1 See supra at 676.Google Scholar

2 . “To learn from the past—and we cannot otherwise learn it at all-the distinction between what is necessary and what is the product merely of our own contingent arrangements, is to learn the key to self-awareness itself.” Quentin Skinner, Meaning and Understanding in the History of Ideas. 8 Hist. & Theory 3, 53 (1969).Google Scholar

3 . For another analysis of this distinction in local government law, see Frug, Gerald E., The City as a Legal Concept, 93 Harv. L. Rev. 1057 (1980).CrossRefGoogle Scholar

4 This view has become the basis of the “public choice” model of politics. For an analysis of this model, see Frank I. Michelman, Political Markets and Community Self-Determination: Competing Judicial Models of Local Government Legitimacy, 53 Ind. L.J. 145 (1977–1978). The most insightful state ment of the private nature of the liberal concept of public is by Marx. See Karl Marx, On the Jewish Question, In Robert Tucker, ed., The Marx-Engels Reader 24 (New York: W. W. Norton, 1972).Google Scholar

5 . Cohen, Morris R., Property and Sovereignty, 13 Cornell L.Q. 8 (1927); Hale, Robert L., Coercion and Distribution in a Supposedly Non-coercive State, 38 Pol. Sci. Q. 470 (1923).Google Scholar

6 To quote Hentham, “Property and law were born together, and would die together. Before the laws property did not exist; takeaway the laws. and property will be no more.” 1 Jeremy Bentham. Rentham's Theory of Legislation 146–47 (in ch. 7, “Of Property”), trans. from the French of Etienne Dumont by Charles Milner Atkinson (London: Oxford University Press, 1914).Google Scholar

7 . For a discussion of the methodology employed in this analysis of the public private distinction, see Frug, Gerald E., The Ideology of Bureaucracy in American Law, 97 Harv. 1. Rev. 1276 (1984).Google Scholar

8 . 426 U.S. 833 (1976).Google Scholar

9 . 455 U.S. 40 (1982).Google Scholar

10 . 104 S. Ct. 1020 (1984).Google Scholar

11 . 460 U.S. 204 (1983).Google Scholar

12 . 426 U.S. 833, 849 (1976) (quoting Kovacs v. Cooper, 336 U.S. 77,95 (1949) (Frankfurter, J., concurring)).Google Scholar

13 Id. at 856 n.20.Google Scholar

14 Id. at 851.Google Scholar

15 Id. at 845.Google Scholar

16 Id. at 851.Google Scholar

17 . 455 U.S. at 54.Google Scholar

18 . 317 U.S. 341 (1943).Google Scholar

19 455 U.S. at 54. As Justice Rehnquist noted in dissent, the Court treated “a political subdivision of a State as an entity indistinguishable from any privately owned business.” Id. at 60. When it dealt with the question of remedies, however, the Court recognized that cities may be more public than private. Id. at 57 n.20.Google Scholar

20 Id. at 56 n.19. “Antitrust laws in general, and the Sherman Act in particular, are the Magna Carta of free enterprise.” Id.Google Scholar

21 . 455 U.S. at 51 (quoting from City of Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 412–13(1978).Google Scholar

22 . 426 U.S. at 852.Google Scholar

23 . 198 U.S. 45 (1905).Google Scholar

24 . “[H]aving the power to make decisions and to set policy is what gives the State its sovereign nature. … It would follow that the ability of a state legislative (or, as here, administrative) body-which makes decisions and sets policy for the State as a whole-to consider and promulgate regulations of its choosing must be central to a State's role in the federal system.” Federal Energy Regulatory Comm'n v. Mississippi, 456 U.S. 742, 761 (1982).Google Scholar

25 “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” U.S. Constitution, art. IV, § 2.Google Scholar

26 104 S. Ct. 1020, 1026 (1984).Google Scholar

27 Id. at 1028.Google Scholar

28 Id. at 1029.Google Scholar

29 . 460 U.S. 204, 214–15.Google Scholar

30 Id. at 207.Google Scholar

31 Id. at 211 n. 7.Google Scholar

32 Nothing in the manipulability either of the public/private distinction or of the good and bad images of both sides of the distinction necessitates the loss of city power. Indeed, for every argument to attack city power there exists one to defend it. Nevertheless, as local government law has developed. the actual decisions made by courts and legislatures have led increasingly to city powerlessness. See supru part I; Frug, supra note 3, at 1062–74. For example, both cases discussed in this essay that have protected city power have later been seriously undermined. The impact of Usery has been limited virtually to its facts by later cases. See EEOC v. Wyoming, 103 S. Ct. 1054 (1983); FERC v. Mississippi, 456 U.S. 742 (1982). And the utility of the protection afforded by White has been eroded by Cumden. On the other hand, antitrust law has become an increasingly important way to attack the exercise of city power. See, e.g. N.Y.Times, May 11, 1984, at A16 (describing the antitrust challenge of taxi regulation by New Orleans and Minneapolis).Google Scholar

33 This is Weber's definition of state power. “It is possible to define the state itself only in terms of the means which it today monopolizes, namely, the use of force.” 1 Max Weber, Economy and Society, ed. Guenther Roth & Claw Wittich, 65 (Berkeley: University of California Press, 1978).Google Scholar

34 Frug, supra note 3, at 1065.Google Scholar

35 See authorities cited supra note 5; Restatement (Second) of Torts §§ 77–87 (1965).Google Scholar

36 Supra part 1. See Louis Ham, Economic Policy and Democratic Thought: Pennsylvania, 1776–1860 (Cambridge, Mass.: Harvard University Press, 1948); Oscar Handlin & Mary Handlin, Com monwealth: A Study of the Role of Government in the American Economy: Massachusetts, 1774–1861 (Cambridge, Mass.: Harvard University Press, Belknap Press, 1948).Google Scholar

37 Frug, supra note 3.Google Scholar

38 See, e.g., Ronald M. Mason, Participatory and Workplace Democracy: A Theoretical Development in Critique of Liberalism (Carbondale: Southern Illinois University Press, 1982); Martin Carnoy & Derek Shearer, Economic Democracy: The Challenge of the 1980s (White Plains, N.Y.: M. E. Sharpe, 1980).Google Scholar

39 I have made this suggestion before. For a fuller discussion of the issue, see Frug, supra note 3, at 1150–51.Google Scholar

40 Subcommittee on Reports, Accounting, and Management of the Senate Committee on Govern ment Affairs, Report on Interlocking Directorates Among the Major U.S. Corporations, s. Doc. No. 107. 95th Cong., 2d Sess. 280 (1978).Google Scholar

41 David P. Ellerman, The Socialization of Entrepreneurship: The Empresarial Division of the Caja Laboral Popular (Somerville, Mass.: Industrial Cooperative Association, 1982); see Alastair Campbell, George Norman, & Robert Oakeshott, Worker Owners: The Mondragon Achievement (London: Anglo-American Foundation for the Study of Industrial Society, 1977); Henk Thomas & Chris Logan, Mondra gon: An Economic Analysis (London: George Allen & Unwin, 1982).Google Scholar

42 R. Joseph Monsen & Kenneth D. Walters, Nationalized Companies: A Threat to American Business 2 (New York: McGraw-Hill Book Co., 1983).Google Scholar

43 E.g., limits on the tenants' ability to assign or sublease their interests could be conditioned on the reasonable consent of the landlord (a consent designed to ensure fulfillment of the city's policies) without being considered a restraint on alienation; if the residents had title themselves, serious problems concerning a restraint on alienation would arise if sale of the property were prohibited. See Charles Donahue, Jr., Thomas E. Kauper, & Peter W. Martin, Cases and Materials on Property 569–94 (St. Paul: West Publishing Co., 1983).Google Scholar

44 . See Pruneyard Shopping Center v. Robins, 447 U.S. 74, 82 (1980); Thomas Gray, The Disintegration of Property, in Nomos No. 22 (1980).Google Scholar

45 For an extended analysis of this proposal, see Mark Director, Local Control of Cable Television: Whose Medium Is It Anyway? (manuscript, 1984).Google Scholar

46 . The City Manager's Advisory Committee, A Cable Television Report and Program for the City of Cambridge, Massachusetts 46 (1980).Google Scholar

47 supra part I.Google Scholar

48 United Steel Workers Local 1330 v. United States Steel Corp., 631 F.2d 1264 (6th Cir. 1980).Google Scholar

49 Id. at 1279–80 (quoting the district judge's statements at a pretrial hearing) (emphasis omitted).Google Scholar

50 Condemnation of such a servitude (or condemnation of the property itself followed by the city's leasing the property back to the owner with the servitude imposed) would, of course, require a “public” purpose. But the reasons for exercising the city's power seem to meet the rather tepid current interpreta tion of this public purpose requirement. See Poletown Neighborhood Council v. City of Detroit, 304 N. W.2d 455 (Mich. 1981). Moreover, arguments could be advanced, as they were in the Youngstown case itself, that no condemnation would even be necessary because a servitude existed by prescription or be cause an implied-in-fact contract concerning the future of the business already existed between the business and the city.Google Scholar

51 See New York Times, Apr. 29, 1982, at A-20 cols. 2–4.Google Scholar

52 See Frug, supra note 3, at 1126–28.Google Scholar

53 Id. at 1067–73, 1151.Google Scholar

54 At vii, quoting Frank I. Michelman, Localism and Political Freedom, in Judith deNeufville, ed., The Land Use Policy Debate in the United States 241 (New York: Plenum Press, 1981).Google Scholar