Category Archives: Articles

New Article: “Fines, Fees, and Forfeitures”

Beth A. Colgan, Fines, Fees, and Forfeitures, SSRN, August 15, 2107.  Abstract below:

The use of fines, fees, and forfeitures has expanded significantly in recent years as lawmakers have sought to fund criminal justice systems without raising taxes. Concerns are growing, however, that inadequately designed systems for the use of such economic sanctions have problematic policy outcomes, such as the distortion of criminal justice priorities, exacerbation of financial vulnerability of people living at or near poverty, increased crime, jail overcrowding, and even decreased revenue. In addition, the imposition and collections of fines, fees, and forfeitures in many jurisdictions are arguably unconstitutional, and therefore create the risk of often costly litigation. This chapter provides an overview of those policy and constitutional problems and provides several concrete solutions for reforming the use of fines, fees, and forfeitures.

 

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New Article: “Law School Clinic and Community Legal Services Providers Collaborate to Advance the Remedy of Implied Warranty of Habitability in Missouri”

Karen Tokarz and Zachary Schmook, Law School Clinic and Community Legal Services Providers Collaborate to Advance the Remedy of Implied Warranty of Habitability in Missouri, 53 Wash. U. J. L. & Pol’y 169 (2017). Abstract Below:

This Essay discusses the economic and public policy concerns regarding the implied warrant of habitability law and the ability of tenants in the state of Missouri can raise effective defenses to rent and possession/eviction actions. The authors, Tokarz and Schmook, director and supervising attorney, respectively, of Washington University’s Civil Rights and Community Justice Clinic, evaluate these issues in light of Kohner Props., Inc. v. Johnson, which currently awaits a decision from the Missouri Supreme Court. Tokarz and Schmook use statistical analysis to identify recent trends in favorable results for landlords in disputes with tenants and stress the effects the Missouri Supreme Court’s decision in Kohner could have in future cases involving tenant rights.

Article: “The Desert of the Unreal: Inequality in Virtual Augmented Reality”

Mary A. Franks, The Desert of the Unreal: Inequality in Virtual Augmented Reality, SSRN Aug. 8th, 2017. Abstract below:

 

The world we all live in is structured by inequality: of gender, race, class, sexual orientation, disability, and more. The promoters of virtual and augmented reality often claim that they offer a more perfect world, one that offers more stimulation, more connection, more freedom, more equality. For such technologies to be considered truly innovative, they should in some sense move us beyond our current limitations and prejudices. But when existing inequalities are unacknowledged and unaddressed in the “real” world, they tend to be replicated and augmented in virtual realities. We make new worlds based on who we are and what we do in old ones. All of our worlds, virtual and physical, are the product of human choice and human creation. The developers of virtual and augmented reality make choices about which aspects of our lived history they want to replicate, enhance, or change. The design – and design flaws – of new virtual and augmented reality technologies reveal much about the values of their developers and their consumers, providing a unique opportunity to evaluate just how innovative new technologies are with regard to social inequality.

 

News Coverage: “‘We don’t have anything’: landlords demand rent on flooded Houston homes”

Oliver Milman,’We don’t have anything’: landlords demand rent on flooded Houston homes, The Guardian, September 4, 2017. [“Displaced families say they are struggling to pay rent on damaged dwellings, as an acute housing crisis grips south-east Texas after Hurricane Harvey”]

New Article: “Civil Rights Remedies in Higher Education: Jurisprudential Limitations and Lost Moments in Time”

New Article: Lia Epperson, Civil Rights Remedies in Higher Education: Jurisprudential Limitations and Lost Moments in Time,  23 Wash. & Lee J. Civ. Rts. & Soc. Just. 343 (2017).

New Article: “Cities, Inclusion and Exactions”

Audrey G. McFarlane, Randall K. Johnson, Cities, Inclusion and Exactions, 102 Iowa L. Rev. 2145 (2017). Abstract Below:

 

Cities across the country are adopting mandatory inclusionary zoning. Yet, consensus about the appropriate constitutional standard to measure the propriety of mandatory inclusionary zoning has not been fully reached. Under one doctrinal lens, inclusionary zoning is a valid land use regulation adopted to ensure a proper balance of housing within the jurisdiction. Under another doctrinal lens, challengers seek to characterize inclusionary zoning as an exaction, a discretionary condition subject to a heightened standard of review addressing the specific negative impact caused by an individual project on the supply of affordable housing in a jurisdiction. Drawing from the experience of Baltimore, Maryland’s inclusionary zoning ordinance, this Article considers the impact that the uncertainty in the law may have had on the type of inclusionary zoning ordinance adopted by the city. This Article argues that the conversation about inclusionary zoning,land use regulation, and exactions has been formulated in the context of imagery about development that leaves places like Baltimore out. The imagery in these narratives is of an individual landowner powerless in the face of government overreach. The reality is different in those places where land developers are not powerless and instead are often politically influential repeat players. Thus, the real problem presented may be not how to craft doctrine to prevent cities from asking too much of developers, but instead to craft doctrine that ensures cities do not give away too much.

New Article: “Is Efficiency Biased?”

New Article: Zachary D. Liscow, Is Efficiency Biased?, SSRN, Aug. 2017. Abstract below:

The most common underpinning of economic analysis of the law has long been the goal of efficiency (i.e., choosing policies that maximize people’s willingness to pay), as reflected in economic analysis of administrative rulemaking, judicial rules, and proposed legislation. Current thinking is divided on the question whether efficient policies are biased against the poor, which is remarkable given the question’s fundamental nature. Some say yes; others, no.

I show that both views are supportable and that the correct answer depends upon the political and economic context and upon the definition of neutrality. Across policies, efficiency-oriented analysis places a strong thumb on the scale in favor of distributing more legal entitlements to the rich than to the poor. Basing analysis on willingness to pay tilts policies toward benefitting the rich over the poor, since the rich tend to be willing to pay more due to their greater resources. But I also categorize different types of polices and show where vigilance against anti-poor bias is warranted and where it is not, with potentially far-reaching implications for the policies that judges, policymakers, and voters should support.

Symposium Issue on “Has the Mortgage Pendulum Swung Too Far? Reviving Access to Mortgage Credit”

Boston College Journal of Law and Social Justice has published a symposium issue on “Has the Mortgage Pendulum Swung Too Far? Reviving Access to Mortgage Credit” and it includes the following articles:

Foreword

Quantifying the Tightness of Mortgage Credit and Assessing Policy Actions

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Waiting for Homeownership: Assessing the Future of Homeownership, 2015–2035

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Discussion of Papers on Cyclicality in Mortgage Markets

Mortgage Supply Chain Failure and Innovation

Expanding the Mortgage Credit Box: Lessons from the Community Advantage Program

ONE Mortgage: A Model of Success for Low-Income Homeownership

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Why Cyclicality Matters to Access to Mortgage Credit

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The Housing Market Cannot Fully Recover Without a Robust Rental Policy

New Article: “Structured Settlement Sales and Lead-Poisoned Sellers: Just Say No”

New Article: Karen Czapanskiy, Structured Settlement Sales and Lead-Poisoned Sellers: Just Say No, SSRN, Aug. 2017. Abstract below:

After Freddie Gray’s death in Baltimore in 2015, his life became the subject of intense interest. Like both of his sisters and many of his neighbors in West Baltimore, Gray had experienced lead poisoning in a rental house when he was young. He suffered permanent neurological injuries that deprived him of the capacity for self-support as an adult. Gray’s mother sued the landlord on behalf of him and his sisters. The suit was settled with the funding of a structured settlement which provided each child with a regular stipend that would begin when they reached majority and provide a substitute for regular earnings for a number of years. In the year before Gray’s death, however, he and his sisters sold portions of their rights to the income stream for a lump sum payment that seemed to many observers to be unjustifiably low. A reporter for the Washington Post started to dig into the Gray sales and the sales of other young people who had gotten structured settlements because of lead poisoning and sold them in exchange for lump sum payments. What he reported shocked his readers and embarrassed the court system.

Under federal and state law, a state court is supposed to review any proposed sales of benefits under a structured settlement. In the cases uncovered by the Washington Post, however, judicial “supervision” had occurred in a courthouse forty miles from Baltimore, where most of the sellers lived. Most cases were assigned to the same judge, who held hearings on the petitions lasting just a few minutes before granting them. Sellers rarely appeared. In the months following the Washington Post articles, the standards and procedures governing petitions for the sale of structured settlement benefits were strengthened through the enactment of procedural rules and amendments to the state’s Structured Settlement Protection Act. Maryland’s law is now one of the most robust in the nation.

The question for this article is whether young adults like Freddie Gray should be allowed to sell an income stream provided under a structured settlement when lead poisoning has left them without the capacity to support themselves. I argue that the answer should be no. Commentators and lawmakers agree that some kind of protection should be provided before such sales should be allowed. After considering the protective alternatives that have been used or proposed, I conclude that none of them is an adequate substitute for an outright ban.

New Article: “Embracing the Excluded: Using Mandatory Inclusionary Zoning to Affirmatively Further Fair Housing in St. Louis”

New Article: Victor J. Pinedo, Note, Embracing the Excluded: Using Mandatory Inclusionary Zoning to Affirmatively Further Fair Housing in St. Louis, 26 Cornell J. L. & Pub. Pol’y 419 (2017).