The Law of “Dibs” by Robert A. Clifford
Reprint from the American Bar Association Litigation Journal, Fall 2015
You’re patiently waiting in your car for someone to pull out of a parking spot only to have someone come out of nowhere and zip into it without any acknowledgment that you had dibs on it. George Costanza on Seinfeld would have none of that when he stood for weeks in an empty parking spot because the space was “just too good to give up.” How many can relate to that – although perhaps not to that extreme?
Sometimes it can be slightly aggravating; other times, the law of “dibs” has escalated into near fist fights, or as ABC-7 in Chicago called it in February, 2015, “dibs disputes.” People, especially in big, crowded towns, protect their parking spots. That’s most evident during the winter when people who live on side streets shovel out a parking spot and then claim it to be theirs for weeks or perhaps even the season. They use lawn chairs, mattresses, cones, hand-made signs, hampers and other paraphernalia from their homes to call dibs.
“Dibs” is not really legal; however, the city of Chicago, for example, often looks the other way following blizzards that are all too common. In fact, Mayor Rahm Emanuel has been quoted as saying that following a blizzard, he supports the concept of “dibs.” Actually, it was first endorsed by Mayor Richard M. Daley in 2001 when he was quoted in the Chicago Sun-Times as saying, “‘I tell people, if someone spends all that time digging their car out, do not drive in that spot. This is Chicago. Fair warning.”
Boston learned a similar lesson from the record blizzards of the winter of 2014-15 when its mayor, Marty Walsh, told the press that if you shovel out a parking spot, it is yours to keep for a while – that generally means until the city plows that street or the snow melts. At the very least, first-come-first-served means a few days.
Fights and vandalism are common in retaliation for those who dishonor the law of dibs. Cracked windshields, broken mirrors and keyed cars are just some of the hazards of violating someone’s hard work on a public street. And when you place your possessions to hold the spot, the city of Chicago tacitly acknowledges the proposition of dibs because garbage crews don’t haul off your place-holding stuff until spring.
Chicago Tribune columnist John Kass tried to claim dibs on the exalted title “Judge Dibs” only to have columnist Eric Zorn of the same newspaper earlier this year call himself “Chief Justice Dibs”. Zorn even set rules for Chicagoans, including a 48-hour rule of dibs expiration after the last snowflake has fallen, no matter how hard you worked to clear the spot. “Snowstorms bring out the best in us – snow piles, the worst,” Zorn wrote in his February 2, 2015 column. He even went on to explain that the term “dibs” itself has been used for more than 70 years to mean staking a claim to objects, privileges or opportunities that one hasn’t earned.
Richard A. Epstein, a professor at NYU Law School and the University of Chicago, examined this issue in depth more than 10 years ago. See Richard A. Epstein, The Allocation of the Commons: Parking on Public Roads, 31 J. Legal Studies 515 (June 2002). He also looked at the issue of when one is in pursuit of a parking spot on a city’s crowded streets. According to Epstein, curb rights are really a matter of a “bottoms-up” rule of first possession. He explains how these property rights really are formed by what is for the public good by analogizing to those in hot pursuit during a fox hunt:
One advantage of the hot-pursuit rule is that it protects the labor of the initial chaser by allowing him a clear shot to catch the fleeing animal: the alternative rule encourages freeloading, as ‘saucy intruders’ can carry on the chase after the initial hunter and his prey are both exhausted.”
Id. at 524. Good point.
That still doesn’t help when you are in a crowded parking lot or on a high-volume street and the driver in car number one has an innate instinct to yield to others but the late-comer driver number two lives with an instinct to fight for what he thinks is his. Epstein concludes, “I have little doubt that if this matter were ever brought to litigation, the first driver to arrive would win against the prior surrogate. But the stakes are usually so low that this never happens.” Id. at 525.
So really, who has the rights to a parking spot or how do you gain possession of something that you don’t really own? That’s exactly why crowded city streets continue to be like the forests of fox hunting – we may never know the answer for sure because no one has the time or patience to litigate such an indiscretion. And the courts don’t have time for it either.
-Robert A. Clifford, former Chair of the ABA Section of Litigation.