Not All Pandemic Rules Were Restrictions. Let’s Keep the Fun Ones.

Bookmark

In midtown Manhattan, they’re dancing in the streets. Literally. At the Greek restaurant on W. 44th St. where I ate dinner last week, a live band played on the sidewalk and the space between the sidewalk and the restaurant’s extensive outdoor seating became an impromptu dance floor for dozens of revelers. The whole scene represented a transformative use of public space that seemed to make everybody involved ecstatic — on an otherwise staid city block that’s home to such institutions as the Algonquin Hotel and the Harvard Club of New York.

Similarly creative uses of urban space happened around the country. Mayors across the U.S. reclaimed driving and parking space for outdoor dining, biking, shopping, and walking. Now, these  Covid-era makeshift arrangements are extending into the vaccination-enabled reopening. They represent a phenomenon that’s rare in the world of law and regulation: when the loosening of legal restrictions to meet an emergency turns into a natural experiment that actually makes things better.

Most of the time, unfortunately, legal innovation works the opposite way. Faced with a new challenge, we tighten laws, prohibiting more conduct and restricting rights to meet the emergency. Then, even after the crisis has passed, we keep the restrictive laws in place, and end up limiting freedom more than we need. Laws designed to combat terrorism are one classic example. Although the USA Patriot Act eventually expired, it stuck around in various forms for nearly 20 years.

The other classic example is when a government expenditure program adopted to meet an emergency stays in place after the emergency is over because an interest group now exists to lobby for its continuation. As Milton and Rose Friedman once famously put it, “Nothing is so permanent as a temporary government program.”

In contrast, the use of city streets for restaurants and other public uses is not so much a government program as a relaxation of government regulations. It doesn’t cost cities much, except perhaps in lost parking meter revenue in some neighborhoods. It promotes economic gain in the form of new business for restaurants — which might produce more revenue for local governments than parking meters do. And of course, it enriches city life.

Well, at least for most people. Inevitably, there will exist a constituency that will lobby against keeping the city streets open to such uses. That will presumably be drivers who worry about increased traffic and car-owners used to parking for lower-than-market rates on city streets. I’m not altogether unsympathetic to their concerns. People who own cars in cities have relied on settled expectations about where they could park and drive. In a place like Manhattan, the cost of off-street parking is prohibitively expensive. It’s understandable that some drivers might fight to restore their pre-Covid parking options.

But otherwise, more use of public streets is a public good that can be shared by almost anybody. When it comes to extending public benefits, the challenge is always that the value of public use is diffuse by definition. Benefits spread across the population. The costs may be born by a well-organized interest group, like urban drivers. That sets up the kind of conflict described by the economist Mancur Olson, who observed that in such conflicts, organized interest groups have an advantage.

The answer is for elected political leaders to point out the breadth of the benefits created by innovation. In one survey, 92% of mayors said they’d expanded space for outdoor dining during the pandemic, but only 34% said they planned to make the changes permanent. In any event, extensions should be enacted democratically. That’s always tricky at the local level. State legislatures could enable cities to act where necessary. In some places, city councils are the best representatives of the people. In others, because of voter turnout issues, the mayor is the most representative local official and a mayoral decision may be most democratic. Polling would be useful regardless.

So much suffering and loss has come from the Covid pandemic. That makes it all the more important to capture the sparse benefits that do emerge, and to take advantage of innovations that produce some unexpected good — and some joy in the aftermath of tragedy.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

©2021 Bloomberg L.P.

BQ Install

Bloomberg Quint

Add BloombergQuint App to Home screen.