New Article: Benton C. Martin, Federalism and Municipal Innovation: Lessons from the Fight Against Vacant Properties, 46 The Urban Lawyer 361 (2014). Abstract below:
Cities possess a far greater ability to be trailblazers on a national scale than local officials may imagine. Realizing this, city advocates continue to call for renewed recognition by state and federal officials of the benefits of creative local problem-solving. The goal is admirable but warrants caution. The key to successful local initiatives lies not in woolgathering about cooperation with other levels of government but in identifying potential conflicts and using hard work and political savvy to build constituencies and head off objections. To demonstrate that point, this Article examines the legal status of local governments and recent efforts to regulate vacant property through land banking and registration ordinances.
New Article: Kristen Barnes, ‘Pennies on the Dollar': Reallocating Risk and Deficiency Judgment Liability, forthcoming S.C. L. Rev. 2014. Abstract below:
Many homeowners are unaware that they face the prospect of crushing personal financial liability if they default on their mortgage loans. While owners may appreciate that they can lose their homes to the lender if they fail to make payments in accordance with their loan terms, many do not fully comprehend that the exposure they have under such circumstances does not end with relinquishing the financed property. In what are known as recourse states, if the lender forecloses and the foreclosure sale does not yield an amount sufficient to cover the borrower’s outstanding debt balance, the lender may file for a deficiency judgment against the borrower to make-up the difference. Whereas in the past, in many jurisdictions, lenders have resorted to this remedy, sparingly, there are signs that this lax approach is being abandoned. First and second mortgagees and private insurance companies are increasingly opting to aggressively pursue foreclosed homeowners for fear of leaving money on the table. To make matters worse, even in those situations where lenders determine that it is not economical for them to follow-up on collecting the debt from mortgagors where a deficiency exists, they are selling the deficiency judgment or the claim to debt collectors for pennies on the dollar. Looking at a representative sample of mortgage laws and practices in California, Illinois, and Florida, this paper argues for the prohibition of deficiency judgments in the residential mortgage loan context. The article also offers a proposal for anti-deficiency legislation. Homebuyers and lenders are not equal players in the mortgage loan transaction. The disadvantages of homeowners are particularly apparent in times of severe economic crisis, like the current great recession. Excising the option of deficiency judgments from the loan negotiation will help to address the glaring inequities between parties.
New Article: Lucy A. Williams, The Right to Housing in South Africa: An Evolving Jurisprudence, 45 Colum. Hum. Rts. L. Rev. 816 (2014). Abstract below:
This Article focuses on recent South African constitutional and statutory jurisprudence regarding the right to housing, and attempts to analyze both its transformative possibilities and its doctrinal limitations. The South African Constitutional Court’s housing rights jurisprudence is more developed than that regarding any other social and economic right contained in the South African Constitution, with eviction cases having been a particular focus of the Constitutional Court. I address three aspects of major recent South African cases relating to the right to housing: the concept of judicially required “meaningful engagement” between government entities and individuals threatened with eviction, the prohibition of unfair practices by landlords and tenants under the Rental Housing Act 50 of 1999, and developments in the concept of just and equitable eviction under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Housing Act 19 of 1998. In each context, I first describe the important ways in which this jurisprudence has benefited the poor and then present a critical perspective identifying both issues of concern and what might be called “unintended consequences.” I conclude by arguing that while the universality and moral force of human rights discourse assists in giving meaning and content to housing rights by exposing the social construction of poverty and by shifting the focus from individual fault and dependency to society’s responsibility, human rights discourse alone provides limited analytical assistance in addressing the difficult economic and institutional questions that must be faced in order to make housing rights a reality.
New Article: Priya S. Gupta, The American Dream, Deferred: Contextualizing Property After the Foreclosure Crisis, 73 Md. L. Rev. 523 (2014). Abstract below:
In a few short years, the American Dream has dried up like a raisin in the sun. Massive foreclosures of the mid-to-late 2000s have left the status of the American Dream of homeownership in serious question. In this paper, I argue that in order to formulate new federal housing and homeownership policy goals, the underlying vision of property rights that informs such policy needs to be examined and re-oriented to one that recognizes the nature of property (specifically with regards to residences) as an interconnected and contextualized regime. In the decades following World War II, the federal government supported homeownership and egalitarian access to such ownership through legal regimes and rhetoric. The form this promotion took–the push for detached single-family houses–maps a model of property rights that values ownership, separation, autonomy, and a particular legitimate version of the “home.” Despite this promotion, just before and during the Foreclosure Crisis of the mid-2000s, the federal government surprisingly abandoned this rhetoric and paradigm by moving towards a different model of property rights that treated the house as a commodity, evaluated like an investment and bound by the four corners of its mortgage contract. From this model, it could comfortably limit people’s rights to their homes, especially for the ‘irresponsible borrowers’ amongst them. The use of both of these models has shifted the operation of property as a regime in the United States, and, as I argue, not for the better. After setting out this narrative, I argue for widening the context in which property rights, and therefore housing policy, are analyzed. I do not craft an entire alternate model of a property regime, but rather offer two perspectives that should, in part, constitute such a model (or models). In formulating these perspectives, I draw examples from the City of Baltimore to argue that property and housing policy should recognize (1) the interconnectedness of property as an institution and (2) the importance of the context in which the investment and contract surrounding a house were made.
New Article: Hila Keren, Law and Economic Exploitation in an Anti-Classification Age, Fl. St. U. L. Rev. (forthcoming 2014). Abstract below:
Does our legal system permit the economic exploitation of extreme vulnerability? Focusing on predatory housing loans — a thriving business at the dawn of the 21st century — this Article argues that the answer in most cases is yes. Under an individualistic neoliberal paradigm, borrowers are held liable for their contracts, even if they were targeted with predatory practices. Further, borrowers’ attempts to resort to antidiscrimination law, and frame their exploitation as “reverse redlining,” have offered no real answer. An important yet undertheorized explanation for this problem is the impact of the Supreme Court’s anti-classification jurisprudence on lower courts. In an anti-classification age, even outside of the constitutional arena courts are reluctant to accept race-based arguments. As a result, colorblind analysis of predatory lending permits economic exploitation to thrive.
This Article proposes a unique solution to this deadlock: embedding the analysis of individual borrowers in the context of their neighborhood, a move that neither denies nor relies on their race. Drawing on a variety of disciplines, including psychology, sociology, and public health, the Article explains how residing in distressed neighborhoods — the most embattled neighborhoods of our country — creates conditions especially fertile for exploitation. Based on this interdisciplinary analysis, the Article suggests an alternative legal framework which would circumvent the anti-classification problem. The new framework is tailored around the idea of individual dignity, which includes the right to freedom from economic exploitation. To protect such right it is suggested to utilize contract law and particularly the doctrine of unconscionability — which is highly apposite for a contextual analysis of predatory agreements.
More broadly the Article argues that one of the important lessons to be learned from the tragic subprime crisis is how urgent it is to find an appropriate legal response to market exploitation of vulnerable individuals. Notably, the contractual framework suggested in this Article for predatory housing loans is useful for handling other exploitative loans, such as pay-day loans and auto-title loans. Further, the proposed framework is valuable beyond the contexts of lending and distressed neighborhoods, to address other forms of economic exploitation perpetuated by contract. Given persistent weakness in our economy, establishing an anti-exploitation norm in the market seems more important than ever.