space is crucial because it is a stage on which groups can debate alternative views on policy and principle.” In drawing upon Kohn’s insights into how power works in public spaces, we can view the parking space as a site of law in the everyday in which democracy flourishes. Here, we can address the relationship between parking and economic development as a relationship that Kohn alludes to in her own examples. We can also consider the centrality of parking to economic development, for the positioning of parking space is often a strategic and purposive statement of property and its intended usage. Furthermore, we can consider the parking space in terms of privatization, as Kohn frames, as privatized parking often infringes upon the public’s right to expression, much less occupancy. Throughout the book, I will consider the subject of parking spaces by rethinking the banal. Parking spaces are a necessary part of life that, despite their ubiquity in usage and presence, are woefully underexplored as a source and site of law. On the surface, laws pertaining to parking appear as routine parking policies culminating in the dreaded parking ticket; however, if we look more closely, these policies shape how we treat one another even when parking enforcement is not present. Through this process of rethinking the ordinary space where a car is parked, a provocative form of legal subjectivity emerges within the study of law and politics. In the tradition of legal pluralism, I adopt an interpretivist methodology to data and its meaning. I explore the nature of rights according to the spatiality and semiotics of law found in parking spaces. Here, the municipal regulation of parking policy struggles with the force of localized politics; as a result, competing notions

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of legality are produced. My work adopts a constitutive approach to the study of law, where law is a social medium constructed and sustained through its very enactment and resistance in everyday instances of daily life. Because law and life mutually go hand in hand, constructing a relationship that examines the cultural, social, legal, and political contexts of our society and experience with legality is a vital one. Therefore, the intellectual inquiry involving the relationship between law and society extends far beyond the confines of quantitative measures of policy effect or discussions of the law itself to delve into the analysis and synthesis of happenings in order to best show us what really happens in everyday places where law occurs in local spaces we directly inhabit. Legal Geography In February 1993, a vehicle filled with explosives was detonated in the underground parking garage of the World Trade Center complex. While experts suggest that “putting a bomb in a car is not sophisticated,” the placement of a bomb in such a garage would “multiply any explosive’s impact, preventing its energy from escaping except at the weakest point, either the walls or the ceiling” (Jehl 2007). Given the banal existence of parking garages as possible sites of terror, parking spaces take on new meaning as a place where politics, law, and culture collide. The built environment of parking places, whether spaces, garages, lots, driveways, or on the streets, provides a site of public tension through which local authority and social need jointly create a geographic discourse of power and legality. Chapters 2, 3, and 6 each develop the legal geography of parking that creates, sustains, and challenges notions of rights, contested identities, and ownership over disputed sites of property. The jurisprudence of the parking space creates a type of governing that is locally contingent. In spaces where formal law is absent, social law becomes judge and jury. Right and its regulation are culturally dependent and politically malleable. The right to park is a special right, considered to be a presumption of expectation connected, literally, to the person driving the car. Jurisprudentially, this special right is enacted between individuals in everyday parking environments where social norm operates as ‘the law’ and formal law is distanced. Feeding the meter distances the threat of a ticket. The appeal of that ticket is the pronouncement of right. Yelling angrily at a driver who cuts you off and parks triumphantly in a coveted parking space is a more immediate regulation of right. Parking is a socio-legal construction that reveals a political text in which the built environment produces legality. Through the meaning of property related to parking structures and usage, the legal consciousness adopts a sense of territoriality when pertaining to rights and who either has them or who doesn’t. Spatiality produces legal relations and a socialized sense of citizenship that reflects the occupancy of the space itself. This is particularly true in parking, as the 1993 World Trade Center bombing attests to. The legal geography of the parking garage

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in this case is transformed from a place of vehicular belonging to one of political destruction. Dvora Yanow (2005: 250) describes the “role of built space and its uses in communicating and shaping meaning.” She points to the “‘intertextuality’ operative in spatial meanings … [in which] spatial elements develop meaning from other spatial elements” (Yanow 2005: 361). These two aspects of the built environment, built space and spatial elements, are instructive when thinking about how parking as a legal banality came about in the first place. In Chapter 2, the semiotics of parking involve the evolution of legal consciousness according to the built environment of parking and the public good. In its original inception, parkable space via designated parking spaces, parking meters, and municipal regulation supported a notion of the public good associated with a place to park when frequenting an urban commerce center. Here, the public good was construed as availability while shopping. In this way, the spatial element of timed vehicular turnover was first economically premised as a public good. However, space availability as a public good has evolved into a politics of status, where certain vehicles and their owners command a specialized set of rights depending on the place where they are encouraged to park. Through a variety of types of parking space ranging from Resident Permitted Parking Only to Visitor Parking to Handicapped Parking, spatial elements of identity shape parkable space. The public good has shifted from general availability of parking spaces to specialized reserve in which the built environment is constructed according to a changing sense of how the law works and who it can and should work for. Parking is at the forefront of this shift. Dvora Yanow’s focus on the intertextuality of spatial elements present in built space characterizes the ways that the public forum is contested in parking areas. Monies from parking revenue stand to either benefit or harm the public good depending on where and how these monies are collected and spent. In this way, the parking meter is a jurisdictional semiotic that symbolizes profit for the individual pocket or the public coffer. Related to the parking meter is the semiotic of the parking lot, as space used for labor activism, off-the-grid living, or criminal activity. There is even a globally recognized Parking Day, in which parking lots are transformed into a variety of settings including health clinics, church services, weddings, and farm markets (Kimmelman 2012). In parking lots, the relationship between the public good and physical space indicates that we should pay attention to the types of law that mesh in such a built environment, ranging from municipal regulation to privatized jurisdictional claims to violent acts of legal resistance, referred to as frontier law or vigilante justice. The intertextuality of parkable space as an everyday built environment shows us the ways that the laws of parking create spatially-based tension and discourse between legal consciousness and the evolving nature of the public good. Here, the vehicularization of society pits the public interests of community against the private interests of the individual. However, this vehicularization of space also reveals a way to see the landscape of parking. In his discussion of urban property landscapes, Nicholas Blomley

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(2001: 116) reminds us “Western property is not only mapped in space, it is caught up in particular mappings of space.” He suggests that “property and its landscapes can be a site of struggle” and cites Sarat and Kearns in which “Law plays a constitutive role in the world of the everyday, yet it is also available as a tool to people as they seek to maintain or alter their daily lives” (Blomley et al. 2001: 128). The mapping of parking space in terms of social and political rights and identities illustrates how law in the everyday works. Following from Yanow’s work on built space, parking reveals spaces in which socio-legal tensions develop as a form of legal pluralism. These mapped spaces are transformed into places where the public confronts the public and redefines what the public good is and who the public represents. The mapping of space reveals local perogative in channeling local authority over said space and its usage. Take for example the case of Richard Cronin of Springfield, Massachusetts (Johnson 2009). Cronin woke one morning to a $50 ticket for parking on his own property with the violation specifically charging that he had “violated city ordinances by parking in the front yard, instead of in the driveway.” Spatially, what is relevant here is where exactly the Springfield city street ends and Cronin’s dirt driveway begins. The issuer of the ticket, Springfield Police Department’s Quality of Life – Ordinance Flex Squad, charged that despite the fact that Cronin, a long-term homeowner, had parked in the same place for the past 30 years, “if he parked on the lawn, that is a violation of city ordinances.” What happened in this case is the spatial determination of legality and the accompanying notion of a right through the property-based capacities of local homeowners in Springfield versus definitions by the city. Cronin’s ticket represents the problematic pretense of those within a local community to inhabit their private property in a publicly determined manner. This hybridization of rights, property, and identity illuminates a space of jurisprudence through parking in which these aspects of politics and law come together to form a foundation for examining parking-related discussions about law and society. Local authority transforms the social needs of particular communities and individuals and is mapped by the competing geographies of social identities. Richard Ford (2001) describes such jurisdiction as “law’s territory” and the “territorialization of social relations” (Blomley et al. 2001: 201). He describes “territorial jurisdiction as a set of social practices, a code of etiquette” (Blomley et al. 2001: 202). Cronin’s front lawn parking place reveals a localized code of conduct that frowns upon such behavior, for as Ford reminds us “jurisdiction in fact defines a relationship between the government and individuals, mediated by space” (Blomley et al. 2001: 211). In Springfield, the space of the front lawn is not a place to park as the jurisdiction of the front lawn reminds us of the locally animated tension between citizenship and community in which the individual is often at odds with both. In Chapter 3, “Citizenship and Community: Authority of the Local,” the notion of law in the everyday happens through the spatialized elements of community and citizenship in which jurisdiction is localized. Economic prosperity is a party to

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this relationship as is a localized sense of place involving parking spaces, parking garages, parking permits. Here, the aesthetics of governance provide the ability of local communities to territorially determine who belongs and who doesn’t. Tensions over parking in these communities reveal social codes of authority, knowledge, and citizenship. Legality is animated and actively produced in these local disputes and tensions that range from a movie theater parking lot to an underground parking garage to parking permits described as ‘hunting licenses.’ Locally, place is power. Parking places are an example of cadastral mapping, where lines and boundaries are initially drawn to designate the mapping of parkable space. In his work on cadastral mapping, James C. Scott (1998) details the resistance that is locally reactive to these lines and boundaries. He describes the power of local response as the resistance to such mapping for “each undertaking also exemplified a pattern of relations between local knowledge and practices on one hand and state administrative routines on the other” (Scott 1998: 24). Mapped parking in Springfield was administratively determined to be on the street and not on one’s front lawn; therefore Cronin’s front lawn parking place defied the cadastral grid of parking. Geographically, law in the everyday is alive when considering spatial elements, the built environment, jurisdiction. The meaning of space encourages debate over the social need either fostered or inhibited through the accessibility that parking generates. Social need may be interpreted as political engagement as parking space perpetuates the deployment of that need or engagement. Kim Dovey (1999: 183) tells us “oppression and liberation are forms of social practice which are mediated by built form.” Take for example the 1995 Oklahoma City bombing, which was the result of an explosivefilled truck strategically parked adjacent to the targeted building. The parking spot chosen by the bombers was key to carrying out the attack. As Jim Loftis, an architect who helped design the building noted, “I do know that finding a parking space in front of that building at nine in the morning is a tough, tough job” (www. cnn.com/US/OKC/facts/Bombing/Terror5-4/index.html). Whether in a garage or in a loading zone, parking space can become instrumental in murderous political meaning. As a place reserved primarily for people driving cars who then leave those cars to go places elsewhere parking space is a borderland between action which should occur (peaceful parking) and that which may occur (violence, bombing). In his work on the practices of power as they exist in the built form, Kim Dovey (1999: 193) states “the public interest does not exist pre-formed but is constructed in the design process.” In Chapter 6, “Consumption and the Built Environment: Parking and Social Need,” the practices of power are evident in the ways in which social need is created and constructed as economic interests and private forms of ownership abut communal interests. Furthermore, parking lots, as spaces of consumption, promote the gendered and racialized accessibility and accommodation of the public good. The built form of such lots reveals parking practices that shape our notions of what gender or race should look like in the

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consumer environment. Additionally, parking lots control the access of the public whose presence may be entitled by law yet denied socially by corporate interest. Parking lots are a keen site of political identity contested through law in the everyday as legal subjectivity is dependent on the power that place engenders as a source of making law in everyday situations. Parking is a political, social, and legal text that involves the hybridization of each of these elements: legal geography, legal semiotics, and constitutive legal theory. In this way, law in the everyday is social, discursive, and non-hierarchical. Laura Beth Neilson (2000) argues that “legal consciousness of ordinary citizens is not a unitary phenomenon, but must be situated in relation to particular types of laws, particular social hierarchies, and the experiences of different groups with the law.” Neilson’s (2000) statement, “my study of legal consciousness is situated doctrinally (the First Amendment), with reference to a particular social phenomenon (offensive public speech), and within a particular location (the public sphere)” reminds us that “legal consciousness is contingent” according to the axes one is exploring. The examination of the locally political is a statement about power. Silbey and Ewick (2003) consider the manifestations of power that exist in relation to a subject. In thinking of the science laboratory as a place that is legally regulated, governance is less targeted on the individual and more on the institution as governmentality becomes a set of spatial practices that operate alongside the subject (of the law). They argue “it is the increasing invisibility of the laboratory in the epistemology and moral authority of science that has enabled law to govern science ‘at a distance’” while “dislodging truth from the laboratory has opened” within “the space of science” a “place for law” (Silbey and Ewick 2003: 104). Other parts of Silbey and Ewick’s (2003) argument discuss the democratization of science through the accessibility of truth and the competing elite nature of contemporary science. Because there exists a danger of science (or more precisely, of the unknown), the need to regulate the unknown through laws involves the notion of placelessness. In this context, placelessness is the changing place inherent to the lab that pertains to the liberal subject and the liberal regime: “The dream of a free, but governable, subject is necessitated by the paradox of power to which we have already alluded and that lies at the heart of a liberal regime: that is, governments create zones of privacy and autonomy to which they, by their own authority, are denied access” (Silbey and Ewick 2003: 98). In this abstract type of regulation devoid of actual human contact/constraint, Silbey and Ewick (2003: 86) assert that university science labs are “legal creations” as “legally created property through publication, copyright.” Lastly, they conclude “through the governance of laboratory space, law plays a role in shaping contemporary science and contemporary scientists” (Silbey and Ewick 2003: 85). Silbey and Ewick’s premise about placelessness is particularly useful in considering the arena of governance surrounding the parking space where the only immediate markings of law are painted markers on the pavement or signs designating who can park where and when. However, the space is difficult, if not

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meaningless, to govern with no one parked in it. The variety of types of authority that govern the space (parking enforcement officers, angry drivers who missed the opportunity to park there, irate residents who have been inconvenienced, people who don’t park where they are supposed to park) make the space a place in which the visibility of law found in signs and on pavements is minimal at best. For this reason, Silbey and Ewick’s approach (2003: 86) to research involving “regular observation, watching, listening, taking notes on what we see and hear” is of great importance in exploring how law works in spatialized sites of legality. The geographic approach to law reveals many things about the meaning of space. Parking spaces are a site of legal geography where law is redefined and contested by everyday people in everyday places. The construction of the parking space invites tension over its usage, its occupancy, and its fundamental creation. Jurisdictionally, the parking space is a territory in which rights and identities compete for power over the determination and temporary ownership to park one’s vehicle in that bounded space. However, the challenge to such boundaries happens through local knowledge of how things work, how the public good is impacted, and/or how the social needs of accessibility and accommodation translate into political realities. In parking spaces, the continued production of legality is enlivened in such banal locations and with regard to ordinary aspects of daily life and routine. Legal Semiotics As Desmond Manderson (2005: 2) reminds us, “To imagine the law without imagining the space leads almost always to missing at least some part of the point.” Examining the impact that law and space have on each other is indeed the point of this book. In doing so, we imagine the law through the signs and symbols which articulate its meaning and shape our perceptions. By exploring the semiotics of law, we can see the relationship between law, space, and everyday life through the signs and symbols that illuminate legal meaning. By viewing law according to signs and symbols, we are able to make the connections between spatial and semiotic meaning. Constitutively, we can look around us to see law happening all the time. Roberta Kevelson (1988: 15) describes an approach to studying law that “regards law as a sign system, interrelated with other social sign systems such as language, economics, government, family, and the many cultural institutions historically recognized and designated as such.” The symbiotic relationship of law to this variety of sign systems enriches how we see what the law is, but more fundamentally, how we see the law working in our everyday lives. Using the semiotics theory of Charles Sanders Peirce, Kevelson (1988: 3) considers law to be “one such sign system, as are other social institutions, e.g. language, economics, politics, the family, and so on” that form the backbone of the process of communication, “or message exchange by means of signs and sign systems.”

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The signs and sign systems of law that Kevelson speaks of can truly be best seen in everyday places and activities where such social institutions as those she describes exist and flourish. Kevelson therefore provides a foundational way of seeing law in the everyday as law is a sign system among other sign systems. When considering the legal semiotics of parking as such sign systems, we can clearly see the lines painted on the pavement denoting the boundaries of parking space. We can see the car itself as a semiotic of transportation. We could also consider the car to be a semiotic of accessibility, mobility, freedom, or restriction (Sanger 2005). Cars also represent who we are in terms of what we either choose to drive or are compelled to drive. Cars vehicularize our identities in a variety of ways that politicize, de-politicize, empower, or disempower us. For example, an electric or hybrid vehicle might be a statement of political concern for the environment. In contrast, a gas-guzzling Hummer might be a statement of wealth and a lifestyle that is rooted in excess. Likewise, not owning (or driving) a car might be a statement that supports public transportation or physical exercise. If we are financially able, we can choose which car to drive and which identity to assume. If we are not, then we may not have the luxury of such association. Parking spaces also convey semiotic meaning through their markings of designated reserve. Whether for the Employee of the Month, Doctor on Call, Handicapped Parking, or simply Visitor Parking, signs tell us who matters in terms of parking space reserve. Whether legally or socially created, these signs create a sense of ‘ownership’ over such a parking space in which the person designated to park there has a particular status. Power is associated with status; however, status can also invite resistance to this declaration of who matters. Simply because a parking space is designated for a certain individual or class of individuals, its reserve for those specified is by no means guaranteed. Law arises when either assertions or contestations of such belonging exist or are challenged. Semiotically, we can see the laws of parking through the signs and symbols of the terrain, the vehicles present, or the gestures, faces, and bodies of who is parking. We can also see law in who controls and enforces parking, whether that individual is driver or a formal parking enforcement officer. Semiotics also exist in the construction of parking lots, on the streets where people park, and really anywhere where vehicles rest either officially or unofficially. The signs and symbols of parking found in our daily routines reveal a semiotics of law that is uniquely found in parking and contributes to notions of rights, identities, and property. In her work on road regulations, Anne Wagner (2006) considers the visual legal semiotics of driving. She tells us The cultural discernment of road signs in civil society can be thought as a semiotic process. Indeed, there are three interrelated ideas showing human involvement in social life: (1) it contains a pattern of values as constituted in cultural traditions which gives visibility to these signs, (2) there is an origin of action initiated by individuals and (3) it is an invisible, unsaid, hidden structure of relations between people and their social institutions. (Wagner 2006: 313–14)

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Wagner’s development of legal semiotics through individual action according to cultural tradition and within social institutions provides a constitutive legal approach to why road signs are contextual markers of everyday life in particular places. The semiotic process she describes is particularly relevant to parking, as similar phenomena transpire in parking as in road signage. The signs and symbols of parking generate insight into how law in local societies works because of how individuals culturally and socially respond not only to each other but to the structures that shape their knowledge. The visual legal semiotics of law in the everyday can be found throughout this book on parking, but particularly in Chapters 4, 5, and 7. In Chapter 4, “Semiotics of the Terrain: Aesthetics of Justice,” the legal semiotics of entitlement and right according to parking space creation and occupancy shows us how law functions in everyday parking space specifically through its signage and accompanying meaning. As the primary example in the chapter, the handicapped parking space provides a fascinating semiotic of justice, as the aesthetics of the space are interpreted in a variety of ways according to the perception of markers of legitimate belonging. These markers range from a car with a handicapped placard parked in a designated handicapped space to the person driving the car parked in that space. Here, justice is less a function of the creation of the space itself, but is instead representative of the occupancy of the space and the verification of that occupancy. Biopolitically, who parks where becomes a semiotic of justice resulting in either a disciplining gaze or physical violence that acts in response to the meaning conveyed through that person physically. Handicapped parking space reveals an aesthetic and semiotic approach to visualizing how law works. The reactions and responses that occur through this type of parking and associated witnessing foster the idea of ‘law as forum.’ ‘Law as forum’ is tied to law in the everyday as legality is contested out in the open by the general public without lawyers, without police (usually), and without a code of formal law. In this way, law happens because of the images that represent it, ranging from the handicapped parking space itself to whoever occupies the space and whoever sees and interprets the legitimacy of such activity. Similar examples that are examined in the chapter include green parking spaces that welcome electric or hybrid vehicles as well as the rebuttal of vehicular entitlement by flowing lava. As demonstrated in this chapter and throughout the book, images and representations of law carry meaning through their construction and their interpretation. In his book Material Law, John Brigham (2009: xii) urges us to “see the material dimensions of law” in order that “we should be able to see law altering our reality.” In his study about how law works in everyday life, he emphasizes the structural dimensions of law and legality that operate culturally, socially, and politically. Structures serve as the markers of a jurisprudential framework in which institutions are not always solidified but nonetheless constitutively represent the tension between law and the everyday. Drawing from Brigham’s many insights, we can see the structures of parking as semiotics of justice according to how they operate as institutions in daily life. For instance, do we readily follow the signs of parking, and if so, why exactly? Or if not, why not? What sorts of parking structures

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serve to build a materiality of justice and jurisprudence represented as an institution of culture and politics that becomes law outside formal legal operations? Through structures and imagery, parking is a source of law in the everyday in which notions of citizenship are animated according to occupancy, reactions, and response and transformed according to both place as well as representations of how law works and who it works for. Rebecca Johnson (2005: 158) reminds us that sometimes the boundaries between people and place are themselves semiotic markers of citizenship, belonging, and often the miscarriage of justice. She tells us that the body can be “marked by interconnections, proximities, and instabilities of boundary.” The semiotic of the body is vital to consider when thinking further about the animation of governance according to the regulation of bodies, or biopolitics. The politicization of bodies provides insight into how law works in everyday life when considering bodies that park. Parking space behavior can exacerbate the already tarnished image of a disturbed citizen, as in the case of kidnapper Michael Devlin (Leonard 2007). In the January 2007 Missouri case that shocked the nation, this “300 pound pizza parlor manager” was found to have kidnapped and held captive an 11-year-old boy and to have kidnapped another boy, age 13. Devlin was demonized not only for being heavy, but for his quick temper over where to park his car. Neighbors at his apartment complex spoke of Devlin as a loner who obsessed over a particular parking space at the complex. In an altercation over this spot with one neighbor, Rob Bushelle, who parked his own car there, Devlin “became furious and began shouting at Bushelle, demanding he move” (Leonard 2007). Bushelle refused and Devlin called the police. This action of calling the police reveals an ironic view of law enforcement as Devlin was more concerned about the police protecting his ‘right’ to park in this reserved space than being discovered and arrested for kidnapping young boys. In Chapter 5, “Embodiment of Jurisdiction: The Biopolitics of Parking Space,” we can see how parking politicizes bodies within the legal framework of speech, legal entitlements, and rights associated with accessibility and accommodation. Here, parking becomes a medium for public forum in which political speech and sheer accessibility act as semiotic markers. As an immediate example of what this entails, let me share the following story. In my early days of writing this book, I was sitting in my car on a residential street in Northampton, MA, near Smith College, an elite women’s college, where college dormitories, the Smith College Public Safety Office, and residential homes were located. I had been parked in this spot for a period of roughly two and a half hours. Like the character Tepper who enjoys just sitting in his parked car in New York City reading the newspaper in Calvin Trillin’s (2001) humorous novella Tepper Isn’t Going Out, I was parked legally. There was no parking meter at which I had overstayed my limit nor residential parking permit that I was violating. As I wrote, I saw a woman walking her dog. I assumed that she lived near where I was parked. Next thing I knew, two Northampton City Police cruisers drove up behind me. I could only assume that this woman had called the police because I was parked and sitting in my car on

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her street for quite a while. Perhaps she felt threatened by me sitting at the wheel. However, as I sat in my station wagon with the infant car seat and library books in the back seat and me, a young woman sitting in the driver’s seat still in my seatbelt and typing at my laptop computer, I felt rather inconspicuous. Regardless, I rolled down my window for the officer who requested to see my license and registration. I told him that I was parked here because I did not feel like leaving my car to walk to the college library in the cold (and it was very cold!). He went back to his cruiser to check me out. Upon his return, he informed me that I was in fact doing nothing wrong, and they were following up pertaining to a call concerned about my personal safety. I told him that I thought the whole incident was rather comical, particularly as I was writing a book on parking. The officer chuckled, the police cars left and I continued to sit there and type. Drawing upon Johnson’s work on boundaries, the boundaries of who belongs in the neighborhood were disguised according to asserted concerns of public safety. Johnson’s work on breastfeeding mothers’ exclusion from some pubs attests to similar types of boundaries that mask other forms of discrimination. In Chapter 5, biopolitics and public safety are tethered semiotics of parking. Whether it is Homeland Security removing sections of handicapped parking at Fenway Park in Boston or the rights of beach access in Hawaii trivialized according to a dearth of places to park, calls for public safety result in the representation of biopoliticized accessibility to the right to park as a form of legal entitlement. Here, jurisdiction is a result of bodies who park, as well as how those bodies represent law in the appropriating, usage, or denial of parkable space. Social need is tied to this jurisdictional basis for controlling bodies who park; however, who exactly benefits from that jurisdictional justification for regulation and restriction challenges the image of not only public safety but the visual legal semiotics of parking. Why we park where we do is, as mentioned in Chapter 4, a product of social policing and consequential discipline. In Chapter 5, where we park and why represents a different notion of rights in which the images that come out of parking lots and their usages as well as their restrictions develop an idea of what society needs and who will benefit most. In Chapter 7, “Law Personified: Images of Parking Enforcement”, why we park where we do is often a byproduct of yet a different type of enforcement. Here, the legal semiotics of parking manifest themselves in the images of who has the legal authority in legitimizing who parks where. Here, parking enforcement officers personify law insofar as the person wielding authority is the representation of power. Parking enforcement officers invite a way of seeing law in the everyday as a struggle between ‘soft’ law and ‘frontier’ law. Images of who is doing the enforcing involve the juxtaposition between authority and expertise. Narratives of parking enforcement from parking enforcement officers themselves develop this juxtaposition through the consideration of their own bodies as a constitutive aspect of law. Biopolitically, these officers must encounter gendered perceptions of who they are, what they represent, and how they will perform their enforcement duties. The reality of the parking enforcement officer as a visual legal semiotic that can be either feared or challenged is pertinent when

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considering that in 2006 in San Francisco alone, there were 28 attacks on parking enforcement officers, up from 17 attacks the year before (McKinley 2007). Thomas Dumm (1999: 17) urges us “To think about the ordinary as a contested space in which practices of representation occur links it to the forces of normalization and events.” Using Dumm’s premise, parking involves such a contested space where the representations of enforcement cause a gendered divide between those who enforce the laws of parking, be they ‘meter maids’ on the one hand or ‘parking enforcement officers’ on the other. The image of the meter maid is often feminized and sexualized, and even simply dismissed for its ineffectiveness due to the notion of law being ‘soft’ in the sense that law is malleable based upon who is enforcing it. The fact that increasing numbers of parking enforcement personnel have been victimized, for example, in San Francisco, illustrates the idea that the laws of parking administered by enforcement personnel can be seen as ‘soft’ and those who enforce them as less official as other types of law enforcement. What happens is then that the laws of parking are often taken into the hands of the public, as a sort of ‘frontier’ law supplants the soft law. ‘Frontier law’ is the idea that the laws of parking aren’t ‘real’ laws and can be dismissed as nothing more than procedure to be ignored. In this way, the law in the everyday that parking engenders is also a politics of ordinary, boring, banal life resisted for its mundaneness. Dumm (1999: 7) further reminds us that “the proof of the obscure power of the ordinary cannot be found through the results of surveys or polls, which in this context only participate in the process of normalizing the ordinary, shaping its constitutive elements into pieces of norms, aiding in the destruction of life through its observation … Instead, in making proofs we might focus on the particularity of an example derived from a sometimes more and sometimes less generalizable context.” Furthermore, Dumm (1999: 8) states his work comes from “proofs, selectively culled from observation and interpretation of common circumstance.” In my book, I adopt a similar methodological approach to the study of law in its everyday interpretivist constitutive approach through the context of parking. Anne Wagner (unpublished) reminds us that such an approach analyzes the discourses that exist in social spaces in which “the visual dimension is central rather than marginal.” We can only see that which isn’t so obvious if we take the time to interpret that which we confront in our everyday lives. While seeing isn’t always believing, seeing and thinking through the visual signs and symbols that exist in everyday discourses, particularly those existing in parking, we can see how through a system of signs, law in the everyday is contested, challenged, and created anew in ways that we live each and every day. The Constitutive Approach to Law As described, law happens in everyday places in a variety of ways with influence from social, cultural, and political environments. With everyday context a vital

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factor in how law is situated and seen, the interpretation of these relationships is known as the constitutive approach to law. As articulated throughout this book, law is constitutively determined by actors, places, and points visual that happen outside the boundaries of formal legal settings. In particular, we can see this constitutive relationship between law and society and existing in everyday arenas of cultural and political relevance. Take for example the handicapped parking space. Legally, this type of parking space exists as a parking space reserved for handicapped drivers under the Americans with Disabilities Act of 1990. However, we either use or don’t use handicapped parking spaces depending on social and cultural parameters of who we are, who we aren’t, and who we think should be entitled to use these spaces and under what conditions. Our daily interactions involving handicapped parking spaces vividly illustrate the constitutive relationship between who we are as a society and the laws of parking. Importantly, these laws of parking are constitutively formulated to reflect both legal and societal/cultural standards and challenge what we consider to be law and its authority. John Brigham, a pioneer in the field of constitutive legal theory describes the “social phenomenon we call law [and] the consequences of people understanding the rule of law in various ways [as] there really is no such thing as ‘the law’” (Brigham 1996: xii). What Brigham is describing is a way of seeing rules and order as the product and interpretation of an involved social context that reacts to and recreates what those rules are and what order really is. This approach highlights the fundamental nexus of where and what law is as well as empowering those of us within society to define and generate ‘law’ ourselves. He urges us to shift our perspective from “law and society to one that recognizes law in society” (Brigham 1996: 9). As this book on parking purports, we can see the constitutive approach to law as Brigham suggests in its theoretical, interpretive, and methodological framework of law in the everyday. In parking, Brigham’s perspective on law is enlivened simply because it happens in fleeting, yet banal places and in ways that we each participate in daily life. “From this perspective we realize that rules and commands permeate the social consciousness and structure social action. Rather than simply existing as orders, as if law were like the instructions promulgated by an imperious drill sergeant, law is presented as a part of society, a part of the way we think and act” (Brigham 1996: 26). Therefore, using Brigham’s postulate for a foundational approach for this book, we can think of the legal geography and legal semiotics of parking according to the constitutive legal approach. The search for the best parking space pits man against man, woman against woman, and can often erupt in violence as discussed earlier in the chapter. In a recent episode of the television sitcom My Name is Earl, Joy, a main character, is cruising around looking for a place to park (http://televizzle.org/2007/02/08/blow. php). She spies an empty parking space, unoccupied except for a woman, Liberty, standing in the middle of it reserving it for a friend. Joy pushes Liberty out of the spot by hitting her with her car. In a violent response to the failure of Joy to respect her claim to the space, Liberty pulls a knife and slashes Joy’s tires. In response, Joy pulls out a bottle of hairspray and, with a cigarette lighter, makes a homemade

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blowtorch to use against Liberty. Here, even if in exaggerated form for the sitcom, a parking space is a piece of prime property, whose protection brings out the most irrational of behavior. Constitutively, we can see this violence and behavior as a way in which law happens in the everyday according to an examination of the underlying assertions as exhibited by Liberty and Joy. Rights, their construction, and their contestation develop a foundational aspect of constitutive law, as rights are not only socially fluid and culturally transient, but legally framed as well. Alan Hunt (1993: 107) offers a way to further think about rights by “distinguishing between ‘legal rights’ and ‘sociopolitical rights.’” Hunt (1993: 107) urges caution to insist “this distinction embodies a continuity rather than a stark legal/nonlegal boundary.” When pertaining to parking, the continuity of rights can be wherever the activity of parking takes place whether legally demarcated or sociopolitically determined and permitted. The rights of parking do not have a fixed boundary, as parking is never limited to linear designation, despite the likely presence of marked lines on the pavement. Parking occurs wherever and whenever a vehicle is left to rest. Therefore, the rights of parking are always in flux and consistently up for debate as such rights are based upon both the physical assertion of the rights to parkable space as well as upon the rights of onlookers to contest that physical presence. Hunt’s framework of rights develops a perspective on constitutive legal theory as “a way out of the uncomfortable dichotomy between the importance and the unimportance of law. It serves to focus attention on the way in which law is implicated in social practices, as an always potentially present dimension of social relations, while at the same time reminding us that law is itself the product of the play and struggle of social relations” (Hunt 1993: 3). Thinking then through Hunt, we can better understand the violence between Liberty and Joy as the contest of rights within the sociopolitical act of reserving a legal parking space and not just simply violent acts of irrational aggression. As mentioned, the source of law in the everyday within this constitutive framework uses the geographic and semiotic approaches of collecting material as the basis for further examination. This material comes from an array of everyday places, contexts, and activities. Mariana Valverde (2006: 32) describes this type of interpretivist methodology in her own work, as there cannot be a universally useful method for the analysis of representations of law and order that can be reduced to a few procedural requirements because the issues that are central to scientific discussions about methodology – validity, reliability, ability to predict future events – while not wholly irrelevant, are rarely directly useful for the purposes of qualitative analyses of what are often unique sets of signs.

Using Valverde’s approach, the meanings of representation that implicate law and society arrive on a case by case basis, each of which holds a different construction of meaning. This methodological approach is particularly relevant to parking,

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as the places where we park and the signs that direct us how to park are never truly uniform. Additionally, according to Brigham, what happens in the everyday is social phenomenon that is fleeting and spontaneous at best. Furthermore, by using such an approach, we can see how law itself is fluid and transient, unable to be pinned down, as we make it happen in our everyday lives, which themselves cannot be pinned down for routine or uniformity in exercise or application. In Chapter 8, “Emblematic Folk Legality: The Crafting of Law through Parking Appeals,” I examine the nature of power from the perspective of parking appeals. Through my participation on a parking appeals committee at a small liberal arts college, I was able to see that the process of parking appeals, from their initial writing to their reception by those who judge them, is itself a crafting of law. Furthermore, such crafting is emblematic of folk legality in which everyday people are making the law, either by crafting what to say in the appeal that will best represent their case or by crafting the legal response to that appeal as it is written. Parking appeals are a fascinating aspect of law in the everyday as the appeal is a democratic response of due process to the administration of law. In my work, appeals were written in either an entitled or apologetic tone through which the status of the person writing the appeal was often articulated. Both the tone and the declaration of status become a way of asserting either power over or deference to the law or legal body of the parking appeals committee who either grants or denies the request for review. In turn, the committee members, who were nonlegal actors (i.e. not parking enforcement officers), assert their legal prowess depending on what the appeal says and how it has been written. Parking appeals can be mapped and interpreted according to the earlier notion of soft law, where the laws of parking through the ability to appeal a ticket are sometimes viewed as malleable both by the violator as well as the committee. What is exciting in this type of research is the context of the ticket, the input by the committee, and the appeal itself as the signs and actors involved are specific to each event. In terms of folk legality, the parking appeal heard by the committee and written by the general public is an emblem of legality where the crafting of law itself provides a constitutive framework through which to see law in the everyday. Michael Lipsky (1980) contributes to my thinking about this notion of folk legality and the emblematic crafting of law through his development of who is really making the law (hint…it is not legislatures, lawyers, or the courts). Lipsky (1980: 3) describes “street-level bureaucrat(s)” as “public service workers who interact directly with citizens in the course of their jobs, and who have substantial discretion in the execution of their work.” Through the context of parking, I expand upon Lipsky’s attention to the nonlegal nature of governance as operating in bureaucratic office settings to operating on the streets. This is particularly relevant in Chapters 7 and 8 where those who make decisions about parking exercise personal discretion in carrying out the laws of parking. These actors range from parking enforcement officers to a parking appeals committee to onlookers in parking lots to people who themselves park their vehicles. Accordingly, we

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can see Lipsky initiating a foundational aspect to the constitutive approach to law where everyday actors in everyday places make law happen. In Chapter 9, “Legality Beyond the Scope of Policy: A Constitutive Approach to Parking,” the idea of making law within a constitutive framework of law is debated according to the making of law as well as its impact. By contrasting two approaches within the constitutive approach, this chapter develops the tension within the constitutive approach in terms of the making of policy. Here we examine exactly how parking uniquely provides the book’s contribution to the field of law in the everyday in which law happens as a result of the mass public on the street. Throughout this chapter, and the book in its entirety, power is key to the development of law in everyday arenas, as empowerment results from considering law as alive in everyday life. This notion of constitutive law broadens the spectrum of what law is precisely as policy and policymakers no longer simply reside in legal houses of formal governance or in courtrooms. Here, law is alive precisely because it happens outside these places and in everyday places where it is contested, rejected, or affirmed. In her work on governance, Jane Jacobs (1992) examines sidewalks as that place where law happens. She tells us the “the first thing to understand is that the public peace – the sidewalk and street peace – of cities is not kept primarily by the police … [but] by an intricate, almost unconscious, network of voluntary controls and standards among the people themselves, and enforced by the people themselves” (Jacobs 1992: 31). In her view of law in the everyday, Jacobs asserts that law happens because of “eyes upon the street” and by its “users,” as “a wellused city street is apt to be a safe street. A deserted city street is apt to be unsafe” (Jacobs 1992: 34–5). Jacobs’ view of the constitutive approach to law is that those on the street make and enforce the law. In this way, we can see Jacobs’ attention to the street as the constitutive site of law in the everyday. Such a perspective is particularly applicable to the study of parking generated in this book where eyes on the street and the users of the streets or places where parking happens make law happen through everyday parking-based governing practices. In conclusion, just as the United States Constitution may be judicially interpreted to be a living, breathing document that is responsive to the social, cultural, and political evolution of American life, we can constitutively view the constitutive impact of parking through the everyday evolution of rights and liberties. Parking lots are no longer just places to leave one’s car; rather, parking lots contribute to the contested relationship between public and private notions of ownership and usage. Central to this relationship are principles of speech, property, access, assembly, racial equality, and religious tolerance. This book constitutionally constructs the parking lot in light of public and private notions of ownership, interest, and usage as rights, identities, and claims of ownership are topics contested within judicial doctrine. These are key elements to studying the parking lot as a site of law and politics. Together, parking and the framework of the Constitution reveal critical applications of power. We can consider the parking space as a type of space that is constitutionally contested from the Fourteenth Amendment’s Equal Protection

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clause to the First Amendment’s guarantees of the free exercise of religion and free speech as well as the guarantee against the establishment of religion. In this way, a constitutional approach to the study of parking reveals notions of right, identity, and property. To begin, the idea of constitutional space is a concept established in terms of Fourth Amendment privacy rights. Certain spaces, such as a phone booth, carry with them a reasonable expectation of privacy (Katz v. United States, 389 U.S. 347 (1967)). However, such spaces as an open field or cars do not (Carroll v. United States, 267 U.S. 132 (1925); Oliver v. United States, 466 U.S. 170 (1984)). Parking lots however can be places where people do more than just park their cars. Suspicious activity and police action occur (New York v. Earl, 431 U.S. 943 (1977)), political speech happens (Kohn 2004), and politicized identities transpire such as in a variety of parking spaces and parkable places. Mark Weiner (2006) sees this tethering of law to society in his book Americans Without Law: The Racial Boundaries of Citizenship. Here, Weiner considers the notion of juridical racialism and how the law is made and applied according to race and legal citizenship through the framework of a “cultural history of jurisprudence” (Weiner 2006: 7). He provides insight into how the constitutive approach to law works by “mapping the territory of American civic belonging through a culturalist view of the past” (Weiner 2006: 131). In using Weiner’s framework, this books attempts to provide a mapping of the parking space in terms of the everyday cultural, legal, social, and political relationship between law and culture. Weiner’s establishment of the relationship between law and culture “by drawing scholarly attention to symbolic themes running throughout and unifying social experience” can be seen as a vital tool for exploring the constitutive approach to law (Weiner 2006: 131). Socially, in a vehicular society such as ours, we share the experience of parking and the range of governance that is included in that experience. Symbolically, parking generates a thematic approach to how law works, ranging from legal geography to legal semiotics to constitutive legal theory. The scholarly attention that this book devotes to parking seeks to enliven our understanding of how law works in our everyday lives. Conclusion In this book, I examine the semiotic and spatial markers of parking found in parkable space, its construction, its enforcement, and its resistance. Using a constitutive approach to law, I address aspects of authority, legal consciousness, gender, race, handicap, and violence in parking. The symbolism and spatiality that I explore is concerned with implications and hierarchies of enforcement, but also expectations of right and property associated with identity, belonging, and legitimacy that act as pegs for jurisprudential determinations, the embodiment of jurisdiction, and the debate concerning the public good. Throughout the work, I consider the scope of parking spaces by rethinking the structures and information usually presented as unimportant and ordinary. Despite their ubiquity in usage and

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presence, parking spaces are woefully underexplored as a source and site of law. Parking spaces are more than just places to park; instead, parking spaces vitally contribute to our understanding of how law works from day to day. The parking space is a place of socio-legal meaning where property claims and questions of right shape identities. It is this process of rethinking the banal space where a car is parked that an engaged area of constitutive legal importance emerges within the study of law, politics, and culture. This book is the exploration into how parking spaces are interpreted and politically challenged according to cultural statements of local power, ownership, and identity in communities where the contest of authority reveals new ways to think about how law works in our everyday lives.

Chapter 2

Construction of a Political Text: The Built Environment as Public Good Wherever there are cars, there is parking. Purdue University land-use scientist Bryan Pijanowski is busy counting the nation’s parking spaces. In 2007, he had tallied 355,000 off-street, nonresidential parking spaces in Tippecanoe County, Indiana. He wants to extend his count to the entire nation because “I worry about our society being so disconnected from nature that we surround ourselves with concrete,” he says. “I just don’t think we really want to pave it all over” (Clayton 2007). Pijanowski’s study is to determine whether there is a parking surplus in the United States that may be connected to the not-so-free cost of free parking. Parking Guru Donald Shoup, Professor of Urban Planning at UCLA and author of The Hidden Costs of Free Parking, applauds Pijanowski’s approach. Shoup asserts “This work is unique and important, quantifying something that’s not been quantified before” (Clayton 2007). However, there is much more value to the study of parking spaces than just simply counting them. My approach to the study of the parking space is one in which the data collected is situationally and discursively dependent upon observation and critique that shows us something new about how law works in everyday life. In this way, there is much more to be learned than just numbers. As a political construction, the parking space reveals how law is contested and enforced as claims of ownership are staked out, and even killed for (as described in Chapter 1). Politically, the parking space tells us who we are as a society through who we value and why. Legally, the parking space shows us the social ways in which law works without the prerequisite of legal hierarchy for law to function. This is why the study of parking spaces must involve analyses of power, which cannot be derived from a standard numbers-driven methodology. This information must be considered on a case by case basis taking into account factors visible to both the researcher and the researched; it is expected that these details will change according to varying times, places, and interactions. Normative claims about parking cannot necessarily be made, or if made, be trusted, to show us the full picture of how law and society constitute one another simply because parking space-based situations depend on a myriad of specific factors which can be studied, but not charted or graphed without missing important circumstance-based details that themselves provide the juicy spontaneity of social interaction. What this entails then is the rethinking of politics and law according to the structure and relationships of everyday local governing. Local politics are often fleeting and unable to be standardized into the framework of either Pijanowski or Shoup

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in which numbers are preferential and dynamics of power are less present or important. This chapter will examine the evolution of parking as a public good through competing notions of rights, property, and legal consciousness that the built environment facilitates and encourages. The parking space is a legal construction that is particularly obvious, yet boring and banal. The painted lines on the pavement formally show us the parameters of where our parked car belongs. Sometimes those parameters are home-fashioned space-saver equipment that delineate a shoveled-out parking space free of snow that fits a car. Such space-saving materials may include a orange traffic cone, a lawn chair, a laundry basket full of folded clothing, a cat scratching post, crates with sticks flying white flags, even a table set for two with wine (Wolfe 2011; Goodnough 2010, Silbey and Ewick 1999). With such a variety of forms, parking enforcement makes sure that these forms of demarcation are acknowledged and adhered to properly. Its sheer ubiquity and expected relevance to everyday activities makes the parking space a keen semiotic site of governance in seeing how law works. As a semiotic, the parking space provides a symbol of how law functions in daily living. As a semiotic of governance, the parking space is a symbol or sign of how we expect law to function and how it is performed in our expectations and practices. Sitting on the surface of our streets, it reveals the geographic surfaces and boundaries of law through the painted lines, a host of signage designating which type of parking is permitted, various types of parking enforcement, and especially our own reaction and resistance to its presence. Engendering dispute over rightful occupancy, or who can park where, why, and how, the parking space shows us law’s relationship to society through legal pluralism, or the many ways that law is practiced and embodied on the streets in our everyday lives. In parking spaces across the United States, public and private notions of control are enmeshed with one another while the presence of politics and authority of law is continually contested. Where we choose to park is mediated, if not directed in our own minds, by what other people will say. This Benthamite notion of internal control has in fact more power than formal parking enforcement. Public notions of control may be the angry retorts, disapproving glances, or even violent reactions to where we opt to leave our car. On the other hand, more private, albeit publicly funded, sources of parking authority such as tickets, fines, or towing, may in fact become political markers of authority that we may in fact either disregard and/or resent. However, many of us choose to obey both the internal policing of where we should park as well as the threat of breaking the formally enforced laws of parking. Where we park our cars involves both internal as well as external notions of belonging. In this way, ownership and rent are highly fluid and the source of much anxiety. We often feel better if no one bothers us (“bother” in a formal or informal sense of enforcement) about where we have chosen to park. Here, right and identity are often at odds and conflicts are common. What this means is who we are and where we think we should be able to park is often conflicted by competing parkers’ sense of right to that same parking space. This chapter will consider these issues as well as how the built environment of parking is based

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upon a kind of space-based law. In this way, the complex ways in which the public good emerges out of contests over parking, and the contention that legal consciousness can be found by looking at the street-level meaning of property, right, and ownership. The rules and the social meanings that constitute parking and parking spaces make these places and environments special settings for the study of constitutive legal theory that develops the discursive and non-hierarchical relationship of governance and legality that happens between law and society. Parkable Space and the Invention of the Modern Parking Space With the advent of vehicular forms of transportation, the need for a place to leave these methods of transport arose; hence, the construction of parkable space was born.1 In this book, parkable space is a term referring to those places where cars are parked. Such space may include parked-on terrain that is paved/unpaved, with/without designating lines, or legal/not so legal. Arguably, the earliest parking spaces evolved from hitching posts for horses and/or carriages as non-motorized forms of transport to plots of dirt for early Model-Ts with the invention of the motorized vehicle. This transformation of non-motorized to motorized resulted in today’s ubiquitous parkable space, a paved piece of terrain on which a car rests. As early as 1910, New Orleans v. Lenfant (126 LA. 455, 52 So. 575 (1910)) describes this act of parking as “to park, literally speaking, is to bring together in a compact body, within a park or enclosure, objects not in actual service but held for use when required” (Lloyd 1929: 336). Roughly 100 years later, parking spaces can be almost anywhere, from the front yards of homes to curbside streets to vast open areas designated as parking lots and even buildings built specifically for the purpose of housing resting cars known as parking garages. Generally speaking, the parking space is usually conceived of as a marked section of pavement temporarily occupied by a parked car. These sites of temporary property invite special consideration into the nature of law’s place in our lives. If we depend on our cars to take us where we need to go, then cars are effectively an extension of who we are. The regulation of where those cars are parked also takes into account the relationship that exists between a person and their car. As such, our personhood as members of the public has become vehicularized, or based around the cars we drive. Even if we don’t drive, our identities are nonetheless characterized by our lack of participation as agents in a vehicularized society. Across the urban American landscape of the 1920s, the need for order in an everincreasing automobile-based society demanded the partitioning of a space reserved for parking. In 1929, legal scholar William H. Lloyd (1929: 336) described the 1  Of course, while ‘parking’ is used here to refer to those places where cars temporarily come to rest, the term ‘parking’ can be much more amorous in meaning. In this way, the context of ‘parking’ may conjour up images of teenage love, the 1950s, and the steamy windows of a vehicle at night in a remote location.

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problem of parking as “the ever-increasing number of cars, their habitual use by all classes, and, too frequently, the inadequacy and inconvenience of other means of transportation, lead to conditions that call for intelligent regulation in the interest of all who use the street and highways of our cities and towns; of those who live there, and of those who come there on business or for pleasure.” Lloyd’s call for ‘intelligent regulation’ is the early establishment of law through regulation. This form of governance is the root of both the municipal regulation of parking as the ensuing legality characterized in the discursive trends to resist that regulation. Nonetheless, in the early twentieth century, whether on the streets, in lots, or in garages, parking was a growing controversy. “Aside from the weather, there is no question more discussed in our cities today than that of automobile parking,” declared the United States Conference of Cities in 1928 (Holtz 2001). Once again, the attention given the situation by municipal concerns, such as the United States Conference of Cities, show us that the laws of parking were seen as best dealt with by urban authorities. In 1933, the “World’s Largest Parking Terminal” was boasted by the Chicago World’s Fair (Holtz 2001). In 1942, San Francisco’s Union Square housed a municipal parking garage capable of parking 1,700 vehicles and, if the need should arise, “pre-war possibilities as an air raid shelter” (Holtz 2001). The secondary use of San Francisco’s Union Square as a possible air raid shelter further emphasizes the quotidian place of the automobile in urban society at the time. Tellingly, the municipal regulation of the car also provides valuable insight into the automobile as a public good that is governable by local authorities. This revelation further develops the evolution of parking as a public good as it tacitly supports the tethering of municipal regulation to economic interests. However, despite the modern advances of the automobile, parking is not always limited to the occupancy of motorized vehicles. In the Amish landscapes of Wisconsin, Pennsylvania, Ohio, Indiana, and New York, horse-drawn carriages have their own parking spaces at local Wal-Mart stores (“Wal-Mart uses some horse sense,” Wisconsin State Journal, January 21, 2007, D3). These spaces have hitching posts for the horses with space allotted for the carriage as well. Clearly a move by the global mega-corporation to encourage the local community to come and shop, Wal-Mart asserts that it is simply responding to customer demand. Ironically, the parking spaces of the past are now the parking spaces of the present, where horses and buggies park right alongside cars and trucks. Does this mean that Wal-Mart is responsive to a diverse community by accommodating the needs of the few? If Wal-Mart’s attempt to include a marginalized population is the continued evolution of the public good, then it must be also noted that it is motivated by economically-driven virtues. In this way, the irony of the consumer-responsive creation of the Amish parking spaces by Wal-Mart in reshaping the meaning of the public good through parking is not lost, for the interests of business remain the same now as in the early nineteenth century. In these places, the public good is construed to reach out to all members of the community, who of course, are hopedfor Wal-Mart shoppers, regardless of religious preference or vehicular lifestyle. In present-day American society where corporations such as Wal-Mart dominate

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urban as well as rural landscapes, that which is considered to be the public good reflects the easiest access to cheap consumer products. Or in other words, through this adaptation of public good through the medium of parkable space, Wal-Mart is assuming the reigns of municipal regulation in a way that privately responds to public demand. To return once again to the earlier discussion of the roots of parkable space, the economic interests tethered to the need for order acted as the guiding motivation for initial parking space creation and its subsequent regulation in local communities around the United States. In 1923, journalist and press historian Henry Allen Brainerd voiced parking woes in Lincoln, Nebraska. In his prescient words concerning a recently passed two-hour limit on downtown parking: The parking ordinance that has been brought into service in the city of Lincoln is going to work a hardship on every person who rents space in these large buildings. The two-hour limit will require them to run down and move their cars, if for only a few feet, or “just around the corner”. This does not, in the main, look right, and in some respects the businessmen have a right to kick and kick hard, but what is sauce for the goose is sauce for the gander, and we must all abide by the law for the good of all. (Official Nebraska Government Website: Nebraska Historical Society, “Parking problems in the 1920s,” www.nebraskahistory.org/publish/publicat/timeline/parking_problems.htm (accessed March 21, 2008))

Brainerd’s statement foreshadows the manipulation of the public good according to the needs of business. Here, the message is that municipal regulation that serves business interests, namely by ensuring a high turnover of customers by enforcing the two-hour parking limit in downtown areas, voices the surrender of the public good to economic advantage. Similar concerns of economic prosperity were voiced by Newark’s Broad Street and Merchant’s Association since the 1910s. This association even directly approached U.S. presidents with parking concerns. In order to protect the ability of municipal businesses to flourish in Newark through parking space turnover and accompanying turnover of shoppers, the need for controlling and regulating the occupancy of parking spaces became urgent. Where to park became as important as how long that car was parked. The municipal regulation of parking became automated, even industrialized. This pressing need for ordering people and their vehicles in a regulated way in which business interests and the public good were keenly intertwined aspects of municipal life spurred the development of the parking meter. In both the creation of parking spaces as well as their regulation through parking meters, the discussion about rights becomes a primary concern related to parking in general, as the space itself becomes a form of contestable property. It is property in two competing regards: first, as municipal or public property that is temporarily occupied, and second, as privately claimed space by the individual

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who parks there. The intended designation of this property is visible at the head (or front) of the parking space usually by the presence of a semiotic marker. This marker is usually a vertical sign, such as a parking meter (as a form of public marking indicating regulated, temporary occupancy) or a sign announcing exactly who, if anyone, the space is specially reserved for. Examples of this type of marked property are illustrated by a variety of types of parking spaces including the Handicapped Parking Space, the Customer with Child Parking Space at Big Y Grocery Store in Amherst, Massachusetts, Judges Only Parking Space at Franklin County Courthouse, Greenfield, Massachusetts, Chancellor’s Reserved Parking at the University of Hawaii at Hilo, Fifteen Minute Parking Spaces (in Northampton, Massachusetts, at the University of Massachusetts, Amherst, and other related settings), Fire Lanes (as a demonstration of a protected anti-parking area), Visitors Only Parking Spaces at the University of Massachusetts, Amherst, and Physicians Only Parking Spaces at University Health Services, University of Massachusetts, Amherst, to name just a few key local sites of study for this book. Through their markings, parking spaces carry semiotic jurisdiction in order to designate a site of special belonging as a reserved piece of property for the type of person or type of usage named in the marking. These markings make the public aware of its special members by ensuring them a place to park. Optimally, these signs work as the Handicapped Parking sign does, where personal shame and public humiliation, much less the threat of a hefty fine, work together to keep these spaces reserved for those specifically intended to occupy them. This practice of marking special reserve emphasizes the transition that the framework of public good through parkable space makes from economically-driven concern for the public to a more particularized view of who the public may in fact include and protect. Through these spaces (please see Chapter 4 for an in-depth look at the Handicapped Parking Space), the good that the public may offer reaches out to those on the margins of both ability and status. The Parking Public and the Public Good While it is easy to see what the people who drive cars look like when they are at or near their cars once they have parked, it is not so easy to tell whether an unoccupied vehicle is rightfully parked with regard to who the driver of the car may be. Policing the proper parking space occupancy however becomes a challenge when the driver of the vehicle is not with his/her car. The car itself is anonymous, unless that car is itself known as belonging to a particular person. If this is not the case, then the parking meter and the sign representing and regulating the rules of parking are forms of law that are enforced socially, unless of course there is a state-issued handicapped parking placard or other similar type of official designation displayed. Therefore, the intersection of formal and social law where legal consciousness directs those who park is present at this intersection of semiotic determination. The implications of this nexus between the formal law of

Construction of a Political Text

Figure 2.1

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Chancellor’s Reserved Parking, University of Hawaii at Hilo, Hilo, HI

the sign and the informal law rooted in legal consciousness is that we often respect the vertical authority controlling the space either by feeding the meter for fear of receiving the dreaded parking ticket, by avoiding parking in the space if we don’t feel that we belong, or by verifying the rightful occupancy of others who park in reserved spaces. However, by rejecting the authority of the sign or marking, we are still participating in the formal/informal relationship of law, for rejection is itself an acknowledgment of expected behavior. Whether in parking lots or in parking spaces, the place occupied by cars creates a socio-legal estuary of property, identity, and right by privatizing publicly supported spaces, such as the Judges Only Parking Spaces at the Greenfield Courthouse or Physician Only Spaces at UMass for usage by designated drivers, fostering genderbased stereotypes through consumerism in the Customer with Infant Parking, enforcing a timed presence that may also be consumer-driven in the Fifteen Minute Only Spaces, and reinforcing the social image of disability in Handicapped Parking spaces. Additionally, Chancellor or Vice Chancellor Parking, such as at the

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University of Hawaii Hilo, foster a politics of status2 protected by legal insignia. It is upon closer inspection that parking spaces reveal a hierarchy of occupancy enforced on both social and legal levels. “Law does not need to determine every aspect of life to have a constitutive effect. Law constitutes along with other social forces, like religion, family, and entertainment. The law we find in society we call constitutive” (Brigham 1996: x). Drawing upon Brigham’s framework, the reason why we respect this regulation of spatial reserve is a constitutive approach to law in “places where law matters” (1996: x). In parking places, signs as well as spatial possibilities govern and enable a way of considering the less overt side of politics in which people are categorized through the politically charged dynamics of power that serve to both marginalize and separate. Whether a politics of status that legally reinforces hierarchy, or the limiting of available time, parking spaces and parking meters reveal the constitutive approach to law. What’s interesting, however, is the extent to which the constitutive view really captures the tension between politics and legal authority. For instance, reserved parking for deans also existed at UH Hilo; however, in the words of one dean, he would never make use of it precisely because of the reputation that reserved parking confers on its occupants. This particular dean felt that for him to have a reserved dean’s parking space alienated him from the faculty under his authority. Recognizing the social hierarchy that such a space engenders, this dean refused the privilege. This privilege is what geographer Kathryn Besio calls “rockstar parking” where the coveted spaces go to people with distinction.3 Fame, fortune, and power have been expanded at the localized level through the creation of particular parking spaces. However, those on the margins do not always have equal footing in the hierarchy of status. Handicapped Parking is a legal concept starting with the Americans with Disabilities Act of 1990, where other types of specialized spaces are not legal in their creation at all. The reserve that the handicapped spaces command is that which is mimicked by similarly reserved specialized spaces. In a similar fashion to the manipulation of the public good by such corporations as Wal-Mart to reach out to its marginalized Amish shoppers, specialized spaces reserved for members of the public determined to have special status, such as doctors on call, university chancellors, judges, deans, pregnant women, or folks temporarily parked in Fifteen Minute Zones perform the same manipulation of the public good. The prioritization of marginalized ability that the handicapped parking spaces provide, when mimicked by specialized spaces that preference status, may in fact narrow rather than expand who is protected through parking space reserve in the larger scope of the public good.

2  My thanks go to Chris Frueh at UH Hilo for offering me this term and to Randy Hirokawa for sharing his story about deans’ parking during the College of Arts and Sciences Faculty Lecture Series, University of Hawaii at Hilo, April 16, 2010. 3  Thanks to Kathryn Besio for offering me this term during a Guest Lecture for “Cultural Geography” during the Spring 2010 semester at UH Hilo.

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However, that special reserve can itself be manipulated by both ability and professional status. On the television show, House, M.D., Hugh Laurie plays Gregory House, a cranky doctor who limps and uses a cane. In the episode, “Needle in a Haystack” (Fox.com: House, M.D. Recaps “Needle in a Haystack – 2/6/07,” www.fox.com/house/recaps/312.htm, February 6, 2007 (accessed March 21, 2008)), Gregory House challenges the right of a new doctor to park in his parking space, a handicapped parking space with his name on the sign. House, who parks in the handicapped parking space reserved especially for him with his name on the sign, suddenly discovers that ‘his’ space has been moved a short distance away. The new doctor, a woman confined to a motorized wheelchair, now parks in the space. House loudly objects to both the hospital director, Dr. Cuddy, and the new doctor on the grounds that while he has to walk, she must only push a button to move. He argues that he is in fact more disabled than she, and is therefore more deserving of the closer space. Despite the competing handicaps of Dr. House and the new doctor, this particular handicapped parking space contestation is focused more on status and belonging, and less on the hierarchy of handicap. As a new member of the hospital, the new doctor is a visitor; where House belongs, she does not. This example of visitor parking is characteristic of the hierarchy of need and claims of space based upon identity that those who park and do not readily belong are faced with. Visitor parking is one such area of need, where notions of right, belonging, and identity are conflated with the right to park as a staking of territory. Dr. House is angered by the removal of his reserved space that makes way for the visitor, who, like himself, is a handicapped parker. However, as Dr. House’s outraged protests gain him the reinstatement of his preferred parking space, visitor parking is a form of parking that, while making accommodations for newcomers, is actually contradictory in its welcome. Limitations of time and person are linked to the qualification of being a visitor. As the case of House illustrates, visitors are not always welcome to park wherever, even in handicapped parking spaces where the hierarchy of need and belonging ensue. Here, the public good is individualized according to a person-by-person breakdown of who may be included in the realm of the public good. However, visitors can be invited as special guests, as is the case in private shopping parking lots such as Babies “Я” Us and Stop and Shop with Expectant Mothers Parking Spaces and Customer with Infant Parking Spaces respectively, or in public parking areas with Handicapped Parking Spaces. However, as is the case in House, certain visitors are afforded exclusive access to public space, as is the case with Judges Only Parking Spaces at the Franklin County Courthouse in Greenfield or Physicians Only Parking Spaces at the University of Massachusetts Health Services in Amherst. In both circumstances, visitor parking designates who belongs and, through this designation, limits accessible and available space as well as those who aren’t invited. At the Five Colleges in Western Massachusetts, visitor parking is an important statement of inclusion of the public in a place where there is a broad contingent

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of visitors, including students from the surrounding colleges, parents, visiting academics, visiting staff, visiting members of the community, visitors from out of town. Options for visitor parking range from the registration for qualified temporary stickers, renting parking space by feeding the meters, searching out coveted visitor parking spaces, as well as parking off campus and arriving on foot. Like the experience of the new driver in House, being a visitor can be problematic. On Thursday, November 10, 2005, at approximately 1:20 p.m., a member of the Five College Community, a University of Massachusetts graduate student and Amherst resident, Elizabeth Cahn, was attending a conference at Hampshire College. As a visitor to the campus, she parked in a student lot with numerous vacant spaces, not having seen any available visitor parking. Consequently, she received a ticket for $35. When she protested the ticket at the Hampshire College Public Safety Office, she was told that the ticket was not “for failing to park in a designated visitor parking area, but for not registering the vehicle with public safety.”4 As it turns out, all vehicles on the Hampshire College campus must be registered, even casual visitors. Visitor parking at the other four schools is not as restrictive. At both UMass and Mount Holyoke College, there is clearly marked visitor parking. At Smith, visitors may park in visitor spaces provided in the recently-built faculty parking garage. At Amherst College, however, there is no visitor parking, as visitors are told to park in publicly metered spaces in the Amherst town center. Here, visitation is the opposite of belonging. Particularly at Amherst College and to a lesser extent at the other four campuses, visitor parking creates a sense of identity according to the placement and restricted availability of parking spaces reserved for visitors. Notably, visitor parking is not as much of an issue in the heavily studentpopulated Five College towns of Northampton and South Hadley, where residents and visitors alike can park in metered spaces or on the city streets. However, in Amherst, from September through May, city streets are strictly reserved for town residents who have a town-sanctioned parking permit. This restriction is in place to keep visitors, i.e. students, from claiming parking spaces and leaving no place for ‘rightful’ residents to park during the school year. The idea and practice of the Amherst Town parking permit throws a wrench into Shoup’s (2005: 436) belief that curbside parking is a public good because of the sheer exclusivity of those who actually qualify to park in these spaces in Amherst at the curb. In fact, the Amherst residential parking permit narrows the discussion of who the public may include according to who can obtain a permit to park in town and who cannot. The notion of the public is further narrowed to financial belonging whether as residents or those who pay the appropriate tuition.

4  Elizabeth Cahn has generously shared her documentation regarding this matter with me, for which I am grateful. This documentation includes her extensively researched letter to Delroy Patrick, Department of Public Safety at Hampshire College, Amherst, Massachusetts.

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Parking Meters as Jurisdictional Semiotic and the Enforcement of the Public Good As early as the 1930s, the parking meter was invented. In 1935, Oklahoma City Chamber of Commerce Traffic Committee Member Carl C. Magee filed a patent for a “coin controlled parking meter” (The Parking Meter Page: History of Parking Meters, www.ionet.net/~luttrell/history.html (accessed March 21, 2008); Wikipedia: The Parking Meter, http://en.wikipedia.org/wiki/Parking_meter (accessed March 21, 2008); see also Beyer, Gregory, “After 55 years, time really is up,” New York Times, December 31, 2006, 6). His parking meter was first installed on July 16, 1935, in Oklahoma City, Oklahoma, and received the patent number of 2,118,318 on May 24, 1938. Called the “greatest traffic invention since the stop light,” the original parking meter was characterized according to the following: a metal stand four feet high on the top of which is a clock-like face with a large indicator. Parking places must be indicated by white lines, and a meter placed on the sidewalk alongside each space. When the driver wants to park, he must place a coin (usually a nickel) in the machine. The indicator then disappears until the allotted time has elapsed at which time it swings back up, again becoming visible. The patrolling traffic officer is authorized to cite the owner of any car parked beside a meter where the indicator is visible for violation of the parking ordinance. (Orrick 1941: 651)

Magee’s purpose in creating the parking meter was to create a source of revenue for the growing metropolis of Oklahoma City by opening up more parking spaces for shoppers and visitors from out of town. He felt as though the town employees, by parking all day long in the same spot, were not rightfully occupying the city’s parking spaces. Since then, Magee’s invention has proved to be a vital source of revenue for municipalities by allowing them to financially police their available parking spaces in order to promote local business interests. Interesting as well is the effect that Magee’s invention has had on labor and capital through the relationship between customer and employee. Through Magee’s motivations to create a form of disciplining restraint, the parking meter serves to preference the parking rights of those making purchases over the rights of those who provide the service of labor. The parking meter also gave us a new type of law enforcement officer, namely the parking enforcement officer, who was responsible for making sure that meters were obeyed and the time allowance not violated. Parking meters are responsible for the initial policing of parking spaces, with parking enforcement officers subsequently following, and the general public finishing the job of parking governance. Because parking meters are locally situated, the monies collected from the meters are locally beneficial. However, the collection of those monies is viewed as public in terms of publicly benefitting those who feed the meters. When the collection of funds from parking meters is privatized, a tension develops. In

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Chicago, this tension is particularly ripe. Since 2004, Mayor Richard M. Daly has sold or leased out a number of public institutions, including the Chicago Skyway, the underground garages of Grant and Millennium Parks, and the city parking meters. This transaction netted the financially strapped city $1.15 billion in revenue (at the time of publication) (Guarino 2009). The parking meter deal between the city and Chicago Parking Meters LLC, a Morgan Stanley company, has been called a “dubious financial deal” by the Chicago Inspector General’s Office (Guarino 2009). The deal is dubious, indeed, from the perspective of one local shopowner, Sam Wolfson, who is adamantly in opposition to the deal. Wolfson asserts that “City Council members couldn’t care less for the people of Chicago” as the deal was approved by the City Council in two days, without seeing the full contract (Guarino 2009). Meanwhile, the inspector general’s report found the city may have undervalued the meters by $974 million, as reported by Mark Guarino (2009). Alderman Leslie Hairston appears to support the skepticism of Wolfson, as she has asked the state attorney general to investigate the possibility of “‘deceptive business practices’ concerning broken meters and subsequent parking-violation fees” (Guarino 2009). In response, the Attorney General’s Office has issued subpoenas “to determine whether there has been consumer fraud” according to spokeswoman Robyn Ziegler (Guarino 2009). In this situation, the privatization of public services is viewed as corrupt. This view contributes to the notion that parking meters are a form of law that should remain in the public domain with monies going back into public, rather than private, coffers. This view preferences public control to privatization, which of course, exalts the faith that the public holds in state-run authorities for purposes of accountability; in privately run companies, accountability is generally less available. In contrast to the situation in Chicago, local monies collected in a more public manner may alter how the collection of meter fees is popularly perceived by the driving and parking public. This second example is at Forbes Library in Northampton, Massachusetts. Serving as the town’s public library, parking at the library has become a protected commodity. In the library’s parking lot, parking meters exist to control parking at the library and to collect a unique source of revenue, namely money to pay for new library books. At the Forbes Library, also home to the Calvin Coolidge Presidential Library and Museum, usage of the parking lot requires renting space for one’s car and also functions in a way to financially support the library. Parking meters are set up to collect revenue for the library’s book fund (see Figure 2.2). Additionally, for those quick runs into the library to return books, specially reserved spaces are set up near the handicapped parking section on the side of the building for visits of 10 minutes or less (see Figure 2.3). Following from Magee’s original purpose in creating profit-driven turnover, here the parking meter is used as a source of renewable revenue that benefits the entire community, not just business owners. The library’s method of parking affirms a system of public good, where the framework of paying parking meter

Figure 2.2

Library book fund, Forbes Library, Northampton, MA

Figure 2.3

Book return, Forbes Library, Northampton, MA

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fees supports the needs of the community, where the quarter deposited into the meter provides the library directly with the funds to purchase more books. By paying parking meter fees, the library benefits, the person paying the fee benefits, and the community library is locally self-sustained. By returning library books or checking out new ones, quarters paid for library parking are one important way in which the person who parks in the Forbes library parking lot is directly involved with local municipal government. Parking at the library in Northampton promotes the spatial recognition of legal consciousness, as the funds from parking meters go to support the library. It feels good to pay the quarter to the meter that will result in new books and a healthy library. Parking in a more urban setting may alter the legal consciousness linked to parking. Erik Feder, or the “Parking Spot Whisperer,” recognizes that parking in New York City is practically a religion (Morgan 2005). Feder is on a mission to “help the little guy” find a place to park because “it hurts when you get towed or ticketed. It hurts for a long time.” In his beaten-up economy car (specifically, a sputtering Hyundai Accent with a cracked windshield), Feder drives around the city for 60 hours per week as a form of resisting New York City parking authorities by opening up channels of knowledge about available parking and parking tips in the form of a published guide to parking, The Feder Guide to Where to Park Your Car in Manhattan (and Where Not to Park It!), and a free web-based newsletter, Parkazine. Feder seeks to expand the legal consciousness of Big Apple parkers by reaching out to the public through increased access to and knowledge of that scarce commodity, the parking space in New York City. In contrast to what happens in the Forbes Library parking lot, Feder believes that the public good is best redirected to challenging the parking meter and the threat of parking enforcement and penalty. As a parking fanatic, Feder is heavily steeped in the religion of parking. However, the religion of parking, and the relationship between religion and parking, are more similar than not. In one particular case, Feder recognized that Diwali, a Hindu festival, was rewarded with the privilege of relaxed parking regulation in New York City. Not just particular to New York City, a similar conflict between church and state happens every Sunday at places of worship in many places across the country. One reason for this lapse in enforcement is that we live in a society that recognizes Sunday as the reserved day of worship (Braunfeld v. Braun, 366 U.S. 599 (1961); Sherbert v. Verner, 374 U.S. 398 (1963)). On this day, parking enforcement officers also rest. Meters are not enforced and temporary parking areas such as the Fifteen Minute Spots and Loading Zones are also not enforced. Sunday, as the recognized day free of parking enforcement, may in fact create a constitutional dilemma for Sabbatarians. In contrast to the relaxed parking allowances afforded those participating in the Diwali festivities or other religions whose day of worship falls on Sunday, Sabbatarians, or those whose day of worship is on Saturday, as well as Muslims who hold prayers on Fridays, run a greater risk of receiving a penalty for parking on the street outside their place of worship as parking enforcement happens on Saturday and not on Sunday in many places. This case raises important First Amendment questions

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of free and unfettered exercise of religion, as was a primary concern in Cantwell v. Connecticut (310 U.S. 296 (1940)). Under premises established in Cantwell, Sabbatarians who receive parking tickets on their day of worship could very well argue that such tickets resemble the selective granting of solicitation licenses by a state authority and thus constitute a “forbidden burden upon the exercise of liberty protected by the Constitution.” Sabbatarians who receive parking tickets while attending worship could therefore argue that these tickets were an unconstitutional and therefore discriminatory exercise of police power. In this way, parking enforcement is often a reflection of Christianity as the dominant religion in the United States. Interestingly and perhaps also ironic is the fact the Christianity is so widely practiced and accepted that it has actually taken on an air of secularization. In Lynch v. Donnelly (465 U.S. 668 (1984)) the Supreme Court held that the publicly-funded display of a Christian nativity scene on public grounds did not violate the Establishment Clause of the First Amendment for the primary reason that given the historically-based culture of the United States, the celebration of Christmas had in fact become secular. Using this logic, Christmas as the celebration of the birth of Jesus Christ is a part of American history and culture. In Lynch, Chief Justice Burger stated that Christmas was a part of our national heritage and, as such, was a national holiday, just like Thanksgiving. Burger also justified the nativity scene as a display celebrating the holiday season with the purpose of attracting holiday shoppers to downtown Pawtucket, Rhode Island. By articulating that the celebration of Christmas via a state-supported nativity display reflected “an unbroken history of official acknowledgment by all three branches of government of the role of religion in American life,” Burger further supported the notion of a Christian hegemony by pointing to the phrase ‘in God We Trust’ found on American currency and also to the public funding of art galleries in which religious paintings were present in order to show how the Christian religion’s use of God was ingrained in American culture. Just as local businesses benefit from the secularization of Christmas, so does parking. In Amherst, Massachusetts, during the Christmas season, there is free parking. Town meters are covered with a big red bag that is festively adorned in the colors of the Christmas season. Because the parking meters are enforced by the town and are a source of public revenue, not collecting money during the Christmas season perpetuates Burger’s logic that Christmas is no longer just a Christian holiday, but a secular part of American life. While it could be argued that free parking during the Christmas season also recognizes non-Christian religious celebrations such as Chanukah, Kwanzaa, and Eid-ul-Adha. However, the argument made in Lynch nonetheless remains, that Christmas as a Christian holiday, is part of our culture, and is the reason for free parking. Holiday cheer and free downtown parking, while inclusive of a variety of religious holidays, is nonetheless a way of interpreting the Christian holiday season of Christmas as a religion so established that it has been secularized according to the law. Free parking reflects this principle.

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The business-based justification of free parking during the Christmas season holidays is that free parking brings in shoppers. Because this time of the year is such a profitable time for local retailers and local economies in general, the more shoppers downtown mean the more money being poured into the local economy. Presumably, shoppers who receive parking tickets will also shop less. In this way, parking and economic success go hand in hand as the secularization of the Christian holiday season can be linked to a booming local economy, with free parking contributing to both. In this way, free parking becomes the religion of local retailers and also of avid holiday shoppers during this busy and profitable time of the year. While free parking is argued to be in the best interest of a strong economy, such a gesture of holiday goodwill is at conflict between constitutional protections against the establishment of religion and the cultural statement that Christmas has been transformed into a secular celebration. While free parking during this time of year may benefit the public good by providing the penalty-free ability to park, the public good is also at risk through the sheer promotion of a dominant majority religion that has Christmas at its religious core. Parking is the exercise of rights as those rights are tied to the ownership of a parking space, acknowledgment of parking meters, as a reflection of order, local regulation, and law. Every time a coin is deposited into the meter as a way to rent the spot, a contract with the state is forged. The refusal to pay parking meters often invites parking tickets; unpaid parking tickets result in fines, penalties, and possibly even arrest. Paying the parking meter in the first place is seen as obeying the law. Because the law is representative of the state (be it local or more broadly defined), the relationship of power between the state and subject is formed. The display announcing the link between quarters paid to meters in the library parking lot is key for parkers to feel good about feeding the meter. In this example, the state becomes more intimately connected to the person paying and legal order is reaffirmed. As a political statement, paying the parking meter at the Forbes Library is also a political statement about the nature of consumption and the public good moving beyond simply collecting revenue to channeling that revenue into locally-specific library books in order to sustain literate communities. As such, books and their ability to be checked out in a library setting through parking meter funds becomes a public good, as does the parking space that can be rented in order to pay for them. However, not paying the parking meters during the Christmas season also sets up a relationship between the parker and the state. This relationship tacitly approves of Christianity as the state-sponsored and thus established religion. Here, the public good may not be best served through parking as the rights of Sabbatarians are clearly violated, if not simply ignored, through the justification of secularization.

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Parking Lots and the Public Good within the Built Environment Are parking lots more than just places to park cars? As early as 1921, the communal nature of parking lots was recognized as “one automobile can no more park than one bird can flock. The idea of assembling inheres in the term” (Lloyd 1929: 336). Where parked cars are, people are too. Parking lots are built in order to house an abundance of parked cars. In a way, the occupancy of parking lot space is a strangely occupied territory. It is strange because the lot is temporarily inhabited by the people who drive the parked cars; however, the lot is itself usually devoid of humans themselves. In parking lots, cars wait for their owners to return. The usage and policing of this quasi-inhabited piece of land is unusual because it is the uninhabited cars which are of central concern to those who monitor the happenings in this place. However, because people must return to the parking lot to claim their cars, that moment when driver meets car is another crucial element to the parking lot. That moment is important to consider when bearing in mind the possibility of all types of activities in this uninhabited space, ranging from burglary and assault, to leafleting for commercial or political purposes. The latter example is particularly relevant for labor union solicitation that can occur in company parking lots. Here, parking lots are ripe for the distribution of political literature, either placed on the windshields of parked cars or personally handed to a driver by an activist. The parking lot is a frontier in which uninhabited cars reside. However, who really owns the property of a parking lot? Are parking lots really a public forum, owned communally by those drivers who park their cars there? Clearly, ownership of parking lots is construed as belonging to the landowner, but perhaps we should challenge this narrow determination in favor of the many drivers who essentially ‘own’ the property on which their car in a parking lot. In considering this expanded notion of a public forum, we can consider the practice of labor solicitation in company parking lots. In these cases, the parking lot is a unique place as it is a tangential aspect of company business which employees use to park their cars while at work. Following Republic Aviation Corporation v. National Labor Relations Board (1945), parking in lots owned by a company or adjacent to a company can be monitored for labor activity. The justification for this policing was linked to aesthetics, as the effort to “control littering and petty pilfering from parked autos by distributors [of “handbills, posters or literature of any description”] was one measure taken to inhibit labor solicitation in places where employees gathered either before or after work when leaving or returning to their cars (Republic Aviation Corporation v. National Labor Relations Board, 324 U.S. 793 (1945)). However, the exercise of speech, tidy or not, is still a constitutional right. According to the National Labor Relations Board in 1956, “the parking lot and the walkway from it to the gatehouse, where employees punched in for work, were the only ‘safe and practicable’ places for distribution of union literature” (NLRB v. Babcock Wilcox Co, 351 U.S. 105 (1956)). However, the outcome of NLRB v. Babcock Wilcox Co. (1956), protected a company’s parking lots from union solicitation as long as unions were included in a nondiscriminatory ban

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on the distribution of any literature in company parking lots. The U.S. Supreme Court determined that as long as there were other venues where literature could be disseminated, then the company parking lot was off limits to labor activists. In a similar case almost 40 years later, parking lots were also protected as company property. In Lechmere, Inc. v. National Labor Relations Board (1991), non-employees of a company were not allowed to distribute union literature in company parking lots. However, employees of that company were allowed to distribute union literature in the parking lot of their employer. In this way, the company not only owns the parking lot, but the employees of the company who use the parking lot. Here, public forum rights concerning the dissemination of union literature were restricted on the grounds of private ownership by the company who provided the parking lot for its employees to use while at work (Lechmere, Inc. v. National Labor Relations Board, 502 U.S. 527 (1991)). This means that even though a company’s parking lot is privately owned, it must adhere, albeit to a limited degree, to its employees’ rights of speech and assembly. These cases preference private rights of ownership over the right of organized labor to distribute literature. However, the degree of public right is determined by the extent of public usage. “Before an owner of private property can be subjected to the commands of the First and Fourteenth Amendments, the privately owned property must assume to some significant degree the functional attributes of public property devoted to public use” (Central Hardware Co. v. NLRB, 407 U.S. 539 (1972)). In Central Hardware Co. v. NLRB (1972), the functionality of public use is clearly demonstrated in parking lots, which although owned by a company, are used by the public at large. Although this is not the case with a company-owned parking lot, the reasoning that follows is that place and ownership do play a role in considering the parking lot as a site of public forum. Those parking lots that are generally available to the public for usage have a greater scope for political activities that may be considered to be more public. What is unfortunate though about this distinction is the implicit statement that company employees are the private property of the company when parking in company parking lots. In this way, the company is able to trump the public’s right to engage with this population in a space simply inhabited by cars. Whether specified parking spaces, parking permits, or visitor parking, these places categorize and reveal a contextually specific nexus of space and politics. As Dvora Yanow (2006: 358) notes, “symbols, processes, and the meanings themselves are highly cultural and contextually specific.” Identities of belonging and concentrations of hierarchy through ownership link power to place in the parking spaces explored in this chapter. Ironically though, our recognition of their construction contributes and sustains their existence. For parking spaces exist as built spaces which “may be literally mute, but they have their own vocabulary or ‘language’ (of building materials, size, scale, mass, color, shape, proximity to surroundings, appurtenances, and other design elements) through which they articulate properties, identities, values, and so on without recourse to words” (Yanow 2006: 358). This form of communication goes beyond simply leaving

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one’s car. Parking space is the invention of power through place and position as types of belonging are both legally and socially existent in hospitals, on college campuses, and on public city streets. Parking spaces are a constructed text in which notions of identity, ownership, and usage challenge one another when considering who has the right to park where, and why. However, parking space is more than just a place to park one’s car, as the public good is at stake in contests over privatization of public services, library books, religious preference, consumerism, organized labor’s ability to survive, and means of social priority and exclusion. Here, the public good is uniquely characterized through the parking space as a public forum in which people congregate in one fashion or another. From a constitutive lens, the law supports a social hierarchy in which power is protected whether in reserved places or in the ability to redefine the public domain. In conclusion, the landscape of parking, involving parking meters, parking spaces, parking lots, and visitor parking, is a political environment rich with controversy ironically because of its quotidian presence in our everyday lives. Conclusion The study of parking through parkable space, parking meters, and parking lots provides a unique way to see the construction of the public good. Through municipal regulation, private economic interests defined who the public was and what the good that would benefit that public would look like. Through the invention of the parking space, space was prioritized for those who shopped. However, the notion of an economically-driven public good evolved into a view itself of how society operated, from the rights of religious minorities to a public good that recognized and supported the vehicularization of the individual in a society where cars dominated the mechanics of living. Through the car, who we are as a public itself morphed from a collective of shoppers to statements of social acknowledgment that linked identity to ownership through the sheer ability to park in certain types of parking spaces. Here, the public good includes both the handicapped parker and the marginalized position of ability that such drivers possess, to the pregnant parker to even judges and corporate executives who have much political status to their positions. Through parking, we recognize both the marginalized and those on the top of the economic hierarchy. We also recognize the local communities that many parking areas serve as a source of public good. Parking meters and parking lots complete this evolution of the public good by giving us a new form of law enforcement. Whether as inanimate sources of legal anxiety or a modern form of policing, the parking meter is a form of law that governs our behavior. Likewise, those law enforcement personnel who patrol parking spaces and behavior do so as a direct result of looking out for the public good. Here, a type of jurisdiction is created through temporary ownership, or by simply parking a car on a piece of pavement. The public good is now spatially-

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driven to include a geographic component that represents the individual as well as the collective that may benefit from parking in those spaces. In parking lots, law enforcement is actually more social than it is formally present. In this built environment, the absence of a constantly present source of law among lots of parked, unoccupied vehicles generates a new type of law, namely the law of the frontier. In the law of the frontier, pretty much anything can happen because there are no people really around, only cars. This would point to the limitations of a construction of a public good which vehicularizes the individual, because those cars are often just cars with no drivers in sight. However, such a conception of how the public good has evolved into this idea of a vehicularized individual is nonetheless valuable in showing us how a site such as a parking lot where drivers will eventually return to their cars can become a public forum that is able to function precisely because of the law as frontier notion. To sum up this chapter, parking is a jurisdictional semiotic in a built environment that, through its evolution, shapes our legal consciousness. The construction of who we as a public are, and what our public good should look like is fundamentally premised on a changing focus on parkable spaces that range from economic to social to political.

Chapter 3

Citizenship and Community: Authority of the Local The complicated manifestation of what happens in the simple, everyday places in which we park shows us that parking spaces are constructions of political texts. As political texts, the need for order and regulation are buttressed by the protection of economic interests that, in turn, sculpt the notion of control according to spatial occupancy. Through the statement made by parking meters that monitor and penalize extended use, parking spaces represent ideas of property and right that are influenced by the identity of the person parking his or her car in that space. Thus, the right to park can be couched as a form of public good, as the library example attests to. However, this premise that prioritized the needs of the public through parking regulation also presents a challenge and contradiction when seen in how visitor parking seeks to exclude those who don’t belong. Parking is much more than just leaving a car in an empty space. The creation of particular parking spaces symbolizes the recognition of a pluralist society in which identity signifies need. The legitimacy of that need often results in clashes over the questions of benefit and influence, but also the public need for such specialized reserve. In this light, the regulation of who parks where and for how long can encompass a diversity of means through which to do this. One method, the parking meter, is obvious, as the parking meter itself is the personification of law that is not present as a physical person there to enforce the rules. However, the parking meter also acts as a voluntary contract with authority (in many cases, municipal governments that collect the revenues from meters as well as who distribute meter violation fines), as the person who parks in front of that meter may not always choose to feed it. In this way, the person may be considered acting on the frontiers of law by risking the legal sanction of a ticket. Additionally, not feeding the meter may be a statement of resistance not only to law, but to the morality that may compel a person to deposit a quarter into the machine. Whether for moral reasons or the fear of financial penalty, this deposit is a statement of property by assuring that the identity of the person who parks and pays is a statement of right, as in the right to park there because the paid parking meter legitimizes this occupancy. So, in the case of the parking meter, law can be seen as impartial as, generally, no spatial designation is set for metered spaces and anyone can assert the right to park their car there simply by paying the fee. However, what happens, as in the case of visitor parking, when belonging isn’t so readily accessible to all ‘visitors,’ or those folks who by virtue of being a visitor don’t belong. The status of ‘visitor’ changes who the public is really meant to include. Whether through visitor

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parking that is premised on proper ascertainment of privilege to be a visitor, as in the previous chapter’s example, or through more drastic steps such as parking permits, who defines the public is a result of how parking can be either qualified and/or accessed. This selective action narrows the notion of public interest, as certain identities qualify for the right to park and many do not. As this chapter will describe, parking meters, parking lots, parking permits, and parking garages become political places that are localized on the basis of economic status, racial identity, residency status, and aesthetic determinations. As the following examples of parking lots, parking permits, and parking garages will demonstrate, the laws surrounding parking creation, parking adaption, and parking enforcement show us that who counts as a citizen for purposes of accessing parking spaces, changes the notions of community according to the identities of those who can park, those who can’t, and the local governance which makes the two distinct classes based upon right possible. Hermeneutics of Right The legal geography of parking spaces provides a unique relationship between citizen and community. In Amherst, Massachusetts, this relationship reflects myriad levels of spatial jurisdiction involving law, property, and the right to park. No longer ‘just’ parking spaces, these places created to house unoccupied vehicles represent a politics of the ordinary (Dumm 1999). From parking meters and public lots to residential permits, private bank lots reserved for patrons to park while conducting bank business, and parking garages, the enforcement of parking sustains a definition of community in which the right to park is the embodiment of citizenship according to place and occupancy. This right to park is premised upon the promise of economic development and protection against domination by the approximately 35,000 students who live in and around Amherst. In the Five College area of Western Massachusetts, and in Amherst in particular, law is present at many levels and in many forms. As this section describes, parking laws in Amherst operate from the more obvious local governing bodies, such as the local governing body, the Amherst Select Board, and local parking authority to less obvious forms of governance, such as faceless bank windows, fellow parkers, and expertise-based regulation (Valverde 2003). The intertextuality of the spatial elements regarding parking in Amherst reveal a built environment that is ripe for the governance of those who park in this constructed terrain (Yanow 2006). Here, the hermeneutics of identity evident in actions of parking are of a cultural, economic, or social nature, ranging from coffee-drinking students to bank patrons to the movie-going elderly. Furthermore, the creation of and debate over these often competing identities instills a framework in which economic development shapes the notion of community and of the place as citizens within that community. In order to better understand the constitutive notions of citizenship and community, it is useful to understand the ramifications

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of belonging and legitimacy attached to parking within this local setting of parking spaces and parking places. In February 2007, a contest of access, threat, and economically-driven priority changed the ability to park in the Amity Street Parking Lot located in the town center of Amherst. What happened concerned a cinema owner, moviegoers who couldn’t watch a movie longer than two hours without fear of receiving a parking ticket, and the Amherst Select Board. The case was presented by the owner of the nearby, newly renovated cinema, who said that her patrons would soon refuse to come to the movies for fear that they would receive parking tickets for parking too long. As the length of many of the movies at this cinema were longer than two hours, patrons couldn’t enjoy the movies that they had paid to see for fear of getting a parking ticket. The owner pleaded her case before the Amherst Select Board, who approved the extension of time on the meters from two to three hours. As will be discussed in more depth, this case is an example of a community fixing its parking related problems through formal channels (the select board, town hearing, public meeting). However, there is more depth to this example of the Amity Street Lot in which definitions of identity and economic hierarchy engenders the framework of governance that is supposed to be in the interest of the general public, not just the movie-going public. In the Amity Street Lot situation, social influence, business interests, and community ranking muddy the notion of public interest that public parking spaces are created in order to promote and protect. Amity Street Parking Lot is adjacent to the newly renovated Amherst Cinema complex, which houses Amherst Cinema, Amherst Coffee, Tabella Restaurant, an architecture firm, and a handful of specialty shops. I first heard about the Select Board meeting by going into the Amherst Cinema (our desired movie was sold out) and seeing a sign urging attendance at the upcoming meeting of the Amherst Select Board. The sign alluded to the growing controversy over extending the two-hour time limit on the meters to three hours. The prime motivation for this controversy originated in the cinema and appealed to the cinema crowd who may receive a parking ticket for attending movies in duration longer than the two-hour timeframe allowed on the meters. I should say here that parking in Amherst is a hotly contested issue evidenced with the raising of the price of a parking ticket from $5 to $8 to the current $10 in the past three years. Selected Woman Awad headed the debate.1 The problem with the meters also involved the economic impact of having cars parked for longer periods of times, which translated to less of a turnover of cars and potential shoppers for local businesses. On the other hand, perhaps the ‘rights’ of moviegoers and also the ‘rights’ of the cinema owners were violated by the two-hour time limit on the meters for reasons that may be considered to be a form of discrimination of temporal consideration. During the meeting, the question arose as to whether or not there are longer time meters available in the downtown area. While there are 1  Quotations and statements made by the Select Board were recorded during the meeting by the author.

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other such lots, Amity Street Lot is the public lot closest to the cinema. Although parking enforcement did not take place during all times that movies were shown, the two-hour limit presented the biggest problem on Saturdays and for early movies. However, it is imperative to remember that Amity Street Lot is a public lot which serves the entire community and not just the needs of the Amherst Cinema or Amherst Cinema complex. Across the street is the Jones Library, a public library serving the town of Amherst. Those who frequent the library as well as those who park in the public lot for other reasons besides movies or shopping will be shut out of a parking lot that has longer meter availability and less frequent turnover of open parking spaces. It is useful to picture the spatial elements of the meeting and those present for the hearing in order to imagine what Amherst local law looks like. The Amherst Town Hall meeting room is a formal room with high ceilings and tall windows with long ivory-colored drapes. Amherst Town Manager Larry Shaffer and six members of the Select Board, including two women and four men, sit behind a heavy wooden podium facing an audience of 12 people, including seven women and five men. The section of the meeting devoted to the Amity Street Lot controversy begins.2 The debate pits those in opposition to the meter time increase who worry about the library patrons and decreased turnover of parking spaces against those with business interests in mind. The difference between the two positions is at the center of who the notion of community really includes: business owners and those who spend money or the members of the public who park for other reasons, such as going to the library. Shaffer argued that too many tickets leads to a bad atmosphere that is unwelcoming to moviegoers and those who would come to shop and consume in Amherst. Carol Johnson, Executive Director of the Amherst Cinema complex, supported this business approach to the idea of community by saying that 3,000 tickets per week were sold at the cinema. The Select Board members gasped in admiration because business was booming in stark contrast to the previous cinema that sat closed for years in disrepair. Johnston voiced her concerns about older patrons who come to afternoon movies and want to get home before dark. She says two hours is simply not enough time and is unfair to older folks who are limited in mobility. Select Board Member Weiss points out that this problem wouldn’t be so easily solved simply by extending the meter time in this lot because the lot is not strictly reserved for moviegoers. Johnson replies that some of her customers really can’t walk further to other lots and therefore shouldn’t be penalized for their physical condition. Weiss asks about the usage of the lot: “Are cinema employees using this lot or are they making use of the town parking permit?” Johnson responded, “We expect them [cinema employees] to follow the rules and to use the permit unless they come by bike or by bus.” With an implicit distinction made that the public 2  From my own experience working at a similarly small local theater (Pleasant Street Theater in Northampton, Massachusetts), parking was always a problem; however, rather than risk a parking ticket, moviegoers just left the movie to go feed the meter.

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did not include cinema employees, Select Board Member Kusner emphasizes that town parking permits can be purchased in bulk for a low cost and should therefore be used by employees. Kusner argues that the use of permits should be encouraged, leaving the more public spaces of the Amity Street Lot reserved for the potentially movie-going/paying public rather than for employees. Johnson also told of the unofficial arrangements that the cinema had with neighboring banks to use their parking lots without charge when the banks are closed. However, the signs on these bank lots state that the use of the lots is strictly for bank patrons and no mention of the agreement that Johnson described is evident to the parking public. Johnson states “Parking tickets are upsetting. I hang my hat to anyone who can solve the parking problems of the city. We get angry letters and so does Mr. Shaffer from people who won’t come back.” When asked why don’t her customers and employees use the town’s parking garage, Johnson pleads, “We’re just asking that people can park one hour longer.” Select Board Member Awad recognizes Johnston’s contribution to the town by providing the resource of the cinema complex: “You are creating a destination – these aren’t the films that you see at the mall.” Weiss echoes Awad’s sentiment by saying that he doesn’t want just anybody (italics added) to park in the Amity Street Lot because once parking becomes convenient, everybody will use it. This is indeed a strange sentiment for a public official to make about the usage of a public parking lot. Shaffer concluded the discussion by suggesting that the town and the cinema complex “work in tandem with the two banks mentioned [as the] principle concern is to keep the Cinema going without a negative atmosphere resulting from receipt of a parking ticket.” Select Board Member Kusner proposes “Maybe making the parking enforced longer in the lot will keep the vultures out who go to local restaurants and downtown areas out of this lot so it can be ‘reserved’ for the movie-goers because the other parkers will be discouraged from parking for free at 6 pm and force them to park other places.”3 As this case demonstrates, there are many overlapping dynamics of community and citizenship in this community-based discussion about the extension of time on parking meters. As a site of contested legal geography, the Amity Street Lot provides the primary place for those attending movies, eating out at restaurants, and shopping in the boutiques at the Amherst Cinema complex. However, through this debate, there is an important distinction made about who the desired public includes, from the difference between seeing the types of films shown at the complex and those shown at the local mall down the road to the encouragement of cinema employees not to use the lot. In this way, a statement is made about exactly what sort of person should be parking in the Amity Street Lot, namely a non-student, elderly member of the community who will not be penalized for spending time and money at the Amherst Cinema. This type of moviegoer stands in contrast to the stereotypical student moviegoer, who is seen as more likely to 3  Quotations and statements made by the Select Board were recorded during the meeting by the author.

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frequent a cinema that shows more mainstream blockbuster films. This distinction does not just reflect movie availability; who sees these movies is what matters. Working from the framework provided by the Amherst Select Board, the complex is a boon to the Amherst community because it provides an outlet where nonstudent members of the community can go. In this way, the identity of student carries with it assumptions of rowdy, raucous, and simply undesirable behavior. The designation of Amherst residents is here not inclusive of the approximately 30,000 students that live in and support the Amherst community. Interesting too is the lack of attention paid in the meeting to the concerns of the library-going public who now face fewer and less available places to park. Funding for the project was itself a political statement made by Congressman John Olver, a long-term resident of Amherst. Olver, Chairman of the Appropriations Subcommittee on Transportation and Housing and Urban Development (HUD) secured $265,000 in the FY2008 Transportation, Housing, and Urban Development Appropriations Bill passed by the U.S. House of Representatives on July 24, 2007 (Congressman John Olver Press Release). According to Olver, “The Amherst Cinema Arts Center is giving the town and region an economic boost by making Amherst center a destination for cultural tourism and anchoring an exciting new complex of eateries and shops … The new center has also created the positive spin-off effect of increased foot traffic into the town center’s restaurants, stores and other businesses – giving people a reason to spend time in town both day and evening, all year round.” Assuring customers a place to park, the Amherst Select Board has acted in accordance with Olver’s vision (Carey 2007). Permitted Belonging The identity-based distinction raised by Johnson and unofficially endorsed by the Select Board for Amherst Cinema complex employees is also at the heart of residential parking permit discussions for the town. Amherst residents want to be able to park on the streets in front of their homes. With so many students driving so many cars, these street spaces have become prime property. However, with townissued parking permits, they have become exclusively reserved for those who live on the street. According to the Town of Amherst Permit Parking Regulations obtained at the Amherst Town Hall, there are two types of permits issued for the town: Town Center Permit Parking Area and Resident-Only Permit Parking Areas. These permits are issued from September 1 through May 1 when the university and colleges are in session and enforced during this time from 8 a.m. to 5 p.m., Monday through Friday. Only those who have parking permits for a single or double vehicle, a clearly identifiable commercial vehicle, a visitor pass, or a guest pass can park on designated streets. However, anyone who holds a legally issued handicapped parking identification plate, placard, or sticker can park in permitonly parking without having a permit.

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Permits began in October 1999, when the Amherst town officials started the permit program involving more than 250 unmetered parking spaces throughout the town. According to Senior Planner Jonathan Tucker, “Parking is a limited resource, and we need to manage it or we lost it for those who need it most. The town is trying to manage (parking) on behalf of people who want to use downtown” (Amherst Bulletin 1999). As Tucker articulates, the permits are a response to University of Massachusetts parkers who choose to park on residential streets that either abut campus or are located not far away in the downtown, rather than pay the steep fines required for parking on expensive, often at a great distance, campus parking lots. In this way, the town of Amherst is creating a community of residents in opposition to UMass commuters through parking regulations and the need for a permit as downtown Amherst residents have priority to claim public, on-street parking spaces. As Amherst Town Manager Barry Del Castilho stated, “Somewhere the system had to give, and where it gave was campus commuters. There is no free lunch, but there have been a lot of stolen lunches over the years” (Amherst Bulletin 1999). However, this creation of community is not as inclusive as it might seem. Amherst residents are not unified in their support for the regulation. Balking at the permits as “a tax on the people who live on those streets” or action spurned by a “fear of UMass,” the permits were argued against on the basis that exclusivity through parking was an unfavorable result, plus “It will make [Amherst] an unfriendly town” (Amherst Bulletin 1999). Here, permits are symbols of contested citizenship in a community rich with diversity yet rife with exclusivity through parking. Permits shoulder a different burden when it comes to where cinema complex employees should park. According to Amherst’s permit parking regulations, “Eligible employers may acquire permits on behalf of their employees” subject to the discretion of the Town Manager. Using this permit-based reasoning, cinema complex employees are discouraged by the town from parking in the Amity Street Lot, despite the fact that the lot is a public lot and employees are part of the parking public. Here, the identity of being an employee discounts one from belonging to the greater Amherst community who may frequent the cinema complex and not be considered Amherst residents. Here, the definition of community is dichotomous concerning identity and claims to property. Permits restrict the nature of the Amherst community through parking. There are those who qualify for permits as residents, registered visitors and guests, or employees and then there are those who belong because they come to see the movies. These two groups are divided, with the first group parking on the streets in permit restricted areas and the second parking in the Amity Street Lot, using the three-hour timeframe established by parking meters. Here, the complexities of local identity matters, and as such, the notion of community shifts from the inclusive premise of public parking to exclusivity through public parking preference of private interest. Just as the identity of being a student translates into an unwanted overflow of people nine months out of the year and need for September–May permit parking on Amherst streets, the identity

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of being an employee characterizes that parker as belonging to the community for labor purposes. These two identities (students and employees) contrast the identities established by permits and extended meters: the resident, the worker, and the visitor. In this way, a hierarchy of persona sets the notion of belonging through the parking space as a regulated form of property that is attached to who is intended for its usage. As Del Castilho noted when the permits were first established, “you may reach your own conclusion, but the obvious one is that most employees will need a parking permit” (Amherst Bulletin 1999). What this means is that these employees are not generally thought of as residents on those streets where parking is by permit only. The identity of the moviegoer associated with the Amherst Cinema complex is, according to the words of the Select Board, in stark contrast to those who traipse down the road to see movies in the blockbuster movie theaters at the mall. This is the stereotype-based difference between an upscale artistic film-appreciating culture of affluence and a poorer student-dominated culture of mainstream Hollywood that the Select Board hopes to attract to the town by extending the meter time in the Amity Street Lot. What’s interesting is that the Amherst Select Board capitalizes on this hierarchy of identity and actually enforces it by increasing the time on the meters from two to three hours for the benefit of elderly movie patrons. Accordingly, non-students matter enough as to change parking policy because of their hoped-for presence and complaints of inconvenience by receiving parking tickets when seeing films at the Cinema complex that are longer than two hours. Parking matters and, in this situation, reflects a type of community in which identities redefine what the public interest really is and ignores the student-based majority in the local population during the academic school year. Furthermore, the student/worker identity creates a notion of citizen that hinges upon wealth. Students and cinema employees are traditionally at a financial disadvantage. Economically, these two groups can be considered less viable than non-students and other patrons who frequent the Cinema complex. However, this presumes that workers and students all go to the mall and never go to the Cinema complex to enjoy films, dine at the restaurants, and shop at the boutiques. This is a cultural presumption tied to the social expectations of age and position where students and workers are seen as young and poor. In contrast, residents are generally considered to be more prosperous. Although students may be included as those patrons attending the cinema or shopping at the complex, the wealth disparity among the students present in Amherst may also tend to stereotype those attending the public state university, University of Massachusetts at Amherst (UMass Amherst or UMass from henceforth), against those attending the elite private colleges such as Amherst College. In a similar example involving the tensions that arise over parking permits and local identities, specifically between local and college authorities, take what has been transpiring at the University of Hawaii at Hilo over the past several years. Since 2003 and continuing into the present, the Parking Office has engaged in the practice of overselling parking passes. In 2003, more than 2,000 passes were sold for just 750 stalls, according to the UHH Parking Office (Marino 2003), as reported in Ke Kalahea:

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The Student Run and Student Written Newspaper of the University of Hawaii at Hilo and Hawaii Community College. When asked, the Auxiliary Services Director Kolin Kettelson stated that “we do not cap the number of general parking permits sold, so in effect they are hunting licenses.” Kettelson suggests “my best advice is to plan ahead. Buy permits early” (Marino 2003). However, Kettleson’s advice has apparently gone unheeded, as seven year later, the same student newspaper reported that the number one way to make the Hilo campus better was to stop the overselling of parking permits (Bachinski 2010). In fact, the controversy grows, as the Social Sciences Division of the College of Arts and Sciences received their parking permit reassignment applications after everyone else had received theirs. The late timing meant that the parking area behind the building where the Social Sciences Division has the majority of their offices was fully reserved and spoken for by the time the late notices arrived. Permits are only as good then as their enforceability through direct action as Kettleson suggests in his statement about hunting licenses, or insofar as their applications arrive in a timely nondiscriminatory manner. Similarly, local identity corresponds to a localized knowledge that expands both the hermeneutics of rights, but permitted belonging as well. On the neighboring island of O’ahu, parking permits are a problem of a related nature. At Hawaii Pacific University (HPU), a private institution in Honolulu, many students ride to campus on mopeds. In the state of Hawaii, riding a moped does not require the same vehicular licensing or insurance requirements as motorcycles or cars, making it an attractive option in terms of cost and efficiency. The problem at HPU is a moped-based parking dearth which leaves many mopeds parked in places reserved for bicycles on city property such as at malls or parks near the campus. What happens is these mopeds then receive parking tickets from the Honolulu Police Department. “The growing popularity of mopeds in Honolulu is exacerbating already crowded public parking conditions” (Blair 2008). In the words of HPU Associate Director for Security and Safety Rick Murray, “it is an eyesore when you see that many mopeds just parked willi nilli, but there is no other place for them to park” (Yoshioka 2010). Mopeds raise particularly interesting questions for parking, as they are really a hybrid between vehicle and bicycle. Regardless, the idea of randomly parked mopeds, or in a willynilly fashion as Murray articulates, is the basis for the aesthetics of governance at HPU. The hunting that is licensed through Kettelson’s comments at the University of Hawaii at Hilo takes place at HPU on a different scale, where hunting is akin to the simple claiming of space on which to park one’s moped. What unites the two examples within Hawaii to the examples in Amherst is the localized knowledge and application of how the law works in terms of parking spaces and parking permits. Aesthetics of Governance The notion of the public as inclusive of different sorts of people is challenged in this paradigm with characterizations of citizenship and community amalgamated by the spatial jurisdiction of available parking. The public usage of the Amity Street Lot is

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Figure 3.1

Politics of Parking

Bank of America teller drive-thru windows, Amherst, MA

antithetical to its originally intended usage and is altered by the Select Board debate. This alteration is a challenge to notions of citizenship and community in which private interests have captured the truly public nature of public space. The Cinema complex, working together with the adjacent bank lots, commands a significant portion of downtown Amherst property. It is not so much of a question of winners and losers, as anyone can go and enjoy the Cinema complex, but rather a problem of a privatized notion of the public resource of this central public parking lot. This is problematic because the enforcement of parking in Amity Street Lot prioritizes the ability to attend films at the complex unimpeded by the threat of a ticket. In parking, the idea of governance is either predicated upon a parking meter, a parking enforcement officer, or the threat of simply being caught. This threat is the outcome of individual resistance to authority. What happens when parking enforcement is based upon the threat of being watched, not by other people, but by bank drive-thru windows? Here, these drive-thru windows, which open to bank customers who drive through in their cars for window-based personal service with bank tellers, appear dark and empty from afar; however, the presumption that someone with the knowledge to expose those who park who may not be a bank customer is the basis for a claim on authority. Jeremy Bentham’s Panopticon urges us to think of power as without a face and without a verifiable existence even. The panopticonic lens is that unknown presence which, through our own conjecture, exists to punish us if we don’t follow the rules. With regard to these faceless bank windows, the threat of enforcement in bank parking lots operates on this level as these lots are designated for bank customers during bank hours. Enforcing such

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occupancy is seen as a function of the drive-thru bank windows that face the two bank lots and represent the governing. While students/non-students is often seen as an obvious distinction based on the stereotypical factors of age and appearance in the cinema example, the age and appearance of one bank’s customers over another bank’s customers is much less apparent. Here, through assumptions of inclusion, the notion of expertise-based regulation comes into play as a form of governance that reaffirms cultural, social, and economic stereotypes of belonging and legitimacy characterized best here by the student/non-student divide (Valverde 2003). This is particularly interesting as the students in the community come from an array of financial backgrounds and attend both a state-funded university as well as smaller and very expensive private colleges. The fact is, furthermore, that the teller sitting behind the window may be too busy counting money and attending to the needs of the bank to do any parking enforcement of the bank lot. Therefore, those who choose to park in this bank lot are making this private piece of real estate into a public parking lot. However, what is important to remember is that this public usage is not invited, but rather passed down through word of mouth, as Carol Johnson makes known in the Select Board meeting. In the same vein, those who park here without belonging are asserting their claims of public right on private property, particularly as the governance of those faceless bank windows is only in operation during business hours. The parking terrain of the Amity Street Lot and the adjacent bank lots reflects many levels of governance ranging from Amherst Parking Enforcement officers patrolling and ticketing expired meters to the Amherst Select Board changing the time on the meters to even the faceless bank windows silently witnessing and surveying who parks and may or may not be a bank customer who rightfully belongs. Other levels of governance include the threat of and reality of the dreaded parking ticket and the threat of towing by the bank. Also, notions of identity, community, and citizenship govern the terrain through parking permits, social capital through upscale film culture, and the economic disadvantage of being a student. The intertextuality of the spatial elements reinforces the politics of the ordinary and the locality of spatial knowledge (Dumm 1999; Yanow 2006). Ironically, the private bank lots are the most public in their usage, as the identity of a bank patron is not easily established and enforcement is threatened, yet absent. The impact that local knowledge has on how law works is crucial in the examples of the bank windows. The aesthetics of governance then seem to be more of a formality than actual enforcement. A similar example of localized knowledge of governing procedures happens in Hawaii, on the Big Island in the village of Kaumana City just outside of Hilo. Rural access to water in Hawaii is through personal catchment tanks, which collect rainwater to be filtered for drinking or other purposes. Normally, the eastern side of the island has more than abundant rainfall; however, during dry years impacted by the change in El Nino weather patterns, the area can get rather parched. This is particularly an issue if one’s source of water is catchment-based. However, county officials have set up local watering spigots that draw from Hilo’s public water supply. These spigots are

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set up along public roadways across the island to provide clean, fresh water at no cost. What’s interesting is not only the local knowledge that would guide one to these water sources, but the street signs that can be located at the spigot. Hawaiian terms are written on these state-funded traffic signs, such as in Figure 3.2, meaning ‘help’ or ‘care’. When translated, this sign means to not litter the area and to take care of it for others. This is particularly prescient given the recent controversy over whether or not these public spigots should be restricted or even eliminated based upon litter and misuse (Sur 2010). Local knowledge further translates into informal law in the following image. Local culture reveals a particularly fascinating insight into the workings of civil society (Wagner 2006). Near the University of Hawaii campus in Hilo, parking is a hotly contested issue. Each morning, when cruising around for an available space, I would see an upside-down bucket with the word ‘kapu’ written on it. In the Hawaiian language, ‘kapu’ means cursed, or forbidden, from earlier times pertaining to the protected realm of Hawaiian royalty. In fact, ‘kapu’ violations were capital offenses for trespassers (Hawaii Highways). This sign is reminiscent of the shoveled out parking space from the cover of Silbey and Ewick’s (1998) book. Both the street sign and the bucket sign are symbols of how law works based upon knowledge of local dialect that draws heavily from the Hawaiian language. What’s even more compelling, and a little known fact to those coming from the Mainland of the United States, is that the state of Hawaii actually has two official state languages: English and Hawaiian. Local knowledge of language and custom also plays an important role through the presence of signs that act as semiotics of localness. In Figure 3.2, ‘kokua’ is a Hawaiian term for service, respect, and public attentiveness. At a public water spigot just north of Hilo, Hawaii, the continued public usage is at stake because there is a lack of kokua best illustrated as littering or excessive taking of available public water (Sur 2010). In a proposed bill, which did not pass, those who fail to abide by the ‘reasonable’ taking of water, which is either 250 or 500 gallons per visit depending on the version of the proposed bill, or those who washed vehicles or animals at the spigot would be subject to possible jail time and fines up to $1,000. In the words of Brenda Ford, County of Hawaii Council member before the Committee on Public Safety and Parks and Recreation, the intent of the fine was to make people think twice about abusing the spigots” (Sur 2010). In other words, bring back the kokua! What’s at stake in each of these examples is a privatized, in one respect or another, either through permits or localized knowledge, notion of what may otherwise be public. There is also the distinction between urban and rural understandings of localness that may also include resident and nonresident distinctions. In their work on local food, geographers Kathryn Besio and LeeRay Costa (2010) detail regional cuisine in Hawaii according to relations of reciprocity, semiotics of food, and variations on what local is according to food, eating, food production, food consumption, even food sovereignty. Their close attention to foodscapes provides a parallel to thinking how the locality of parking raises

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Figure 3.2

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‘Kokua’ sign at Kaumana City public spigot near Hilo, Hawaii

similar questions. Similar to the public/private parking challenge of Amherst’s Amity Street Lot is the situation of economic development through a privatized notion of public accessibility in the neighborhood of Bay Terrace in Queens, New York City (O’Grady 2004). Out of concern for his clientele’s ease of finding available parking, dermatologist Dr. Jordan Zuckerman petitioned and convinced the city Department of Transportation to install 22-hour meters on the residential boulevard where his office was located. His justification was that “many of the patients who come to this area are elderly, handicapped, children, and pregnant women … there’s a parking dilemma, and we’re losing some of them.” However, the boulevard’s resident members of the Bay Terrace Community Alliance, a local civic group, vehemently objected. President Phil Konigsberg protested the meters by arguing “There are still some private residences on that part of Bell Boulevard and people who park their cars on the street.” The idea of ‘need’ is disputed here over who is more deserving of parking: neighborhood residents or patients with special needs. Zuckerman convinced the city to take down the meters, at least for the time being. However, the tension of public usage in public places to park continues between economically-positioned private interest and the needs of the local residents. It is this debate between public and private interests that culminates in the presence and enforcement of parking meters. In the two cases of the

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Amherst Cinema complex and Dr. Zuckerman, the promise of economic vitality drives local regulation. Just as the public inclusion of the community of Amherst changed to benefit the local businesses and the consumer at large, through parking meters, the public streets of Bay Terrace directly challenge the future of the street in becoming a designated parking area for Dr. Zuckerman’s business. The place of local citizens, be they residents or nonresident community members, is impacted by the changing of the relationship between parking and economic development. Parking Garages: Power through Place Parking garages are built structures with the purpose of housing multiple layers of parking spaces for a range of activities – shopping, eating, going to work, even drinking coffee. In Miami Beach, a recently built $65 million parking garage is the hot new site of “carchitecture” that is the coveted site for upscale wine tastings, dinner parties, weddings, and even yoga classes (Barbaro 2011). According to garage developer, contemporary art collector, and penthouse resident Robert Wennett, “This is not a parking garage, it’s really a civic space” (Barbaro 2011). As a civic space, the Miami Beach Parking Garage is a statement of aesthetics, as it “sets a new bar for what parking garages could and should be” according to Cathy Leff, the director of Miami Beach’s Wolfsonian Museum of Design. Despite the glamour in Miami Beach, parking garages are often mundane eyesores that exist in many urban places. Parking garages may be publicly or privately owned, operated, and accessible. However, if the garage is intended to be used by the public, then the public’s right is expanded beyond that of the garage owner. Take, for example, the case of Burton v. Wilmington Parking Authority (365 U.S. 715 (1961)). The circumstances of this case involve an African American man, William H. Burton, who parked in a public downtown parking garage in Wilmington, Delaware. Upon parking, he entered the Eagle Coffee Shop, located within the same garage where he was parked. However, he was denied service. The relationship between public interest and private ownership was at the heart of the dispute, as Wilmington Parking Authority’s denial of services can be interpreted to be a racially-motivated violation of Burton’s equal protection rights under the Fourteenth Amendment. Wilmington Parking Authority countered this argument by saying that the coffee shop, which leased the space inside the state-funded garage, was a private space and thus able to discriminate among its clientele. However, Wilmington Parking Authority, as established by the City of Wilmington, Delaware, in order to operate the city’s parking facilities, also maintained the coffee shop at its own expense as well as providing the heating and gas services for the café (www.oyez.org/cases/1960-1969/1960/1960_164). This relationship between the City of Wilmington and the Eagle Coffee Shop was therefore argued to be publicly funded and supported. This relationship also challenged the private ability to racially choose who the café was able to serve, as

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the question of usage in areas available to the general public, albeit also beneficial to private interests, was a crucial consideration in deciding the case. In Justice Clark’s majority opinion, the parking garage was not so “‘purely private’ to fall outside the scope of the Fourteenth Amendment.” In Clark’s opinion, the relationship between the coffee shop and the Parking Authority “constituted a physically and financially integral and, indeed, indispensable part of the State’s … plan to operate its project as a self-sustaining unit.” As such, the Court found that the state, via the Parking Authority, had “made itself a party to the refusal of service.” Clark further clarified the nature of parking in terms of accommodation and convenience. He writes It cannot be doubted that the peculiar relationship of the restaurant to the parking facility in which it is located confers on each an incidental variety of mutual benefits. Guests of the restaurant are afforded a convenient place to park their automobiles, even if they cannot enter the restaurant directly from the parking area (www.oyez.org/cases/1960-1969/1960/1960_164).

In this case, parking is a recognized public service when funded at least in part by state funding. This funding that made the Eagle Coffee Shop able to conduct business cannot discriminate on the basis of race. This case is a hermeneutic of belonging in the sense that those who need to park their cars in publicly funded areas are also entitled to be part of a racially equal community that is able to enjoy a cup of coffee in a place supported by public monies. Through Clark’s words, parking is the foundation for equality of access and, as such, is given constitutional shelter. The intersection of right, identity, and property is particularly relevant in this case where racial identity and usage of property in order to park and drink coffee is the nexus for the assertion and protection of equal protection rights. In Burton, the rights of citizens redefine the community of Wilmington, Delaware. Parking garages are no longer void blights on the urban landscape. However, similar issues of community redefinition manifest themselves in less urban settings as well. In Amherst, Massachusetts, the community parking garage is the source of local political tension between the desire for green spaces and quest for economic gain. Built in 2002, the Amherst Boltwood Walk Parking Garage engendered a dispute focused on the usage of public space as a fundamental factor in realizing the ubiquity of the automobile in a town where pedestrian-friendly landscapes with parks, trees, and benches were the preference and expected norm. From 1999 until 2002, disputes over the proposed garage captured local politics. Arguments for the garage included the premise that it would provide parking spaces underground rather than above the ground, as voiced by Parking Garage Building Committee member Elisa Campbell: “We are trying to put as much as we can underground because it results in a more attractive place” (Parrot 1999). This idea considered the ground above the garage to be a green, centralized plaza of sorts where pedestrians were welcome. Another argument in favor of the garage was that it would ease a parking shortage that was contributing to the economic

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stagnation of the town. Funding for the original $4 million project was garnered in 1997 with $1 million in loans borrowed by the town and $3 million from state grants acquired by Representative Stan Rosenberg (Wilson 1999). However, arguments opposed to the garage were many. One resident who lived near the proposed garage site warned, “Between the Unitarian Church and Rao’s [Café], you have a bunch of kids smoking, drinking, and using drugs. If you have an underground garage, you are giving them a safe haven” (Wilson 1999). Another resident views the garage in terms of “the ever-expanding anomalous suburb, which we in Amherst are privileged to know about, not first hand but from the press” and asks “where is the acceptable point of convergence between the automobile industry’s will and the realities of our garage?” (Pitkin 1999). In his published opinion in the local newspaper, Amherst Bulletin, the same resident sees the act of building the garage as concurrent with “the commitment to the omnipotence of the automobile its circulation and ready accessibility at the very center of our town for years to come” (Pitkin 1999). Even the Amherst Knights of Columbus Home Association filed suit with the Hampshire County Probate and Family Court for an injunction to stop the town of Amherst on the grounds that the garage, when built, would block access to its building with 11 other opponents of the garage threatening similar action (Amherst Bulletin 2000). After a long and contentious fight, the garage was finally built with a compromise between green space with benches and trees above the garage, permanent installations for public art, and more above-ground parking spaces (Amherst Bulletin 2000a). However bigger questions that guide the contest over the usage of public space, automobiles, and parking have been at the forefront of local politics in shaping the landscape of community and citizenship in a society dominated by automobiles and increasingly devoid of open, green, slowed-down spaces. In Amherst at least, the building of a town’s parking garage invites bigger notions of representation and public space involving “the human dimension of the space we share” (Pitkin 1999: 4). As a dimension free of any cars, a town without parking would make a statement against hegemonic forces of cars versus people that confront small towns across the United States. Without a parking garage, Amherst would provide “the structure and the confidence we will need to face the challenges posed by global capital markets, challenges that every town in American must be prepared to meet in order to survive as viable communities” (Pitkin 1999: 4). However, as a town without a public parking garage but with parking permit restricted streets, Amherst runs the risk of pitting private automobile usage in permit-based neighborhoods against the remaining portion of the population that may not live on those same streets and who would benefit from increased public space that gives them access to the town of Amherst. Then again, there is Donald Shoup’s (2005) connection between global warming and the enduring search for a parking space. Shoup suggests that the time spent driving around to find a parking space dangerously contributes to the elevation of vehicular pollution and, consequently, to global warming.

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So, the preservation of green spaces may just be a result of increased parking availability. In the alternate view of downtowns without parking garages, the right to park as an economic statement of accessibility, whether in Burton or the Amherst Parking Garage debates, both enhances as well as constricts the qualifications of citizenship within a community of potential parkers. Conclusion This chapter has addressed some of the issues expanding the discourse of local authority that governs rights, belonging, and aesthetics that arise when public need conflicts with private interest in the scope of parking-related places. The intertextuality of the spatial elements in parking lots, public streets, and parking garages produces hybridized notions of what can be considered as public interest encapsulating the local. As notions of rights, identity, and property are viewed through a political lens that often adopts the approach that economic gain, the future of communities and fundamental notions of citizenship through parking are debated as in the Amity Street Parking Lot controversy, the Hawaiian examples, or the Amherst Parking Permit system. Through the examples in this chapter, we can see that local knowledge is a source of legal authority that exposes and confronts the economic motivations for the future of the community. Citizenship in that community is a function of identity, as in the Amherst case, predominantly student versus resident. In this way, citizenship is determined in part by wealth, property ownership, and consumerism. Localized identity as well as the localized knowledge of how the law works also plays a crucial role in the hierarchy of public interest, as who is parking where and for how long is as relevant as who is spending, rather than earning, and producing wealth in the community. However, the politics of the built environment do not always favor the interests of business, as is the case in Burton v. Wilmington Parking Authority. Here, the right to park was verbalized by Supreme Court Justice Clark as a public service in response to public need and therefore could not be abridged by the racialized preferences of private interests. Furthermore, parking as a public service became the responsibility of the local municipality to provide and to protect. However, what can be considered to be a public service might just as easily include the extension of time on parking meters in a public parking lot such as Amity Street Lot, albeit for the economic advantage of a local business complex. In this way, economic success is interpreted as the key for community success. What this means is that that which is conceived of as a public service is challenged by the public for its ultimate benefit on the community, as was the case with the Amherst parking garage debates. In these debates, the protection of open green spaces was pitted against vehicular accessibility and accommodation in the center of a small New England town. Here and throughout this chapter, who exactly constitutes the public is at question as the interests of wealth, ownership,

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and access are at the source of interpretation of community composition. In this way, the hermeneutics of belonging is a rich source in considering how parking creates a citizenry in which belonging is related to both place and power in the local contest for spatially-based rights, identity, and property.

Chapter 4

Semiotics of the Terrain: The Aesthetics of Justice In this chapter, the semiotics of parking will be explored. These semiotics range from signs and paved lines to license plates, and even lava. Semiotically, the symbols of parking reveal how power works according to legal and social forms of parking insignia. The semiotics of the terrains of parking explored in this chapter range from the handicapped parking space to the paving of parking lots to parking stalls for electric vehicles and even a recent lavaflow. In each example, the ways in which law works in everyday situations becomes apparent as the amalgamation of two types of law: formal and informal. As a result, the generic quality of the parking space must be reexamined according to legal definitions and constructions that shape not only how we see each other, but who is considered valid in temporarily owning a piece of hot property. Handicapped Parking Space As a symbol of belonging, the official sign that designates a reserved parking space as handicapped represents not only the legal power to depict how handicap will be represented, but also this translation as it happens socially. Because of this symbol marking the space as reserved for a certain type of driver, enforcement of the space can be characterized as having legal foundations and social ramification. The nature of power is uniquely contested in the locally political place as the visibility of legitimacy. Vigilante justice that steps in to enforce who belongs and who doesn’t often is in contrast to the legalized marker of belonging. The wheelchair has become a stereotypical symbol of physical disability. The image may appear as a picture, as on parking signs with a blue background and a white figure sitting in a wheelchair, or in reality when one sees an actual person sitting in one. Both images are useful in characterizing the governance of the handicapped parking space, a field that presents a unique case study in the interpretation and enforcement of law. The parking space is legally reserved for vehicles marked by the Blue Wheelchair which hangs as a tag from the rearview mirror or on the license plate; but at the same time it is socially reserved for vehicles driven by a person who is dependent upon an actual wheelchair. Law enforces this space formally by ticketing and/or towing violating vehicles. Society enforces this space informally through the disciplining gaze of onlookers. Legal enforcement is based upon the presence of the Blue Wheelchair symbol as it matches the sign that towers

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Figure 4.1

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Handicapped parking space

above the reserved spot. Social enforcement judges and disciplines through the qualifying observation of visible disability in the form of a wheelchair. However, what happens when a Blue Wheelchair symbol is present, but an actual wheelchair is absent? Which source of legitimacy is treated as the more authoritative? Different as they are, both forms of governance — the formal/legal and the informal/social — reflect the defining parameters of disability according to the Americans with Disabilities Act (ADA) 1990 (42 USCA 12102(2)). The ADA defines a person with a disability to include “a physical or mental impairment that substantially limits one or more of the major life activities, [having] a record of such an impairment … or, being regarded as having such an impairment.” This last part of the definition means that a person who is ‘regarded’ as disabled is disabled. But the Blue Wheelchair sign leads people to think that ‘being regarded’ as disabled requires physical impairment and a wheelchair. So the legal criteria of ‘being regarded as having such an impairment’ in fact encourages the observing social gaze and entrenches the stereotype of the wheelchair as the governing semiotic which makes disability legible. This chapter explores the semiotic of the wheelchair as it is used as a tool governing the occupancy of the handicapped parking space based around the use of the word ‘regard’ from the ADA’s definition of disability. First, the idea of ‘regarding’ will be examined in terms of the

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disciplining gaze which in fact governs the space both from the point of view of the law and through the observation of onlookers (Foucault 1995). Donna Fletcher’s (2001) notion of the guilt gradient will be tied to Cope et al.’s (1991) study of the posted sign of the Blue Wheelchair as designated reserved space. Second, ‘regarding’ is not just a site of biopolitical governance (Foucault 1994; Rose and Valverde 1998) but one that is contested through everyday interpretations of the language of the law (Brigham 2009). Lastly, the phenomenon of citizen-ticketing demonstrates the power of practices of social enforcement on the margin between formal and informal modes of ordering (Brigham 1996). Both legal and informal norms demand the stereotypical image of the wheelchair to be present, while at the same time encouraging the gaze as the verification of disability. In conclusion, this argument will highlight the limitations of heralding litigation as the optimal solution to disability-based discrimination as it prioritizes formal governance over social governance in the enforcement of parking rights (Burke 2002). The Gaze Drivers who park in a handicapped parking space are stared at. These stares verify their rightful occupancy of the space by visually determining their impairment. The disciplining gaze is a form of surveillance that Michel Foucault (1995) calls the “faceless gaze.” In his analysis of Bentham’s Panopticon, prisoners reside in cells without doors detained only by their own assumptions that the guard station in the centre of the prison is always watching. “Surveillance [is] based upon a system of permanent registration” and power is visible but not verifiable (Foucault 1995: 214, 196). In this way, the faceless gaze is the gaze that disciplines. Foucault states that “the major effect of the Panopticon [is] to induce in the inmate a state of conscious and permanent visibility that assures the automatic functioning of power.” The concern is “with individualizing observation, with characterization and classification, [and] with the analytical arrangement of space” (1995: 202, 201). Similar to the faceless bank windows of Chapter 3, in our case study, the faceless gaze is directed at the driver of the occupying vehicle from onlookers constantly policing the rightful occupancy of that space. Drivers regarded as disabled through the use of the wheelchair are treated as rightful occupants. They will ‘be regarded’ as disabled according to the presence of an actual wheelchair. In this way, the stereotype of the wheelchair creates a system of permanent registration precisely in order to satisfy the moral scrutiny of onlookers. Indeed, just as Foucault predicts, the handicapped parking space is a type of Panopticon wherein the threat of being disciplined for not ‘being regarded as disabled’ keeps many people who are not in wheelchairs — disabled or otherwise — from parking there. The panoptic “arrangement … programmes … the basic functioning of a society penetrated through and through with disciplinary mechanisms” (1995: 209). Indeed, the legal insignia of the Blue Wheelchair and the actual wheelchair provide us with an example of disciplinary mechanisms that work together. Because the image of

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a wheelchair is the legal sign for disability, social surveillance is conditioned to see disability in the form of an actual wheelchair. In this way, the qualification of ‘being regarded as disabled’ itself depends on the gaze and the image as a source of law: the gaze either verifies social belonging based on physical impairment or validates or overrides the legal record of disability hanging from the rearview mirror. Foucault tells us that the purpose of discipline is to fix, particularly to arrest or regulate movement (1995: 219). In the context of the parking lot, the disciplining gaze comes to regulate the movement of drivers themselves within the handicapped parking space. As an example of this psychic regulation, Donna Fletcher (2001) has documented what she refers to as “the guilt gradient” in the illegal use of reserved parking spaces. Her study is based on the observation of the behavior of violating drivers, or those able-bodied drivers without wheelchairs. She determines that such drivers feel the most guilty when parking in conspicuously visible handicapped spaces. Parking in the “least conspicuous reserved space,” or the handicapped parking space furthest from the door occurred most frequently. She also unauthorized parking practices in handicapped spaces according to a host of justifications ranging from ignorance (didn’t see the handicapped sign), laziness, miscellaneous excuses (having a sick dog, needing to use the restroom), to downright deceit (exiting the vehicle with a limp only until safely inside the building). Fletcher describes the guilt gradient in relation to threats of penalty from condemning bystanders who socially enforce this space through the disciplining gaze or through audibly asserted outrage. Of course, legal enforcement through possible police actions of ticketing or towing the illegal vehicle was just as preventative as frowns and condemning stares. She concludes that “it would not hurt to locate reserved parking spaces in conspicuous areas” as the guilt gradient is directly influenced by visibility (Fletcher 2001: 161). California has recently passed new legislation that recognizes the guilt gradient through steeply increased fines. As of January 1, 2010, cities across the state of California can give parking tickets with fines up to $1,000 for violating handicapped parking spaces. As a result of this bill, authored by California Assembly Majority Whip, Fiona Ma, San Francisco has raised the fine for illegally parking in a handicapped parking space from $100 to $750. Ma seems to echo Fletcher’s research through her statement about the bill “If you go for a pizza, and you come back, and you’ve got a ticket for $750, I think you’ll think twice about doing that again” (Barnett 2010). Voiced in this sentiment, Ma is recognizing that many of those drivers who park in handicapped parking spaces are not themselves handicapped and the best way to stop their behavior is through formally legal channels that impose heavy fines as penalty and hopeful deterrent for such usage. However, it may be that the visibility of freestanding signs as a notice of reserved space, and therefore their public nature, is more effective at keeping those who didn’t belong out than pavement markings or fines (Cope et al. 1991). “Many individuals illegally using spaces reserved for the physically disabled

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are aware of their non-sanctioned behavior and might reasonably be expected to consider being seen and publicly admonished as a punishing consequence” (Cope et al. 1991: 62). Connected to the disciplining gaze that regulates and fixes movement is the idea of spatialization, or “the ways in which legal practices are involved in the constitution of … governable spaces” (Rose and Valverde 1998: 549). Nikolas Rose and Mariana Valverde (1998) tell us that the spatialization of governable conduct directs the routines of everyday life and “entail[s] codes that embody specific conceptions of desirable and undesirable conduct” (1998: 549). The governable space of handicapped parking combines modes of legal authorization for disabled drivers, with (through the ADA’s definition of disability as ‘being regarded as disabled’) procedures of social adjudication. The handicapped parking space is likewise a governable space according to Francois Ewald’s idea of social law, “law which is welded to the power of the norms” (Rose and Valverde 1998: 544). This means that social law is framed by the connection between social norms and the interpretation of those norms. Thus the legal force that operates so powerfully in law’s adoption of the image of the wheelchair as the sign for disability derives from at the same time as it participates in the constitution and sustenance of the social norm as to the nature of disability. The image of the wheelchair links social to legal justification, and formal to informal practices of enforcement. Space is socially governed as governance is spatially articulated, and each are legitimated by their constitutive relationship. Consider the episode entitled “The Handicapped Spot” from the television sitcom Seinfeld (Episode 63 first aired May 13, 1993). Here’s what happens: the gang are patrolling a New York shopping mall for a place to park. All the spots are taken, except for the handicapped spot. George, the driver, is in a quandary: does he park there or not? Kramer suggests taking it, as there are no other available spaces to be seen. Elaine disagrees, assured that there will be available spaces in another lot. The following conversation ensues: George: I don’t want to walk that far. Elaine: What if a handicapped person needs it? Kramer: Oh, come on, they don’t drive! Jerry: Yes, they do. Kramer: Have you ever seen a handicapped person pull into a space and park? Jerry: Well, there are spaces there, they must drive! Kramer: Well they don’t. If they could drive, they wouldn’t be handicapped.

Elaine’s concern is a form of disciplined conduct, an interiorization of modes of surveillance. She is aware that the space is reserved for the handicapped driver presumed to be in a wheelchair. Kramer’s response, that handicapped people can’t drive, is in fact a re-articulation of the social law we have been analyzing, although here it has been heightened, for comedic purposes, until the handicapped driver takes on the form of a paradox or oxymoron. Albeit ironically, the oxymoron

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reinforces the disciplining gaze of social law by insisting that physical disability must be visible in order to be socially legitimate. Kramer in fact highlights the paradox of a social law that considers itself entitled to judge impairment only on the basis of what it sees and already expects to see. Biopolitics The oppressive implications of this kind of paradoxical judgment is not just a fiction. In People v James McNally (2001), James McNally, who had parked to read a sign, parked in such way that access to three handicapped parking spaces was blocked. Joan Binnie, a handicapped driver who was looking to park in one of these three spaces, honked her horn and pointed to her Blue Wheelchair placard hanging from her rearview mirror. Irritated, McNally, thinking that the woman behind the wheel was giving him the finger, called out “Fuck you asshole!” and reluctantly moved his vehicle. However, after observing Binnie exit her car without the assistance of a wheelchair, he violently yelled, “You ain’t no fucking gimp, I should get out and bash you!” McNally visually judged Binnie to be illegitimate in her occupancy of the space because she was able to walk. Even though she displayed the legal qualifier of the Blue Wheelchair placard and pointed to it for McNally’s benefit, McNally nonetheless based his judgment on the absence of an actual wheelchair. “Lumping together people of such diverse fates [that] disguises the complexity of their problems” (Burke 2002: 60), McNally expected that because Binnie displayed the Blue Wheelchair placard, she would be in a wheelchair. Although Binnie was handicapped with multiple sclerosis, McNally did not ‘regard’ her ‘as disabled.’ Social norms of visibility trumped the legal semiotic of the Blue Wheelchair. While not all disabled people look disabled, they are nonetheless governed because of their bodies. Foucault describes the governance of bodies as biopolitics, or “the endeavor to rationalize the problems presented to governmental practice by the phenomena characteristic of a group of living human beings constituted as a population” (1994: 202). McNally’s violent response was a kind of biopolitical governance of Binnie. Biopolitics disciplines in response to conduct and appearance. In the next case, the social enforcement of the disciplining gaze is confronted by the social enforcement that disciplines the body itself. In Peoria, Illinois, an elderly man was violently attacked and sexually assaulted by the same two men whom he had scolded for parking in a handicapped zone (Cope et al. 1991). Their able-bodied appearance incited the elderly man’s sense of entitlement to enforce the established norms of social expectation. But this disciplinary gaze itself invoked an angry response in the two men. So the word ‘regard’ has dual meanings here. The elderly man ‘regards’ the lack of disabled appearance by the two men while the two men for their part ‘regarded’ the elderly man as claiming a right to social rather than legal enforcement and violently resisted his legal authority to do so.

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Biopolitical governance is therefore predicated upon the visibility of handicap. In these two cases, there was as much power in the right to claim the handicapped parking space as there was in its enforcement. What the language of the ADA does then is to reinforce the necessity of observation as the qualification for legitimacy, for what a person looks like becomes the basis for governance. In these cases, the legal condition of handicap is trumped by the social determination of handicap. The problem here is that the language of the ADA in terms of ‘regarding’ reaffirms the judgment of handicap based upon visible markers of disability. The social determination of handicap then trumps the legal condition of handicap not only in the ADA language but also in everyday acts of enforcement such as are described here. In a recent crackdown of handicapped parking space violations, some states are instigating new policies with regard to state-issued handicap placards. As of January 1, 2010, new handicap parking placards must have expiration dates that are in a large enough font so that they can be read from 20 feet away, according to North Carolina Department of Motor Vehicles spokeswoman, Marge Howell (Barnett 2010). South Carolina has enforced a new law since January 1, 2010, mandating a photo of the disabled person be pictured on the placard and hung on the rearview mirror when that person is driving the vehicle or is a passenger (IBID). Similarly, Governor Jodi Rell of Connecticut has called for a media campaign that will heighten awareness and for technological advancements that will improve the verification of permits and window stickers. What these new state laws have in common is the dependence upon legal, placard-based enforcement of handicapped parking spaces. Placards, images, and bigger fonts are what these lawmakers view as methods of legitimate marking. However, with the one exception being Connecticut’s media campaign, these markers are not the markers that the general public looks for with regard to legitimate occupancy of handicapped parking spaces. In fact, as the previous examples attest, legal qualification really doesn’t matter in terms of biopolitical discipline based upon visibility of disability. What is interesting as well is that while faces and dates are legally accentuated through these laws, there is nothing that seeks to counteract the social image of what disability looks like. In the opinion of Bill Freeman, President of the American Disability Association, this recent legislation seeks to target the abuse of those prime handicapped parking spaces rather than represent greater national empathy for the parking needs of the disabled driving population (Barnett 2010). Furthermore, these laws, again with the creation of Connecticut’s media campaign, prioritize legally derived qualification with the disabled driver responsible for following state-mandated protocols of validity, namely by being sure to position the placard in the right spot so it can be easily seen and verified by the viewing public. However, what these laws fail to consider is that placards are less easily viewed than the physical persona of the disabled person in question. Furthermore, once the vehicle is parked and the person who is host to the placard is not present, then the rightful occupancy of the space according to the disabled person in question cannot be

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determined until that person returns again to the car. And in the meantime, what the person looks like is the primary source for public observation and biopolitical discipline of rightful occupancy. In the above cases, the aggressors do not care whether or not the law has given that disabled driver the stamp of approval as the disciplining actions are motivated by physical appearance and have nothing to do with legal qualification. Law as Forum The handicapped parking space illustrates the idea of law as forum. The community of the parking lot is a “repository of visible and invisible structures of law that shape political life” (Brigham 1996). Brigham’s notion of the law as forum involves law that “operates on the surface” and law that “operates in society and on our consciousness” (Brigham 1996: 154). As a place where “ordinary people … actively interpret the law and give it meaning as applied to them,” Brigham further asserts, “what people know with reference to legal forms is a source of law” (Brigham 2009). This means that ordinary people who regard the occupant of the space expect to see a wheelchair because the legal sign of disability is a picture of a wheelchair. This is law operating on the surface. Legally, a wheelchair is present, so socially, there must also be one. This is law operating in society and on our consciousness. In thinking of this space in these terms, social enforcement is mixed with legal enforcement, legal norms are interpreted and enforced socially, and social norms are given legal authority through social action. If legal enforcement of this space is in the tangible form of a ticket and social enforcement is through the intangible disciplining gaze, then the citizen-ticket is evidence of the amalgamation and commingling of both: the distinction between formal and informal law is by no means so neat and clear. The citizen-ticket is a piece of paper that resembles a legal ticket and is posted on vehicles interpreted as violators by fellow citizens. It is law operating on the surface, rebuking drivers of vehicles who are not ‘regarded as disabled.’ What is interesting about the citizenticket is that they are frequently paid by those who receive them even though the ticket has no formal legal status. The citizen-ticket is a form of law operating on the consciousness of the violator and may be paid because it so closely mimics a legal form on the one hand, and a social judgment, on the other, that people recognize it as a source of law. The story of Sharon White Taylor exemplifies this logic (1996). Handicapped by a stroke, Taylor socially enforces spatial governance in the handicapped parking space by distributing citizen-tickets. Her mission is to increase awareness of its non-handicapped exploitation by drivers not in wheelchairs. She regulates the space by “waging a campaign against the able-bodied who are too lazy to walk extra steps.” The turf that she fights for is considered fundamental to the quality of life of disabled drivers in wheelchairs for those “spaces close to the destination and wide enough to unload wheelchairs are essential for disabled persons to conduct

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their daily lives.” She views the handicapped parking space as a right of necessity for the physically disabled and not as “a perk” or privilege. Taylor confronts the public by challenging dishonest activity (that is, the “parking cheat”) and the absence of visibly legitimate qualifications of handicap (that is, “confronting a woman without a limp (or parking sticker)”). Taylor issues citizen-tickets to violators by leaving brightly colored placards on cars that do not belong in the handicapped parking space in order to expose them as “selfishly inconveniencing the disabled.” Her expectation is that the driver, upon returning to his/her vehicle and finding such a public and visible marker of shame, will “look sheepish and glance around to see if anyone has noticed.” Another example of the citizen-ticket is that deployed by handicapped rights activist Matthew Lakota of Chico, California (Chico News and Review 2004). In August 2002, Lakota distributed citizen-tickets on three cars parked in handicapped parking spaces that visibly appeared to violate that space even though “some of those … ticketed were actually disabled but had expiring parking placards.” Lakota has gone further than Taylor in making the leap from social enforcement to illegal enforcement. Drivers ticketed by Lakota paid a total sum of $760, which was deposited by Lakota into his personal bank account. A different type of legal enforcement stepped in however, and Lakota was arrested, charged with impersonating a police officer and attempted extortion. He was convicted of “using phony parking tickets to extort money from drivers parked in handicapped parking spaces” and charged with the felonies of attempted extortion and receiving stolen property. Ordered to serve 400 hours of community service and to pay more than $4,000 in fines, Lakota’s defense was that he was “legally allowed to dispense the tickets because they are notices of his intent to file civil suit.” Lakota’s claim is that, legally, he is entitled to socially enforce the handicapped parking space. Here too, then, the legal and the social begin to seem indistinguishable from each other. Furthermore, those who were ticketed actually paid the excessive fines that Lakota’s hand-fashioned tickets demanded: for violators no less than for enforcers, compliance is a question of more than formal right. Indeed, the fact that some of these drivers were legally disabled (albeit with expired placards) only further emphasizes the importance of the visible in the shifting sands of legal and social authority. Aesthetics of Justice Visible aspects of parking, whether as the observation of what may constitute a legitimate handicap according to a person’s physique or as the presence or absence of a legally sanctioned handicapped parking placard, vitally contribute to the socialized activity of parking. However, it is not just what the person or car looks like when considering the social enforcement of parking. Semiotically, what a parking areas look like is itself a source of contestation involving visible expectations of how public spaces should be aesthetically presented. Take for

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example the case of Dolan v. City of Tigard (512 U.S. 374 (1994)). Here, the expansion of a parking lot triumphed over a local city ordinance that would have decreased the size of the lot in favor of a public greenway and pedestrian/ bicycle pathway running through the lot. In this case, the private interests of the parking lot owner were protected from the public’s interest in greener spaces, as the ordinances that sought to make the lot less paved and more green “constituted an uncompensated taking of property under the Fifth Amendment.” Despite the reality that many parking lots are often asphalt-paved eyesores devoid of fauna that generally detract from the beautification of the surrounding landscape, in this case, parking lots for private interest competed with the public’s demand for green spaces voiced through municipal regulation, and won. In contrast to the case of the Amherst Parking Garage in Chapter 3 where the public’s desire for visual aesthetics played a crucial role in the construction of the municipal parking facility, the public’s need for a less vehicular-dominated environment was defeated by private ownership rights. In this way, the notion of law is narrowly defined in terms of private gain according to the public’s desire to see greener pastures rather than an asphalt parking lot. However, private interests in parking lots do not always triumph over the public good. The social benefit from controlling the ever-increasing numbers of cars that need a place to park is not lost in the case City of Pittsburgh v. Alco Parking Corporation (417 U.S. 369 (1974)). In this case, private off-street nonresidential parking facilities were taxed at a higher rate under the justification by the Court that “the ordinance is not unconstitutional, and the city was constitutionally entitled to put the automobile parker to the choice of using other transportation or paying the increased tax.” In this way, parking lots can provide a limited public service given the nature of their existence as a business for profit that increases public coffers through taxation. Here, the law becomes a forum in which parking is at the source of a struggle that is visibly affected by the predilection toward other forms of transportation besides the automobile in lieu of domination by private parking lots and facilities. On the Big Island of Hawaii and in the state at large, property is a point of contestation between private interests and public use (Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984)). Here as in other places, what the land and its usage represents is key to many local, state, and federal political struggles. Mayor Billy Kenoi of Hawaii takes this debate and his authority in it very seriously. Kenoi is a fascinating figure born and raised in Kalapana, a small town on the southeastern edge of the Big Island. In the lava flows of 1986, 1990, and in the years since, Kalapana has been inundated by lava, which destroyed much of the village and resulted in its being declared a Disaster Area. After attending the University of Hawaii at Hilo and graduating from the University of Massachusetts at Amherst, Kenoi finished law school at the University of Hawaii at Manoa. In his position as Mayor for the County of Hawaii, Kenoi is a larger than life figure who is able to comfortably switch between pidgin, the local dialect, and standard English, depending on his audience. He is uniquely able to use his position to unite both

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local and haole, a term meaning ‘not from the island,’ in his progressive vision for the Big Island. One of Kenoi’s projects is the greening of town parking facilities. As of May 21, 2009 the County, under Kenoi’s leadership, was preparing 21 parking stalls for plug-in electric vehicles at the Hilo County Building in Hilo and 14 stalls at the West Hawaii Civic Center (Sustainable Action Day 2009). Kenoi is committed to bringing alternative forms of energy to the island, located roughly 2,300 miles from the state of California. In his words “If we don’t pay attention to these kinds of energy sustaining initiatives today, we won’t have a tomorrow to hand to our keiki (children) … we must commit ourselves to a healthy future.” Whether it is solar, wind, or geothermal, alternative forms of green energy in turn shape what parking looks like. The plug-in parking stalls that Kenoi advocates seem to be in response to an earlier criticism of the direction in which the island was heading prior to Kenoi becoming mayor in 2008. Bill 79 proposed before the Hawaii County Council in 2007 sought to increase parking pavement on the island. While the idea of more parking pavement might not seem like such a problem on an island roughly the size of the state of Connecticut with a population of less than 200,000 and five volcanoes, two of which are nearly 14,000 feet high, more parking means more tourism which means more traffic congestion. Those required to supply more parking were designated as bed and breakfast owners, and owners of commercial as well as multifamily projects. The guest parking that would have been created would have meant simply more people and, therefore, more vehicles on the island, and “sprawled development and less efficient use of space” (Hawaii Land Use Law and Policy 2007). The outrage against urban sprawl is metaphorically channeled by Pele, the goddess of the volcano, who is considered to live in the Halema’uma’u crater of Hawaii’s active volcano, Kilaeua. As seen in Figure 4.2, Pele offers us a potential response to both the greening of the island and the increased parking pavement concerns as the aesthetics of justice are beyond even the constitutive approach to law. Thus far, we have explored the social enforcement of the handicapped parking space, the legal response to its violation, and the aesthetic-based debates that parking areas generate. In each of these cases, laws affecting parking activity engender a forum for weighing the rights of private individuals or corporations against the needs of the public and municipalities. So, what happens when social activity in parking lots meets with legal suspicion based on appearance, and literally, the lack of visibility? Socially as well as legally speaking, bad things can happen in a dark and empty parking lot landscape. This was the reasoning in the case of New York v. Earl (431 U.S. 943 (1977)). Here, an off-duty police officer noticed two individuals “‘crouched’ behind a parked automobile in a partially deserted, unfenced hotel parking lot.” Thinking that the presence of these two people in a vacant parking lot at midnight in New York City presented danger, the officer arrested the two men. According to the Court, the officer was justified in his actions by the reasonable suspicion precedent established by Terry v. Ohio. After all, bad things could, and often do, happen in parking lots at night. Unpatrolled

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Figure 4.2

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On April 1, 2003, lava engulfed the chain of craters road near Kalapana, Hawaii

Source: Photo in the public domain: www.hawaiihighways.com/photos-Lava-Closures.htm (accessed May 3, 2010)

parking lots seem to invite illegal activity. No one is around to watch. In this way, parking lots are places in which both formal law and the social enforcement of law are neither visible nor present to keep danger or unlawful activity from happening. Parking lots invite an aesthetic of justice that takes place without formal authority intervening unless, of course, the activity is monitored and discovered as in this case. What’s interesting here is the basis for reasonable suspicion in an empty parking lot where not only law is presumed to be physically absent, but social presence is also minimal. In fact, parking lots are places inhabited predominantly by cars with drivers’ presence expected to be temporary. However, the emptiness of parking lots is also an assumption that makes those drivers who do remain with their vehicles suspicious characters themselves at any time of the day or night. Whether vehicular or human, activity in parking lots ranges from the mundane to the suspect. Parking lots that house parking spaces are places often at the fringes of legal activity, the forefront of social enforcement, and often at the heart of political controversy. However, these physical places that house cars invite closer scrutiny into legal procedure according to the constitutive approach to how law works in our everyday lives. Despite the public arena that parking spaces and parking lots characteristically support, rights are often curtailed at the individual level of who comprises the public who use such places. While having one’s car towed from a parking lot is seemingly mundane, this type of legal action does not necessarily

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guarantee due process. In the case City of Los Angeles v. David (538 U.S. 715 (2003)), David had his car towed from a place where parking was prohibited. He paid $134.50 to recover his car and subsequently requested a hearing to recover his money. Because of the delay of the hearing and the subsequent response of rejection, David argued that his due process rights had been violated. In the decision of the court, the parking lot was made into a practical mockery of justice where law doesn’t really seem to matter. David’s claims were rejected on the basis of procedural efficiency: “Requiring the city to hold 1,000 hearings, rather than 50, within a short time period would prove burdensome.” In this way, the response of the City of Los Angeles held that towing penalties were of too little consequence to warrant individualized private attention. In this way, law as a source of legal order may best be described according to the constitutive approach as reflected in the responses of social enforcement. As we can see, the formal avenues that law has set forth don’t always work. Conclusion As this chapter illustrates, the semiotics of parking affect the governance of the terrain of parking. These semiotics act as the aesthetics of justice as the signs, symbols, and markers of legitimacy brand both the parker and the parking space itself. Specifically, as one example shows us, the space occupied by the handicapped parking space is a space that is reserved for disabled drivers; nevertheless, the twin semiotics of the Blue Wheelchair and the actual wheelchair are in normative competition. The source of this competition is the ADA’s own definition of disability. The use of the word ‘regard’ results in the legal enforcement of the display of the Blue Wheelchair through ticketing and towing, while the social enforcement of that driver being in a wheelchair is found in the disciplining gaze, the towering sign, biopolitical judgments, and the citizen-ticket. Not all agree. Thomas Burke views the enforcement of the ADA as resting primarily with legal authorities. Judges, in his formal sense of the word, ignore the social enforcement of handicapped rights in the everyday public sphere. His preference for legal recourse within the parameters of formal litigation dismisses as irrelevant the complex ways in which law is constituted, interpreted, and enforced every day in parking lots themselves. In that sense, his claim that “the implementation of the ADA is ultimately in the hands of judges” (Burke 2002: 92) is at the very least problematic. Nevertheless, Burke’s assessment that “people with disabilities are oppressed more by society than by their disabilities” is more true than false (Burke 2002: 70). In concluding this examination of right and might, we must question the fundamental nature of the ADA’s definition of disability and its reliance on the visual representation of the wheelchair. The wheelchair, as this chapter has shown, is a stereotype of disability. Until the formal use of a wheelchair as the legal semiotic of disability is changed, the social imaginary it

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conjures up will also continue and continue to be enforced – symbols made real in a complex world, and with real, complex, and sometimes contradictory effects. These symbols provide the semiotics of the terrain with regard to, first, handicapped parking spaces and, second, to parking lots more generally. With regard to the greening of space, the paving of parking lots, or the environmental response when lava challenges parking and wins, the semiotics of parking terrain illustrates the geography of law in which there are specific signs unique to this context of handicapped parking and other forms of politicized parking. With regard to parking lots more generally, a semiotics of the terrain is the consideration of symbolic statements made by the construction and regulation of parking lots and parking spaces. Therefore, by using this framework of analysis, the semiotics of a terrain allows for the consideration of how law works in places and through images invoked in everyday life. In this example of handicapped parking, the terrain is that handicapped parking space itself; in the parking lots, it is the wide expanse of pavement where designated parked cars reside and are welcomed; it is the terrain that can be reclaimed as ‘green,’ or as in the case of lava, ‘black.’ What are the signs of law in this chapter? There are many. Signs include the disciplining gaze of curious onlookers, the image of the wheelchair on the sign towering above the handicapped parking space, the sign designating electric vehicle presence, as well as the presence or absence of a wheelchair with regard to whomever is exiting the driver’s side of a vehicle parked in a handicapped parking space. Similarly, biopolitical signs that lie at the source of social enforcement include dirty looks, angry gestures, and/or an able-bodied appearance. Signs are also the type of car parked or the sheer absence of parked vehicles in parking spaces/lots. Signs that enable us to think of parking spaces as a forum of law include the ticket, the citizen-ticket, the increased fine, the placard, the parking environment and, first and foremost, the occupied parking space itself. Through these three areas, we can see the signs of law in places where law is alive and well, namely in parking lots across the United States. These signs of law are signifiers of a legality in which the formal law of litigation or even legal enforcement through parking authorities is less a factor in how law works as the social ramification of what it means to park in a parking space. In parking lots where these types of controversies exist, formal law is rarely, if ever, directly present to enforce proper usage of the space according to the language of the law found in the ADA, various state statutes, or the recent flow of molten rock. Instead, the people in these social interactions between onlooker and driver that happen spontaneously often become the legal experts in which social enforcement serves as law enforcement. The only formal statement of the law in these situations is the designation of the space in the form of a sign or marker, such as the legal placard of handicap which is often not visible for critique or verification, and the resulting ticket. What is more socially a sign, or statement, or simply how law works is the dirty look or targeted act of aggression that drivers who occupy these handicapped parking places may encounter. Likewise, as the significant jump in violation fines as in California directly suggests through the articulation of the lawmaker

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responsible for the increase, the threat rather than the actual ticket is what keeps the handicapped parking space unoccupied by those who don’t qualify. However, that qualification is what also becomes a sign, for the legitimacy of occupancy in these parking spaces is a function of visibility, in which someone actually is either in a wheelchair, or looks handicapped. The citizen-ticket, while modeled upon the legal ticket, is nonetheless a statement in which the sign of penalty has been issued (and even paid) by the concerned public. One again, the formal avenues of legal recourse such as are found in the courts are not nearly as employable as a immediate justification or remedy for challenges to action or occupancy. What do the signs tell us about how law works in everyday life? Constitutive legal theorists argue that law and society mutually interact with one another. These examples focus on how the social enforcement of parking space activity reinforces this relationship, as those who recognize handicap through the sign of a wheelchair are performing in limited capacity what the ADA really means according to its definition of regarding. The law does not specify that to be handicapped, one must occupy a wheelchair. However, the law does create a meaning of handicap that is asserted socially through the image of the wheelchair. In this way, the society in which handicapped parking spaces exist alters what the ADA has defined as handicap, to a narrowly visual interpretation of wheelchair-dependency. Handicap is restricted for those who visibly qualify as such and therefore challenges the protections designated under the ADA. In this way, the ADA is a presence, but only to the extent that social action is predicated upon its initial existence. The general public in enforcing or resisting the rights of handicapped parkers simply does not quote from the piece of ADA legislation that supports their case, making the ADA a muted form of law and the dirty look or act of aggression the actual source of law as social discipline. Similarly, the public who drives electric vehicles in a place where energy is itself a commodity, are elevated through designated parking stalls. In terms of parking lots, the signs include uninhabited space with few or no parked cars present, many parked cars with no people present, or parked cars with only a few people present. Rights, identities, and claims of ownership are signs of a healthy interpretation of the United States Constitution. These are key elements to studying the parking lot as a site of law and politics. Together, parking and the framework of the Constitution reveal a critical geography of power. We can think of the parking space as a type of space that is constitutionally contested from the Fourteenth Amendment’s Equal Protection clause to First Amendment guarantees of the free exercise of religion and free speech as well as the guarantee against the establishment of religion. In this way, a constitutional approach to the study of parking reveal notions of right, identity, and property. To begin, the idea of constitutional space is a concept established in terms of Fourth Amendment privacy rights. Certain spaces, such as a phone booth, carry with them a reasonable expectation of privacy (Katz v. United States, 389 U.S. 347 (1967)). However, such spaces as an open field or cars do not (Carroll v. United States, 267 U.S. 132 (1925); Oliver v. United States, 466 U.S. 170 (1984)). Parking lots however can be places where people do more than just park their cars. Suspicious activity and police

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action occur (New York v. Earl, 431 U.S. 943 (1977)), political speech happens (Kohn 2004), and politicized identities transpire.1 The symbolism inherent to the examples involving parking lots in this chapter allude to the struggle over rights that place and signs of parked cars evoke. Public and private interest butt heads in a way, that while the courts are involved as a final recourse, social consideration is at the source of the decisions, except when Madame Pele is directly involved. In this way, law and society are mutually constitutive of each other in the consideration of a legal site of contestation in which the semiotics of the terrain indicate concern for the public welfare, the recognition of private ownership, or what a parking lot may mean for the future of a community. Asserting these elements of the aesthetics of justice, constitutive legal theory gives us the richest and most applicable study to see how law works in everyday life. In the semiotics of the terrains of parking lots and parking spaces, life outside the walls of a courtroom reveal not only an evolving relationship between the social and the legal, but how law and society mutually constitute one another.

1  Such as mommy spaces, handicapped parking spaces, or even the fire lane.

Chapter 5

Embodiment of Jurisdiction: The Biopolitics of Parking Space1 Lefebvre speaks of the representations of space as “certainly abstract, but also play[ing] a part in social and political practice” (1991: 41). For example, since the tragic events of September 11, 2001 in the United States, everyday spaces have shifted in meaning. In particular, we see the changed space of American-affiliated airport terminals, domestically and abroad. Once places of exciting hustle, sophisticated bustle, and alluring duty-free shops, airports are now angry zones of suspicion with extensive queues, military guards brandishing machine guns, and rubbish containers filled with reluctantly discarded bottles of water and cups of coffee. The atmosphere is palpably swollen with frustration and resentmentinfused fears of the unknown. The social practice of flying has been radically altered by the politicization of post-9/11 anti-terror governing practices, such as those implemented by the Department of Homeland Security. As Lefebvre suggests, space is now the representation of prevention. The change in social and political practices is happening in everyday, local places. Parking lots have become enlivened places where viewpoints are raised and challenged. This chapter will examine the parking lot as a public forum in which speech rights are exercised, private rights of ownership challenge First Amendment freedoms, and social need is reevaluated according to the accessibility and accommodation that parking lots engender. The variety of ways in which parking lots become politicized is through the biopolitics of engagement, where people rather than cars are the focus of occupancy. In shopping mall parking lots, Wal-Mart parking lots, military parking lots, or in the parking lots of abortion clinics, political speech and assembly that transpires on seemingly public territory confronts the rights of parking lot owners to the usage of their land. In this way, the parking lot is a public forum creating rights for public usage, often trumping private ownership assertions. The social need that these spaces create give us a new place where we can become political bodies despite the disappearance of traditional public forums, such as parks and street corners. This new framework of space further invigorates the notion of what social need really is in the first place. Whether as beach access rights in Hawaii or as handicapped parking spaces at Fenway Park in Boston, we can see that the spatial representations accompanying social and political practice 1  With kind permission from Springer Science+Business Media: International Journal for the Semiotics of Law, “Between disability and terror: Handicapped parking space and Homeland Security at Fenway Park,” 20(3), 251-61 (2007), Sarah K. Marusek

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are not static, but are instead expanded through the resistance found in the growing public unease concerning the curtailing of our rights. Biopoliticized Venues of Social Need: Parking Lots as Public Forum Political scientist Margaret Kohn (2004) brilliantly asserts that public spaces are becoming extinct through the privatization of their ownership as well as their usage. As Kohn (2004) asserts, we must inhabit these spaces in order for these rights of usage to continue, especially since these places are becoming increasingly privatized and freed from protected public usage. Although Kohn is incredibly astute and insighful in her argument describing the impact of disappearing public forums on society, she does not focus on the parking lot as one such space. In this chapter, I would like to offer the parking lot as a prime example of an underexamined public forum simply because it is so prevalent in our vehicular society and exists as a space where people must gather, to park their cars and for purposes of exercising political freedoms such as speech and assembly. Additionally, the parking lot as public forum may also expand the power of public usage to privately-owned property that is effectively publicly available and used. In these spaces, bodies matter and make a difference; it is the bodies’ use of the parking lot that changes the space into a biopoliticized venue in which jurisdictional claims become the embodiment of constitutionally-protected rights and the increasing ability of privatized space to alter both social and political practices. Since 9/11, social practices fuse with political practices in new and dramatic ways as far as spatial transformation is concerned. It is no longer easy to imagine space as innocent. What may have once been ‘just space’ is now altered with meaning and intention. Signs of this change are clear at airports or at the former site of the World Trade Center. However, evidence of this change is less pronounced in our everyday routines, our leisure, our sport, and where we park our cars. Here we try to block out the threat and the changes to national past times by carrying on in our usual vein of doing things. For some, that means going to baseball games as normal. For others, that means voicing political discontent or even just going to the doctor. However, for others, life since 9/11 has changed drastically, but ironically without event. Even as our privacy and levels of access to information are eroding, other forces work to bring life ‘back to normal.’ Normalcy is itself a construction of who we are and how we see ourselves. For example, in the years since 9/11, the mere existence of Homeland Security is construed as normal as a legitimate branch of domestic security. The politics of space involve everyday people in everyday places. Here, social aspects of physical spaces are tethered to political ramification, rooting activity to intention to ability. In airports, the threat of being blown up is no longer an abstraction but is instead perceived as a likely reality even at the level of baby formula. In parking lots, the threat of terror is embodied by who is parking the car and has become as relevant to the prevention of threat as the location where the

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car itself is parked. But, of course, the threat of terror is not just at airports, Ground Zero, or just parking lots. It has been interpreted to exist wherever we gather, and, of course, wherever we park when we do. The interpretation of what is politics has narrowed according to the increasingly fewer sites where the transpiration of politics is allowed, visible, or even considered. Through the ever-presence of the possible threat of another terrorist attack occurring on American soil, places where politics happens is restricted and sometimes suffocated through the silencing of those bodies who either pose a threat or may pose a threat. The diffusion of what may become terrorist activity is justified through the changing of rules in places where those rules have been in place years prior to 9/11. These new rules and their enforcement embody a new sense of jurisdiction, where discipline and authority are linked to people and are decided often without popular knowledge or acceptance. The embodiment of jurisdiction is therefore the new face of spatial policing in the name of protecting the public. However, that protection may do more harm than good. Space can reveal contestations of sociopolitical display in everyday parking lots. Just ask George Barisich, President of the United Commercial Fisherman’s Association. Barisich was fined $75 for selling merchandise in a Wal-Mart parking lot in Chalmette, Louisiana, after Hurricane Katrina (Parker 2006). This particular parking lot was considered to be federal property as it was the temporary site of a Federal Emergency Management Agency (FEMA) center set up to aid hurricane victims. Homeland Security officials cited Barisich for selling a T-shirt on federal property that said ‘Flooded by Katrina! Forgotten by FEMA! What’s Next, Mr. Bush?’ The federal government’s reaction to Mr. Barisich’s presence reminds us that a parking lot is not empty even when it seems to be. Parking spaces are no longer just places to leave one’s vehicle. Long before 9/11, the innocence and banality of this space had been transformed and constrained. Even the United States Supreme Court has decided that parking areas hold special meaning for a host of rights and liberties according to the American Constitution. The mundane notion of a place to park challenges and redefines freedoms in the areas of anti-abortion protest, equal protection for racial minorities, political expression on private property, the guarantee against religious establishment, and organized labor (Schenck v. ProChoice Network of Western New York, 519 U.S. 357 (1997), Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961), Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980), Diffenderfer v. Central Baptist Church, 404 U.S. 412 (1972), Labor Board v. Babcock & Wilcox Co., 351 U.S. 105 (1956)). Parking spaces reveal a power of indication, intention. They have become places where political statements are made. As discussed in Chapter 4, parking lots promote vehicular as well as human activity. Though their design may be intended for the parking of cars, parking lots spark legal contests over spatiality, belonging, and rightful ownership. In these often-vacated places, law effectively becomes a frontier where social policing acts as the means of enforcement. However, the usage of the parking lot as a place where human activity can occur changes the boundaries created between a parked

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car and the lines within which it is parked. When there are no cars parked in these designated areas, parking lots become rich sites of political protest, property disputes, and the exercise of First Amendment rights. Take for example, anti-war activist Cindy Sheehan. As the mother of an American soldier slain in Iraq, Sheehan seems to consider the parking lot to be optimal terrain for holding rallies as she has held many a rally in a vacant parking lot. She recognizes the empty space of a parking lot in which cars are the first occupiers of the territory, and when there are few, if any, cars present, then the land is available for the gathering of people. Through this usage, Sheehan uses the parking lot as place of public forum to voice political dissent. In addition to the vacant parking lot as a site of immense assembly potential, Sheehan also seems to recognize the convenience that parking lots have when holding a rally as a resource in which the emptiness of the parking lot that she and others in attendance can temporarily claim and then move on from. At a March 2006 rally at a German-controlled parking lot outside the American Air Force base in Rammstein, Germany, Sheehan used the parking lot as a site of international political protest to set up Camp Casey. This piece of land, readily visible to the American base but existing on German-controlled property, was a sign not only to the Americans, but also to the rest of the world, that Sheehan’s domestic discontent had spread beyond American boundaries (Mraz 2006). In honor of Sheehan’s son, Camp Casey can be seen as a semiotic of anti-Americanmilitary sentiment that joins the political unrest in other countries surrounding the war. By convening in this parking lot, Sheehan has exercised her First Amendment rights of speech and assembly in the face of a government that supported the war in which her son fought and was killed. Political speech, although often peaceful in conduct, is by nature disruptive. In 1968, a group of students protesting the Vietnam War distributed handbills in a privately owned shopping center, Lloyd Center, in California. Lloyd Center objected to their distribution on the grounds of private ownership that would disallow the continuance of actions that did not represent the interests of the shopping center owners. In Lloyd, these students countered that “since the Center is open to the public, the private owner cannot enforce a restriction against handbilling on the premise” (Lloyd Corp., Ltd. v. Tanner, 407 U.S. 551 (1972)). In this case, similar to Sheehan’s case, a parking lot is used by people for purposes of speech and assembly. In this case, however, the right of access is vital for the Court, for if there are other places to protest other than a shopping center, they must be used first. Justification for this restriction is premised on property rights, on the grounds that “it would be an unwarranted infringement of property rights [to] require them to yield to the exercise of First Amendment rights under circumstances where adequate alternative avenues of communication exist.” What this statement of adequate alternative avenues of existing communication does is to qualify the reaches of the public forum in terms of limiting the spatial resources needed to hold a lawful public forum for purposes of speech. By limiting where a public forum can transpire, the nature of free speech as speech that is

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publicly accessible and free from discriminatory state action is changed to speech that is public only as long as it happens on property that is not privately owned. So, just because a shopping center is in a place inhabited by the public, such “property does not lose its private character merely because the public is generally invited to use it for designated purposes.” Here, the invitation is the allowance of free speech, making free speech rights then at the mercy of the private interest where the forum might be held. The meaning inherent to the qualification of invitation takes away from the Court’s recognition and protection of public forum rights that are exercised as a public claim and, more importantly, may be based upon a challenge to private rights of ownership. The Court designates in Lloyd that the designated purpose of the section of a shopping center where customers park their car is to park there in order to either shop or work and that “there is no general invitation to use the parking lot, the pickup zone, or the sidewalk except as an adjunct to shopping. No one is invited to use the parking lot as a place to park his car while he goes elsewhere to work.” The outcome of this case is ironic, simply for the fact that because other places besides the shopping center parking lot to hold a public forum were not available, a public forum was allowed in this specific case. Lloyd, like Kohn, reminds us that the rights to exercise free speech and assembly as generated by such a public forum are in danger of being eroded in the name of consumerism. In open spaces, such as parking lots, which are seemingly ripe for people to gather to discuss political issues, cars take precedence over people in claiming occupancy rights in these places. Having a place to park one’s car when shopping in a shopping center where parking for customers has been previously increasingly designated takes precedence over constitutional protections pertaining to speech and assembly. This vehicular prioritization shapes the public’s ability to voice critique as the property where the forum is to be held determines the fate of those voices being heard. This prioritization also represents the parking space as, ironically, an un-embodied site of jurisdiction, where it is the car, not the person(s) in the car that matter. Jurisdiction in these places account for cars rather than usage by people with or without cars, such as Sheehan or the student protestors. Although Lloyd is a statement in which private interests have the ability to silence political speech, political speech may often turn violent, particularly in places were speech itself is a commodity, such as the ability to access an abortion at abortion clinics. In the political hotbed of abortion rights involving those who support a women’s right to choose an abortion and those who are against abortions in order to protect the life of the fetus, parking lots at abortion clinics provide a means through which to voice one’s views. Often, these views are voiced in the form of a group. The gathering of such a group constitutes a public forum focused on the exercise of speech, again by using the open space provided by a parking lot to voice political views. In abortion protests, parking lots can be places of political aggression, as is the case with those targeting abortion clinics. What is contradictory in this example is that while abortion clinics provide a service that depends upon that same monetary exchange as seen in Lloyd (specifically those transactions

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involved at the shopping center between consumer and shop owner), the rights of private ownership are not the same. While Lloyd recognizes that the shopping center has the recourse not to have the political speech presented, abortion clinics’ rights to be subject to undesired political speech is not as extensively protected as will be discussed according to Schenck et al. v. Pro-Choice Network of Western New York (1997). With reliable public transportation unavailable in many cities and towns, the ability to drive to an abortion clinic for services is essential for its operation and its clientele. However, the places where these cars park have been used as sites to target those who use the clinic services. In Schenck, abortion clinics in New York were “subjected to numerous large-scale blockades in which protestors marched, stood, knelt, sat, or lay in clinic parking lot driveways an doorways, blocking or hindering cars from entering the lots, and patients and clinic employees from entering the clinics” (Schenck et al. v. Pro-Choice Network of Western New York et al.. 519 U.S. 357 (1997)). Preventing access to clinics through the parking lot itself was a political statement by those opposed to abortion. The logistics of parking in a parking lot starts with being able to drive into the lot and then being able to find a space. If this is restricted, then access to the clinic is impeded, if not fundamentally prevented. In this way, anti-abortion speech and actions were targeted at the most common point of entry to the clinics, their parking lots, by those who were not parking in these parking lots, but instead using them for purposes of public forum. However, the ruling concerning the use of the parking lot as a public forum differs from Lloyd to Schenck. While the two cases are similar, as both parking lots are intended for purposes of consumption (generalized shopping in the former and specific purchasing of medical services in the latter), the Court’s statement concerning the parameters of public forum usage is quite different. In Schenck, the Court distinguished between the two types of buffer zones, fixed and floating, which were both used in order to distance protestors from those seeking access to the clinic. Fixed buffer zones, or the order that prohibited “demonstration within fifteen feet of entrances to abortion clinics, parking lots or driveways” was upheld on the grounds of spatial compromise. This compromise was based on the interest of the government to protect the First Amendment rights of both the protestors as well as those seeking access to the clinic. The fixed buffer zone supported the government’s interest in protecting public safety by keeping demonstrators from physically engaging with clinic users by spitting on them, yelling directly in their faces, or obstructing access to doorways, while still allowing the protestors’ speech to be heard. The fixed buffer zone further promoted the government’s interest in the public safety measure of ensuring traffic flow. On the other hand, floating buffer zones, or the mandate of keeping 15 feet from the persons or vehicles seeking access to the clinic, were determined to be more of an unconstitutional burden on the exercise of free speech than was required to meet the government’s interest in protecting public safety and the social need protected by Roe v. Wade (1973). Through the changed interpretation of what speech is (spitting, yelling, or simply being heard), the spatial realm of protected speech also changes. In this

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case, the meaning of speech according to where it takes place and the capacity enabling it to be heard, voiced, or silenced. Speech is also qualified through the interpretation of its impact on public safety. Interesting also is through this qualification, those people and vehicles seeking access to the clinic are viewed as deserving the same level of protection. Spatially speaking, the law can be seen according to places of entry and exit, namely those places protected by a fixed buffer zone making the zone a design of authority that is different than in Lloyd. The commodification of space in each example differently transcends the boundaries of aesthetics and meaning; while 15 feet in Schenck is the guarantee of free speech, nothing decided in Lloyd affords the same level of protection. Regardless of the distinction, however, the semiotic of the person using the space of the parking lot to exercise the social and political practice of speech and assembly freedoms shows us how law and rights constitute one another in this everyday terrain. Embodied Boundaries of Accessibility and Accommodation Parking areas contain spaces that define who can use that space and in which manner. As a standard rule of thumb, parking lots are for the parking of cars, but as we have just seen, parking lots can also be used as places for public forum. Regardless of their usage, parking lots are creations of accessibility and accommodation. With this being said, parking lots create boundaries of who can use them and under what conditions. Parking lots are therefore political statements of power. In this next section, we will examine the boundaries of parking lots in terms of embodied accessibility and accommodation, as the ability for certain people to park in certain places is the governing pursuit of controlling bodies and how we as a society view the importance of those bodies or bodily actions which are either kept out or allowed inside. Through this embodiment of boundary, parking lots in Hawaii and in Boston, Massachusetts, challenge the banality of parking spaces and their governance in terms of accessibility and accommodation. Throughout the islands of the state of Hawaii, harbors are vital centers that local communities actively use for purposes of commerce, tourism, and recreation. Whether for fishing or other water activities such as paddling, surfing, boating, or snorkeling, harbors are rich sites of public ownership and community access. In the state of Hawaii, accessibility to the beach by the public is a right according to the recent 1995 case at the Hawaii Supreme Court of Public Access Shore Hawaii (PASH) v. Hawaii County Planning Commission. Often, the logistics of this right of accessibility depend upon vehicular transportation and accommodation, in the form of parking lots that provide places for people visiting the beach to park their cars. In the following three cases, harbor parking lots are places that challenge the public’s right to access and use whatever the ocean has to offer through the privatization of ownership and the increase of parking fees. In this way, harbor parking lots generate the same type of embodied jurisdiction in which bodies and space matter to political and social practices. The harbor parking lots in Hilo’s

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Wailoa Small Boat Harbor, Kailua-Kona’s Honokohau Small Boat Harbor, and Honolulu’s Ala Wai Small Boat Harbor each reveal a constitutive tension over rights, ownership, and revenue. At Wailoa Small Boat Harbor in Hilo, the recent popularity of stand-up paddleboarding pits boaters against paddleboarders in terms of how the harbor is to be used (Armstrong 2010). At the source of the tension is Herb Namohala III, founder of What SUP Hawaii-Hawaiian Stand-Up Paddleboarding Company. Namahola owns and operates a retail and rental store in Hilo, a few blocks from the harbor. As part of his business, he keeps paddleboarding gear as well as the needed vehicular means for transporting at the end of the harbor next to the boat ramp. Namahola, who accepts payments only at his store, attracts up to a dozen customers a day with rental rates of $20 an hour for residents and $35 for nonresidents for paddle and board. Local boaters complaint that Namahola’s activities are dangerous as paddleboarders are not easily seen by incoming boaters who also use the harbor. However, according to Department of Land and Natural Resources (DLNR) spokeswoman Deborah Ward, “At present, there is nothing written in the DLNR’s Division of Boating and Recreation’s rules to specifically address paddling in the harbor” but also notes that “there should be no renting of kayaks/paddle boards, etc. at the harbor … mainly due to safety reasons” (Armstrong 2010). At this particular harbor where swimming is outlawed, those using motorized crafts raise issues with non-motorized craft such as the paddleboards. The tension between paddleboarders and boats is further compounded by the dearth of available parking at the harbor. With Namahola essentially parked adjacent to the boat ramp, boaters with boat trailers have difficulty navigating their vehicles in and out of the narrowed space at the head of the ramp. Ward’s remark that “visitor parking is very limited” reflects the DLNR’s recent actions of assigning parking, with boaters getting the best spots in response to the growing presence of paddleboarders (Armstrong 2010). With the prime spots reserved for boaters, Namaola must further stake his territory near the boat ramp as a method of continuing to resist those who wish he would take his business elsewhere in an estuary of murkiness that challenges the public usage of a public harbor. As a public forum, the interests of local boaters are pitted against the interests of a local business owner who depends upon tourist dollars. At the heart of this debate is the legal accessibility to the harbor provided by the parking lot in which the identity of the parker, whether boater or paddleboarder, reflects the mission of the local governing body, the state’s Department of Land and Natural Resources (DLNR). Similar tensions involving the DLNR’s authority over harbor parking lots have also arisen on the other side of the Big Island. At Honokohau Small Boat Harbor in Kailua-Kona, the DLNR’s plan to charge parking fees at the harbor generates local discontent. In an April 2010 ‘talk-story’ (local term for public gathering for purposes of discussion), “more than 200 harbor tenants, businesses, commercial fisherman, and recreational users in attendance were ‘mad as hell’” (Lucas 2010). Arguments against the parking fees included the detrimental effect the fees would

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have on tourism, residential use, and the financial burden for local businesses and individuals. The parking fee would simply be “another cost shoved down our throats without any benefit” (Lucas 2010). In response, the DLNR advocates that the creation of the fee will generate the lacking revenue for purposes of repair, maintenance, and general operations under the agency’s control. These fees would also support the Boating Special Fund used to support the state’s recreational small boat harbors. Nancy Murphy, the Hawaii District Manager for the DLNR’s Division of Boating and Ocean Recreation, responded to local hostility against the DLNR and the lack of attention to the community’s needs from the state’s capital Honolulu with the statement that “the fees were in that plan,” speaking about the previously proposed DLNR’s plan. This plan would place the supervision of the harbor parking lot in the hands of a private management company under a concession contract with the agency. In the state of Hawaii, tension over public usage and access to the ocean often erupts as what the ocean has to offer is viewed as a historically grounded right, long before the water in harbors such as this one were controlled by the DLNR. Once again, access to the ocean through the harbor has been privatized by the state government in a way that is viewed as penalty for the local community and as revenue source for the state. Issues of accessibility and accommodation through parking lots lie at the center of this local controversy. Additionally, this tension over access and usage to the ocean occurs not just on the Big Island, but also on the neighboring island of O’ahu. Starting in Feburary 2010, at Ala Wai Harbor Lot in Honolulu, state DLNR officials will increase parking fees by 300 percent while limiting time for free lot spaces to six hours (www.surfline.com/regional/local_news_entry.cfm?region+hawaii&id=40726 (accessed March 23, 2010)). Such parking restrictions anger local surfers in particular, who use the harbor lot to park when surfing at the following surf spots: Threes, Kaiers, In Betweens, Rockpiles, and Ala Moana Bowls. Surfers complain that the free parking spaces they might otherwise use are routinely occupied all day by the homeless or by construction and hotel workers in Waikiki. With the newly imposed timeframe of six hours, surfers will have to park elsewhere or move their cars to meet the six-hour limit. Like in Hilo or Kailua-Kona, the public’s access via harbor parking lots is restricted with the result being a restriction on the public’s usage and access to the beaches and the ocean. This tension, stemming from the control of parking by the state DLNR is in contrast to the state laws that were created to protect the public’s right to access the beaches and ocean. The nature of accessibility in these cases is outdated and is only as good as one can walk. Such a framework is unrealistic in a vehicular society that depends upon the car for mobility and transport of ocean-related activities related to boats, surfboards, paddleboards, and the like. In each of these three harbors, the harbor parking lot has been privatized by public officials, which in turn changes the public’s need in having that parking lot in the first place. This restricted usage also fundamentally changes the nature of the law protecting the public’s right to beach access. Whether at the beach or at the ballpark, politics happens in ordinary, everyday places (Dumm 1999). The American pastime of baseball is one such ordinary, yet

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contested, place. Fenway Park, home to the Boston Red Sox, is located in a part of the city where parking is severely limited. In addition, games attract at least 36,000 fans. Of these, a small but significant minority requires parking places that are intentionally in close proximity to the stadium. This reserved space is legally set aside four hours prior to game time for disabled patrons as handicapped parking space by the Boston Transportation Department. However, handicapped parking space on Boston city streets was further restricted in April 2005. Eighteen handicapped parking spaces on the north side of the stadium nearest to Gate D’s two handicapped accessible elevators were removed to a street further away. Boston Disability Commission Spokesman Stephen Spinetto reasoned this movement to be because of “Homeland Security concerns about the seats over the wall” (reported in the Boston Globe’s article “Handicapped fans strike out with parking near Fenway,” on TheBostonChannel.com, April 11, 2005). What was once intentionally reserved space now stands empty, open, and alert as a purported cautionary step taken to guard the public in the event of a terrorist strike. This creation of vacancy is a semiotic of post-9/11 American governance that reconfigures not only the space itself, but also the meaning of and public interest in disability. The trouble is, there are no signs anymore. The Americans with Disabilities Act of 1990 (ADA) defines handicap through the legal reserve of space by articulating in Title 3 that “a public accommodation’s first priority … should be to take measures to provide access to a place of public accommodation … [to] include providing accessible parking spaces” (ADA Section 4:104, 28 C.F.R. 36.304©(1)). Added to this is the mandate by the Architectural Access Board for the State of Massachusetts that states “accessible parking spaces … shall be located on the shortest accessible route of travel from adjacent parking to an accessible entrance” (521 CMR 23.3.1). Accordingly, handicap is defined through accessibility. Homeland Security defines terrorism to be “any activity that … appears to be intended – to intimidate or coerce a civilian population” (Section 4(15), B(i) of the Homeland Security Act, Guide to Homeland Security, 2003, West Group, 8). In Boston, officials feared the terrorists might use the parking spaces. In The Disabled State, Deborah Stone (1984) considers the category of disability to be a social construction subject to changing paradigms. She tells us “laws usually express a society’s aspirations rather than its behaviors” (Stone 1984: 39). In her interpretation, the politics of disability are revealed as the politics of legitimacy. At Fenway Park, the politics of disability are essentially themselves disabled by the politics of security and public safety pronounced by the movement of the handicapped spaces for stated reasons of protection against terrorism. Their movement is viewed as legitimate simply because the handicapped space is recreated and still exists, just at a distance further away. Stone (1984: 117) warns us “the intellectual problem for the scholar of social policy is … to understand how such measures distort social reality and why particular distortions come about.” In fact, Title 3 of the ADA protects access while ensuring accommodation through accessibility, can be seen as a social construction according to Stone’s

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argument. If as she suggests, that disability is a social construction, then that which is considered to be accessible can also be a social construction. If accessibility as a legal guide to spatial reserve changes according to the new variable of terrorist threat, then this new variable sets new parameters of what is considered reasonable and secure. The mindset becomes, if it can happen to us on 9/11, then it can happen again, anywhere. At Fenway Park, accessibility is reconstructed in a minimal, limited fashion. Handicapped parking is still reserved space for handicapped drivers, but with the added stipulation that such space need not be as close to the stadium. That protected space is not so innocent any more. Furthermore, the intention of the ADA of ensuring access is compromised by Boston Transportation Department and subject to Homeland Security mandates. With the handicapped spaces moved in order to satisfy the ADA, Homeland Security has effectively prioritized an abstract sense of danger in this now empty space. In this way, vacancy is a social construction, a requirement of Homeland Security to protect against another 9/11. The fear of what might happen preferences the emptiness provided the many over accessibility for the few. Revising the ADA’s requirement of spatial need, Homeland Security justifies the movement of the 18 handicapped spaces to be in the best interest of public safety. There is nothing overt in the Homeland Security Act that trumps the ADA. But, the declared attention to national security under the Bush Administration reprioritizes disability and becomes a powerful catalyst for change. Signs disappear and identities are reconstructed. At Fenway Park, handicapped space has become a political commodity. The contested spaces once occupied a major section of parking on Landsdowne Street behind the Green Monster, or the green wall behind left field that gives the ballpark one of its most distinctive features. The disabled park beneath the wall no longer and up above, where once only homeruns flew, new seating is coveted as prime property. Politically charged as a likely terrorist access point to the populated arena, Homeland Security’s movement of handicapped spaces on this street is a representation of national steps taken to protect vulnerable spaces against looming danger. Presumably, this danger existed in hidden bombs stashed in the trunks of handicapped parked cars or on the person of the handicapped drivers themselves. With the exception of a couple of hot dog stands, this street is empty of parked cars but nonetheless remains accessible for patrons of the parking garage located here. And, while there are other streets that abut the stadium where handicapped parking is generally allowed, such spaces are limited in number. Security Officer Joe DiBartolomeo illuminated a different kind of politics by stating that during New York Yankees games, handicapped parkers on Ipswich Street in Boston are often towed despite their legal status. Initially created for ensuring tolerance-based reserve for physically challenged drivers, the proximity of this contested space has been redesigned for purposes of satisfying legal statutes rather than out of concern for the substance of what those statutes really mean. In considering Stone’s premise of the politics of legitimacy, Homeland Security confuses aspiration with behavior by aspiring to change the

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behavior of occupancy in such a way that assumes that public need is best served by measures of anti-terrorist prevention. This assumption, however, mistakenly reinterprets the social need that handicapped space represents. Public need is represented as the constant guarding against an unseen enemy and is equated in the post-9/11 context with social need. Social need is why the handicapped space exists as accessible space in the first place. The presupposition of accessibility regardless of ability is the reasoning behind its reserve. However, by repositioning the space further from the stadium, Homeland Security renders such immediate need to be less important than the abstract threat of being attacked. When abstract notions are given priority over actual use, such a simplification fosters the uniform management of that space. Scott’s study of forest management makes this project of legibility particularly relevant (Scott 1998). In his example, German forests were planted and managed with the abstract volume of timber in mind and ignored the actual possibilities of use from the whole forest. Such utilitarian pursuits by the state illustrate the need for bureaucratic homogenization. At Fenway, similar pursuits are invoked by Homeland Security’s management of space which renders the ADA more abstract than actual. With the ADA as abstraction, the actuality of terror prevention supplants the goal of ensuring accessibility to disabled members of society. The abstraction shifts even further from a disabled minority to another terrorist strike in the quotidian and unsuspecting baseball game. The power of space is a power of place that can either collectivize or individualize the right of occupancy. Here, the “virtue of the mass commodity is in its reliable uniformity” is the empty space at Fenway, standardized through its forced vacancy (Scott 1998: 31). Homeland Security’s agenda of promoting rational thinking, acting, and behaving occurs through the uniformity of vacant space. In this way, the tension between handicap and terror posits security against convenience and presumes the logic of security to be of greater public priority than handicapped reserve. Handicap identities become terrorist identities. Although “we must never assume that local practice conforms with state theory,” we must also consider what happens when local practice reflects state objectives (Scott 1998: 48). As Scott (1998) suggests, the management of space can be a strategic maneuver intended to accomplish a goal without democratic input. At Fenway, the movement of the handicapped spaces was done simply and silently without public solicitation. Its effect on the nature of disability has profound impact on not only how the state views disability but also how the community should view it. This manipulation of the public interest is at the heart of Barbara Cruikshank’s elaboration upon the technologies of citizenship. Argued throughout her examinations of dumpster-diving (the act of climbing in massive public trash collection containers to retrieve any potentially usable items), selfhelp movements, and welfare queen stigmatization, she assesses “the political itself is continually transformed and reconstituted at the micro-levels of everyday life where citizens are constituted” (Cruikshank 1999). At Fenway Park, the removal of handicapped space occurs at the micro-level of the Boston community

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who attend games. The community is reconstructed through the homogeneity of ability. Handicapped spaces viewed as underused are transformed into strategically converted space advantageous to the presumption of terror. The power of space involves law as a constitutive force of both social and political practice. Alteration of such space impacts us in a variety of ways. Individually, each one of us interprets this power within its newly constructed boundaries. Communally, these boundaries change the terrain of action and of expectation. As a society, this changed terrain reshapes us individually and locally in our communities. Turf that was once locally determinate is now nationally debated and often constructed. No longer simply locations or areas, these spaces and boundaries take on bigger meanings that link space to identity to practice. The construction at Ground Zero as a memorial stands in stark contrast to the idea of rebuilding the site as it formerly was, multi-million dollar Manhattan real estate. Politically, this space is contested on the two competing fronts of revival versus remembrance. In Boston, disabled Red Sox fans are re-constituted as more abled than disabled and as less important than the at large attending public. Homeland Security has made the decision for the rest of us that taking measures to guard against terrorism is in our collective best interest. However, this move should be questioned if we consider the impact that such a move has on what it really means to be handicapped and how disabled citizens are viewed and treated. If disability implies impaired ability as the name suggests, then taking away space created specifically for the purpose of ensuring access is a statement of social engineering by Homeland Security. It is a statement that simplifies the actual need of the public community, both abled and disabled, before an invisible and abstract enemy unseen on American soil since 9/11. As a semiotic of such governance, vacancy symbolizes the standardization of ability in an attempt to homogenize access afforded to all Fenway fans. Handicapped space is a form of legal entitlement. This spatial entitlement is afforded those of us who qualify as legally disabled and therefore entitled to occupy this parking space. Laura Jensen (2003) reminds us that an entitlement is a statement of right and property that can be construed politically. Politically, handicapped space under the ADA’s design was intended to be a statement reminding the public of the stated equality of equal access for all drivers. Homeland Security changes that political statement to a statement that terrorism can happen anywhere at anytime, even in such benign areas as handicapped parking spaces. Consequently, the forced emptiness of this space reveals the post-9/11 shift from tolerance to fear as a “constituting part of a normative social order” (Jensen 2003: 29). Or in other words, handicapped baseball fans aren’t really all that handicapped as long as handicapped spaces exist in more remote places that aren’t as much of an invitation for terrorist activity. In thinking of the tension between handicap and terror, the notion of accessibility is distorted according to the revised notion of public accommodation that the ADA protects. Since 9/11, the social construction of need has changed in many respects.

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At Fenway Park at least, it may have been from one of minority protection to majority safeguarding. Where accessibility once meant the accommodation of the public via its participation, accessibility is now defined as access to the public, predicated upon the threat of attack. As Stone (1998) suggests, the reconfiguration of this space distorts the social reality that handicapped drivers need and benefit from a physically proximate place to park their cars. By moving such space, the physical nature of disability is eclipsed by the imposing glare of public safety. This homogenization is a statement of power intended to show who the public is and who the public should be, re-constructed through the reconfiguration of disability. Here, handicapped fans don’t seem to count in who constitutes the public. The public are those who are united by a protectionist stance against the immediate danger posed by terrorism and understand the sacrificing of handicapped spaces. However, we are all the public, handicapped as well as non-handicapped. The movement of handicapped space and the replacement of that reserved space with vacancy holds dangerous implications for our own future and how we conceive of each other. We should consider the magnitude of the power behind preference formation. Lukes (1974: 23) conceptualizes the intricacies of power by asking us “is it not the supreme exercise of power to get another or others to have the desires you want them to have – that is, to secure their compliance by controlling their thoughts and desires?” The movement of handicapped spaces at Fenway Park is a symbol of fear invoked by Homeland Security. At Fenway, the desire to see a baseball game is shadowed by the past and transformed into the desire to attend a baseball game that is guarded against another projected tragedy. If we revisit the earlier definition of terrorism according to Homeland Security as an activity for the purpose of intimidating and coercing a civilian population, Lukes (1974) seems insightfully prophetic. At Fenway, vacancy is a tool of governance that seeks to control our view of ourselves. Our public interest is coerced and co-opted through the compliance to anti-terrorism measures inherent to the movement of handicapped spaces. We are encouraged to construe handicapped space itself as sacrifice-ably mobile rather than as a static marker of equality. In this post-9/11 climate of instability, we are led to believe the access that few handicapped drivers do depend upon reserved handicapped parking for can be easily sacrificed for the greater good. Here, the greater good is shaped by the desire for freedom, a desire that has changed to mean more than just equal access for all members of society. Where freedom once meant the freedom to attend a baseball game despite impaired mobility, freedom has been co-opted through homogeneity to mean the freedom from impending doom and destruction. Homeland Security’s reconfiguration of space at Fenway is an attempt to change our public interest that up until recently truly prioritized the reserve of space for handicapped drivers. What was once a measure of protected diversity, ensured access, and equalized use is reconceptualized as an obstacle in protecting against the conjectured terrorist threat. With the repositioning of handicapped parking spaces further from Fenway, the meaning of handicapped reserve as legal

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entitlement has been politically sacrificed. Handicapped space is no longer legally viewed as a right but more rather as a revocable, politically frivolous privilege. With the most prominent handicapped parking spaces at Fenway Park now gone, their absence transforms how we see ourselves and where our allegiances lie. Lukes warns us about the manipulation of consensus as the exercise of power. He tells us “A may exercise power over B … by influencing, shaping, or determining his very wants” (Lukes 1974: 23). The removal of this space represents the manipulation of the public interest, what we as a public should want and need. We are manipulated to preference the abstract danger of terrorist threat over the immediate accommodation that handicapped parking spaces provide to handicapped members of our own community. The removal of this space places us under the influence of Homeland Security’s intoxicated agenda of perpetual emergency. These contested parking spaces at one of America’s jewels of public entertainment were parking spaces like no other. By virtue of being handicapped parking spaces, they are spaces created for purposes of accessibility in a society in which disability was and still is socially acknowledged and legally protected. Under the original mandate of the ADA, they are the face of our legal consciousness and an articulation of our public interest. However, both are manipulated in this context by Homeland Security’s revision of access and accommodation. The removal of these spaces exemplifies a tension between handicap and terror. The reconfiguration of space is a reconfiguration of what it means to be handicapped and jeopardizes how we see ourselves. Vacancy is a statement by the post-9/11 American state that seeks to eliminate our differences while creating a hierarchy of need according to limiting interpretations of domestic security. Conclusion The altered space at the three Hawaiian harbors and at Fenway Park is an indication of the road to intolerance that our nation is harkening down. Legal entitlements, such as the restricted access to beaches by the public in Hawaii and the ability to park near those beaches as a form of tightened accommodation pertaining to that right parallel the legal entitlement of handicapped parking found at baseball stadiums. To limit either the access to or the recognized accommodation of those rights is parallel to the restriction of speech and assembly that are voiced, yet often contained in the public forum of the parking lot. Fundamentally, our public interest in the public space found in parking lots is at stake. Such restrictions and the responses generated call for a reassessment of how we as Americans view ourselves, our everyday, and our future together. The signs are not always there, we just have to remember them. Such signs include trivial, often overlooked places, such as parking lots. These places, although designed for the parking of cars, raise crucial dilemmas concerning rights of ownership, public accessibility and accommodation, and constitutional protections of speech and assembly rights.

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In such contexts as anti-war protest, anti-abortion protest, local revenueraising, and national security, parking lots and parking spaces are those places where a special type of jurisdiction becomes apparent. Here law and place engender one another through the embodiment of rights that are a function of the person or persons exercising these rights. Here, rights can be embodied in the vocal expression of speech, through physical occupancy, or as the combination of the two. The place where these rights transpire fosters an expanded view of law according to spatiality. In this way, rights exist only as long as the space allows for it. This is known as the embodiment of jurisdiction where the expression of rights is dependent upon both the bodies present and the resultant legality that ensues. Legality then becomes the spatially determined reflection of where rights happen according to who is exercising them. In parking lots and parking spaces, law works in ways that define the public’s interest through public forum, as the political commodification of parking lots reconstructs what social need should entail through vehicular presence or absence. Through the public forum of the parking lots, and also its restrictions, the nature of rights and legal entitlements is changed, as is our resulting social need that depends on the public forum, accessibility, and accommodations. Given that parking lots are an everyday facet of life in many places, we would be foolish to overlook the signs of law in everyday places they stimulate. The events, outcomes, and debates raised in parking lots, invite us to consider the embodiment of jurisdiction as the way to approach the study of law, politics, and power according to how bodies are regulated.

Chapter 6

Consumption and the Built Environment: Parking and Social Need In this chapter, the semiotics of parking perpetuates debates over consumption and access. Two examples will be discussed at length. The first semiotic is mothering and the constructions of gender and expertise. The second is beach access and the manifestation of public use with private ownership involving the distinction between local and tourist. Through the experiences of parking while pregnant and shopping with a small child, parking policies and parking space designations promote and enforce gender frameworks for women. Through the policies of public beach access in Hawaii, private ownership of property can be regulated and protected through restrictive parking policies. In both examples, vital questions over access, power, and advantage arise. In the first part of the chapter, we will explore parking policies that acknowledge women who park in their third trimester from a paradoxical triangle of governance between the woman, her physician, and parking authorities. Here, competing notions of expertise, constructions of disability, constructions of mothering and fetal occupancy, and the design of authority each impact this paradox. Boundaries of enforcement created in this paradox are blurred according to the spatial conditions that give rise to legalism and accompanying protectionism. Additionally, parking signs in shopping areas give special reserve to women who are pregnant or, more generally, to customers with infants, essentializing consumerism according to these ‘mommy spaces.’ These mommy spaces reveal the commodification of space in which the aesthetics of governance fully mimic the legal standards set by the Americans with Disabilities Act of 1990. Here, pregnancy and mothering are socially enforced through self-policing, the policing by onlookers, expectations of morality, and visual legitimacy. Mommy spaces enforce not only the gendered norms of who consumers are in these places where these signs exist, but a traditional and heteronormative family model. In the second part of the chapter, we will look at the tension involving access between the public and private property owners. In Hawaii, the public is legally guaranteed the right to access beaches. However, through restrictions placed on parking areas that right is often impossible to exercise as the social need for access via the built environment of parking is restricted. The rights of local beachgoers conflict with the rights of consumers who either buy beachfront property or who frequent expensive beachfront hotels. In the examples that will follow, the power of consumerism is linked to the built environment. Property is at the top of the hierarchy of social need with unqualified access to the beach through

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public parking areas at the lowly bottom rung. Access in these cases is linked to consumption rather than to the social need for beachgoers to park their cars. Boundaries that were intentionally blurred by the Hawaii State Court by initiating Public Beach Access have since been delineated by wealth, ownership, and power. The built environment that is privately owned trumps the built environment of vehicular accommodation that provides public accessibility to beaches. Parking in the Third Trimester At the original time of this writing, I was 26 weeks, or six and a half months pregnant. At the University of Massachusetts/Amherst where I was a graduate student, I routinely parked in a commuter lot with an uphill walk of 15 minutes to my home base, the Political Science building. During this time, the UMass Parking Services had a policy on their website in the ‘Special Needs’ section which stated: Customers in their third trimester of pregnancy are entitled to a temporary Special Needs parking permit at no charge. These customers must complete a Special Needs application at Parking Services, providing their physician’s name and address. The customer must furnish a note from the physician indicating the due date.

The policy also stated: Parking Services makes every effort to accommodate all Special Needs requests. Parking Services complies with the ADA (Americans with Disabilities Act) regulations. All University of Massachusetts parking lots are Handicapped accessible.

At a doctor’s appointment during this period to monitor my progress, I eagerly asked my physician if they would write me a note attesting to the status of my condition and my due date. As I was in my third trimester and daily increasing in size with my pregnant belly peeking from beneath shirts and over waistlines, I expected my request to be mundane and obvious. However, my doctor flatly refused to provide the needed note for me about my condition and due date. The doctor explained that the refusal was based on my need to walk as much as possible for the health of my pregnancy. Because I was fortunate to have an uneventful pregnancy up until that point, they reasoned that I did not need the special allowance created by parking closer to where I needed to go. Parking closer would not allow me to walk, which was essential to the continuation of my healthy pregnancy. I explained that I was entitled to this space under university qualifying guidelines as a parker with the special need of simply being in my third trimester. Even when I explained that I particularly needed this note to gain experience as a Special Needs parker for my Doctoral Dissertation and that I walked plenty throughout the day, not only from

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my far away parking lot but also on campus and at home with my two big dogs, they still would not budge. Even when I said that I wouldn’t often use the closer space, just now and then to gauge reactions from onlookers, the doctor adamantly refused to provide me the medical verification that I needed to qualify for this third trimester parking Pregnancy is a visible experience of law, as the qualification of furnishing a physician’s note suggests. Ironically, I was clearly pregnant, eliciting questions from both my students and strangers as to when I was due. However, conceptually, I was not quite handicapped nor could I unequivocally be considered special needs, seeing as though I was experiencing a healthy, uncomplicated pregnancy. Legally, however, when it comes to parking policy, I am only as pregnant as my doctor may or may not choose to verify. This verification assumes a legal expertise found in the form of a doctor’s note proving the existence of my pregnancy. As the parking policy makes clear, the legal expertise of the physician controls the extent to which my claim of special needs status can be verified. The ability to park closer according to special needs states becomes a control over the prime piece of property that these closer spaces represent. This idea of property is twofold: first, it concerns the right to park in a closer parking lot; second, it responds to a legalized form of expertise that enforces or denies this right. I am only pregnant as long as the doctor says so, according to the parking policy. In my case, the authority to claim the property of the special needs parking space is not endowed in the seeing public’s verification of my protruding belly, but rather in the sole expert opinion of the doctor. According to UMass Parking Services, the physician’s opinion determines the embodiment of property that special needs parking protects. My pregnant body is subject to the legal expertise of authority, which delegitimizes the authority of the onlooker as well as my own testament to carrying a third trimester fetal occupant. This body of mine is only formally recognized as pregnant if the expertise of the doctor says as much, for if I am the patient of a doctor willing to write a letter that testifies to the validity of my obvious rounded belly and seesaw-like gait, then I qualify as pregnant. Otherwise, I am not considered to be pregnant and must park in my original lot and walk. In this way, I am not pregnant enough or disabled enough according to an unhealthy pregnancy, to qualify. My doctor encourages me to walk not just for health reasons, but for moral reasons as well. They ask, am I really that ‘Special Needs’? After all, I can walk ‘fine’ even though I wobble. Although I may technically qualify as ‘special needs’ according to parking policy guidelines, the difference between could and should in this case creates boundaries of law through socialized expectation of what special needs parking entails and who it therefore includes. As a restriction invoked for my ultimate benefit (of increased circulation through distance walking), I am expected to recognize the wisdom of a doctor’s note as expertise. Tied to this construction of expertise as governance is the moral implications of embodying the usage of special needs parking as reserved property, as different bodies are more ‘special needs’ than others in terms of parking spaces. Just as the doctor is legally an expert

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according to UMass Parking Services, the doctor’s note is also a form of morality. This morality is intended to govern my actions as a pregnant woman who can and should walk and therefore be guarded against taking advantage of ‘special needs’ status. Here, parking policy becomes a form of law that is premised upon the social expectation of moral recognition of physical ability where some people may need that parking accommodation more than I. Expertise of the medical profession is conflated with a sense of morality through governance in the construction of pregnancy as a disability sometimes according to medical verification. The special needs status of third trimester parking is a statement about the designation of parking protectionism for those who can be counted by authorities that matter, such as the physician, against those who don’t, namely the pregnant woman herself or onlookers who visually verify a pregnant appearance. It is necessary however to recognize that pregnancy is not always visible to other people. In recounting a parallel experience of policing and expertise, law professor Rebecca Johnson (2005) tells the story about breastfeeding her child in a pub. “The laws participate in constructing a very embodied kind of public space” (Johnson 2005: 173). Johnson (2005) describes regulations enforced by pub management and pub-goers who consider her baby to be a minor who is not allowed in spaces that primarily serve liquor. As a minor, the breast-dependent infant is no different than a three- or even a 17-year-old child for purposes of legal protectionism. This constrained space within the pub for nursing mothers and their babies reflects spatial jurisdiction that promotes the gendered construction of space. Johnson (2005) critiques the notion that, morally, mother and child should be at home both for their own benefit, but also for the public’s benefit in preserving the sanctity of the space for relaxation, entertainment, and consumption. According to her argument, such regulation assumes expertise for the actions taken by a mother with child and blurs the boundaries between social and legal regulations of morality. The pub regulation is a constructed form of expertise similar to that of the physician’s note in the earlier example of third trimester pregnancy parking policy. This notion of expertise is a statement of governance concerning who can be in a pub or who can qualify as special needs for parking closer to the main campus of the university. What is fascinating about both of these cases is that legality is interpreted at the social level as no legal authorities are present to validate or condemn either me as a pregnant women or Johnson’s baby as a minor who should be shielded from the presence of alcohol. Instead, the parking policy and pub regulation govern through morality with the middlemen of either the doctor in the pregnancy example or the pub management and/or pub customers determining who should or should not be allowed to qualify. Authority in both instances is guided by values. Law is embodied by the physician’s discretion as a text of regulation. The text of regulation found in pubs for breastfeeding mothers operates in a parallel manner as the laws in both sites will be upheld according to the social policing of morality. Both constructions foster particular notions of competing rights that become jurisdictional claims on space either through parking or by consuming

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alcohol. Third trimester pregnancy is considered to be a special need; however, pregnancy that is problematic (where walking presents a problem for the mother) is valued as more deserved of the right to park in a special needs determined lot than a healthier pregnancy. As a pregnant woman, the responsibility is on my shoulders to recognize the expertise of the doctor’s note as a form of law that prioritizes the property of special needs parking spaces for those who really need it, not those who might simply qualify for it. Likewise, the woman who is a mother may be allowed into the pub, while the woman who breastfeeds her child in the pub changes the space of qualification. The question of ‘who qualifies’ is itself a blurring of boundaries determining the embodiment of property in both the parking example and the pub example. Whether as the ‘special needs’ parking space or as the disallowance of minors and breastfeeding mothers in pubs, levels of expertise external to the self embody claims of authority to the property of legalized spaces that construct the notion of mothering according to the built environment. Pregnancy is without a doubt a physical condition. Because of the belly prominently protruding as early as the third trimester, pregnancy is a revealing semiotic of governance. As such, the pregnant body is a sign of fetal occupancy. At the point of fetal viability, the pregnant woman’s occupant is legally contested as a form of property involving the interest of the state versus that of the mother. Socially, the pregnant woman is viewed as quasi-disabled, or having a special stature that deserves special attention and treatment. This special treatment may come in the form of more readily opened doors in public areas, the removal of menus displaying alcoholic beverages, or as the qualification for special needs parking consideration. The legal aspect of this property, contested at the level of the Supreme Court beginning with Griswold v. Connecticut (1965) and Roe v. Wade (1973) but also in everyday arenas such as parking lots and pubs. In these two examples, mothering is constructed according to notions of governing expertise that control the mother based upon external guidelines of morality whether through a doctor’s note that determines both the recognition of pregnancy and what’s best for mother and child or through those in a pub that determine that nursing mothers should not be where alcohol is being consumed. Mothering seems to invite two types of expertise, social and legal. Pregnancy, for example, instigates the physicality of right as based upon visibility. This visible legitimacy conveys a sense of property, i.e. the fetus in the big belly, which invites jurisdictional debate between social and legal authorities. Jurisdictionally, this property is spatially contested on the basis of legitimacy as enforced by the expertise of the physician in contrast to those generous social allowances that understand what it’s like to be pregnant. There is a contradictory relationship between these two types of expertise, which crucially ignores the expertise of the woman herself who is the mother to know what is best for her and her dependent fetus or child. If the legal expertise of the physician is a medical diagnosis or the legal expertise of pub management to determine child safety, socially-based expertise is based on the visibly protruding belly of the pregnant woman, usually starting at about six months of pregnancy, or the mere presence of a person qualifying as a minor

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even when that child is a nursing infant. The physician is an expert at the stages of embryonic development and the pub management may be an expert in alcohol consumption; however the two types of expertise are constructed as law in both situation where any judgments made by the mother who either feels it warranted to park closer or to be in a pub in the first place are challenged for their legitimacy. This sort of socially-moralized legality is problematic because this type of expertise borders on the ridiculous, especially given the fact that the parking policy as stated has no qualifications of having a healthy or unhealthy pregnancy. According to the policy, a pregnant woman is entitled to a special needs parking permit at the third trimester. Similarly, a minor who is still nursing at the mother’s breast is first and foremost the property of the mother and not in danger of being considered an underage consumer of alcohol that would get the pub into trouble. The parking policy itself is problematic, as demanding the authorized note of a pregnant woman’s physician (complete with contact information) for the special permit to be issued. This brings in the expertise of the people in the parking office able to grant such a permit. These are people who can see and judge the obvious, a pregnant woman in her third trimester. Here, however, the policy ignores their judgment in favor of the physician’s note. It is after all the physician who has the final say, and not the folks in the parking office who can see the enormity of the third trimester belly. Likewise, the mother, who is nursing her child while sitting in a pub, may be judged by those around her as a woman caring for her child. In both cases, the mother is not autonomous, but is viewed according to the fetus in her pregnant belly or according to the baby at her nursing breast. Again, mothering is dependent upon where that mother is, why she is there, and what she is doing. If we think about the parking policy and the pub regulation, the construction of mothering is based upon the built environment of parking lots or pubs, which is policed through social channels of expertise designed as legal authority. Here, pregnancy may be considered to be a handicap, which is premised on the standard of disability accommodation of the ADA. Third trimester pregnancy is uncomfortable and limiting, as the belly is huge, the joints ache, and the pregnant body is physiologically different. Nursing a child means that wherever the mother goes, the baby goes too. Claims on space that create types of temporary space and accompanying temporary rights are a form of spatial entitlement in which right is linked to property, i.e. the right to park in a special needs parking space or the right to be in a pub. If politics is the contestation of power, then a doctor’s note or pub management’s allowance that are needed for types of mothering practices are political statements of design that affirm the legal authority of doctors or pub managers over the mother herself in determining what is best for herself and her fetus or child. The rights of the mother are written into UMass parking law as an entitlement of third trimester pregnancy, but those rights become the property of the doctor who writes the note. Likewise, the rights of the nursing mother in a pub are limited according to the social judgment of what being a minor and being a caring mother means. Mothering in both cases is a function of spatial determination, legalized forms of expertise, and the social policing of morality.

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Mommy Spaces We have seen in the previous examples exactly how the notion of mothering is constructed according to various forms of governing expertise, such as doctors, onlookers, and pub management. Through parking policies and with the parallel of pub management, geographic considerations are assigned to the practice of being a mom as pregnant women and nursing mothers. However, we further see this social and legal amalgamation of protectionist rights in parking lots where parking spaces are reserved for the status of those who mother either in the present or in the future. This spatial reserve is predicated upon the ADA’s recognition of accommodation, which is elaborated upon in Chapter 5. However these parking spaces, which mimic legally enforceable spaces, can only be socially policed by onlookers, by store employees, and by the people who may or may not choose to park in them. These parking spaces, called ‘mommy spaces’,1 provide further evidence of ways in which the built environment reinforces socio-legal conceptions and practices of mothering. Such mommy spaces will include the Customer with Infant Parking Space as it is found at one grocery store chain in western Massachusetts and the Expectant Mothers Parking Space located in the parking lots of the large corporate entity, Babies “Я” Us. What is fascinating is that these spaces promote the consumerist promotion of space and social understandings of the creation and usage of handicapped parking. In privately owned shopping centers where these two sites exist, ‘mommy spaces’ are those parking spaces that preference the female shopper who is also a mother. As Johnson asserts, the socio-legal construction of mothering involves a blurred boundary between mother/baby and mother/society. Whether in the context of breastfeeding while at a pub or obtaining a physician’s note attesting to pregnancy, the blurring of boundaries exists in a socialized realm in which social action and interaction assumes legal authority. In mommy spaces, legal authority in fact does not exist at all! Instead, the creation of mommy spaces is predicated upon the social recognition and expected deference to semiotic instruction (the signs state who belongs and who doesn’t). Just as the semiotics of handicapped parking spaces reveal that the socialized expectation of disability appears as the same image on the sign, i.e. a person in a wheelchair, the images that mommy space parking signs promotes acts in the same way. The symbols themselves as well as what the symbols represent invoke a social determination of who can legitimately occupy these parking spaces. Just as in the case of handicapped parking, the action of social policing is the only way for these spaces to be enforced, as the ADA does not cover these types of reserve. What is even more ironic however is the creation of these spaces not necessarily for the physical accommodation of mothers, but instead to physically place reserve for them a parking place of priority based upon what the store itself is selling. In this way, consumerism drives 1  Thanks to John Brigham, who allowed me to adopt this term as long as I created ‘grandpa’ spaces for him.

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Figure 6.1

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Customer with Infant Parking, Hadley, MA

the commodification of space in mommy spaces, rather than the legally provided extension of social need that the ADA was intended to protect. Mommy spaces are parking spaces that simply and purposefully through their creation, foster a gendered expectation of consumer presence, in which those who can be viewed as mothers are given priority in parking close to the store’s entrance. Pictured below are two examples of mommy spaces. Figure 6.1 is of the Customer with Infant Parking Space from a grocery story in Hadley, Massachusetts. Figure 6.2 is of the Expectant Mothers Parking Space located outside a baby supply mega-store at Ingleside Mall in Holyoke, Massachusetts. Both parking spaces are located in spaces most accessible to the front entrance of these two stores. Mommy spaces are positioned similar to where handicapped parking spaces are located, i.e. in the closest, most accessible, and arguably most desirable parking spaces. Through this positioning, mommy spaces are set up as mimicking handicapped parking spaces in order to identify pregnant women and customers (read: women) with infants as a quasi-disabled class.2 2  Here, it is important to take note that while the word customer is not gender-specific, the perhaps unpleasant reality of Stop and Shop’s expectation about who is parking in this space assumes the customer to likely be more often female than male. However, perhaps this statement is itself indicative of the normative framework of gender that the author herself is subject to.

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Figure 6.2

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Expectant Mothers, Babies “Я” Us, Ingleside Mall, Holyoke, MA

However, the viewing of identity is not the only outcome of the mommy space; the social enforcement of mommy spaces as similar to the social enforcement of handicapped parking spaces is another outcome. Because neither of the two mommy spaces warrants the same legal consideration as handicapped parking spaces, both types of mommy spaces can only be enforced through self-policing or the social discipline of others. While the store itself may also act as a method of enforcement, the immediate nature of a person parking a car and someone else witnessing who that person is for purposes of verification on the spot is much more difficult, if not impossible as well as impractical for store management who are dependent upon the eyewitness accounts of other shoppers to report those who don’t fit the profile for belonging. Semiotic judgments are key to mommy spaces, as the sign itself represents what the mommy will look like. In the Expectant Mothers Parking Spaces, a stork is pictured on the sign. The stork, as an image of how babies come into the world, disguises the trauma of birth. The stork also masks what an expectant mother looks like, unless she herself is a large bird toting a bundle of joy in her beak. However, socially, do we always know what an expectant mother should look like? This is a twist on the same problem of visibility and authority raised in the first section of this chapter. Another way of approaching this delicate debate is to state the obvious, i.e. that not all women who are pregnant actually look pregnant. However, consistent with the earlier example in this chapter, no one is asking

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the mother herself. So, Babies “Я” Us is relieved from making this assumption through the image of the stork on its Expectant Mothers Parking Signs. However, albeit much more subtly, the sheer existence of this mommy space implicitly suggests that customers of priority are pregnant women. Seeing a pregnant woman either go into or come out of a baby mega-store is undoubtedly good for business. Likewise, the Customer with Infant Parking depicts a young child riding in a stroller. While no image of what the customer should look like is presented, those who shop with young children may, more often than not, be women. While Stop and Shop realizes the potential stigma surrounding this issue of gender and caregiving by having a gender-neutral term such as customer on the sign, that recognition is itself limited. By having parking spaces reserved for those shopping with young children, the grocery store dons a cloak of sensitivity that actually works in the favor of the store. By preferencing shopping families, the image of the store is heightened. Despite that no legal recourse exists for violators who park in these mommy spaces without actually having infants, the image of Stop and Shop as a good neighbor and family-friendly store is nonetheless perpetuated. In November 2007, I asked the workers in each store about how these spaces remained reserved. In both stores, I was told that morality is the prime source of enforcement with towing a violating vehicle at the store’s request a viable second option. In particular, when asked if this method of policing actually worked, the woman working behind the Customer Service desk at Stop and Shop exclaimed that failing to acknowledge the space was “simply shameful.” She further stated that “certain spaces were for certain people.” Assuming that I had a child (because why else would I be asking?), this same woman told me that if I wanted to park in this space and there was already someone parked there, that I could come inside the store and request that Stop and Shop tow the vehicle. Presumably, this assumed the expertise to determine whether or not the present occupying vehicle qualified to be in the space. The presence or absence of a car seat in that vehicle may provide clues to its rightful belonging in the space. However, would pregnant women whose infants may be in utero qualify to park in these places or is the prerequisite giving birth and following state law that mandates the use of a car seat for the infant? Morality as the social enforcement of law is also the case with the Expectant Mothers Parking Space at Babies “Я” Us. Similar to the Stop and Shop example, those working in Babies “Я” Us at the Customer Service desk also proclaimed their disgust at people who took advantage of these spaces. Following a discussion with store employees, the only real form of enforcement for these spaces was the self-policing morality of those parking. One store employee told me that because the spaces can be seen from the windows at the main Customer Service desk, he watches to make sure that fellow employees from his store or from other stores don’t park there. In fact, he said that it is customary to report these cars to the management of the stores where the violator parkers work. He said that he has learned to recognize whose cars belong and whose don’t. I asked if the Mall Security enforces who parks in the Expectant Mothers spots. He laughed

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a hearty laugh and said no. He said that neither do the local police. However, he pointed out that the local police can ticket and tow violating cars parked illegally in handicapped parking spaces at the mall. He did venture to add though that the mall police could ask people who park in the Expectant Mother spaces who aren’t visibly expectant to park elsewhere; however, there was no real enforcement of these spaces except social pressure not to park there. At the time of this study, the employees of Babies “Я” Us with whom I spoke told me it has had these spaces for 10 years. Again, the theme of visible legitimacy as the basis for governing problematically arises as expertise. In these spaces, the expert governing the spaces is first the self and, second, the observer. The condition of expecting is usually viewed as a big belly, which usually happens at the third trimester or even seventh month or later. Therefore, ‘legitimately’ expectant mothers are only those who actually look expectant, similar to the characterizations found in the parking policy. Likewise, the car of a customer with an infant is presumed to have an infant car seat in the back. Additionally, the presence of this car seat is assumed to accompany an actual child who is with the customer who parks in the space who is in the store. In contrast to the former example, however, the car can vouch for the identity of the car parked in the Customer with Infant Parking Space. In the Expectant Mothers Space, only the big belly of the woman (who may or may not be actually pregnant) who exits or reenters the parked vehicle provides proof of legitimate belonging. Identifiable mommies have claims of property on these parking spaces. The meaning of these spaces beckons the obvious usage by women, as women are those who are expectant mothers and also women, especially those who are constantly with their baby, are usually those customers who go grocery shopping with babies. However, morality, as argued to be the presumed basis for the socially respected spatial reserve of these spaces, is not the whole story. There seems to be an overarching sense of propriety regarding signs saying who should park where. This propriety is a reflection of a cultural sense of right and wrong in which even though arrest by the police is not imminent, scorn and reproach by fellow parkers may be. This can be reframed as a social sense of monitoring, which is most likely tied to the morality that the store employees bank on for enforcement. Together, a cultural sense of propriety and a social sense of monitoring keep such spaces open for those who belong. However, these are tied to the designation and protection of private property that is used by members of the public who park in these parking lots. Because both stores must rely on a towing company to remove vehicles determined to be in violation by social enforcers on the basis of bodily or vehicular appearance, private property is dependent upon the self-policing and governing preoccupations of people who park in parking lots.

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Public Beach Access Parking reflects the construction of social need in which vehicular accommodation is sponsored by consumerism. Access within this consumerist framework either defines social need, as in the case of third trimester special needs parking, creates social need, as in the case of mommy spaces, or challenges social need, as in the public’s access to beaches in Hawaii. In this second part of the chapter, we will examine the ways in which social need represented by sufficient and available parking for beach areas is posited against private ownership. In this context, the social need that is met by making parking at beach areas possible often abuts the rights of private property owners to restrict those places. As the next four cases will show, the power to dictate social need is at the behest of consumers and disenfranchised from the local community. Just north of Hilo, Hawaii, in the village of Papaikou, there is a popular surfing area known as Papaikou Mill. Abandoned for many years, the Papaikou Mill, also known as the Onomea Mill, is currently owned by Charlene Prickett and her husband Jim Waugh. Prickett, who said “her friends are going to make her a T-shirt that on the front reads ‘FHB – fucking haole bitch, the lady at the end of the street,’ and on the back, ‘My friends call me Charlene’” is at the heart of a local controversy involving access to the beach via a trail on the couple’s property (Hunt 2010: 12). Here, surfers and swimmers butt heads with private property owners. The couple have erected a gate to the trail improved by Waugh for the purposes of easing access to the beach. In response to several burglaries, vandalism, and verbal assaults, the couple recently locked the gate located at the head of the trail, effectively closing the beach at this point of access. The closing was also in response to numerous break-ins of vehicles parked on the couple’s property in an area at the head of the trail. As a way to curb the rising tide of crime, the local community policing officer and deputy prosecutor for the County of Hawaii, suggested the elimination of the parking area altogether. Now, only boulders occupy this space, resulting in the lack of any parking to the point of beach access. The couple’s rights as private property owners conflict with the public’s ability to access this particular beach. The tension over public access to beaches and the parking availability by which to do so has been a source of local tension for many years all over the Hawaiian Islands. In the state, beach access is a public right as stated in a 1973 Hawaii Supreme Court decision of Open Beach Access that states “public policy favors extending to public use and ownership as much of Hawaii’s shoreline as is reasonably possible” (Mee 1997). While beaches themselves are public property, the access to those beaches may, and often does, infringe upon private rights of ownership. If we focus on the ability to park as a precondition for access, then issues of identity, rights, and property each contribute to this tension. The consumer’s ability to limit access seeks to triumph the rights of access that reflect the needs of the beach-going public.

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Take another example of Hawaii Prince Hotel Waikiki and Golf Club on the island O’ahu at Waikiki. By virtue of ensuring public access to the beach, the ability to publicly park has also been taken into account. Per the hotel’s lease agreement with the state, public parking stalls are located in the hotel’s parking garage for a fee. The fee at the hotel matches the fee at the neighboring Ala Wai Small Boat Harbor Parking stalls and was increased in April 2010 by the managing state agency, the Department of Land and Natural Resources’ Division of Boating and Ocean Recreation. So, essentially, the DLNR sets the rate for public parking at the hotel, with the understanding that the end result of parking is a service to the community and method by which to ensure that beaches are accessible. The problem however arises when the parking lot is full due to hotel occupancy, when according to Wade Gesteuyala, Hotel Manager, “hotel guests with parking passes are the only vehicles allowed to park” (Watanabe 2010). What happens then is that public parking rights are effectively eliminated through the privatized usage of the parking stalls. Again, the consumer of the hotel’s services is where the social need now lies, as the public’s ability to access the beach by parking in the hotel’s garage has been restricted. Private hotels in the popular tourist destination that is Hawaii pits private ownership against local and public access. In a related case, the private resort Ko Olina in the Kapolei area of Hawaii has effectively taken control of the public parking lot that provides access to the public beach at the resort. Hawaii resident Todd Cochrane has been repeatedly frustrated at the lack of parking access that has kept him and his family from accessing the beach through the Ko Olina resort (Beach access). He states, “As a resident of Hawaii, I feel my rights are being violated and that the Ko Olina resort has some explaining to do” (Beach access). Cochrane describes a system that “in order to gain entry [to the beach], you show ID to the resort gate sentry and then proceed to the highly-limited public parking area.” What is happening to Cochrane in this example is the private policing of a public right. The requirement of ID is questionable under the 1973 Court decision as the parking lot security guards are able to restrict the public’s ability to park as desired in order to access the beach at the resort. Once again, the rights of beach access by local residents are pitted against the private ownership interests in keeping the public out of places that consumers pay thousands to inhabit and use. Here, like in the other instances, the right of usage is preferenced upon consumer spending. However, the social need in Hawaii is at odds with this framework, particularly involving the public’s right to access beaches. In a final example, access and ownership are also at the heart of the controversy over access to the white sandy beach at Iroquois Point on O’ahu near Pearl Harbor. Iroquois Point Island Club, a privately owned subdivision, sits on what once was the Pu’uloa Naval Housing Complex and does not allow public access to its beaches (Pang 2007). The subdivision is allowed to keep the public out because it is on land belonging to the United States Navy. “Military property is exempt from the state and county beach access rules” (Pang 2007). The military presence in Hawaii is already a sore subject for many local residents. With public access denied through the association of military land ownership, the tension involving

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the military presence in the outermost terrain of the United States in the middle of the Pacific Ocean strategically seems to avoid the confrontation between public and private in this beautiful, albeit privately accessible, beach. Here, the public’s right to access the beach has been privatized according to frameworks of power through property ownership. Conclusion In his study about why people follow the law, Tom Tyler (1990: 160) discusses the importance of legitimacy as “the belief that one ought to obey the law.” After all he notes, “laws and the decisions of legal authorities are of little practical importance if people ignore them” (1990: 161). Procedural justice and the fairness of law contribute to the “values that lead people to comply voluntarily with legal rules and the decisions of legal authorities” (Tyler 1990: 161). Laws that are considered to be legitimate will be followed. This sense of legitimacy is why mommy spaces exist and are observed. Reserving space for people with children, as in the Stop and Shop example, or for pregnant women, as at Babies “Я” Us, are seen as legitimately reserved parking space. Likewise, this is also the justification of relying upon medical expertise for the verification of pregnancy in obtaining handicapped parking status during the third trimester of pregnancy. In this case, the doctor’s own values become the law that can refute a pregnant woman’s claim of actually being pregnant for purposes of parking. However, the meaning of these spaces fosters heteronormativity, especially since the primary means of enforcement is a cultural and socialized sense of legitimacy of who belongs and what qualifies in order to access these sites. Legitimacy in this sense is premised upon morality. In both mommy spaces and the medical expertise needed for handicapped parking validation, the public enforcement of visible legitimacy and morality acts as law. Mommy spaces further mimic the legalized recognition of need according to proximity that is found in handicapped parking spaces for disabled parkers and their passengers. The quality of such space as a site of special reserve may in fact however be of hollow meaning if the practical usage of the spot is questionable. This may also be the case with the third trimester permit. In a relevant example, disability seating at sports arenas is a meaningless gesture of law according to the Americans with Disabilities Act in which the practice of reserving special space overshadows the actual, often limiting and inhibited placement of those seats in areas where the view for patrons seated in wheelchairs is restricted and essentially discriminatory legal tokenism (Anderson 2005). This example relates to both mommy spaces and third trimester permits, as the ability to park as it is reserved in a genderbased fashion can actually discriminate against those encouraged to use it. If the expected usage according to social norms of what pregnancy looks like and also who accompanies a baby, the expectation and enforcement of morality-based policing become a source of law. The legitimacy factor of who can park where

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challenges the notion that these designated people need special assistance through closer parking spaces. But perhaps given our overly consumerist and medically dependent society, that is not such a bad thing. Usage of beaches in Hawaii by the public as directed under state law further contributes to the tension of spatial reserve as true access via parking lots and a variety of restrictions challenges the fundamental notion of the right that the state laws created in the first place. Ironically according to Tyler’s thinking, private property owners should ‘obey the law’ that tells them to ensure that the public has access to the beach. However, in reality, private property interests conflict with the public’s right to access beaches in the state as the power of the purse is mightier than the social need that requires access through sufficient and available parking. Local residents are pitted against consumer interests in the contest for rights of access on trails, in parking lots, in parking garages, and through sheer exclusion. Here, the law of the 1973 court ruling says one thing, but the actual enforcement of the law may be sorely lacking, even qualified in such a way as to promote noncompliance. Literally in Hawaii, the built environment often consumes the rights of access to the sand, the sun, and the waves by restricting parking abilities that are the foundation of social need for the local beach-going community.

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Chapter 7

Law Personified: Images of Parking Enforcement This chapter explores the nexus between authority and sexuality that perpetuates the gendered way of seeing law according to the people and policies found in parking enforcement. The social construction of parking enforcement embodies a sexualized approach to parking authority according to the patriarchal hierarchy of legal authority. This construction results in an image of law according to what a parking enforcement officer should look like, but also the extent of the legal authority actually assumed to be held by this position. The result is the gendering of legal presence and legal authority framed around the person making and administering the laws of parking. However, this gendering also presents an interesting look at how power and its exercise are not only viewed and challenged, but also harnessed and redefined by the person in positions of parking enforcement. Constitutively, the legal authority of the parking enforcement officer is a semiotic of sexuality that reflects the legal consciousness of the recipient of parking governance. This person is subject to the legal discretion of the officer who makes his or her judgment often with regard to the place and persona of violation. I call this type of law, where the perspective of legal authority from the recipient viewpoint may be diminished and portrayed as less serious, as ‘soft law.’ Later in the chapter, I will contrast soft law with ‘frontier law,’ which involves the viewpoint that parking enforcement law is not soft at all, but instead exists beyond the boundaries of typical legal construction. Frontier law is the resistance to soft law. This chapter will examine images of parking enforcement officers for their semiotic contribution to who law is, i.e. the personification of law, or law personified. This chapter will also examine the perspectives of parking enforcement from the narratives of parking enforcement officers who are influenced by the geographic circumstances of where they are policing and the communities where they are responsible. The seeing of ‘who’ and considering ‘where’, the law is, as it is personified through the people that make it happen, imparts perceptions and demonstrations of gender and sexuality through the enforcement and resistance to law. Sexualized Juxtaposition of Authority and Expertise The right to decide is a show of authority that takes many forms depending on the contextual placement of that authority and its effect. When we think of authority,

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we often envision a person in uniform, perhaps with seniority, a degree, a badge, or even a gun. Minimally, this personification of authority is detached from us as we endow the law enforcement officer with the right to judge. Subsequently, this rendering of judgment is a statement of right, positioning this officer as judge determining right and its qualification. This expert as such authority maintains the power of verdict reflecting the politics of identity. In such demonstrations of authority, the identity of the expert creates, sustains, or erodes what we consider to be our rights. It is the detached placement of who gets to decide that makes the position of the expert political; as we give away our authority to the expert, we give away our power to decide to someone else. That someone else may also give his/her power to enforce away as well. Our own identity is at stake for experts to impact and control in a type of governance that is more subtle as it is viewed in a common-sense-based fashion. However, it is this dependence on common sense which makes the expert all that more political in a way of failing to see where power really is. The politics of the power of expertise is seen in everyday forms of power present in such places as the pub (Valverde 2003), the book cover (Lenz 2007), and the parking lot, with the sexualization of parking enforcement authority according to either soft and/or frontier law. Expertise is experience-based and everyday governance is local, happening in spaces we perpetually inhabit. We do not often think of these spaces as politicized spaces or with authorities that govern. Often these spaces are of such a mundane nature that we consider them to be forgotten, free from governing parties who have better, more important things to attend to. However, governance is not absent, and is actually a contested source of power. For example, in one such banal place, the pub, those who serve patrons alcohol are not considered experts before licensing authorities in determining if a patron is drunk or not (Valverde 2003). Instead, these detached licensing authorities become experts of intoxication, and overrule the waitstaff who are themselves faced with the decision of whether or nor to continue serving alcohol to a visibly, or not as visibly, intoxicated customer. Criminologist Mariana Valverde’s study of pubs and licensing determinations asks fundamental questions of access to and acknowledgment of knowledge. Who knows what is a key element of determining who’s in charge, or more precisely, the concern regarding the “distribution of epistemological authority” for legal purposes. Her study of administrative versus common knowledge in determining drunkenness in Ontario pubs for licensing purposes reveals a relevant parallel to this study of expertise in examining the authority in parking enforcement as the production of knowledge involves different planes of knowing, or clout, depending on who knows what when legality matters. Furthermore, law can be looked at through the lens of enforceability, as Valverde (2003: 167–92) asserts in “‘Common knowledge must enter the equation somewhere’: Knowledge as responsibility.” Valverde looks at the responsibility of waitresses in serving drunken patrons. In Ontario, these people are bestowed with this duty, but are not considered to be experts in court as people able to attest to the point of drunkenness in terms of licensing decisions. Likewise, police in

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Canada are considered to be lay people in this realm, as purveyors of ‘common knowledge’ rather than ‘administrative knowledge.’ Thinking, according to Valverde’s premise, a type of common knowledge can be in terms of recognizing, diagnosing, and experiencing parking enforcement. Therefore, the production of knowledge contributes to the malleability of law. In addition to policing drunkenness in pubs, the covers of books about learning disabilities can be another such example. Through the use of images, people with learning disabilities are conceptualized in a negative light as suffering victimization (Lenz 2007). Lenz examines the image of the learning disabled on such book covers to be the legal creation of dependency of the learning disabled community on experts who will protect them from discrimination. Lenz’s idea of expertise is further thinking about the idea of expertise as governance. It creates a dichotomy of knowledge and experience by setting apart the expert from the subject similar to the relationship established between the licensing board and the waitstaff. In these two examples of the pub and the book cover, law is what we think of as the source of authority. When that authority can be manipulated, challenged, or even simply dismissed for the authority of another, that authority becomes a malleable source of law, or soft law. Parking enforcement officers exhibit as much day-today expertise in the laws of parking enforcement as do the waitstaff in the laws of drunken behavior; both are ignored in favor of a detached sense of expertise as the ultimate source of authority. In the case of parking enforcement, officers are seen as similarly dehumanized as waitstaff in the pub or as the narrow depiction of the learning disabled on book covers to be malleable, or able to be manipulated for a certain outcome. Parking enforcement officers are particularly malleable as being either subject to human emotions (be those emotions either angry or pleading) and potentially altering an outcome or subject to the dehumanized parking meter as the ultimate source of authority. In either case, the actual person who is the parking enforcement officer is seen as soft and able to either be swayed or to be soft before a more hierarchical source of authority. Soft Law Versus Frontier Law Popular references to parking enforcement can be politically illuminating, even charged. On the search engine Google, a search for ‘parking enforcement’ versus ‘meter maid’ produces two very different types of results. The search for ‘parking enforcement’ produced overwhelmingly men in uniform, while ‘meter maid’ resulted in scantily clad women being naughty by writing tickets.1 The latter search also produced a range of sexualized images from the cutesy ‘meter maid’ 1  Some of the images pulled up under the search for ‘meter maid’ were sexuallycharged sites with countless images of practically naked women standing next to an erect parking meter as a sort of ‘meter maid porn.’ Other images were sadomasochistic in nature, depicting bloody violence toward ‘meter maids.’

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in the Beatles’ song “Lovely Rita Meter Maid” to graphic sadomasochistic images of bloody ‘meter maids.’ My favorite two results of ‘meter maid’ images found on this search include a first image of a young female parking enforcement officer being ‘good’ by not only being in a gold bikini, but by feeding the meter for parked cars and a second image of a female parking enforcement officer being ‘good’ by issuing a ticket for a free massage. This first image (“The Meter Maid, Gold Coast, Australia,” available at: http://i3.photobucket.com/albums/y95/armyyouhave/ GoldCoastMeterMaid.jpg (accessed May 25, 2010)) shows the actual job of many young women who reside at the Gold Coast of Australia, who work as ‘meter maids’ in uniforms of bikinis assigned the task of feeding local parking meters in order to ensure that the time on parking meters never runs out. The second image (“Hootermaid,” available at: www.e-wollmann.com/pleiadian1/hootermaid. jpg (accessed May 25, 2010)) depicts a fantasy of both a sexual nature, as the ‘Hootermaid’ is wearing a thong, chaps that show her bare buttocks, bra, and cowboy hat, and of law enforcement, namely that parking enforcement officers are sexy young women who carry play guns for sexual arousal. This second image also conveys an underlying notion that parking enforcement is on the fringe, or frontier, of law, as it often takes place in a renegade fashion with the woman holding a smoking gun up to her lips in a provocative gesture. Although in the second image, there are elements of frontier law found in the gun, both images should be considered to be soft law, or law as a malleable, sexualized form of authority. Both images describe a level of expertise in which the legal authority found in parking enforcement is sexually challenged and viewed as soft and malleable. Moreover, the laws of parking and those who enforce these laws and penalties for violation are viewed as having a feminine quality and are therefore flexible and not as strict in terms of governing experts. However, despite its malleability, parking enforcement seems to be a renegade, or frontier, type of law, in which the enforcement of law is accentuated according to both the violator and the enforcer. In particular, the image of the meter maid as able to be sweet-talked or as kind enough to ignore parking violations (and if not, then she is simply a cold, unfeeling bitch), evokes the notion of marginalized jurisprudence (Fitzpatrick 1992; Sanger and Rhode 2005). Marginalized jurisprudence is the notion that it makes a difference who actually enforces law as law itself according to in this case, gender. Interestingly, in my conversations at Stop and Shop when examining the Customer with Infant Parking Space in Chapter 6, an older male cashier told me he had received a $25 ticket when he parked in the Fire Lane in front of the store by a “woman cop” who needed to “show off” because she was new on the job. Additionally, there is the children’s story Veronica (Duvoisin 1989) in which a hippo, new to the city from her home in the country, is confused and ‘parks’ herself at a curb on the city street. Taking out his pad to issue her ticket, the policeman asked Veronica, “Lady, don’t you know that you cannot park in front of the fire hydrant?” (Duvoisin 1989). The statement that follows show us that even in children’s books, parking law is

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treated as soft law: “But being a nice man, he directed her to a place across the street where she could sleep quietly” (Duvoisin 1989; italics added by this author). The expected lapse in the enforcement of the parking violation is in contrast to the policing of Veronica once she lunches on the vegetable cart, later on in the book. Here, the policeman has no choice but to send her to jail, unlike the ability and expectation of the policeman as parking enforcement officer to be nice and not issue her an infraction, but instead direct her to a parking lot where she can rest and ‘park’ her big hippo body among the cars. In this latter example, the theft of vegetables by a hungry hippo is more of an absolute infraction with little maneuvering in punishment other than going to jail than poor parking practice. The elements of soft law showed to us by Veronica the hippo come into play with the Internet images described earlier. In the first, the bikini-clad female parking enforcer is not a law enforcement (or parking enforcement) officer, but instead a sexual tease. This idea is conveyed by such images as the above picture that the recipient of the ticket is not unhappy, but instead takes pleasure in receiving such a ticket by such a person and is sexually aroused. Additionally, the ‘meter maid’ type of enforcement means that the nature of the parking space is also somewhat of a joke, not to be taken as seriously as other enforceable types of law. As the second description also depicts, the law and regulation of parking creates a dimension of the frontier in which parking takes on a Wild West sort of quality where the occupant of the space is out for himself and where the authority of the meter maid can be romantically swayed, if not corrupted. Again, this presents us with the notion of marginalized jurisprudence as parking law, its administration, and its enforcement are on the margins of ‘real’ law where the penalty of parking tickets can be talked out of if the meter maid is a nice (read: sexy, ambivalent) person (read: young woman or elderly man). The meter maid is not viewed as a legal expert, much less a source of governance to be taken seriously. Furthermore, the very semantics of the position of authority (meter maid vs. parking enforcement officer) denotes a denigration of the position as someone who is subservient and lacking control. Parking enforcement is also marginalized jurisprudence and soft law as the parking enforcement officer is often a direct target for the frustrations and aggressions of the person receiving a ticket. What’s interesting is that the aforementioned personification aspect of who is writing the ticket is viewed as a type of legal discretion that isn’t popularly considered to be as real or weighty as other types of law enforcement. Parking enforcement officers rarely carry guns or a walkie-talkie for backup should the need arise. For this reason, the parking enforcement officer is expected to be soft, or nice, and forgive the legal transgressions of violating parking law. Because it happens outside the court on streets and in parking lots, the legal presence of that person issuing the parking ticket is construed to be easier to challenge. Take for instance the following recent cases of violence against parking enforcement officers in previous chapters that show us how soft law is reacted to in frontier law style, where the law is taken into the hands of the individual and out of the legal confines of rules and procedures.

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Is Soft Law Really Frontier Law? As the following cases illustrate, parking enforcement is treated in a frontier manner, where the soft law of parking enforcement is violently opposed. On March 3, 2010, Krystie Charley was arraigned in Brookline District Court in Brookline, Massachusetts, on charges including assault and battery with a dangerous weapon (Andersen 2010). Charley, a resident of North Smithfield, Rhode Island, in her early twenties, threw a cup of hot coffee on 64-year-old Parking Enforcement Officer Claire MacPherson who was writing her $25 ticket for an expired parking meter. MacPherson was unhurt and Charley was released on personal recognizance. On November 9, 2009, Richard Gobeille-Peterson, age 24, was arrested for assault with a deadly weapon for trying to run down a parking enforcement officer (Santa Rosa man jailed in parking officer assault 2009). Gobeille-Peterson had parked in a handicapped parking space in Santa Rosa, California, without a handicap placard. As the parking enforcement officer was writing him a ticket for illegally occupying a handicapped parking space, Gobeille-Peterson became enraged, grabbed the ticket, ripped it up, and then threw the ripped-up ticket at the officer. When the parking enforcement officer attempted to drive away in search of police assistance, Gobeille-Peterson drove his car straight towards her, presumably with the intent to run her over. On July 8, 2008, Evangelos Lillios, 72, was fined $900 for assaulting a parking enforcement officer and found guilty of misdemeanor simple assault in Concord District Court in Concord, New Hampshire (Schoenberg 2008). Lillios, the owner of the building at 2 N. Main Street, was parked across two parking spaces. As he was summoned by a parking enforcement officer checking parking meters, she witnessed him getting out of his car and walking away. When the officer attempted to stop him, Lillios asked for her name and reached towards her chest in order to grasp the cross-strap that housed her ticket-writer. The officer moved so he could not grab the strap, but she was nonetheless physically accosted by the angry landlord. City prosecutor Scott Murray stated “parking officers need to be protected … Those people are out there every day enforcing parking ordinances. It’s a very tough job.” In each of these examples, the laws of parking enforcement are seen by the aggressors as being able to be resisted, in part by violently opposing the person enforcing the laws. Parking is considered to be soft, which actually enables and perhaps even encourages the frontier manner in which these individuals took the laws into their own hands. Although frontier law as it is used in this instance is violent resistance, frontier law when used by those who enforce soft law in parking enforcement, may also exercise discretion, and essentially therefore, actively take the law into their own hands. It is the expectation that parking enforcement will be soft that actually invites the frontier aspect of law in terms of its enforcement or its resistance when the law enforced is not enforced in a soft manner. On August 14, 2007, Claudia Peschiutta (2007) of National Public Radio reported that legislation in the California State Assembly had been introduced in

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order to double the maximum fine for the increasing number of assaults on parking enforcement officers that included tire slashings, spitting, threatening aggression, punching, and beatings in the cities of Los Angeles and San Francisco. According to Jimmy Price, Chief Parking Enforcement and Traffic Control, Los Angeles, California, “we’ve seen shots fired at our vehicles. We’ve had officers carjacked at gunpoint. We’ve had individuals batter our vehicles out of frustration.” Mark Leno, Chairman of the California Assembly Public Safety Committee, asserts “people don’t think it’s a crime, a serious crime at that. We want to remind them that it is.” Julie Butcher, of the Service Employees International Union, supports Leno’s bill. She says “I’ve had traffic officers show me posters of canine dogs that they believe have more rights and more protections that traffic officers do. If you attack a canine dog, you’re in big trouble. Right now, if you attack a traffic officer, it’s unclear what happens.” The Los Angeles Department of Transportation responded to the increase in violence by issuing traffic officers pepper spray and training in verbal confrontation. In each of these cases, parking enforcement officers are physically and verbally challenged by the public who park their cars in ways that violate parking laws. What’s interesting is the level of aggression and violent response to the inanimate parking ticket issued by a person who is simply doing their job. The social reactions against legal order that parking enforcement officers are charged with regulating pits officer against the violating public. Parking law is not viewed as ‘real’ law and because of this perception, violent responses happen because of the view of diminished authority that ‘parking cops’ have. In the words of Minda Lee Jennings, Traffic Officer in Los Angeles, who covers her uniform with a jacket when going out to lunch, “either they’ll spit in your food or they’ll give you the smirk. The service is not the same when you’re wearing this uniform as opposed to when you’re wearing a jacket” (Peschiutta 2007). What is interesting in terms of parking enforcement as law that involves aspects of both soft law and frontier law is the recent case of parking enforcement officers being trained as anti-terrorist agents. This program, funded by the Federal Emergency Management Agency (FEMA) and administered by the Transportation Security Administration (TSA), trains parking industry employees across the United States what to look for in terms of possible terrorist threats related to their jobs in parking lots, parking garages, and parking enforcement (Associated Press 2010). The new program is based upon recent terrorist activity which in part happened precisely because of the mundanity of parking, such as the Times Square undetonated bomb in New York City in April 2010, the 1995 bombing in Oklahoma City, or the 1993 bombing of the World Trade Center. In a neat conjecture that acknowledges parking enforcement to be a soft form of law, the new program makes this soft law into the law of the frontier, insofar as parking employees turned anti-terrorist agents are on the lookout on behalf of the United States government as “parking attendants and meter maids could be the nation’s latest line of defense against terrorist attacks.” In this way, the laws of parking and those who enforce those laws aren’t really seen as soft, but rather as being on the

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new post-9/11 frontier as those who could make or break the next terrorist strike on the United States in a frontier fashion. However, if the personification of law extends beyond parking enforcement to parking employees at the behest of the TSA, then law can be personified by those who volunteer to exercise law. In this way, parking enforcement is both soft as well as frontier, as anyone can assume authority. In Hilo, Hawaii, as in many towns across the United States, a volunteer parking violation enforcement program exists or has existed in the past. In 2003, such a program was piloted in Hilo. Its status at the present time is unknown at the time of writing. As the program functioned in 2003, authority and the expectation of expertise exhibited through local residence were designated upon individual members of the community who went through training and were able to “issue tickets only when the handicapped signs, access aisles, etc are in compliance with the law” (Mayor’s Committee on People with Disabilities, February 7, 2003, Kona Mayor’s Office Conference Room). In the capacity of volunteering to enforce parking, the laws of volunteer-based parking enforcement become even further personified as the face of the law is now an informal citizen representing the law and acting as the law by handing out violation notices and reporting to the Chief of Police. This is therefore the complete transition of parking enforcement from soft law to frontier law that characterizes the marginalization of jurisprudence and the personification of law. Additionally therefore, volunteer parking enforcement is the epitome of frontier law turned once again back to soft law, as the thinking is that with a smidgen of training and the expertise of being local, the personification of parking enforcement law is authority that is once again malleable and able to be conferred onto just about anyone. Legal Narratives of Parking Enforcement Political scientist Michael Lipsky (1980) tells us policy delivery is in the hands of public service workers, who he refers to as street-level bureaucrats. In a similar light to that advocated by the TSA anti-terrorism training of parking employees, these people “hold the keys to a dimension of citizenship” as they “socialize citizens to the expectations of government services and a place in the political community” and “implicitly mediate aspects of the constitutional relationship of citizens to the state” (Lipsky 1980: 3–4). Using this depiction of the public service worker, parking authorities can be considered to be street-level bureaucrats. Parking authorities can be parking enforcement officers (also called meter police, parking police, or meter maids), parking clerks, parking office management, or executive parking directors. This section will examine the role of law as it is personified in these parking authorities according to their work narratives, developed from interviews and conversations. Each of these figures exhibits authority and expertise in a manner that shows us how law is personified according to the person who is enforcing the laws of parking.

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Elvira Guardiola Elvira Guardiola2 is a lawyer who before serving as Director of Parking Administration for the City of Worcester, Massachusetts, worked in the City’s Probate and Family Court as a probation officer and associate court officer. Currently, she also teaches law at Anna Maria College. Guardiola, a Worcester resident, has worked for the past 12 years as a probation officer and associate court officer for the state in both Probate and Family courts. She feels that her mediation experience in pretrial conferences, as a counselor, and while conducting and supervising caseloads of 400 defendants in addition to her legal training, expertise, and history as an attorney helped her to get this job, which she has held since November 2006. Guardiola’s supervisor is the City Manager for the City of Worcester, Michael V. O’Brien. Guardiola reasoned that her experience working and instructing in the legal field with skills in exceptional communication, organizational, and mediation skills made her an ideal appointee for this position. This stated foundation of Guardiola’s experience as a person trained in the law and well-versed in making the law work best for all parties involved via tools of communication and of mediation in making her the ideal appointee for the position of parking administrator provides a unique relationship between formal and social law. Mediation is a nexus between the two, intertwining legal principles and social realities that the mediator acknowledges in her decision-making and judgment. This nexus is a relationship that is also represented in the appeals process of parking judgments and of parking jurisprudence. Guardiola’s job crosses the formal and informal boundaries of legal authority constantly as she tries to be fair, in granting exceptions, and by hearing the appeals of violators. She further personalizes this boundary by investigating appeals herself to consider whether the actual issuing of the ticket itself was justified or not. In Worcester, monies collected from these transactions yielded approximately $2 million per year in revenue, with over 80,000 tickets issued every year. Those people who have so many outstanding unpaid parking tickets are officially referred to as ‘scofflaws.’ Scofflaws usually receive the boot. The boot is not only embarrassing, but extremely preventative as it is a physical restraint on the vehicle and the movement of the vehicle’s driver. The appeals process involves a written appeal within 21 days of the ticket. Once Guardiola receives an appeal, she researches both the applicable law and the scenario of the appeal. She routinely visits the site of contestation and takes pictures in order to personalize her response. She tries her best to be fair and to consider exceptions in addition to often giving the benefit of the doubt to the violator. Appeals are heard solely by Guardiola with subsequent appeals to her decisions being heard at Massachusetts Superior Court. 2  Many thanks to Elvira for sharing her work and her stories with me and for giving me permission to publish them in this book.

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There are numerous colleges in Worcester. Similar to the college town of Amherst, residential parking in Worcester requires a permit. Without a permit, a vehicle can be ticketed and/or towed. However, exceptions can be made if a petition is made and considered. This is particularly used when residents are holding parties. The example of such an exception as provided by Guardiola was a birthday party for a child, rather than a raging keg party (reflective of the proximity to colleges and where city residents rather than college students live). We discussed the idea of public-ness of parking on city streets, particularly on those streets requiring a residential parking permit. Guardiola explained that the streets are public and therefore owned by the city, and that all streets in residential areas are not permit-enforced as there were many streets that were open to nonresidential parking. I asked Guardiola if she had any ‘holy cow stories’ in her time as Parking Administrator that she would be willing to share with me. The first story involved her own son who had racked up quite a number of unpaid tickets. The problem she explained was that she was just appointed to her official position when she found this out. A law student himself, he did not have the money to pay off the tickets, and decided the best solution was to actually wait until she became Parking Administrator in order to appeal the tickets through her. She was outraged and demanded that her son pay the tickets immediately so she could start her new job without a potential scandal, which he did. Guardiola told me that in general, her ‘holy cow stories’ usually involved appeals. She told the story of a pregnant woman who became so violent that Guardiola had to call the police to remove her from the office. The woman, who was described as ‘pregnant enough’, received a boot on her car after not paying a year’s worth of parking tickets and with no written appeals filed within the 21-day period. In her appeal a year and a half later, the woman wanted the tickets waived despite the fact that a whole year had passed. Initially denying the woman’s appeal, Guardiola’s response was that “you are responsible when you park there.” However, following the attack against her in which the pregnant-enough woman lunged at her across a large desk while screaming vulgarities, Guardiola did agree to allow a hearing despite the elapsed time since the tickets. When I asked Guardiola about whether or not special temporary provisions were made for pregnant women parkers, she shook her head and said no. When I explained to her my dismay at having to leap through bounds of proving my pregnancy via doctor’s notes at UMass and at Mount Holyoke College, she had no sympathy and agreed with the notion that I would be healthier walking. Guardiola’s language of ‘pregnant enough’ is particularly interesting because she does not consider the pregnant parker to hold any special status, but instead to be held to the same standards as other parkers, or as she told it to the ‘pregnant enough’ lady in the story above, “you are responsible for parking there” (and receiving a ticket that must be paid). As is the rule in other places, handicapped drivers who park in Worcester must prove/document their handicap through the Mass RMV in order to

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receive the appropriate demarcation and signage for the vehicle. However, meters are free for handicapped drivers who park in metered spaces. Shirley Kingston3 I have become distantly acquainted with the ‘mean parking lady of Northampton,’ Parking Enforcement Officer for the City of Northampton, Massachusetts, Shirley Kingston, through a mutual friend. As of this writing, I have not yet had the opportunity to talk in detail directly with Officer Kingston; however, our mutual friend, who also works for the City and shares a break room with Parking Office, has shared many stories about Kingston with me. Interestingly, in an impromptu interview with a local radio station, Shirley Kingston self-identified as a “Violation Officer” rather than a ‘meter maid.’ This self-titling is accurate and appropriate; Kingston is an extremely formidable woman who does an excellent, even over-the-top job, at enforcing Northampton parking policies. Having lived in Northampton and the surrounding area for the past 15 years, I am personally afraid of Kingston because of her expertise. Not to boast (well, maybe a little), I have even outrun Kingston, as I ran to my car, which was parked in front of an expired parking meter upon seeing Kingston approaching in a Parking Enforcement Vehicle. Despite my bravado, I have received countless tickets at the pen of Officer Kingston. I have come to realize that she is just doing her job. However, as the ‘law personified,’ Kingston’s authority as a Parking Enforcement Officer is not to be messed with. I have witnessed an irate man whom she ticketed curse and scream profanities at her, which she simply ignored while writing him a ticket and leaving it on his car’s windshield. As an enforcer of unpopular parking policies and, therefore, an effective public service worker, Kingston has received numerous complaints from local businesses regarding the tickets she has written. The tickets are seen by local business as a deterrent for downtown shopping. In a place such as Northampton where shopping is credited with the town’s revitalization and elite boutiques, art galleries, and restaurants, as well as more affordable student-targeted shops and eateries thrive, parking tickets are a grim, if not painful, reality to shopping and eating in Northampton. Chuck Fritz4 In my meeting with Chuck Fritz, Director of Public Safety at an unnamed college in the Five College community, we discussed mostly policy creation and enforcement. Fritz told me that in terms of making parking policy, “everybody borrows from one another.” This means that not only are there formal processes for creating parking laws, but also informal customs that become law. One such 3  Shirley Kingston is a pseudonym. 4  Chuck Fritz is a pseudonym.

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area seems to be the Fifteen Minute Parking Space. This type of space is not unique and appears at other colleges in the area. Ironically, Fritz told me that the enforcement of keeping those who park there to the stated 15 minutes is a practical impossibility. He also suggested that this was in fact common knowledge by the parking public. With a recent sexual assault, the proximity of parking has become a real issue. Students who park close to their dorms in parking lots that they do not have parking permits for justify their actions based on the idea of proximity and safety. According to Fritz, parking in distant lots is an issue for both current students and their parents, but also for prospective students wary of attacks. As stated earlier in the book, bad things often happen in parking lots. Despite Fritz’s overt concern with the physical safety and emotional well-being of students under his charge, he responds to these claims by urging students to park where they are supposed to and to call Public Safety in order that an officer escort them safely from their cars to their dorms. As the ‘law personified,’ Fritz stresses that his position is one of service to the community rather than to penalize. He wishes to rehabilitate rather than to punish. Giving that second chance to violating students and to other offenders is a way to encourage a positive image of the authority of Public Safety and to encourage nonviolating behavior by parkers in the future. Lipsky talks about this idea of bending formal law as “the discretionary actions of public employees” (Lipsky 1980: 3). Admittedly, Fritz says that he could talk about parking all day long. As a topic he thoroughly loves to discuss and consider, Fritz concludes our conversation with his dream for the future, perimeter parking. Perimeter parking evicts cars on campus to the campus’s perimeters and is quite in vogue at the moment as parking policy. Charlyn Puza My first question for Charlyn Puza,5 Director of the Parking Office at Mount Holyoke College, a very warm and personable middle-aged woman, was whether or not she experienced a sexualized response to her parking judgments. She immediately said no; however, she also assured me that the manner of approach that offenders made towards her made an enormous difference in how she viewed their cases. Appeals presented in person, as well as written, are very important and influential in her decision-making process. She also told me that because she herself had three teenage children at home, she viewed Mount Holyoke students to be of a similar mindset. Puza was very generous in sharing xeroxed copies of actual anonymized parking appeals with me. Mostly, these appeals discussed the need for increased convenience of time and space in parking closer, albeit illegally, in parking spaces of short-term occupancy. There were also gripes about the lack of visible parking space markings (i.e. snowed over pavement lines or parking 5  Many thanks to Charlyn for sharing her work and her stories with me and for giving me permission to publish them in this book.

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signs that were not visible enough) as well as statements made by either students or faculty that demanded recognition of either their position or their class year. Puza told me that the majority of parking offenders that she dealt with were students, then faculty and staff, then visitors to the college, and finally parents at the end. Emphasizing that her work with parking violators as well as her work with the college’s Parking Review Board (student represented) was by no means ‘black and white,’ Puza stressed the notion of reeducation and rehabilitation that Fritz also discussed. In her view, the purpose of parking enforcement at Mount Holyoke was to keep order and to ensure that faculty and staff had an available place to park when they came to campus in the morning. She contrasted this mission with the standard reasoning of municipal parking as a source of revenue. She admitted that because Mount Holyoke College was a private institution, she had more leeway in enforcing parking policies. She concluded by telling me about the Equestrian Lot. As it turns out, the Equestrian Parking Lot is where repeat offenders are restricted to park. A repeat offender is a student who has received more than five tickets. This lot is not a desired place to park for Mount Holyoke students who consider its distance from campus buildings a form of punishment. Distance is however relative, as this is the lot also assigned to visiting Five-College students who are enrolled in a class at Mount Holyoke. In Puza’s words, UMass students appreciate the proximity of this lot in comparison to lots assigned to them at UMass. Perspectives on Law: Constitutive or Instrumentalist? Austin Sarat and Thomas R. Kearns (1993) discuss the differences inherent to two ways of looking at the relationship of law and the everyday as the instrumentalist view and the constitutive view. They tell us that the instrumentalist view treats law as an external factor to social relations and the constitutive view “underestimate[s] the normative import and impact of the quotidian and overestimates the effectivity of law in setting the terms of everyday life” (1993: 11). They posit the two views as reconcilable “only by attending to particular practices and concrete, historically situated examples of law and social relations” (1993: 11). However, David Delaney (1998) conjoins the two approaches in his examination concerning the spatiality of the law. In his approach, the space where law reaches is codified by place and can be termed the geographies of power. In these carvedout meaningful spaces and places, it is crucial to consider exactly who is doing the carving in order “to call to mind the experience of access granted or denied, of exclusions and expulsions enforced, of protection or sanctuary respected or violated, is to become conscious of the social relations of power” (Delaney 1998: 5). In this way, law is social and what is socialized can be thought of in terms of legal experiences. Similarly, Nicholas Blomley (1994) considers the relationship between law, power, and space. He notes that “it is hard to think about the politics of work without recognizing the constitutive effect of legal codes and norms” in

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his inquiry involving the politically geographic relationship between work and the economy (Blomley 1994: 62). Here, law and social meaning via labor politics and policy are in a mutually integrated relationship. And lastly, Alan Hunt (1993) explores the politics of justice in terms of the nature of rights and suggests “we can distinguish between ‘legal rights’ and ‘sociopolitical rights,’ while insisting that this distinction embodies a continuity rather than a stark legal/nonlegal boundary” (Hunt 1993: 107). In this way, law is rife with social and political meaning that in turn shapes the sociopolitical response to law. John Brigham (2009: xii) further reminds us that We should see the law in the kiosk and in the natural-born citizen, in the

boundary between nations and in the boundary between city and suburb, and in a Supreme Court decision as well as in a traffic citation. We should be able to see law altering our reality. Brigham reminds us that law exists in our everyday lives, and as such, our reality is contingent upon our ability to see law and how it works. The relationship between soft and frontier law in the juxtaposition of authority and expertise as well as through the concept of marginalized jurisprudence exhibit this construction. Additionally, through the legal narratives of parking enforcement, we can literally see that law is personified. It is this personification of law found in parking enforcement that goes beyond the instrumentalist approach that suggests that parking enforcement officers simply administer the law. Because parking enforcement officers epitomize the laws of parking, we can see law working constitutively through them in shaping our realities. With these perspectives in mind, let’s think through the personification of law via parking enforcement in terms of the rights, identities, and property claims associated with the constitutive approach to law. The laws of parking are personified through the person, the persona, and the personality of the individual parking enforcement officer. With regards to the authorities described here – Guardiola, Fritz, and Puza – three primary attributes of each conversation should be examined: notion of fairness, appeals, and permits. The conversation with Kingston will be examined in terms of effectiveness through demeanor. First, the notion of fairness is a central aspect to governance as each of the three profess its centrality in doing their jobs. Guardiola recognizes the importance of her background in legal mediation and parallel job as a law professor as giving her insight into doing her job fairly. Fritz also stresses fairness as fundamental in his mission in Public Safety in serving the community according to his practice of rehabilitation rather than punishment. Puza also sees fairness as an essential part of her job, where she considers each case according to the manner in which it is presented to her. Second, the manner in which appeals are dealt with reflects the personality of each as well. Guardiola goes personally to the site described in the appeal to investigate. Fritz sees the importance of rehabilitation, or giving a second chance

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to violators so that, next time, they will do what they are supposed to. He also takes into account the impact on students and parents from a recent sexual assault on campus when considering parking violations. Puza takes into account the type of person who is appealing, specifically whether the campus member exhibits honesty and respect. Third, permits reflect the law as it is personified. Guardiola says she routinely grants exceptions to permit guidelines by taking petitions into account. The example she uses is giving permits to those wishing to have a party on a street where parking is restricted. Fritz considers the idea of a permit as often impractical and impossible to enforce when considering the enforcement of Fifteen Minute Spaces. Puza is generous with permits when granting them to those students with excessive parking violations and sees the purpose of parking permits as contributing to a sense of order. These students are given permits to park in the Equestrian Lot, a parking area a bit further away from the central campus. In each of these cases, each space is dependent upon personal interpretations of legal geography, the authority and expertise of the parking enforcement officer, and reflects the constitutive approach to law in generating sociopolitical rights, legal boundaries, and relations of power. These folks are Lipsky’s street-level bureacrats, creating and enforcing the laws of parking that reflect their individual personal backgrounds, philosophies, and experiences. Here, exceptions and customs become law in these legal spaces, residential neighborhoods in the urban settings of the college-rich city of Worcester, and with Shirley Kingston on the streets of an affluent and economically revitalized New England town. Factors that steer parking authorities range from maintaining order to being sensitive to fears of sexual assault to increasing municipal revenue. As a municipal parking enforcement officer, “Violation Officer” Shirley Kingston makes sure that parking meters are paid. Her formidable demeanor is an effective tool of enforcing the laws of parking. Her no-nonsense attitude even gets her into trouble with municipal authorities who think she is doing ‘too good of a job’ at dissuading local consumers from shopping. In Kingston’s situation, business revenue is impacted by effective overzealous parking enforcement. Kingston is considered by local business owners as well as her city supervisors to be overzealous. In other words, she should not take her job as seriously as she does; instead she should relax and not ticket as many people so that local business can continue to thrive from shoppers who enjoy a parking-ticket-free shopping experience. This is a contradiction in parking enforcement that Kingston encounters in her daily work. In each of these four characters, law is personified. These individual personalities reflect the constitutive approach as law and social relations are tethered to enforcement styles of fairness toward appeals and permits. This is evidence that refutes Sarat and Kearns’s doubt concerning the effectivity of law as a constitutive force in setting the terms of everyday life. As the spatiality of law would dictate in these instances, the geography of power is dependent upon the individual experiences of parking enforcement, as Delaney’s work would suggest. Illustrative of Blomley’s relationship between work and the economy,

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parking enforcement comes to mind, particularly the work of Shirley Kingston as it affects the local economy. Property is an issue not only in the permit itself, but also the revenue collected from parking violations. Lastly, Hunt’s attention to the nature of rights alludes to the sociopolitical influence on legal procedures and considerations in which law is personified according to the persons who enforce it. Conclusion In conclusion, parking enforcement is a realm of law in which enforcement is personalized, and therefore personified by its subjects. This personalization can occur in a sexualized way, in which authority is perceived as soft and flexible. This gendering of authority makes parking enforcement exist on the frontiers of law as a form of marginalized juriprudence that allows for both discretion and resistance. As an example, parking tickets can result in violent responses and reactions directed toward the parking enforcement officer writing the ticket. However, parking enforcement officers and other types of parking employees are now at the forefront of protecting the nation from terrorist activity according to the training by the Transportation Security Administration. Similarly, narratives of parking enforcement officers characterize the personification of law in a way that is geographically dependent upon place, circumstance, and persona. The geographic dimensions of power and rights are at stake in the contest of authority over the issuing of parking tickets. The semiotics of power are also contested when the person who is writing the ticket is viewed as less powerful because parking law is not viewed as ‘real’ law until violent acts of aggression are disciplined by the courts as authority and expertise are challenged. Despite these contradictions and challenges, parking enforcement officers serve as street-level bureaucrats on streets and in lots that are sites of governance in which the courts do not readily enter. What is then ‘real’ about parking law is the parking ticket, the violence that may ensue, and the everyday interactions that parking enforcement officers must deal with on a daily basis. In the words of Gloria Tate, Parking Enforcement Officer for the City of Seattle, Washington, for the past 35 years, “I thought you just walked down the street, handed people tickets, and they accepted it” (http:// blog.seattlepi.com/print.asp?entryID=126788 (accessed May 25, 2010)).

Chapter 8

Emblematic Folk Legality: Crafting of Law Through Parking Appeals Legal theorist Robert Cover (1992) has an astute sense of law in the everyday. He states “legal interpretative acts signal and occasion the imposition of violence upon others” (1992: 203). The interpretation of law is connected inextricably to violence in acts, reactions, and responses. Referencing another of his own articles, “Nomos and narrative,” Cover speaks of “the creation of legal meaning [as] an essentially cultural activity which takes place (or best takes place) among smallish groups … not natural coextensive with the range of effective violence used to achieve social control … [and] because the law is the attempt to build future worlds, the essential tension in law is between the elaboration of legal meaning and the exercise of or resistance to the violence of social control” (1992: 204). In his depiction of martyrs and martyrdom of the martyr taking a stand against a tyrant’s law, Cover (1992: 207) notes that “law is the projection of an imagined future upon reality.” He tells us “it is precisely [the] embedding of an understanding of political text in institutional modes of action that distinguishes legal interpretation from the interpretation of literature, political philosophy, and constitutional criticism” (1992: 210). He tells us that “every interpretive practice takes place in some context” and broadens the scope of his argument to say “I would be prepared to argue that all law which concerns property, its use, and its protection, has a similarly violent base” (1992: 210). Cover’s characterization about the nature of legal order is particularly relevant to the parking ticket as a form of sentence, of legal conviction, routinely decided by a series of judges. The initial round of judges in this context is the parking enforcement officer who issues the ticket to the guilty car and its owner. The violence of parking ticket law comes in the form of steep fines, tarnishing of the individual’s driving record, and increased automobile insurance hikes. Cover (1992: 21) suggests that “even the violence of weak judges is utterly real – a naïve but immediate reality, in need of no interpretation, no critic to reveal it.” This notion of violence and law is also pertinent to the unofficial, yet very real reactions of assault, baseball bat smashing, and even murder at the social level toward parking enforcement officers over parking space occupancy. By connecting the understanding of law to practices of its everyday interpretations, Cover speaks of ways to understand the physical acts of other. These interpretations, then, are not only practical; rather, they are themselves, practices. Cover (1992: 218) speaks further “of the relation, between the interpretation of the judge and the social organization required to transform it into reality, the hermeneutic of the

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texts of jurisdiction.” Cover (1992: 214) also tells us “legal interpretation may be the act of judges or citizens, legislator or presidents, draft resisters or right-to-life protestors.” In our context of parking justice and jurisprudence, legal interpretation may also be the acts of angry drivers protecting or rebelling against the authority of parking enforcement officers or the claims on parking spaces. Legal interpretation may also be at the hand of drivers of cars that do not feed the meter and who may or may not receive a penalty fine because of that refusal. Cover (1992: 238) makes an important distinction between the experiences of the perpetrator and victim of organized violence found in legal interpretation and states that “between the idea and the reality of common meaning falls the shadow of the violence of the law itself.” The process of parking appeals fall under the shadow of the law insofar as decision-making may enhance or hinder due process according to the social dynamics of those deciding the appeals, the written text of the appeal, and the person writing the appeal. Those who decide the fate of parking ticket appeals are the second round of judges that create legal meaning. Crafted Emblems of Law Parking tickets and their appeals can be crafted emblems of law. Parking ticket appeals invite a look at how law works and its available recourse for resistance and challenge. The laws of parking suggest that appeals are a type of limited democratic governance as the adjudicating party is often an individual or a particular office. Those deciding the merits of parking ticket appeals act as judge arguing the laws of parking at the level of the initial ticket. Additionally, timing is of great importance to the appeals process, as the opportunity for review is limited. Whilst the nature of the violation is considered, certain violations are not considered appealable. This type of individualized and timed adjudication is evident of a constricted form of jurisprudence where immediacy and access to the judging parties is restricted and framed as often absolute. As Paul Ominsky states in the foreword to Parking Rules and Regulations at Mount Holyoke College, “Clark Kerr, former president of the University of California, has quipped that a college is a ‘series of individual faculty entrepreneurs held together by a common grievance over parking’.” However, the process of appealing parking tickets is locally contingent. At the University of Massachusetts, all appeals go to the Parking Hearing Clerk who is responsible for their adjudication. Subsequent appeals go before the Parking Hearing Review Board, comprised of students, faculty, and staff. However, “citation(s) issued for violations in handicap parking spaces or for expired meters are not subject to appeal” (University of Massachusetts Parking Services). Additionally, appeals must be made within 14 calendar days from the disputed citation either in person, by email, or online at the UMass Parking Service website. In the City of Northampton, appeals are made to the Office of the Parking Clerk with the “office adjudicating all hearings and appeals for parking violations”

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(Northampton, Massachusetts Office of the Parking Clerk). Appeals must be made within 21 days of citation issuance either by picking up a Hearing Form at the Parking Clerk’s Office or accessing and printing the form online. Decisions about appeals will be made by this office within a period of three weeks. Appealing a parking violation notice means submitting a “plea of not guilty” in writing according to Massachusetts General Law, Chapter 90, Section 20 ½. In the town of Amherst, parking tickets appeals can be made within 21 days either by mail or in person at the Town Hall’s Central Services Counter. Parking Management is responsible for hearing and deciding the appeal. Parking tickets or appeals must be paid within 21 days according to Massachusetts General Law Section Chapter 90, Section 20A-20E. At Smith College, appeals must be made within seven days of citation issuance, and “any appeals received after that date will be denied” (Smith College Public Safety Office). Appeals forms can be obtained at the Public Safety Station or by online download. At Hampshire College, there is one person in charge of appeals. Here, the private enforcement of parking spaces in a private realm exists. Amherst College is also a private realm on campus, but is enmeshed with the surrounding town of Amherst in a semi-public situation. A similar situation exists at Smith College, a private realm affected by the surrounding town of Northampton, and also at Mount Holyoke College, surrounded by the town of South Hadley. At Mount Holyoke, at Smith, and at UMass, parking appeals are heard by a Parking Review Board. Unlike each of the four colleges, UMass is extremely close-lipped concerning parking policies and procedures. In contrast, Mount Holyoke welcomes questions about parking. Interestingly, the privately owned Village Commons shopping plaza adjacent to Mount Holyoke college campus recognizes that many people park there because it is so convenient for the college. In fact, Village Commons Management requests that those affiliated with Mount Holyoke College do not park there and that there be a three-hour time limit on those parking there to shop; this is a policy that the college respects. Similar to UMass, at Mount Holyoke College, there are certain violations that are not appealable. These include violations based upon length of time parked in violation, personal need to reach destination on time, personal convenience afforded by particular parking space, argument that classes weren’t in session, parking during evening/weekend hours, need to load or unload, inability to see the sign or line markings, being unaware of parking regulations, forgetting a permit, or vehicle malfunction (Mount Holyoke College Parking Office Parking Citation Appeal). Because the great majority of those receiving tickets at the college are either students or unregistered cars (possibly owned by students), these posted un-appealable violations must be recidivist students, visitors, or both (Mount Holyoke College Parking Office Statistics). Cover (1992) discusses the interpretation of text through judges and the rights of review of judges’ decisions, known as appeals. He states, “for in the United States, there is no set of secondary rules and principles more fundamental than those which make it impossible for any single judge ever to have the last word on legal meaning as it affects real cases. In the United States – with only

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trivial exceptions – no judge sitting alone on a significant legal issue is immune from appellate review” (1992: 237). This, however, does not seem to be the case with the appeals to parking tickets, as my research shows that there is no recourse for the rejection of appeals (at Smith, Hampshire, Amherst colleges). Whether or not appeals to parking tickets would count as trivial or not according to Cover is another story. However, such triviality must itself be questioned if parking appeals are everywhere and happen all the time to everyday people in everyday contexts. Because it is so vast, parking tickets represent a non-trivial form of law despite the banality of this enterprise. Cover (1992: 237) states that “no single individual can render any interpretation operative as law- as authority for the violent act.” However, as the above examples attest, this is not always a true statement. Those who single-handedly decide the fate of parking spaces via occupancy or tickets are the arbiters of justice. In parking lots and on the street, there is no arbitrating faction from which to have a review, much less an appellate review of the decision. More importantly, the judges present in parking space governance need not be official parking authorities found in parking clerks or public safety offices. Judges can be found on the streets, administering, often violently, the laws of parking, such as is the case with handicapped parking. The concept of shadow justice is the recognition that governing practices take place outside traditional venues, such as are found in the appeals process. Instead, justice is administered on the spot in ways that are outside the legal scope of resolving conflict. However, shadow justice may also explain the parking ticket appeals process as one in which judging is the outcome of three elements: apology, entitlement, and personal status. Each of these will be explained further from my own participation as a faculty representative on the Mount Holyoke College Parking Appeals Committee. Throughout this book, I explore the different meanings of law found in everyday life. Using a framework of constitutive legal theory, I explore legality according to spatiality, identity, and inequality by asking questions about how law works in order to better understand social relations, political contests, and cultural assumptions about power and procedure. The banalities of everyday life can be extremely politically valuable.1 The interpretations of these signs and symbols semiotically resonate as things we ought to consider when studying the relationship between law, culture, and power. As Richard T. Ford (2001: 209) insightfully reminds us, “territorial jurisdictions construct political subjectivity.” Folk Legality This chapter examines the appeals of parking tickets at a local women’s college in the Northeast. From my participation as a faculty member on the Mount Holyoke College Parking Appeals Committee, I have collected written appeals for parking 1  For more, see Dumm (1999).

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tickets received on the campus from September 2008 until mid-February 2009. Through intentionally chosen language, these appeals are crafted texts of folk legality. In the reasons and language used in these written texts, the personal relationship to the law as found in local parking rules, is crafted through apology, entitlement, and identity status. Folk legality is a local relationship to law that embraces everyday interactions with the law, such as those characterized by writing an appeal for a parking ticket. In this way, such appeals are emblematic of the view that responses to law can be personally crafted, and therefore individualized according to rank, reason, and place. In this way, folk legality can further be characterized as the culturally presumptive access to participate in how law works. In this project, that accessibility comes in the form of flexibility, revealed in the verbal construction of why the laws of parking at this local site are okay to be broken as articulated in the appeals themselves. As research criteria, I am viewing each written appeal during these few months in terms of two focal points, which reveal how law is crafted in the writing of the appeals. The first is the reason given in the appeal for the violation and whether elements of apology or entitlement are indicated in the reasoning. Second, the person crafting the appeal demonstrates a sense of position within the local college community by either self-identifying as a certain type of student, a member of the faculty, or as an outsider to the community, in the written construction of the appeal. Third, the plotting of this research on Geographic Imaging Systems (GIS) gives keen insight into the geographic dimensions of the three elements, which illustrates the appeal to be a semiotic of great jurisprudential importance. Language and Governance The language used by those writing appeals for parking tickets is strategically employed to show either remorse for the violation or to point out flaws in the system. In this study, two aspects of language are used, namely apologetic language or language that conveys a sense of entitlement. The following lists demonstrate many examples of each. Sample Elements of Apology2 • “ I hope that we can waive this ticket and I will try to be careful in the future.” (73437-0, appeal granted) • “I appreciate your time!” (71440-0, appeal granted) • “My stupidity aside, my guest and I could have and would have followed any and all of the parking rules had I not messed up my understanding of 2  While the cited text and appeal decision from each of these tickets remains intact, the numbering of each citation has been changed for purposes of anonymity.

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them.” (76101-1, appeal granted) • “Sorry for the inconvenience …” (73487-1, appeal granted) • “I parked for a brief moment but now understand the error of my parking.” (73430-1, appeal granted) • “I promise I won’t do it again, but I do need help in solving this problem.” (73288-1, appeal granted) • “I assure you I will be more careful where I park in the future.” (75338-1, appeal granted) • “Therefore, from now on we will follow the rules & park in the proper spot.” (75496-0, appeal granted) • “May I be excused this time? I’m just learning …” (73570-0, appeal granted) • “I should have used my blinker lights …” (78153-0, appeal denied) • “I am sorry!” (75423-1, appeal granted) Sample Elements of Entitlement • “I was parked for no more than 20 minutes plus I had left a sign on the window saying that I’d be right back. The sign even included a phone number where to reach me if there was a problem. I was just on standby.” (75744-0, appeal denied) • “Based on the cars next to me, I assumed I was parking in a legit spot.” (71759-0, appeal denied) • “I have been parking in this space for two years. There are no signs.” (82484-0, appeal denied) • “It was really uncalled for to give a ticket to my parents.” (73251-0, appeal denied) • “This is my first parking offense in the three years that I have had my car on campus.” (75596-0, appeal granted) • “I just had the flu …” (75513-1, appeal granted) • “I’ve had a kidney infection …” (75449-1, appeal denied) • “I am not appealing the ticket because I was not parked there, clearly I was. I think it would be best if an email was send (sic) saying where and when you can parking during this confusing in between time.” (73601-0, appeal granted) • “On the afternoon of the 28th (the snow storm), I offered to drive a friend to the airport to pick up a fellow MHC girl. During the car ride, my friend was not feeling well, and was overcome by nausea, later to claim that she must have picked up the stomach bug or the flu. She became ill in my car and vomited on my car seat. Upon returning to campus, I parked in the faculty spot outside of my apartment o (sic) have easier access to clearing up the mess.” (82439-0, appeal granted). • “I was delivering coffee and donuts to the exam center.” (76183-0, appeal granted)

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• “It was merely an extenuating circumstance.” (76151-1, appeal denied) • “My windshield was frozen and I didn’t realize it wouldn’t melt quickly as I am not from New England.” (82528-0, appeal denied) The writing of an apologetic appeal is an attempt to appeal to the sympathies of the parking committee in admitting guilt. Similar to the concept of plea bargaining, admitting guilt, or pleading guilty, it will usually result in a much lesser sentence. So, being sorry matters! In the words of Austin Sarat and Nasser Hussain (2006: 1), “to humanize the world in which we live, to make it possible to people to thrive and survive, the law needs the company of other virtues, such as mercy.” Alternatively, the amalgamation of mercy and justice may lead to a “false dichotomy” by “asserting that justice, understood broadly enough to embrace goals such as redemption, really is not at odds with mercy and in fact needs mercy to achieve its goals” (Kobil 2006: 46). Appeals that are written in an apologetic tone are granted more often than denied. Phrases such as “my stupidity aside,” “I promise I won’t do it again,” “I will try to be more careful in the future,” “may I be excused this time,” or simply “I’m sorry” are statements that acknowledge legal transgression and beg for the consideration of mercy. Apology in a parking ticket appeal is also a way to acknowledge the primacy of the law, which is central to the project of education and rehabilitation to make sure people park where they are supposed to. Order is maintained through apology. However, this is not to say that all apologies are sincere. The apology may be more strategic than genuine. Regardless of its intent, elements of apology that are present in a parking ticket appeal seem to carry more of a chance of being granted than without. Alternatively, appeals are often written out of frustration and self-defense. What is conveyed through the written construction of these appeals is a sense of entitlement before the law. In this way, the person crafting the appeal does not see himself/herself as being at fault, but instead, the system at large is. Many of these appeals seek a different form of justice, where the offense is acknowledged to exist on tenuous grounds, or the parking structure is in error. Such statements as “it was really uncalled for to give a ticket to my parents,” “I’ve had a kidney infection,” “I was delivering coffee and donuts to the exam center,” “I was parked for no more than 20 minutes,” or “my windshield was frozen and I didn’t realize it wouldn’t melt quickly as I am not from New England” are written attempts at justifying parking transgressions and are generally denied. In her work on sincerity and political speech, Elizabeth Markovits (2008) examines frankness in political rhetoric. Her purpose in writing is as “a response to anyone looking for more straight talk in politics” (2008: 1). With this in mind, we can consider the entitled appeal to reveal a form of straight talk in which guilt is not readily admitted, and fault is redirected. As Map 8.1 shows, appeals composed in an entitled manner primarily occur in central areas of campus. In contract, appeals with elements of apology generally occur on the periphery of campus. What this may indicate is that those people who receive parking tickets in the more communal places of this pedestrian-friendly campus are trying to justify their vehicular presence there. Similarly, those

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Spatial analysis of appeal language, Mount Holyoke College, South Hadley, MA

apologetic appeals may reveal a level of respect for the laws of parking by parking in areas where cars are expected to be in the first place, in more external parking lots. Ironically though, this seemingly benign acceptance of procedure masks a covert resistance to following the rules, as this parking behavior which breaks the rules does so in a camouflaged way as giving the appearance of following the rules. However, this resistance is key when distinguishing the appeals as they are written from either an entitled or an apologetic perspective. The entitled appeals feel justified in breaking the rule, not because they feel badly for doing so, but because the rule itself is unjustified and the reason for breaking that parking rule is good enough. In contrast, the apologetic appeal acknowledges a hierarchical view of law where the person writing the appeal is below the law and, by regret, understands the human aspect in law enforcement. Person Status and Governance In these appeals, the identity of the person writing them is often mentioned. This attention to status reveals a way of seeing law as flexible, according to whomever the law is addressing. Rights are asserted based on the individual’s claim of ownership to park in the spot legitimately. This legitimacy refutes a legal

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framework in which reliable subjects are created and regulated. Here, the laws of parking are personalized with the hope for justice through entitled language. Sample Examples of Person Status in Appeals • “It’s certainly not in the best interest of my students for me to spend my seminar time circling campus, hoping that a faculty parking space might open up somewhere. Faculty time is valuable, as is the gasoline we consume.” (75737-0, appeal denied) • “I am the President of the MHC Glee Club (changed for purposes of anonymity) and used my student car to move equipment.” (8242101, appeal denied) • “Furthermore, for a student, a $50 fine seems more than a little excessive for such a seemingly minor infraction.” (73258-1, appeal denied) • “I am a first year and I honestly thought I was allowed to park in Kendall!” (73432-1, appeal granted) • “When I arrive to teach at the music department I’m carrying three instruments and two suitcases of music.” (73288-1, appeal granted) • “I am a junior faculty member in my second year at Mount Holyoke. This is my first parking violation.” (75338-0, appeal granted) • “Help a broke student, please!” (73301-0, appeal denied) • “I am a first year student … I spoke with a Public Safety Office on duty who told me it was okay for students to park in faculty/staff lots” (75660-1, appeal denied) The person who is crafting the ticket may or may not choose to identify themselves. In the above examples, the identity of the person appealing the ticket is used as a form of both apology and entitlement linked to personal status. Examples of the former include “I am a first year,” “I am a junior faculty member,” or “help a broke student”. Alternatively, elements of entitlement are demonstrated through person status. Examples of this include “faculty time is valuable,” I am President of the MHC Glee Club,” “when I arrive to teach at the music department,” I am a senior,” and “I spoke with a Public Safety Officer on duty who told me it was okay.” As Map 8.2 shows, the majority of those appealing are either students or unregistered vehicles at the college. What this means is that appeals are crafted in order that the identity of the person appealing is known. Students and those who are visiting may stand more of a chance for not knowing parking rules and regulations than others. Calling attention to person status based upon entitlement is not always fruitful, with regard to the faculty-specific complaints that were not always granted. Map 8.3 shows us that the majority of students appealing are sophomores and juniors, and not first-year or senior students, despite attention drawn to their student rank. What this means is that being new on campus is a reason for an appeal to be granted. Likewise, having endured four years of being a student may

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Spatial analysis of person status, Mount Holyoke College, South Hadley, MA

also be a reason for the granting of an appeal, voiced in the idea of a ‘senior gift.’ In any case, person status in terms of student rank makes a difference in how a parking ticket appeal is decided. Who the folk are matters with regard to the emblem of folk legality found in the parking ticket and its appeal. Conclusion It is in this way that the crafting of law, as illustrated by the writing of the appeal as well as the hearing of appeals, shows us that in a constitutive way, law is crafted into emblems of folk legality. This means that the parking ticket is, at the outset, an appealable, flexible form of law according to reason for appeals, whether apologetic or entitled, and the status of the person making the appeal. This also means that as emblems of folk legality, parking ticket appeals and their governance reveal a semiotic view of culture that amalgamates culture with law and takes into account the notions of identity and elements of apology and entitlement regarding legal recourse. Who the person is as well as their stated reasons in the appeal or via the identity framed on the license plate, are both considerations for deciding the appeal and enforcing law. Therefore, emblems of local culture constitute legal

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Map 8.3

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Spatial analysis of student rank, Mount Holyoke College, South Hadley, MA

thinking through the framework of folk legality insofar as everyday people feel as though they have agency in engaging with legal outcomes. Another emblem of folk legality is to be found in the composition of the appeals committee itself. Whether one lone person making the sole decision about the appeal or a group of campus representatives who decide, the idea of a court, per se, is transformed. Parking tickets are often only limited to one appeal. In places where the appeal must be submitted in a written format, literacy and language play a crucial role in the crafting of the language of the appeal. As shown, the presence or absence of apology or entitlement make a difference in how an appeal is decided. Cultural norms also must be taken into account in the written crafting, as stating person status of whoever received the ticket also plays a role. Given each of these criteria, parking ticket appeals are clear evidence of a constitutive legal process in which law is transformed through local context and popular participation at both the submission and decision-making ends. An example of these elements as influencing factors of power made evident in parking is the fact that up until 2002, diplomatic immunity protected UN diplomats from parking enforcement actions. According to Raymond Fisman and Edward Miguel (2007) who studied cultural norms and legal enforcement in the context of UN officials in Manhattan, “the act of parking illegally fits well with a standard definition of corruption, that is ‘the abuse of entrusted power for private gain’

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suggesting that the comparison of parking violations by diplomats from different societies serves as a plausible measure of the extent of corruption of social norms or a corruption ‘culture.’” What this means is that parking illegally up until 2002 was condoned on the basis of identity. What this also means is that such illegal parking really wasn’t illegal, as it was legally allowed, again on the basis of person status. Like in the case of those parking ticket appeals at Mount Holyoke College, the person and his/her reason for parking do in fact make a difference. However, power and prestige are not always the same as status. UN diplomats may carry immunity from breaking the law by being able to park without penalty, but such immunity does not immediately exist at a place like Mount Holyoke College. However, immunity after the fact may be the outcome of a granted parking ticket appeal, as the parking ticket penalty and fine are erased and forgiven. What is important to remember though is that parking ticket appeals judgments can only exist if appeals are submitted. Appeals can only be submitted if parking tickets are issued. Parking tickets are issued only when parking laws are violated. Parking laws can only be violated if the driver of a car doesn’t ascribe to legal order. In this sense, jurisprudence as demonstrated in the parking ticket appeals process is a function of how the appeal is crafted and who gets to decide the fate of the appeal. Jurisprudence is then determined by geographic and spatial considerations, namely where the violation took place, as well as by semiotic considerations, namely what the construction of the appeal looks like. Semiotically, the composition of the committee as one or many persons is also a statement of how law works in everyday life. Through the mapping of rank and the written word, we can visually see how parking ticket appeals are a factor of person, place, and reason. The result of this may, when interpreted according to Cover (1992), in fact violently disadvantage those who do not challenge the decisions made by law, as there can be no appeal to a parking ticket without an appeal being generated by the person receiving the ticket. However, on the jurisprudential level, violence can exist as the composition of the committee. In this way, a form of violence may take place if the person or persons deciding the appeals or the enforcement of such vehicles is not favorable to the person, place, or reason for violation is not cognizant of his/her own vested power. Lastly, parking ticket appeals remind us that we must challenge law, as the laws of parking can only be appealed if appeals are submitted. Violators can only represent themselves as appeals are individually crafted and submitted. The nature of representation before the law becomes a function of understanding local contexts and customs, and writing an appeal in such a way as to literally appeal to the person or persons who will be reading it. Like other venues of social relationships, one can win more with honey than with vinegar. The same principle holds with winning more appeals with apology rather than entitlement. Additionally, the power of person status need not always be stated to reap the benefits in an appeal situation. In these ways, the parking ticket and its processes of appeal are the crafting of law as emblems of folk legality.

Chapter 9

Legality Beyond the Scope of Policy: A Constitutive Approach to Parking The wielding of power can be found in even the most mundane of places. In parking spaces, the power to displace is contrasted with the power to occupy. Likewise, the power of belonging contests the power of right as it is tied to the power of property. Through these dichotomies of power, the parking space can be seen as a site of tension that uniquely constructs and engenders socio-legal notions of belonging and power. The creative architecture of the parking space renders this space a text from which the notion of a right can be interpreted according to formal and informal forms of law. Formal law may construct and regulate the space in order to foster legal methods of usage. In contrast, informal law operating as the social norm, comports with legal dictations of usage to enforce expectations of belonging. Both types of law interact to show us the contested nature of a right according to two primary governing tools: identity and property. Identity and property are two legal constructs expanding notions of semiotic and geographic consideration that occur through visible forms of governing. In parking spaces, ascriptions of belonging, right, and property can be translations of power policed by the parking police, parking office, or most often by other parkers. Parking spaces are constructed according to formal types of policy and socially local norms. Throughout the book, we have examined a variety of examples in which the formal law confronts social norms in a constitutive manner revealing how law really works in everyday life. In this concluding chapter, we will revisit the American handicapped parking space. The policy of handicapped parking legally designates who belongs, who has a right to park in this space, and who can exert a formal claim of ownership on that space by demonstrating specified qualifications. However, the actual street-based law of the handicapped parking space is not confined simply to legal policy. The distinction between the two means that policy can be distinguished from law as elaborated upon in Chapter 5. In everyday parking lots where handicapped spaces exist, the general non-disabled public governs these spaces according to the jurisprudence of visible disability ubiquitously recognized and legally codified in the form of a wheelchair. In this sense, it is the effect of law’s power that is often more expansive than the study of policy may suggest or allow. This relational approach to studying law considers the social ramifications of legality unaddressed by the stated scope of policy and is termed as the constitutive approach to law (Brigham 1996; Harrington 1985). Fundamental questions of tolerance arise that constitutive legal theory is able to address while the study of law solely as developed or stated policy cannot fully

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imagine. Such limits include the following questions: to what extent does law enforce or discourage tolerance? What is the nature of law in terms of who is constituted by policy? Is the constitutive approach to law strictly policy-based or does it include considerations of law as it is shaped, interpreted, and reconstructed according to the variety of social contexts? Therefore, the study of law according to the limitations of policy formation and impact can be limiting in scope because the restrictive application of policy according to a policy’s stated affected groups cannot consider the full range of the policy’s impact. In this chapter, I will attempt to fully explain constitutive legal theory as it pertains to parking. By looking at how law works in everyday life, I will assert that the constitutive approach to law includes more than just parties designated by a policy as being affected. In other words, the narrow tailoring of law to strictly address those written into policy crucially misses the daily wielding of power in which many variables of law and legality outside of the stated policy vitally contribute to the experienced interpretation of policy. As a means of engagement, I will look at the nature of a right as disputed in the terrain of the American handicapped parking space in order to examine the local everyday governance of such parking spaces according to American disability policy. I will argue that a truly constitutive approach to law includes rather than discounts the participation of the mass public. The dismissal of the unspecified mass public as the unaddressed periphery of policy actually promotes a level of intolerance in the study of what law is and where law can be found. A truly constitutive approach to law is, in contrast, a tolerant approach that can fully examine how policy as law really works, illustrated by the everyday fusion of formal and informal law operating as power. In this sense, the constitutive approach to law pays attention to the reality of unmentioned parties impacted by a stated policy. This expansive view of law encourages a tolerant approach to the study of law that is not limited in scope by the limitations of stated directives of policy. This latter approach is what I consider to be an intolerant, or un-constitutive, approach to law. Tension in the Constitutive Approach To begin, I will examine legal scholar Thomas F. Burke’s work (2004) on disability policy from his article “The judicial implementation of statutes: Three stories about Courts and the Americans with Disabilities Act.” Burke focuses on court involvement with the Americans with Disabilities Act of 1990 through the eyes of legal scholars, disability activists, politicians, and the disabled themselves. He develops the reactions of the above to the ADA through the themes of backlash, symbolic politics, and statutory construction. While a thorough survey of the ADA, Burke’s view of the constitutive approach to law is problematic from the perspective of this book. Even as Burke insightfully addresses the impact of ADA policy on disabled people, he dismisses the impact on and influence of the ADA on the non-disabled mass public. Arguably, this latter group is ultimately responsible

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for enforcing disability policy in everyday places where formal law is often an immediately absent force. Constitutive legal theory reminds us that law is made by everyday actors interpreting what the law really means. In this way, the nondisabled members of society have as much to say, if not more, about how the ADA works for the simple reason that, in my view, the non-disabled are those who implement disability policy in everyday situations. To construct my argument asserting that the non-disabled mass public must be considered in how disability policy is translated as law, I will concentrate on the work of socio-legal scholars Thomas Dumm (1999), Robert Cover (1992), and Barbara Yngvesson (1990). In A Politics of the Ordinary, Dumm (1999) asserts that which is ordinary is political. Using this expansive sense of power, I will draw upon Dumm’s illuminating work on the politics of the ordinary to show that the banality of ordinary occurrences is underexplored territory in which structures of power that are less obvious are indeed very telling of how power is wielded. Accordingly, the mass public becomes active political actors in ordinary spaces involving the disabled, such as parking lots where both disabled and non-disabled drivers park. Next, I will look at law according to Robert Cover’s idea of the violence of law in “Violence and the word” (1992). Cover tells us that there is violence in the word of law. Drawing upon Cover’s premise, I will consider the implicit aspect of violence presented by the selective interpretation regarding the impact of disability policy. To disregard the impact the mass public has on disability policy’s daily existence is a dangerous thing, especially when considering that disability policy is at the mercy of the non-disabled public. Lastly, I will examine the context of law created, interpreted, and implemented in everyday, ordinary places as Barbara Yngvesson’s work in Virtuous Citizens, Disruptive Subjects: Order and Complaint in a New England Court describes (1993). According to Yngvesson, we can clearly witness the mass public as a constitutive force of law in how law itself is created and constructed in the everyday arena of legality by everyday people. My conclusion will illuminate why prioritizing the study of law’s effect to those explicitly targeted by policy is intolerant. This foundational exclusion of those affected by the policy, yet unconsidered by the policy’s scope, creates a problematic tension that the constitutive approach to law demands us to rethink while addressing the larger questions of interpretation and enforcement of law in everyday places. Real Policymakers The full picture of the law involves policy that develops a particular notion of right, the interpretation of that policy as putting that right into practice, and the enforcement of those rights as protected by law. Although a wonderful approach to the parameters of the ADA, Burke’s approach to law (2004: 123–39) is limited in terms of constitutive legal theory because the role of policy that addresses the formal construction of and reaction to law prioritizes the response of those written

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into the law. Here, policy and law will be two terms that are used to describe the same thing, namely rules and regulations of legal order. Burke’s approach is constitutively limited because the everyday view of policy as law by people who are not explicitly considered to be part of the policy is an important piece of constitutive legal analysis. An example of this would be the “eyes upon the street, eyes belonging to those we might call the natural proprietors of the street” in Jane Jacobs’s (1961: 35) discussion of safety and the uses of sidewalks. Here, Jacobs stressed the real-time actions of people on the street to act in a policing function when the police are not around. Sidewalks in Jacobs’s work are places where law happens to all of us, not just to those written into policy-based protections or the expansion of rights. She reminds us that rights happen because people other than the designated holder of those rights make those rights a reality. In other words, the law in the form of police (in her example) can’t be everywhere so it is up to the rest of us, the mass public, to make law as legal order into a reality. While Burke (2004) does recognize that there is more to law than simply that which is written into policy, the role of interpreting and enforcing law is nonetheless left up to the formal realm of legislation and judging, or in his words as stated below, are “uninvolved in litigation.” He states (2004: 124): Indeed for many statues, we must even consider the attitudes of the mass public, who though uninvolved in litigation, may have a decisive impact on processes of implementation. It is the behavior of this much larger cast – litigants, potential litigants, and seeming bystanders – that provides the context in which legislators and judges interact.

Burke (2004: 132) insightfully speaks of the misplaced focus of interpreting law through formal institutions by saying: but this focus misses perhaps the most important aspects of judicial implementation of statutes, the mechanisms by which laws and litigation penetrate the larger society, the routines of nongovernmental organizations, and the everyday consciousness of citizens.

His attention to the ‘everyday consciousness of citizens’ is intuitive in addressing the constitutive approach, although also limiting because of the following premise: My chief point is to highlight how many readers of statues there are – not just the judges, legislators, and bureaucrats, who populate most studies of the courtCongress interaction but also defendants, plaintiffs, lawyers, administrators, journalists, and even the mass public. (italics added by this author) (Burke 2004: 136)

Although Burke’s central premise alludes to an atypically inclusive interaction with the law by emphasizing the numbers of readers of law which exist, this

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possibility for expansion stops with the token acknowledgment of “even the mass public.” This phrasing of “even the mass public” is a limiting characterization that does not address the views of the non-disabled public as the majority of inhabitants of everyday places, spaces, and arenas where law is enforced without the presence of formal persona or procedure. To discount this quotidian faction of governance is to discount the full constitutive picture of law and pays only lip service to these folks as the ‘larger society’ or being indicative of the ‘everyday consciousness of citizens.’ This latter term is actually quite diverse, as I point out throughout the book, and it is a mistake to lump the mass public into one consideration of who society at large is, includes, or thinks, particularly with regard to how ADA legislation is implemented in everyday arenas. For example, in everyday parking lots where disability policy is abstractly present as law but more often than not distantly absent in terms of legal enforcement (fees, tickets, towing, parking enforcement officers), it is the non-disabled public who actually govern the disabled more on grounds of visible legitimacy and much less on the dictates of policy per se (Marusek 2005: 177–88). The exact wording of the ADA is relatively unknown outside legal circles, but yet both resistance to as well as compliance with the law seems to happen. Furthermore, the symbolism of the ADA is heightened as a form of law for those ‘excluded’ from its protections, the presently non-disabled. This should be symbolic for those who not only passed the actual law and the disabled who are directly impacted, but also for those it less ostensibly but just as tangibly, affects. If the mass public weren’t as important as they are to making law happen, then there would be much less acceptance of the social need that ADA protections engender. The presence of handicapped parking spaces is quotidian, yet consistently invokes debates of legitimate occupancy according to parking-based identity and right, temporary claims of property, even murderous rage as told in Chapter 1. Who parks where and why is a source of tension for drivers who repeatedly perform the banal task of finding a place for their cars. The semiotics of this terrain constructs a visual sense of right, where legitimate belonging is based upon the visual representation of proof of rightful occupancy (Johnson 2005; Silbey and Ewick 1998; Anderson 2005). The regulation of that proof, and of the right to park, reveals a sense of law that harkens beyond the confines of the legal text. Handicapped parking spaces heighten these tensions, as the sheer physical placement of handicapped parking is located very conveniently to entrances. Additionally, these spaces are often empty, which increases the tension about their existence. What is interesting however, and perhaps also ironic, is that emptiness as the mass public does not park there for reasons that may include morality, recognition of disability, financial penalty, or simple guilt. That emptiness exists not because these spaces are strictly policed by parking enforcement authorities, but rather because everyday people generally don’t park there. In this way, that emptiness happens because of the actions and legal consciousness of the mass public. For this reason, dismissing the full reaches of the impact that the mass public has on the enforcement of law ignores the full extent of policy as it constitutively functions.

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In fact, this viewing of law challenges the formal law of parking policy by generating the Constitution as the penultimate protector of equality and equal rights. In a complex tango between the formal law of policy, the heralded law of the Constitution, and the everyday unwritten rules of parking, social activity as the constitutive approach to law emerges triumphant. Expected practices and accepted behaviors dictate law to be norm, particularly in such parking spaces as the Handicapped Parking Space where the governance of such spaces is dependent more upon the identity of the parker and the legal consciousness of the driving public who do not park there than on the legality of spatial occupancy and accompanying qualification according to the ADA. Without paying sufficient attention to how law really is as it exists, the examination of policy is intolerant of those who are not formally written into the law itself, yet daily enforce or resist its construction. In practice, the everyday interpretation and implementation of the ADA rests with the mass public, who may include in its ranks both the disabled and the non-disabled. Here, the everyday consciousness of both types of citizens is central to the constitutive legal approach to the ADA where those same everyday people who haven’t the foggiest notion of what the policy details of the ADA are find themselves in the position to either support, refute, or ignore who parks in a handicapped parking space. By parking somewhere else, these folks put the ADA into action; similarly, by parking there illegally, the ADA is resisted as a law. Resistance to policy is assumed to be the reality to any piece of legislation, for not everybody is going to follow it. The trouble with focusing our attention on formal settings such as the courtroom or litigation-driven organizational setups is that we fail to acknowledge the realities of everyday life where the enforcement of law is put into daily action. This may be the case when considering the current enforcement of American immigration policies where extremist groups, such as the Minutemen Project, take it upon themselves to enforce who belongs and who doesn’t at the nation’s Southwestern borders. Groups such as these do not wait for courts to decide immigration policy; instead they make the policy happen through their own direct actions. Although their right-wing violence should not by any means be seen as a standard to emulate, their approach to policy implementation nonetheless reveals an approach to law that cannot be dictated or even restrained by policy. Therefore, the constitutive approach to law as articulated in Burke’s article (2004) may be intolerant of the general mass public as it places too much emphasis on the formal aspects of law and not enough on the translation of law in everyday spaces by actors not written into policy. His approach concerning the impact of law is restrictive because it prioritizes the reaches of law that are formally constructed through courtroom decisions and policy. This approach suggests that the mass public is not an important force to consider when thinking about policy impact. However, in order to expand Burke’s approach, I would suggest that the law doesn’t end where Burke (2004) thinks it does, but is much more encompassing in its many various interpretations and implementations that transpire precisely at the level of the mass public. As socio-legal scholars and political scientists, how

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diverse are we in our thinking if we don’t consider the full impact of legislation on those who are not the stated targets of the legislation but in fact participate, and arguably are those who enforce or resist such legislation each and every day? In other words, we must acknowledge the extent of who is tolerating those who are legally designated to be tolerated. Does this tolerance rest solely within the stated parameters of policy? I would argue not. As Austin Sarat (1990) reminds us, the law is all over. Keeping this in mind, the interpretation of what is law is tied to the unique circumstances of its enforcement. The formal articulation of law is tied to the social agenda of law revealed as the constitutive approach to law. In other words, how law is constituted happens through its interpretation and its enforcement in informal settings. Here, Burke’s work (2004) is compelling not only to illuminate the formal parameters of the ADA, but just as importantly to show the limitations of the reaches of policy interpretation in settings where everyday implementation of that policy by the mass public who, while vaguely familiar with the details of that policy, actually make the policy happen. It is this version of ‘policymaking’ that is worthy of further examination. While Burke asserts that “there is a place for the study of policy and how it is made”1 in considering the connection between policy and the everyday constitution of law, the study of law should not end with the study of policy as such an approach misses out on a crucial constitutive element of legality. The Power of Everyday Power can be found in the observation of the ordinary, as this is where politics exists “to the extent that normalization reduces the unpredictability and unknowability of the ordinary, it operates as a form of politics” as Dumm suggests (1999: 6). In the examination of power dynamics intrinsic to both handicapped and non-handicapped parking spaces, it is precisely this banal, ordinary, normalized place that invites observations of a political nature. In parking spaces, identity is characterized by a legal sense of right to park, designated by parking stickers, parking tags, or license plates but also as the social recognition of this right to park, exemplified through visible handicap or through the self-policing that keeps the non-disabled from parking in these spaces. In handicapped parking spaces, right is represented as the physical claim of property. Such physicality invites questions of belonging, be they individual or community-based as well as of a public/semi-public/private determination. Although the distinctions of these spatial confines are legally reproduced, the social implications of these different types of space beckon further consideration into questions of belonging accentuated by ability. Discrimination of place through the denial of property invokes a sense of identity that exposes the politics of injustice. Accordingly, the meaning of place 1  This is from correspondence that I had with Thomas Burke during the summer of 2006.

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and the politics of the ordinary attributed to parking carries implications of right versus might and raises constitutive considerations of jurisprudence that foster remedies of street-based justice. Dumm asserts that “to think about the ordinary as a contested space in which practices of representation occur links it to the forces of normalization and events” (1999: 6). In this way, the fundamental existence of the handicapped parking space is normalized. To carry this politics further, the contestation that results in everyday parking lots over these spaces is also a function of the normalization that Dumm speaks of. The representations of belonging presented by and inherent with the handicapped parking space render it an ideal place where politics occurs. Therefore, this politics of the ordinary can be found in the everyday interpretation and enforcement of disabled parking policy as the variety and ways in which law is constructed at the local level of the mass public on city streets and in parking lots. Perhaps in this way, disability parking policy could best be understood in the banality of parking lots rather than in the format of the policy or through its creation. Dumm (1999: 19) reminds us that We eneed to understand that the uneventfulness of the ordinary is the inevitable ground from which we may come to a better appreciation of events … [where] the relentless presence of the ordinary, even in, or especially because of, its elusive character, becomes the source of its validity.

Therefore, the sheer banality of disability policy is the street sign of reserved handicapped parking space picturing a white figure in a wheelchair upon a blue background. This banality is also in the practice that many people have in not parking there, thus reserving it for handicapped parking. Additionally, similar to other facets of parking, the simple everydayness of parking a car and the vast undercurrent of debates and disputes surrounding parking make parking as an ordinary occurrence into a rich site of constitutively legal phenomenon. Back to our example is the conflicting ordinariness of the non-disabled driver either affirming this legal reserve of space by parking in a generic space or rejecting the legal command and unlawfully parking in this handicapped parking space. Signals work with signs as important methods and tools of acknowledgment implicated in the “project of resistance that I increasingly identify with the ordinary” as Dumm describes (1999: 161). The recognition of politics of ordinariness in everyday parking lots actually reveals the constitutive nature of law that changes in meaning as debated and acted upon by the mass public. For this reason, the semiotics of handicapped parking are political because handicapped parking is so extremely ordinary. These new perspectives on authority, space, and jurisdiction invite consideration of the parking lot as socio-legal apparatus of place, position, and occupation operating in everyday practice according to legal premises, but also social observation, and political rationale. The parking space is a location of everyday governance. It is this framed social setting that is ripe with jurisprudential

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implications premised upon property, identity, and right. Just as bodies of law both characterize and depend upon a sense of place, in a community comprised of the mass public, law is a function of the perception of a right and the commonplace protection and enforcement of that right. When discussed in terms of belonging, identity, and property, the everyday practice of parking a car is a deliberation between local social practices in the absence of formal law. The right to park is a contested act between the driver and the governing power vested in the parked-upon space. The parking space can be viewed as an estuary of legitimacy, where private rights mix with public notions of occupation by the mass public (disabled and non-disabled) who either park or avoid parking there. The parked car is an inanimate representation of the driver that invokes aspects of either marginalization or privilege. The occupation of this contested space is a site of social and legal governance created by formal as well as informal law. Formal law in this sense is law according to the courts, the Constitution, and congressional statutes. On the other hand, informal law can be the mimicry of formal law, where everyday people copy the techniques of boundaries, practices, and enforcement. This type of governance is used to invoke a notion of power that interprets rights according to social norms. The public knowledge of such norms creates and fosters a sense of law with expectations of enforcement. Both the expectation and the actual enforcement according to this expectation reveal a level of governance that is an extension of law and something that strict adherence to the parameters of policy cannot address. It is this constitutive approach to law that invites further exploration into the banality of everyday life as these banalities reveal bubbling springs of political insight into how law works in daily living. The enforcement of everyday rights may stem from the directives of formal law, but often takes on its own character of legal enforcement through social law. Tickets, towing, and appeals often mirror more mundane acts of handwritten notes angered by violation, keying, even tire slashing. Resistance to this enforcement of formal and informal parking regulations is law on the streets, and with a nod to Michael Lipsky, to ‘parking lot-level bureaucracy’ (1980). Often violent, parkers can be victims and aggressors alike, receiving and directing anger at fellow parkers as well as at the personification of parking law, the parking enforcement officer. The parking enforcement officer is viewed as the most immediate presence of formal law that regulates rights while appearing as the face of social law, simply for being human. As a contested form of regulatory enforcement of regulatory design of parking, the parking enforcement officer is a key aspect in the politics of parking where ideas of public forum, private property, public need, individual entitlement, community protection, legal justification, and social need are transformed. This mundane activity of parking invites a new look into where law can be found and what jurisprudence can look like. Sites of parking, particularly handicapped parking, are rich sources of constitutive legal knowledge and theoretical analysis. Examining the parking space through issues of local enforcement reveals critical notions of property, rights, and belonging that the study of law and politics promotes. The semiotics of the terrain carries signs of legitimacy, the designations

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of property and entitlement, and the construction of identity and belonging. Central to these considerations is the fundamental notion of resistance to enforcement, as the consequence to legal order. The constitutive approach to the laws of parking and the enforcement of those laws is a reflection of democracy in the streets. Localized forms of jurisdiction via the actions of the mass public contribute to the discussion of where and what law really is. Because it is not immediately present and is not immediately fully understood (in terms of the extent of rights and enforcement), law at this informal level is formal in theory but in practice is constituted by those who enforce it and by those who contest its enforcement. How far does law reach? In this context, law extends to the fingertips of the arm of law and further to what those fingers can grasp which may often be beyond what was prescribed by policymakers. According to Dumm (1999: 18), “the conflict (between the event and the normalized) shapes strategies of governance and the forms of violence imposed on people in their exercise of ordinary freedom.” Cover (1992) relates well to Dumm (1999) as he details the relationship between the violence of legal interpretation and everyday contexts. Cover (1992: 203) has an astute sense of law in the everyday and states “legal interpretative acts signal and occasion the imposition of violence upon others.” Here, the interpretation of law is connected inextricably to violence in acts, reactions, and responses. Cover (1992: 210) tells us “every interpretive practice takes place in some context” and broadens the scope of his argument to say “I would be prepared to argue that all law which concerns property, its use, and its protection, has a similarly violent base” where “even the violence of weak judges is utterly real – a naïve but immediate reality, in need of no interpretation, no critic to reveal it” (1992: 210, 213). In this sense, ‘weak judges’ could be construed as those drivers not explicitly written into the ADA parking policy intended for disabled drivers. However, these non-disabled drivers serve to judge the legitimacy of disabled drivers’ claim to handicapped parking spaces in everyday parking situations. As mentioned earlier, this judgment is based upon visibility and is the hands-on enforcement of the ADA by people who experience the ADA as the non-disabled mass public. Additionally, the actions that resist handicapped reserve often lead to violence toward the disabled public. In this way, resistance to law by those not written into the law is just as relevant and important to consider as those written directly into benefitting from the policy as the non-disabled public enforces the policies of parking. Using this framework, we can connect the understanding of law to the practices of its everyday interpretation. Cover (1992) tells us that institutional context ties the language act of practical understanding to the physical acts of others in a predictable, though not necessarily logical, way. These interpretations, then, are not only ‘practical,’ they are, themselves, practices. This idea of practices is important to consider when thinking of the institutional context of policy where the practical understanding of policy becomes law. Cover (1992: 218) speaks further of this understanding “of the relation, between the interpretation of the judge and the social organization required to transform it into reality, the hermeneutic of the

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texts of jurisdiction.” Accordingly, “legal interpretation may be the act of judges or citizens, legislator or presidents, draft resisters or right-to-life protestor” (Cover 1992: 224). Following this combination of attributes, the text of jurisdiction is in the hands of the non-disabled mass public as the social influence and jurisprudential authority concerning the legal interpretation involving disability parking policy. In this context, legal interpretation may also be the practice of non-disabled drivers either protecting or rebelling against disabled parking policy by parking or protecting the specified occupancy of handicapped parking spaces. Cover (1992) makes an important distinction between the experiences of the perpetrator and those of the victim of organized violence found in legal interpretation. He states that “between the idea and the reality of common meaning falls the shadow of the violence of the law itself” (1992: 238). Subsequently, this shadow may also be the absence of formal legal authority to enforce handicapped parking policy according to ADA mandates. Shadow-ed figures of the law exist instead as the mass public who remain nameless in either supporting the ADA or resisting it by violating handicapped parking reserve. The creation of this shadow of the violence of law as Cover suggests can be tied to the reality that policy is interpreted differently in varying local contexts. Barbara Yngvesson (1993) perceptively illustrates this reality in her study of how everyday people interpret rights and law in the local courts of two towns in western Massachusetts. These boundaries and margins of where law is remarkably illuminate a fluid scope of empowerment both inside and outside the courtroom. Her attentive characterization of residents of the two neighboring towns of Turners Falls and Greenfield, Massachusetts, as constitutive members of the community, is adept and powerful. The local translation of power by various members of a local community is a wonderful approach to the self-governing construction and habitation of legal spaces. Yngvesson’s purpose (1993: 11) is to show that the court is not solely shaped by professionals but that the law, the court, and legal officials are formed in the exchanges of officials with victims, defendants, witnesses, and others about the meanings of words and actions that bring people to the courthouse. In these exchanges, and in collective practices that develop around them, “cases” and “courts” are constituted, as everyday acts and spaces are transformed into legal ones.

She eloquently locates “‘law’, ‘court’, ‘cases’, and ‘community’ in everyday processes of complaint, conflict, and cooperation … channeled in particular ways by dominant communal and legal understandings and practices” and speaks of “agents who are both constituted by the law and who confront the law” (Yngvesson 1992: 12). She also speaks of the “local vernacular of rights,” “governing capacity” of court clerks as intermediaries between citizens and legal power to illustrate the reality of shifting space for legal interpretation in finding law (Yngvesson 1993: 47). She describes local identities which, through the courthouse, act as “a vehicle for affirming this identity publicly through the law” (Yngvesson 1993: 31).

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Yngvesson’s attention to the interpretation of policy as a social response to law shows us the breadth of constitutive legal interpretation involving the fundamental consideration of the locality inherent to the contribution made to law by the actions of the mass public. The jurisprudence of the parking space creates a type of governing that by nature is local. In spaces where formal law is evident, yet dominantly absent, social law becomes judge and jury. Right and its regulation are culturally dependent and politically malleable. The right to park is a special right, considered to be a presumption of expectation connected, literally, to the person driving the car. Jurisprudentially, this special right is enacted between individuals in everyday parking environments where social norm operates as ‘the law’ and formal law is distanced. Feeding the meter distances the threat of a ticket. The appeal of that ticket is the pronouncement of right. Yelling angrily at a driver who cuts you off and parks triumphantly in a coveted parking space is a more immediate regulation of right and the exercise of locally responsive power. In continuing the debate of where the law ends and even how far it reaches, I extend similar questions to my own work in this book about parking, as I suggest that parking ‘policies’ are often less than transparent. I have argued that the legal right of reserved handicapped parking spaces for legally disabled drivers is limited in its protection by the ADA. It is the contested right to park in handicapped spaces that shows us the difference between formal policy-based law and sociallyenforced informal law (Marusek 2005). In this context, formal law dictates that this space is reserved for any driver displaying the formal Blue Wheelchair placard on his/her vehicle. In contrast, however, is social law, which asserts that this space is reserved for those drivers who visibly appear to be disabled as the legal placard is not necessary proof. The difference between the two types of law can be seen in the everyday enforcement of these spaces designated by the street sign of legal handicap which pictures a white figure of a person in a wheelchair against a blue background, referred to henceforth as the Blue Wheelchair. The Blue Wheelchair sign designates space as a spatial marker. In these handicapped reserved parking spaces, onlookers and drivers themselves act to enforce their version of the law; they base their judgment of legitimate occupancy of that space on whether or not that particular driver looks disabled or not. This legitimizing appearance of disability often ignores the legal showing of the Blue Wheelchair displayed on the vehicle. In everyday parking lots where these spaces are located, everyday folks are the actual enforcers of the law in terms of who parks in a handicapped space. Here, they make their assessment on the presence or absence of physical disability. Little attention is paid to the parameters of disability and space provided by the ADA’s legal framework. This visual-based justice is informal law and stands in contrast to the formal policy of the ADA’s legal construction of disability, which isn’t widely known by those who put the ADA into action. According to the ADA’s definition of disability, a person is disabled if he/she can be regarded as being disabled. The quality of being regarded as disabled or not is semiotically amalgamated with the legal image of disability found in the Blue

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Wheelchair image. In a constitutive fashion, this legal picture of disability becomes the social expectation of what disability looks like; this picture is the foundation of informal law in everyday parking lots where the handicapped parking space and its occupancy are socially enforced. This consideration of constitutive justice is important in determining the rights of disabled drivers in common social settings and challenges the formal governance of the ADA as the primary protector of disability rights in everyday parking lots. Conclusion What is the meaning of this debate? On tolerance? On diversity? On law and who really counts? Are only those written into law the ones that matter? To look to see if we are tolerant or not in our study about law and the making of policy, one must only witness the countless handicapped parking spaces that are overwhelmingly vacant, either out of self-preservation and fear of getting a ticket, or out of respect for those who need the closer space to leave it readily available for them. The creation of these spaces is evidence of tolerance through law, both for those who are handicapped and for those who one day may become handicapped. However, such tolerance is not specifically administered by those written into policy. Instead, tolerance is displayed everyday by people who don’t park in those spaces, yet do not know the legal language of the ADA that details who can park in those spaces and why. In this way, the non-disabled mass public effectively enforces the law, without really even knowing the law in a constitutive approach to law that increases the tolerance of policy. Tolerance of policy tells us that policy as law reaches into places unexamined by strict adherence to policy as written and/or formulated. The politics of ordinary acts and places and the policing of such politics reveal that law happens in the everyday arena of the mass public in local contexts and beyond the stated scope of written policy application and its intended impact. Without fully considering the impact that the mass public has on the implementation of law, policy can also be intolerant as the contribution of those everyday folks making laws happen is not viewed as part and parcel to legal scholarship. Moreover, we only have to look to the everyday enforcement of law as displayed in handicapped parking spaces and other parking venues as described throughout this book to find a tolerant-based, or constitutive, approach to seeing how we interpret and remake law in everyday contexts. Each of these facets is present in the context of handicapped parking space determined by the ADA and affecting the disabled as well as the non-disabled in everyday common places where parking regulation occurs and is resisted. A truly constitutive approach at law takes these expansive factors of interpretation and enforcement of law’s relationship with society, or “even the mass public,” into account. Power is not solely wielded simply by policymakers, judges, or even the targeted group of legislation, but through the localized interpretation of legality through everyday spaces, symbols, and constructions made and acted upon by the mass public. Therefore, the constitutive

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tension is present in those everyday arenas besides the handicapped parking space to include municipal parking lots, public streets, colleges and universities, malls, beaches, parks, parking garages, even the front lawns of private citizens. Because the constitutive approach to law takes the everyday banal aspects of life into account, we cannot dismiss the actions of everyday people in the most routine places where vehicles are parked in myriad ways. Law happens to us in everyday activities where law is seemingly absent. It is ironically exactly this perception that law is absent that generates our knowledge and understanding of law through a constitutive framework that analyzes the relationships and activities of everyday living. We are the mass public and the mass public is what gives us law.

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Index Accessibility 9-15, 55-9, 77-94, 129 Aesthetics 9, 13, 39, 51-9, 69-73, 83, 93 Albinder, Boris 1 Americans with Disabilities Act 17, 30, 61-108, 137-50

Babies “Я” Us 31, 99, 102, 106 Besio, Kathryn and LeeRay Costa 54 Biopolitics 14, 66, 77-91 Blomley, Nicholas 7-8, 121 Brigham, John 2, 13, 17, 122 Burke, Thomas 73, 137-50 Burton v. Wilmington Parking Authority 56 Cahn, Elizabeth 32 Cantwell v. Connecticut 37 Charley, Krystie 114 City of Los Angeles v. David 73 City of Pittsburgh v. Alco Parking Corporation 70 Child parking 28, 31, 100-3, 112 citizenship 3-9, 14, 21, 43-59, 88, 116 Constitution, U.S. 1st Amendment 20-1, 40 4th Amendment 75 5th Amendment 70 14th Amendment 40 constitutive approach to law/ constitutive legal theory 2, 6, 8, 16-21, 137-50 Cover, Robert 137-150 Cronin, Richard 8 Cruikshank, Barbara 88

Dahl, Robert 2-3 Delaney, David 121 Department of Homeland Security 15, 77-92 Devlin, Michael 14 Dolan v. City of Tigard 70 Dovey, Kim 9 Dumm, Thomas 16, 13, 143-4 Economic prosperity 2, 5-11, 26-8, 3842, 43-48, 50-50, 123 Electric vehicles 12-3, 61, 71-5 Ewick, Patricia and Susan Silbey 3-4, 10-11 Fifteen minute zone 28-30, 36, 82, 120, 123 Fletcher, Donna 64 Ford, Richard 8, 128 Foucault 63-6 Gobeille-Peterson, Richard 114 guilt gradient 64 Hawaii Beach Access 93-108 Big Island 53, 84-5 Department of Land and Natural Resources 84-5 Hawaii Housing Authority v. Midkiff 70 Hawaii Pacific University 51 Hilo 55, 83-4 Kalapana 70-2 Kenoi, Billy 70-1

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Oahu 85 Papaikou Mill 104 Public Access Shore Hawaii (PASH) v. Hawaii County Planning Commission 83 House 31 Hunt, Alan 18 Jacobs, Jane 19-20, 140 Jensen, Laura 89 Johnson, Rebecca 13, 96 Kevelson, Roberta 11 Kohn, Margaret 5, 78 legality, aspects crafting of law 125-36 folk legality 129 frontier law 109-24 law as forum 68 legal consciousness 4, 10, 137-50 legal pluralism as conceptual framework 5 marginalized jurisprudence 112-24 mass public 137-50 medical expertise 94-96 property ownership 4, 8, 12 public good 7, 9, 23-42, 137-50 public forum 39-41, 77-92 soft law 109-24 Lefebvre Henri 77 Lenz, Michael 111 Lillios, Evalnglos 114 Lipsky, Michael 19, 116, 145 Lloyd Corp. v. Tanner 80-1 Lukes, Steven 90-1 Lynch v. Donnelly 37 Magee, Carl C. 33 Manderson, Desmond 11 Marusek, Sarah 148 Massachusetts Amherst 43-60, 127 Boston 3-4, 77-92

Fenway Park 15, 86-92 Five Colleges 44, 125-36 Mount Holyoke College 12536 Smith College 14 Forbes Library 34-6 Hadley 99-108 Hampshire College 31-2 Holyoke 99-108 Mount Holyoke Collge 126-36 Northampton 14 Olver, John 48 Smith College 127 Springfield 8 University of Massachusetts Amherst 93-108, 126 My Name is Earl 17-8 New Orleans v. Lenfant 25 New York v. Earl 71 NLRB v. Babcock Wilcox Co. 39 parkable space 7, 9, 15, 18, 21, 25-8, 41-2 parking appeals 19, 125-36 Parking Day 7 enforcement 15, 109-24 Fritz, Chuck 119-20 Guardiola, Elvira 117-9 Kingston, Shirley 119 Puza, Charlyn 120-1 volunteer 116 garages 9, 56-60 handicapped 5, 7, 12-7, 28-34, 41, 48, 55, 61-75, 77, 86-92, 94-5, 99-103, 106, 114-9, 128, 137-50 karma 1 lots 7, 9, 20, 23-60, 72-73 meters 7, 23-60 permits 48-56 policy 4, 8, 94 spaces 12, 23-42 Amish 26

Index

history 23-42 Mommy spaces 99-108 various types 28 tickets 125-36 visitor 31-2 Parking Spot Whisperer 36 People v. James McNally 66 Pijanowski, Bryan 23 pregnancy 93-108 Public access 83, 91, 94 Public good 7, 8, 11, 28, 31-9, 42 Religion 21, 30, 36-8, 75 Republic Aviation Corporation v. National Labor Relations Board 39 Rose, Nikolas and Mariana Valverde 65 Sarat, Austin 143 Sarat, Austin and Thomas R. Kearns 121 Scheingold, Stuart 3 Schenck et al. v. Pro-Choice Network of Western New York 82 Scott, James C. 9, 88 Seinfeld 65 Semiotics 5, 7, 10-3, 15, 17, 21, 54, 61-76, 93, 99, 124, 141-145

161

September 11, 2001 77 Sheehan, Cindy 80 Silbey, Susan and Patricia Ewick 10-11 Shoup, Donald 23, 32, 58 Social need 6,9,11,15,77-83, 88, 92107, 141, 145 Soft law 16, 19, 109-16 Stone, Deborah 86 Tate, Gloria 124 Thornton, Charles Lee ‘Cookie’ Transportation Security Administration 124 Trillin, Calvin 14 Tyler, Thomas 106-7 Valverde, Mariana 18, 110 Veronica 112-3 Wagner, Anne 12, 16 Wal-Mart 26 Weiner, Mark 21 World Trade Center 6, 78 Yanow, Dvora 7, 40 Yngvesson, Barbara 147 Zuckerman, Jordan 55

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