New Book: The Long Land War

LLWNew Book: Jo Guldi, The Long Land War: The Global Struggle for Occupancy Rights (2022). Overview below:

A definitive history of ideas about land redistribution, allied political movements, and their varied consequences around the world

“An epic work of breathtaking scope and moral power, The Long Land War offers the definitive account of the rise and fall of land rights around the world over the last 150 years.” —Matthew Desmond, Pulitzer Prize–winning author of Evicted: Poverty and Profit in the American City

Jo Guldi tells the story of a global struggle to bring food, water, and shelter to all. Land is shown to be a central motor of politics in the twentieth century: the basis of movements for giving reparations to formerly colonized people, protests to limit the rent paid by urban tenants, intellectual battles among development analysts, and the capture of land by squatters taking matters into their own hands. The book describes the results of state-engineered “land reform” policies beginning in Ireland in 1881 until U.S.-led interests and the World Bank effectively killed them off in 1974.

The Long Land War provides a definitive narrative of land redistribution alongside an unflinching critique of its failures, set against the background of the rise and fall of nationalism, communism, internationalism, information technology, and free-market economics. In considering how we could make the earth livable for all, she works out the important relationship between property ownership and justice on a changing planet.

-Editor’s Note: I just finished reading a number of chapters of the book and can recommend this book as a book that will force you to think though things even though I don’t think readers will necessarily agree with all of the book’s arguments or sources of content given the ambitions of the book. In other words, it is interesting with lots of things that U.S. readers will likely find as “new” and worth thinking through even if there are parts of the book that annoyed me–for being too dogmatic/one-sided–as well.

Article: The Relational Costs of Free Legal Services

Article: Atinuke O. Adediran, The Relational Costs of Free Legal Services, 55 Harv. Civ. Rts.-Civ. Liberties L. Rev. 358 (2020). Abstract below:

At the same time that government funding for civil legal services has decreased, large law firms have increasingly invested substantial financial resources into pro bono legal services. Although these investments have expanded the availability of free legal representation, they have caused other problems that can be broadly grouped into two categories. The first is that nonprofit legal services organizations (“NLSOs”) face undue costs when they collaborate with law firms. The second is that the increasing involvement of law firms tends to produce a mismatch between the needs of the poor and the kinds of matters that receive free legal representation. Scholars have primarily explained these problems by examining law firm motivations for engaging in pro bono work but have yet to explore the structure of pro bono relationships between firms and NLSOs and its effects on legal services.

The literature posits that the core purpose of NLSOs is to provide quality legal services to the poor. It would follow that NLSOs only engage in pro bono relationships that do not compromise this purpose. However, NLSOs engage in pro bono relationships that appear to contravene their core purpose. This Article draws on qualitative empirical data to show how institutional relationships increase inequality in legal services, how this inequality is generated, and what can be done to alleviate it. Findings suggest that NLSOs respond to law firms’ strong interest in pro bono work and board seats virtually regardless of the quality of pro bono work or costs to NLSOs. This Article argues that this structure contributes to problems in the delivery of legal services. It also provides macro, meso, and micro analyses of the incentive structures of law firms and NLSOs, and makes corresponding proposals for reallocating power to increase competition. It uses the literature on power in organizational sociology to explain why NLSOs are generally unable to force law firms to compete.

New Op-ed: What Republicans Know (and Democrats Don’t) About the White Working Class

New op-ed: Lisa R. Pruitt, What Republicans Know (and Democrats Don’t) About the White Working Class, Politico, 6/24/2022.

New Article: Ensuring the American Dream

New Article: Raj Chetty and Nathaniel Hendren, Ensuring the American Dream, (2022). Excerpt below:

A defining feature of the American Dream is upward mobility—the ability of all children to have a chance at economic success, no matter their background. Unfortunately, children’s chances of earning more than their parents have declined in recent decades. Whereas 90 percent of children born in 1940 grew up to earn more than their parents, only half of today’s young adults earn more than their parents did at the same age. Our research group focuses on understanding which policies can help expand economic opportunity—both in the United States and elsewhere.

The key lesson from our work to date is the importance of targeting policy interventions during childhood. Childhood matters for two reasons. First, children’s environment growing up profoundly shapes their outcomes in adulthood. Second, policies that directly expand investment in children—especially low-income children—are often the most cost-effective way to reduce intergenerational inequality.

The launch point for our analysis is the source material in the Opportunity Atlas, an interactive data set we developed that uses census and tax records to measure upward mobility for every neighborhood in the United States. Using the Opportunity Atlas, we can see that in some neighborhoods low-income children are highly upwardly mobile, while in others, children from comparable backgrounds tend to remain trapped in poverty across generations. For example, Chart 1 shows the wide range of average adult incomes for low-income children growing up across New York City. Chart 2 shows that the income in adulthood of low-income children in the Brownsville neighborhood in Brooklyn depended significantly on which side of Dumont Avenue they grew up

New Article: Race to Property: Racial Distortions of Property Law, 1634 to Today

New Article: Bethany Berger, Race to Property: Racial Distortions of Property Law, 1634 to Today, Ariz. L. Rev. (2022, forthcoming). Abstract below:

Race shaped property law for everyone in the United States, and we are all the poorer for it. This transformation began in the colonial era, when demands for Indian land annexation and a slave-based economy created new legal innovations in recording, foreclosure, and commodification of property. It continued in the antebellum era, when these same processes elevated nationalized property transactions over other rights; and gained new tactics after the end of slavery through the early twentieth century, when the pursuit of racial hierarchy expanded private owners’ rights to exclude and tied occupation of physical space to status. The influence of race on property became even more insidious in the modern era. As twentieth century courts and legislatures incrementally outlawed de jure discrimination, a new regime took its place. This hidden Jim Crow first transformed home finance and zoning to make residence in exclusionary enclaves central to family wealth, and then tied public goods like schools, recreation, transportation, and welfare to residence in those fragmented communities.

These racial projects deeply scarred how property is acquired, regulated, and distributed regardless of race. They have made our cities poorer, our homes more expensive and less secure from foreclosure, our public goods less public, and our social safety net less safe. They have lengthened our commutes, privatized our pools, and impoverished our schools. They have undermined the income mobility that was once America’s pride.

Opponents of reform often invoke property rights to support their claims. The history presented in this Article, however, shows that many of the rules of our system were significantly about race, not property. They were not designed, as property norms dictate, to enhance security, abundance, and distribution of resources. Instead, in part, their purpose was to exclude, dispossess, and dominate racial groups. Reform, therefore, does not undermine property. Rather, in many cases, it achieves what justifies the property system in the first place.

Article: Is Medicare for All the Answer? Assessing the Health Reform Gestalt as the ACA Turns 10

Article: Nicole Huberfeld, Is Medicare for All the Answer? Assessing the Health Reform Gestalt as the ACA Turns 10, 20 Hous. J. Health L. & Pol’y 70 (2020).

New Article: Contract Law and Inequality

New Article: Kevin E. Davis and Mariana Pargendler, Contract Law and Inequality, 107 Iowa L. Rev. 1485, (2022). Excerpt of Introduction below:

Economic inequality is one of the most pressing problems facing modern societies, but it remains an open question whether it is one that contract law has any role to play in addressing. The orthodox answer to this question is no—contract law should pursue autonomy, efficiency, or justice in exchange, but not distributive objectives. This orthodoxy is rooted in the idea that pursuit of distributive objectives through contract law is both illegitimate and ineffective, particularly when initiated by judges as opposed to legislators. Accordingly, distribution should be pursued principally through the fiscal system—taxes and public spending—rather than through courts’ rulings in contractual disputes. Critiques of the prevailing orthodoxy struggle with an inconvenient fact: Existing literature suggests that legal systems around the world have converged on contract law doctrines that are insensitive to distributive considerations, part of a broader trend that leaves very few differences of economic significance among contract laws. The absence of concrete experiences with alternatives to contract law orthodoxy casts doubt on the appeal and viability of heterodoxy.

New Article: Rent Regulations After Cedar Point

New Article: Abigail Flanigan, Rent Regulations After Cedar Point, Colum. L. Rev. (2022, forthcoming). Abstract below:

In 2021, the Supreme Court decided Cedar Point Nursery v. Hassid, 141 S. Ct. 2063 (2021), a landmark case that established a new categorical rule in takings law: When the government enacts a regulation authorizing a temporary invasion of a property owner’s land, it effects a per se taking under the Fifth Amendment for which it must pay just compensation. By examining the interaction of this holding with legal challenges to New York’s Housing Stability and Tenant Protection Act (HSTPA) of 2019, this Note explores the implications of this decision for rent regulation legislation.

This Note considers alternative analytical paths a court considering a constitutional challenge to rent regulation legislation could pursue in the wake of Cedar Point. Under the maximalist approach, the court could find that the HSTPA infringes on the landlord’s “right to exclude” and is thus a compensable taking. Under the minimalist approach, the court could apply one of the Cedar Point exceptions to uphold the HSTPA as constitutional. Ultimately, this Note argues that the maximalist approach is at odds with precedent, endangers anti-discrimination housing laws, and hampers the government’s ability to make housing more economically accessible for citizens who may not otherwise have access to adequate shelter, and concludes that courts should apply an expansive reading of the Cedar Point exceptions to rent regulation legislation like the HSTPA.

New Article: Subsidizing Sprawl, Segregation, and Regressivity: A Deep Dive into Sublocal Tax Districts

New Article: Deb Niemeier and Darien Shanske, Subsidizing Sprawl, Segregation, and Regressivity: A Deep Dive into Sublocal Tax Districts, 106 Iowa L. Rev. 2427 (2021). Introduction below:

Much ink has already been spilled demonstrating that our current built environment was—and is—the product of numerous policy decisions. Some of these decisions are accidental (as with the mortgage interest deduction provided by the federal income tax), some can be reasonable at times, but are problematic overall (as with local power over zoning), and some are outright immoral (as with redlining). This Essay will demonstrate yet another policy tool that has contributed to the current structuralization of the built landscape: the sublocal tax district. These districts are very common, but are also, by virtue of their nature and spatial heterogeneity, very difficult to study.

As we will demonstrate with a deep dive into their use in Sacramento, California, such taxing districts, by design, primarily enable low-density, urban fringe development. This low-density urban expansion then motivates further investments in schools and other services to meet the needs of the spatially expanding population. County and local governments then create new service-aimed and school sublocal tax districts to meet these needs. Our goal is not to demonize these districts or blame them for the many problems that are characteristic of the current built environment. Rather, our primary goal is instead to demonstrate that these districts represent a significant subsidy for a problematic development pattern that is already encouraged in numerous other ways. Aided by this demonstration, we will then outline some of the many reforms that could improve these districts.

New Article: How to Design An Antiracist State and Local Tax System

New Article: Francine J. Lipman, How to Design An Antiracist State and Local Tax System, Seton Hall L. Rev. (2022). Abstract below:

Since the first ship of enslaved African people landed in Virginia in 1619, racist policies in institutions, systems, structures, practices, and laws have ensured inequity for people of color. These racist policies include every imaginable variant of injustice from slavery to lynching, to segregation, and to economic injustices, including those delivered through tax systems today. Although facially color-blind, tax systems have long empowered the explosion of white wealth and undermined wealth accumulation for Black families and communities of color. State and local tax systems, especially in the South, have deeply-rooted racist fiscal policies, including Jim Crow laws that continue to sustain and bolster racial inequality today. These injustices have become even more obvious during the global pandemic.

As Americans struggle with COVID-19 and its aftermath, racial inequality has become even more salient. People of color have suffered higher rates of unemployment, impoverishment, infection, and death from COVID-19. Moreover, scientists, economists, engineers, and doctors agree that racism, not race, is the cause of this disproportionate impact. As we struggle to battle COVID-19 and rebuild from its devastation, federal, state, and local governments have used many tools, including tax systems. In 2021, the federal government, together with twenty-nine states and the District of Columbia, enacted significant tax cuts, with nearly all states cutting individual income tax rates and many tax systems meaningfully delivering expanded tax credits for workers and their children.

With race increasingly front and center as a cause of economic inequality, this Article applies Dr. Ibram X. Kendi’s transformative concept of antiracism as the framework to rethink state and local tax systems to better serve all Americans. Deriving an antiracist framework from decades of exhaustive research, Dr. Kendi, a professor of history, international relations, and an award-winning author, has facilitated a broader understanding of racism, its poisonous consequences, and most importantly provides antiracist tools to dismantle it.