Category Archives: Articles

New Article: The New State Zoning: Land Use Preemption amid a Housing Crisis

New Article: John Infranca, The New State Zoning: Land Use Preemption amid a Housing Crisis, Boston College L. Rev. forthcoming 2019. Abstract:

Commentators have long decried the pernicious effects that overly restrictive land use regulations, which stifle new development, have on housing supply and affordability, regional and national economic growth, social mobility, and racial integration. The fragmented nature of zoning rules in the United States, which are set primarily at the local level, renders it seemingly impossible to address these concerns systematically. While there have been some efforts to address local exclusionary tendencies and their suboptimal effects by means of greater state control, these efforts, which remain contentious, have been limited to just a few states.

In the past few years a new wave of state interventions in local zoning has appeared. These interventions are motivated in part by the harsh reality of housing shortages and skyrocketing costs in significant parts of the country, which have made housing affordability a salient issue for a broader segment of the population. At the same time, states have grown increasingly willing to preempt local governments across a range of policy realms.

This Article contends that the confluence of these and other factors suggests the potential for a recalibration of the balance of power between state and local governments in the realms of housing and land use regulation. State governments are increasingly displacing local restrictions on new development, mandating that municipalities permit certain forms of housing, and providing incentives for local governments to adopt certain forms of housing. I argue that the current housing crisis justifies bold new forms of state intervention. Such interventions should expressly preempt narrow elements of local law, rather than, as an earlier generation of interventions did, adding additional planning requirements, procedural steps, or potential appeals. At the same time, these interventions can and should provide clear mechanisms for addressing significant countervailing local interests.

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New Article: Neighbourhood effects and beyond: Explaining the paradoxes of inequality in the changing American metropolis

New Article: Robert J. Sampson, Neighbourhood effects and beyond: Explaining the paradoxes of inequality in the changing American metropolis, Urban Studies 2018. Abstract below:

American cities today are simultaneously the same and different from Wilson’s classic portrayal in The Truly Disadvantaged ([1987] 2012), first published over 30 years ago. Concentrated poverty and racial segregation endure, as do racial gaps in multiple aspects of wellbeing. But mass incarceration, the dramatic drop in violent crime, immigration, rising income segregation, the suburbanisation of poverty, and other macrosocial trends have transformed the urban scene. The paradoxical result is that cities today are both better and worse off. In this paper, I put forth a unifying framework on persistence and change in urban inequality, highlighting a theory of neighbourhood effects and the higher-order structure of the contemporary metropolis. I apply this analytic framework to examine: (1) neighbourhood inequality as an important driver and mediator of urban transformation; (2) racial disparities across the life course in compounded deprivation, poisoned development, and intergenerational mobility; and (3) how everyday spatial mobility beyond the local neighbourhood is producing new forms of social isolation and higher-order segregation. I conclude with a challenge to dominant policy perspectives on urban racial inequality.

-Thanks to Susan Bennett for the heads up!

New Article: Asymmetries in the Generation and Transmission of Wealth

New Article: Felix B. Chang, Asymmetries in the Generation and Transmission of Wealth, forthcoming Ohio St. L.J. Jotwell review here. Abstract below:

This Article assigns a redistributive role to the legal rules of trusts and estates. Unlike business law, trusts and estates has lagged in articulating a comprehensive theory on inequality. Consequently, income inequality is compounded intergenerationally as wealth inequality, with dire consequences for economic productivity and social stability. To move the discourse on wealth inequality, this Article explores the divergent approaches toward inequality in business law and trusts and estates.

Additionally, this Article recasts trusts and estates’ legal rules as wealth transfer mechanisms. Four categories of rules are implicated: (1) rules that interact with the tax system, (2) rules that govern relations between beneficiaries and creditors, (3) rules that govern relations between beneficiaries and trustees, and (4) rules that govern relations among beneficiaries.

More broadly, this Article contributes to three lines of scholarly debates. The first revolves around the propriety of drawing analogies between trust law and the law of enterprise organization. The second is whether legal rules or the tax system better effectuates redistribution. The third is whether legal rules should reflect our notions of fairness or welfare.

New Article: Cashing in on Convicts: Privatization, Punishment, and the People

New Article: Laura I Appleman, Cashing in on Convicts: Privatization, Punishment, and the People, 2018 Utah L. Rev. 579. Abstract below:

For-profit prisons, jails, and alternative corrections present a disturbing commodification of the criminal justice system. Though part of a modern trend, privatized corrections has well-established roots traceable to slavery, Jim Crow, and current racially-based inequities. This monetizing of the physical incarceration and regulation of human bodies has had deleterious effects on offenders, communities, and the proper functioning of punishment in our society. Criminal justice privatization severs an essential link between the people and criminal punishment. When we remove the imposition of punishment from the people and delegate it to private actors, we sacrifice the core criminal justice values of expressive, restorative retribution, the voice and interests of the community, and systemic transparency and accountability. This Article shows what is lost when private, for-profit entities are allowed to take on the traditional community function of imposing and regulating punishment. By banking on bondage, private prisons and jails remove the local community from criminal justice, and perpetuate the extreme inequities within the criminal system.

New Article: The Current Predatory Nature of Land Contracts and How to Implement Reforms

New Article: Stacy Purcell, The Current Predatory Nature of Land Contracts and How to Implement Reforms, 93 Notre Dame L. Rev. 1771 (2018). Abstract below:

Because land contracts are frequently inequitable, advocates and legislators have called for enhanced regulation. This Note examines the imbalance of power between sellers and buyers during the formation of land contracts, the ways the law has attempted to lessen the inequality, and how to implement potential reforms. Part II discusses the history of land contracts and their recent resurgence since the 2008 housing crash. Part III explains that while current land contracts are often predatory, land contracts could potentially be a useful way for low-income individuals to become homeowners. Part IV outlines proposed national and state reforms. Part V makes recommendations for future reform and discusses potential obstacles to the implementation of two of the most promising reforms: mandatory independent inspections and mandatory independent appraisals.

New Article: Graying of U.S. Bankruptcy: Fallout from Life in a Risk Society

New Article: Deborah Thorne et al., Graying of U.S. Bankruptcy: Fallout from Life in a Risk Society, SSRN Aug. 2018. Abstract below:

The social safety net for older Americans has been shrinking for the past couple decades. The risks associated with aging, reduced income, and increased healthcare costs, have been off-loaded onto older individuals. At the same time, older Americans are increasingly likely to file consumer bankruptcy, and their representation among those in bankruptcy has never been higher. Using data from the Consumer Bankruptcy Project, we find more than a two-fold increase in the rate at which older Americans (age 65 and over) file for bankruptcy and an almost five-fold increase in the percentage of older persons in the U.S. bankruptcy system. The magnitude of growth in older Americans in bankruptcy is so large that the broader trend of an aging U.S. population can explain only a small portion of the effect. In our data, older Americans report they are struggling with increased financial risks, namely inadequate income and unmanageable costs of healthcare, as they try to deal with reductions to their social safety net. As a result of these increased financial burdens, the median senior bankruptcy filer enters bankruptcy with negative wealth of $17,390 as compared to more than $250,000 for their non-bankrupt peers. For an increasing number of older Americans, their golden years are fraught with economic risks, the result of which is often bankruptcy.

New Report: Homeless Exclusion Districts: How California Business Improvement Districts Use Policy Advocacy and Policing Practices to Exclude Homeless People from Public Space

New Report: Berkeley Law Policy Advocacy Clinic (Jeffrey Selbin, Stephanie Campos-Bui, Joshua Epstein, Laura Lim, Shelby Nacino, Paula Wilhlem & Hannah Stommel), Homeless Exclusion Districts: How California Business Improvement Districts Use Policy Advocacy and Policing Practices to Exclude Homeless People from Public Space (2018). Abstract below:

Business improvement districts (“BIDs”) are private entities funded by local property assessments that play an increasingly large role in managing public space in California cities. First authorized by state law in the 1960s to help revitalize struggling urban areas, BIDs have grown considerably in number and influence, especially since 1994 when the State Legislature reduced public oversight of BIDs and expanded their assessment and spending authority. Today, approximately 200 California BIDs collect hundreds of millions of dollars annually in compulsory property assessment revenue, which they spend on a wide range of activities. Researchers and policymakers have paid little attention to the rise of BIDs and their growing influence on municipal and state affairs. BIDs typically are located in downtown areas where businesses are concentrated. These same areas, especially in California, often have a high concentration of homeless people, including many people who are unsheltered. The interests and activities of BIDs and homeless people intersect and conflict in several important ways, including in the areas of public policy, policing practices, and social services. In this report, we share research findings about the relationship between California BIDs and homelessness. We conducted a literature review, studied municipal laws that target or disproportionately impact homeless people, researched the legal framework authorizing BIDs, and surveyed BIDs in California’s 69 largest cities. To help interpret the data from these sources, we conducted in-depth case studies of eleven BIDs in the cities of Berkeley, Chico, Los Angeles, Oakland, Sacramento, San Diego, and San Francisco, including analysis of public records, interviews with BID officials, and surveys and interviews of homeless people. Our key finding is that BIDs exclude homeless people from public spaces in their districts through policy advocacy and policing practices. BID involvement in social services is experienced by homeless people as an additional form of policing, surveillance, and harassment. Our findings raise several legal concerns. When BIDs spend property assessment revenue on local and statewide policy advocacy, they may violate California law. BID spending on policy advocacy with revenue from assessments of publicly owned properties raises special statutory and constitutional concerns. Further, BID policing practices may violate the legal rights of people experiencing homelessness and expose BIDs to criminal liability. The findings and legal concerns inform several key recommendations, spelled out in more detail in the report. First, the State Legislature should amend state laws that grant BIDs broad authority to collect and spend property assessment revenue and to operate largely independent of government oversight. Second, city governments should provide more careful scrutiny and regulation of BID activities within their jurisdictions. Finally, BIDs should assume greater accountability to all district residents and visitors.

New Article: Health and Housing: Altruistic Medicalization of America’s Affordability Crisis

Lake 4New Article: Dayna Bowen Matthew, Health and Housing: Altruistic Medicalization of America’s Affordability Crisis, 81 Law and Contemporary Problems 161-194 (2018).

New Article: “It’s Not You, It’s Your Caseload”: Using Cronic to Solve Indigent Defense Underfunding

New Article: Samantha Jaffe, “It’s Not You, It’s Your Caseload”: Using Cronic to Solve Indigent Defense Underfunding, 116 Mich. L. Rev. 1465 (2018). Abstract below:

In the United States, defendants in both federal and state prosecutions have the constitutional right to effective assistance of counsel. That right is in jeopardy. In the postconviction setting, the standard for ineffective assistance of counsel is prohibitively high, and Congress has restricted federal habeas review. At trial, severe underfunding for state indigent defense systems has led to low pay, little support, and extreme caseloads—which combine to create conditions where lawyers simply cannot represent clients adequately. Overworked public defenders and contract attorneys represent 80 percent of state felony defendants annually. Three out of four countywide public defender systems and fifteen out of twenty-two statewide public defender systems operate with yearly caseloads that are significantly higher than the ABA recommends.

This Note argues that courts should utilize the procedural ineffectiveness presumption that the Supreme Court made available in United States v. Cronic to find state defense counsel carrying caseloads above the ABA-recommended maximums constitutionally ineffective. Thus, defendants could not be tried until caseloads in the locality fell within the maximums. This would incentivize state and local legislatures to spend more money on indigent defense.

New Article: Sustainable Affordable Housing

New Article: Andrea J. Boyack, Sustainable Affordable Housing, 50 Ariz. St. L.J. 455 (2018). Abstract below:

Sustainable real estate development is an essential component of intergenerational justice, in part because the real estate sector creates more than 20% of the world’s carbon emissions. Governments, recognizing that environmentally sustainable real estate development involves higher upfront costs, have encouraged green building by offering publicly funded incentives such as tax credits, grants, reduced approval fees, and streamlined permitting. Using market measurement innovations such as the Dow Jones Sustainability Index, investors can promote environmentally sustainable development by prioritizing real estate developers that embrace environmentally conscious practices. Even though real estate in general still underperforms in many other sectors in terms of its environmental sustainability, trends are encouraging. Commercial real estate has embraced green building as a concept, and the World Economic Forum predicts that approximately 55% of all new commercial properties in 2020 will be “built green.”

The affordable housing sector, however, needs more than marginal governmental carrots and sticks to be able to implement sustainability practices. Environmental sustainability will elude affordable housing as long as it remains in its current, financially unsustainable state. Government housing assistance programs are unpredictable, underfunded, and may to some extent perpetuate rather than solve the problem of housing need. The nation’s supply of affordable housing is rapidly declining in quality as well as quantity, and rising housing costs and stagnant incomes mean that an ever-increasing number of lower-income households must devote an unsustainably high percentage of their income toward housing costs. Our affordable housing system cannot go green until the system stops operating in the red. Properly conceived, affordable sustainability of housing and sustainable affordability of housing are mutually enforcing concepts. Successful housing laws and policy must therefore find a way to achieve both.