For communities suffering the harms of long-standing neglect and callous infrastructure decisions that dump highways, landfills, and the like in the middle of them, legal remedies have been few and far between. In their illuminating article, Defending Home: Toward a Theory of Community Equity, Deborah Archer and Joseph R. Schottenfeld offer a new framework to render such community-based harms legally cognizable, and call on tort law as an important conceptual piece of this project.
Archer and Schottenfeld begin by telling the story of Sandridge, a small, unincorporated, historically Black community in South Carolina. When the surrounding county decided it was time for a new four-lane road project to connect two pre-existing highways and make it easier for vacationers to travel to the beach, numerous road placement options were proposed.1 The county determined that the best path forward would be to lay the highway down right in the middle of Sandridge, even though the road would functionally destroy the community, devouring multiple homes, businesses, and the community park, and isolating the heart and soul of the community, the church, from its many attendees.
This, unfortunately, is an all-too-familiar local government story. As Archer and Schottenfeld describe, the burdens of infrastructure and industry often “fall disproportionately on Black communities that rarely receive the full benefits of these investments.” From Louisiana’s infamous cancer alley, to the raw sewage seeping into the homes of residents of Centreville, Illinois, many majority-Black communities across the nation are chronically neglected by their state and local governments and left to bear the heavy burdens of infrastructure changes, with little recourse for the damage done.
Archer and Schottenfeld argue that law can and should do more to remedy these harms. First, they articulate and clarify that the harm at issue in these scenarios is distinctively community-based. It is not just about loss and damage on an individual level, but on a collective one: there is a “loss of access to shared community assets, both formal and informal, as occurs when its members are no longer able to enjoy the home and community they built together.”
Here, the article helpfully resonates with the burgeoning scholarship on place-making. In recent work, scholars have been exploring how the everyday acts of dwelling in a place and cultivating a social and collective life within it give meaning to places and transform them into communities. These scholars argue that such efforts should receive more recognition when it comes to place governance, and are exploring new, inclusive governance mechanisms and techniques that could provide more meaningful decision-making processes to communities like Sandridge when new highways need development.2
In the meantime, though, the people who once called Sandridge home had little say in the infrastructure decision that eventually decimated it and are left with few options once the damage is done. Archer and Schottenfeld meticulously survey the menu of potential legal remedies, surfacing the awkward fit between existing legal frameworks and the collective, community-based harm that has occurred. Existing legal frameworks, as Archer and Schottenfeld describe, poorly account for harms to collectivities and for a loss of community: most align with only individual rights-based conceptions of injury, which fail to capture the nature and totality of the loss. The compensation offered through takings law, for instance, does not encompass the value of the loss of the community, and rarely applies to those who remain in their property but have now lost the social connections that once flourished there.
Archer and Schottenfeld propose a new “community equity framework” that would “recognize the weight and worth of community as an asset deserving respect and legal protection.” In their words, this framework “recognizes the collective investments that community residents make over time to build a sense of security, well-being, and belonging; addresses the harms that accrue to the community from improvident public works projects and neglect;” “advances the equitable distribution of benefits and harms across communities;” and “provides a platform for collective action to defend community interests.”
To develop this framework, Archer and Schottenfeld draw on one of the few existing legal arenas where community rights have been acknowledged: the tort of public nuisance. Public nuisance law goes beyond the typical individualized assessment of harm that tends to dominate modes of legal redress, and recognizes harms experienced by a collective public. Specifically, public nuisance has traditionally offered compensation for unreasonable interferences with public health, safety, morals, peace, comfort or convenience. Public nuisance law, then, demonstrates that law can “recognize public rights and public benefits,” and community deprivation of a collective resource can constitute a legal wrong.
In fact, as Archer and Schottenfeld explain, public nuisance has previously been used in ways that resemble the framework they are proposing. Black survivors of the Tulsa Race Massacre, for example, notably sued the city of Tulsa and the county in public nuisance. But as is all-too often the case when plaintiffs encourage a robust and flexible application of public nuisance, that suit was ultimately unsuccessful, and Archer and Schottenfeld are careful to not overdraw the comparison. Their point is less that public nuisance will be a successful path for these communities and more that the conceptual underpinnings of public nuisance, with its roots in a community-based harm, suggest a realistic anchoring point for the novel community-based framework they are advancing.
The move to public nuisance law here is an adroit one, and there may be additional strands in public nuisance law and scholarship that further support their argument and framework. As one example, a recent wave of public nuisance lawsuits brought by microlocal entities like school districts and tiny towns emphasizes collective harms to discrete publics and communities.3 Additionally, a line of law and economics scholarship arguing that community is in fact a “special kind of asset” which should be explicitly factored into judicial assessments of loss and value in contexts like public nuisance also accords with this new community equity framework.4 Some local government zoning cases, too, at least implicitly recognize a claim to maintaining a particular type of community (though it is typically white, suburban neighborhoods that tend to receive such protections).5
Ultimately, communities like Sandridge face an uphill battle in their fight for community-based rights and a more equitable distribution of public burdens and benefits. But the community equity framework that Archer and Schottenfeld offer, rooted in the conception of community-based harm already present in public nuisance law, serves as a viable starting point from which to begin this necessary work.
- Sarah Sax, Why is South Carolina Still Building Roads on Top of Black Communities?, The Guardian (July 25, 2023).
- See, e.g., Jennifer S. Vey & Nate Storring, Hyperlocal: Place Governance in a Fragmented World (2022).
- See, e.g., Sarah L. Swan, Microlocal Litigation for a Mass Tort World, 74 DePaul L. Rev. 695 (2025).
- See, e.g., Gideon Parchomovsky & Peter Siegelman, Selling Mayberry: Communities and Individuals in Law and Economics, 92 Cal. L. Rev. 75 (2004); Robert B. Ahdieh, Beyond Individualism in Law and Economics, 91 B.U.L. Rev. 43 (2011).
- See, e.g, Village of Belle Terre v. Boraas, 416 U.S.1 (1974); State v. Champoux, 566 N.W.2d 763 (1997).
