George Skouras (New York University (NYU), Department of Politics, Students; Rutgers, The State University of New Jersey – Rutgers Law School; New School for Social Research) has posted Gated Communities and Neoliberal Privatization: Property, Commons, and Civic Life on SSRN. Here is the abstract:
This Article argues that the proliferation of gated communities—home to approximately 26 million Americans—represents a dangerous privatization of civic life, enabled by neoliberal ideology and requiring a robust response through public law. These enclaves, governed by Homeowners’ Associations (HOAs) and restrictive covenants (CC&Rs), are not merely private choices but a form of “secession of the successful” that fragments municipalities, exacerbates inequality, and undermines the public forums essential for democratic engagement. The Article traces the intellectual and policy history of this phenomenon, from its roots in Lockean property theory and Chicago School economics to its acceleration through state-enabled privatization. It then demonstrates that this private governance model fails on its own terms, creating “anticommons” gridlock and democratic deficits rather than resolving collective action problems. In response, the Article moves beyond critique to outline a concrete legal toolkit for reclaiming the commons. It contends that state and local governments possess ample constitutional authority—through zoning, the public forum doctrine, the public trust doctrine, and eminent domain—to regulate, limit, and even roll back the encroachment of gated communities. The Article concludes that reasserting the primacy of public law over private contract is not just a policy option but a constitutional imperative for preserving the integrated public space upon which democracy depends.