Category Archives: Articles

New Article: “In an Avalanche Every Snowflake Pleads Not Guilty”: The Collateral Consequences of Mass Incarceration and Impediments to Women’s Fair Housing Rights

New Article: George Lipsitz, “In an Avalanche Every Snowflake Pleads Not Guilty”: The Collateral Consequences of Mass Incarceration and Impediments to Women’s Fair Housing Rights, 59 UCLA L. Rev. 1746 (2012). Abstract below:

In our society, individual acts of intentional discrimination function in concert with historically created vulnerabilities; these vulnerabilities are based on disfavored identity categories and amplify each injustice and injury. Although anyone can be a victim of housing discrimination, women of color suffer distinct collateral injuries from barriers to housing that are collective and cumulative in nature. At the intersections of race and gender, the welfare and dignity of black women and Latinas are undermined by the national failure to enforce fair housing and fair employment laws, by the concentration of poverty in neighborhoods inhabited largely by blacks and Latinos, by the criminalization of poverty, by the proliferation of punishments inside the criminal justice system, and by the expansion of the collateral consequences of arrests and criminal convictions in society at large. Produced by a plethora of public policies and private actions, these injuries entail more than denials of rights and resources to individuals. They evidence the existence and extent of a concentrated political attack on communities of color. Women play a central role in these practices because punitive policies are almost always legitimated by allegations of nonnormative behavior by poor people and people of color, allegations that occlude the actual intersectional vulnerabilities created by multiple forms of raced and gendered exploitation inscribed inside the routine practices of contemporary capitalism. This Article delineates how housing and employment discrimination combine to make black women and Latinas particularly vulnerable to surveillance, arrest, and incarceration. It shows how race and gender discrimination make reentry into society especially difficult for women ex-offenders from aggrieved communities of color. It establishes the historical causes and consequences of moral panics about the putative misbehavior of women of color, and it concludes by proposing a combination of litigation, legislation, and social mobilization to address the execrable consequences of intersectional discrimination and mass incarceration.

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New Reports: 6 new reports from the Homeless Rights Advocacy Project

New Reports: 6 new reports from Homeless Rights Advocacy Project. Overview and links to the reports from Seattle University’s news release:

Key Findings

The reports identify common problems with existing laws and policies and offer effective, legally sound alternatives. Links to all current reports are included below. All current and previous HRAP reports can be accessed by visiting the HRAP homepage.

One report offers the first statewide analysis of laws that restrict begging:

  • Begging restrictions are often illegal and can create more problems than they solve. The vast majority of Washington cities (86 percent) criminalize begging, and most of these laws (83 percent) can result in criminal charges. These laws can lead to serious collateral consequences that make it extremely difficult for already vulnerable people to access housing and employment. Read the full report.

Four of the reports are geared to the network of city officials, non-profit organizations and others working to alleviate homelessness:

  • Accessory dwellings have potential. Several cities around the country are experimenting with accessory dwellings -small units in residential backyards – to address housing shortages and homelessness crises. This guide analyzes innovative case studies in Colorado, Washington, California, and Oregon to provide lessons on structural design, project funding, screening and matching residents and hosts, potential legal liabilities, zoning regulations, and public relations considerations. Read the full report.
  • Authorized encampments can be effective interim solutions. Cities are also trying authorized encampments as temporary solutions, but implementation has been haphazard due to a dearth of practical guidance. This guide summarizes the challenges and opportunities posed by various encampment models along the West Coast. Read the full report.
  • Faith communities can be key partners. Faith-based organizations, such as churches, mosques and synagogues, are important providers of social services; they also enjoy special legal protections, allowing them to provide shelter even when prohibited by local law. This guide surveys successful practices and key considerations from faith communities in Washington and Colorado. Read the full report.
  • Safe parking is a must for people living in vehicles. Vehicle residents are a growing part of homeless populations. This guide examines case studies of successful safe parking programs in Washington and California that mitigate harm to vehicle residents and offer support that can lift people out of poverty and into stable, permanent housing. Read the full report.

The final report is a practical guide for homeless individuals and others who have been arrested:

  • Unhoused people who are arrested can be their own best advocate.  Public defenders often are overworked and have little time to spend with clients; many defendants do not even receive one. But even represented unhoused defendants can help themselves with HRAP’s first-of-its-kind guide to navigating court, which introduces common legal terms and timelines, and provides strategies for those experiencing homelessness to advocate for themselves. Read the full report.

Wisconsin Law Review Symposium on Access to Justice

Lots of good articles. See below:

Democracy, Civil Society, and Public Interest Law by Catherine Albiston

Public interest law organizations (PILOs) play a significant role in democracy and American society. Historically, they have enabled underrepresented voices to be heard in the political process and have vindicated public values by enforcing civil rights laws. They also have shaped and expanded the public sphere through litigation, media coverage, and their association with social movements seeking social change. As public interest law expanded dramatically in the 1960s and 1970s, it came to mean much more than pro bono representation of the poor. Courts and lawyers recognized public interest litigation as a legitimate form of political expression and civic participation.

The Keys to the Kingdom: Judges, Pre-hearing Procedure, and Access to Justice by Colleen F. Shanahan

Judges see themselves as—and many reforming voices urge them to be—facilitators of access to justice for pro se parties in our state civil and administrative courts. Judges’ roles in pro se access to justice are inextricably linked with procedures and substantive law, yet our understanding of this relationship is limited. Do we change the rules, judicial behavior, or both to help self-represented parties? We have begun to examine this nuanced question in the courtroom, but we have not examined it in a potentially more promising context: pre-hearing motions made outside the courtroom. Outside the courtroom, judges rule on requests such as motions to continue or for telephone appearances that allow parties to participate in and access the hearing room. These requests have significant consequences for the party, do not implicate the merits of the underlying case, and are a pared-down environment in which to examine the interaction of judicial behavior and procedures.

Studying the “New” Civil Judges by Anna E. Carpenter et al.

We know very little about the people and institutions that make up the bulk of the United States civil justice system: state judges and state courts. Our understanding of civil justice is based primarily on federal litigation and the decisions of appellate judges. Staggeringly little legal scholarship focuses on state courts and judges. We simply do not know what most judges are doing in their day-to-day courtroom roles or in their roles as institutional actors and managers of civil justice infrastructure. We know little about the factors that shape and influence judicial practices, let alone the consequences of those practices for courts, litigants, and the public. From top to bottom, we can describe and theorize about our existing civil justice system in only piecemeal ways. Given legal scholarship’s near complete focus on federal civil courts, the stories we tell about the civil justice system may be based on assumptions and models that only apply in the rarefied world of federal court. Meanwhile, state judges and courts— which handle ninety-nine percent of all civil cases—are ripe for theoretical and empirical exploration.

Simplicity as Justice by Kathryn A. Sabbeth

Simplification of the legal system has attracted attention as a means of improving access to justice. A major motivation driving reform is the perception that pro se litigants have flooded the courts and begun clogging up the wheels of justice. Ordinary people do not know rules of procedure, evidence, or substantive law; do not handle their cases effectively or efficiently; and have, the argument goes, generated a “pro se crisis.” A number of states and localities have responded by increasing the availability of legal services, funding programs that offer solutions ranging from limited assistance to full representation, and a few legislatures have even established a statutory right to counsel for particular categories of cases. Given the expense of advocates’ labor, however, most jurisdictions have sought instead to improve litigants’ ability to handle their legal matters on their own. As an alternative to providing litigants with representatives who could help them navigate the courts, a growing number of commentators propose simplifying proceedings to obviate the need for such representation. Methods of simplification include creating form pleadings, introducing technology, and relaxing formal rules that could confuse lay litigants. Proponents of simplification claim that it will decrease the time and cost of proceedings, help litigants meet the technical requirements of the fora in which they appear, and increase litigants’ satisfaction with the process.

Toward Universal Deportation Defense: An Optimistic View by Michael Kagan

One of the most positive responses to heightened federal enforcement of immigration laws has been increasing local and philanthropic interest in supporting immigrant legal defense. These measures are tentative and may be fleeting, and for the time being are not a substitute for federal support for an immigration public defender system. Nevertheless, it is now possible to envision many more immigrants in deportation having access to counsel, maybe even a situation in which the majority do. In this paper, I make no real predictions. Instead, I offer a deliberately—perhaps even blindly— optimistic assessment of how concrete steps that have already been taken could grow into a system of universal deportation defense. In the process, I try to identify what still needs to happen for this to be achieved, and offer some thoughts on how this might change the practice of immigration law in the United States.

New Article: Distributive Justice and Donative Intent

New Article: Alexander A. Boni-Saenz, Distributive Justice and Donative Intent65 UCLA L. Rev. 324 (2018). Abstract below:

The inheritance system is beset by formalism. Probate courts reject wills on technicalities and refuse to correct obvious drafting mistakes by testators. These doctrines lead to donative errors, or outcomes that are not in line with the decedent’s donative intent. While scholars and reformers have critiqued the intent-defeating effects of formalism in the past, none have examined the resulting distribution of donative errors and connected it to broader social and economic inequalities. Drawing on egalitarian theories of distributive justice, this Article develops a novel critique of formalism in the inheritance law context. The central normative claim is that formalistic wills doctrines should be reformed because they create unjustified inequalities in the distribution of donative errors. In other words, probate formalism harms those who attempt to engage in estate planning without specialized legal knowledge or the economic resources to hire an attorney. By highlighting these distributive concerns, this Article reorients inheritance law scholarship to the needs of the middle class and crystallizes distributive arguments for reformers of the probate system.

New Article: Perpetuating Segregation or Turning Discrimination on its Head? Affordable Housing Residency Preferences as Anti-Displacement Measures

New Article: Zachary C. Freund, Note, Perpetuating Segregation or Turning Discrimination on its Head? Affordable Housing Residency Preferences as Anti-Displacement Measures, 118 Colum. L. Rev. 833 (2018). Abstract below:

Affordable housing residency preferences give residents of a specific geographic “preference area” prioritized access to affordable housing units within that geographic area. Historically, majority-white munici­palities have sometimes used affordable housing residency preferences to systematically exclude racial minorities who reside in sur­rounding com­munities. Courts have invalidated such residency pref­erences, usually on the grounds that they perpetuate residential segregation in violation of the Fair Housing Act.

More recently, as gentrification spurs rising housing costs in many formerly majority-minority urban neighborhoods, cities including New York and San Francisco have implemented intramunicipal residency preferences as a mechanism for mitigating gentrification-induced dis­placement. These cities’ policies offer residents preferred access to affordable housing units in their own neighborhoods, relative to both nonresidents and to city residents living in other neighborhoods. Pro­ponents of these policies contend that their use on an intracity level preserves rather than excludes minority communities, thereby inverting the traditional discriminatory application of such preferences. Opponents of the policies argue that any residency preference imple­mented in a racially segregated area necessarily perpetuates segregation and violates the law.

This Note examines how neighborhood-level, anti-displacement res­idency preferences should be understood under the relevant law. It observes that the neighborhood-level residency preference is a potent anti-displacement tool that suffers from an emerging mismatch between fair housing goals and fair housing law. Neighborhood-level anti-displacement residency preferences likely suffer from the same legal defects as intercity preferences used to exclude minority applicants, and may even be at heightened risk because they are more likely to be ex­pressly race-conscious. Despite the fact that these preferences aim to promote accessible affordable housing for low-income and minority residents, they do so in response to displacement pressures that the Fair Housing Act does not contemplate and in a manner that arguably clashes with its anti-segregationist objective. If neighborhood-level resi­dency preference policies are to be effectively and legally utilized to address issues of urban displacement, either courts’ approaches to such policies or the policies themselves must evolve.

New Article: Section 1 of the Thirteenth Amendment and the Badges and Incidents of Slavery

New Article: James Gray Pope, Section 1 of the Thirteenth Amendment and the Badges and Incidents of Slavery65 UCLA L. Rev. 426 (2018). Abstract below:

This Article presents the first comprehensive treatment of the basic and officially “open” question whether Section 1 of the Thirteenth Amendment directly bans the badges and incidents of slavery. Surprisingly, in light of present-day uncertainty, the historical record is relatively clear on this issue. Members of the Thirty-Ninth Congress generally agreed that Section 1 banned at least some of the badges and incidents; they parted company over which ones. The Democrats and their allies claimed that it outlawed only the core incidents of slavery, for example chattelization and physically or legally forced labor. But their Republican opponents maintained that it banned a far broader set including—at a minimum—denials of the rights enumerated in the Civil Rights Act of 1866, namely to enjoy the same rights to make contracts, own property, and participate in court as were enjoyed by white citizens. Until 1968, courts also assumed that the issue of badges and incidents hinged on Section 1. Contrary to the received wisdom, Jones v. Alfred H. Mayer Co., decided in that year, announced for the first time that the identification of badges and incidents might be a task for Congress under the Section 2 power to enact “appropriate” enforcement legislation. Although the Court has maintained for nearly half a century that the question is “open,” the practical reality is that lower courts honor the narrow reading of Section 1 initially proposed by the unsuccessful Democratic opponents of both the Amendment and the 1866 Civil Rights Act, and later introduced to jurisprudence in the now-discredited Jim Crow decisions of Plessy v. Ferguson and Hodges v. United States. It is not too late to resolve the official uncertainty by embracing the Republican reading. This choice would restart the process, commenced by the Thirty-Ninth Congress but derailed in Plessy and Hodges, of determining what it means to ensure that neither slavery nor involuntary servitude “shall exist.” The Article concludes by exploring some of the basic interpretive issues and their implications for the constitutional law of racially disparate impact, race-based affirmative action, gender equality, and reproductive freedom.

New Article: A Place to Call Home: Tenant Blacklisting and the Denial of Opportunity

New Article: Paula A. Franzese, A Place to Call Home: Tenant Blacklisting and the Denial of Opportunity, 45 Fordham Urb. L.J. 661 (2018). Abstract below:

Tenants named in an eviction proceeding, no matter the outcome or the context, find themselves placed on registries collected and maintained by private “tenant reporting services.” Tenants whose names appear on these so-called “blacklists” are often denied future renting opportunities, stigmatized and excluded from the promise of fair housing. At a time of continued rollbacks and dramatic cuts to housing voucher programs and affordable housing options, a candidate named on a dreaded blacklist can find herself on a quick path to homelessness. That tenant blacklisting has been allowed to persist is emblematic of how powerless many tenants – and particularly public housing tenants – have become. This paper endeavors to give voice to some of the stories of tenants affected by the practice. It then sets forth an agenda for reform.

New Article: Punishing Poverty: California’s Unconstitutional Bail System

New Article: Christine S. Scott-Hayward & Sarah Ottone, Punishing Poverty: California’s Unconstitutional Bail System, 70 Stan. L. Rev. Online 167 (April 2018).

New Article: Privatizing Criminal Procedure

New Article: J.D. King, Privatizing Criminal Procedure, Georgetown Law Journal, Vol. 107, 2019, Forthcoming. Abstract below:

As the staggering costs of the criminal justice system continue to rise, many states have begun to look for non traditional ways to pay for criminal prosecutions and to shift these costs onto criminal defendants. Many states now impose a surcharge on defendants who exercise their constitutional rights to counsel, confrontation, and trial by jury. As these “user fees” proliferate, they have the potential to fundamentally change the nature of criminal prosecutions and the way we think of constitutional rights. The shift from government funding of criminal litigation to user funding constitutes a privatization of criminal procedure. This intrusion of market ideology into the world of fundamental constitutional rights has at least two broad problems: it exacerbates structural unfairness in a system that already disadvantages poor people, and it degrades how we conceive of those rights. This Article proposes solutions to ameliorate the harshest effects of these rights-based user fees but also argues for the importance of resisting the trend of the privatization of constitutional trial rights.

New Article: A Human Rights Code of Conduct: Ambitious Moral Aspiration For a Public Interest Law Office or Law Clinic

New Article: Lauren E. Bartlett, A Human Rights Code of Conduct: Ambitious Moral Aspiration For a Public Interest Law Office or Law Clinic, 91 St. John’s L. Rev. 559 (2017).