New Article: Martha F. Davis & Natasha Ryan, Inconvenient Human Rights: Water and Sanitation in Sweden’s Informal Roma Settlements, Health and Human Rights Journal, Vol. 19, No. 2, pp. 61-72 (2017). Abstract below:
Following an increase in Roma migration under the European “freedom of movement” laws, Swedish municipalities initiated more than 80 evictions of informal Roma settlements on the grounds of poor sanitation between 2013 and 2016. These evictions echo policies from earlier in the 20th century, when Roma living in Sweden were often marginalized through the denial of access to water and sanitation facilities. The recent Swedish evictions also follow similar government actions across Europe, where Roma settlements are controlled through the denial of access to water and sanitation. However, access to water and sanitation — central aspects of human health — are universal human rights that must be available to all people present in a jurisdiction, regardless of their legal status. The evictions described here violated Sweden’s obligations under both European and international human rights law. More positive government responses are required, such as providing shelters or camping sites, setting up temporary facilities, and directly engaging with communities to address water and sanitation issues. The authors conclude by providing guidance on how states and municipalities can meet their human rights obligations with respect to water and sanitation for vulnerable Roma individuals and informal settlements in their communities.
David Singh Grewal and Jedediah Purdy, Law & Neoliberalism, Law and Political Economy, November 6, 2017. [What does Neoliberalism really mean?]
Allison Arief, Designing a More Inclusive City, New York Times, October, 20, 2017. [“City Center Plaza, like so many urban plazas everywhere, gives the appearance of public space while simultaneously restricting access to it.”]
Article: Bethany Y. Li, Now is the Time: Challenging Resegregation and Displacement in the Age of Hypergentrification, 85 Fordham L. Rev. 1189 (2016).
Gentrification is reaching a tipping point of resegregating urban space in global cities like New York and San Francisco, often spurred by seemingly neutral government policies. The displacement resulting from gentrification forces low-income people from their homes into areas of concentrated poverty. Low-income communities consequently lose space, place, social capital, and cultural wealth that residents and small businesses have spent decades building up. This Article argues that communities at this tipping point must integrate litigation strategies directly aimed at stemming the adverse impacts of gentrification. Community organizing is integral to antidisplacement efforts, but litigation—and its injunctive powers—should play a larger role in protecting residents in hypergentrified neighborhoods. Using a rezoning that spurred gentrification in New York City’s Chinatown and Lower East Side as a case study, this Article considers how the Fair Housing Act, state constitutions, and a new vision of property law could counter the negative and often racially discriminatory effects of gentrification on low-income communities.
Sandra G. Mayson, Dangerous Defendants, University of Pennsylvania Law School, Public Law Research Paper No. 16-30 (2016).
Bail reform is underway — but it is proceeding on shaky ground. The reform model, which deploys actuarial risk assessment to identify “high-risk” defendants, assumes that the state has the prerogative to detain or control dangerous defendants. This assumption is not new. But it is anomalous. In general, we do not permit the state to restrain sane, responsible adults solely to stop them from committing hypothetical future crimes, even those who are high-risk. The reform movement’s focus on danger thus crystallizes a fundamental question about pretrial policy: What justifies the state in restraining defendants for dangerousness before trial if we would prohibit the same restraint for equally dangerous members of the public? Although there is an extensive literature on preventive detention, neither the Supreme Court nor prior scholarship has focused on this comparative question. This Article endeavors to answer it. It makes the first effort to articulate and evaluate potential justifications for subjecting defendants to restraint that we would forbid for non-defendants who pose an equal risk. The Article explores doctrinal, deontological and instrumentalist justifications, but ultimately rejects them. It contends that pretrial restraint for dangerousness can only be justified at the risk threshold where we would authorize equivalent restraint of a member of the population at large. Communities, policymakers and courts should therefore determine what they believe this threshold to be, then ensure that pretrial risk assessment and management are tailored to it.
Article: Daniel Shaviro, The Mapmaker’s Dilemma in Evaluating High-End Inequality, New York University Public Law and Legal Theory Working Papers (2016).
The last thirty years have witnessed rising income and wealth concentration among the top 0.1 percent of the population, leading to intense political debate regarding how, if at all, policymakers should respond. Often, this debate emphasizes the tools of public economics, and in particular optimal income taxation. However, while these tools can help us in evaluating the issues raised by high-end inequality, their extreme reductionism – which, in other settings, often offers significant analytic payoffs – here proves to have serious drawbacks. This paper addresses what we do and don’t learn from the optimal income tax literature regarding high-end inequality, and what other inputs might be needed to help one evaluate the relevant issues.
Article: Katharine G. Young, Rights and Queues: On Distributive Contests in the Modern State, 55 Colum. J. Transnt’l L. 65 (2016).
Two legal concepts have become fundamental to questions of resource allocation in the modern state: rights and queues. As rights are increasingly recognized in areas such as housing, health care, or immigration law, so too are queues used to administer access to the goods, services, or opportunities that realize such rights, especially in conditions of scarcity. This Article is the first to analyze the concept of queues (or temporal waiting lines or lists) and their ambivalent, interdependent relation with rights. After showing the conceptual tension between rights and queues, the Article argues that queues and “queue talk” present a unique challenge to rights and “rights talk.” In exploring the currency of rights and queues in both political and legal terms, the Article illustrates how participants discuss and contest the right to housing in South Africa, the right to health care in Canada, and the right to asylum in Australia. It argues that, despite its appearance in very different ideological and institutional settings, the political discourse of “queues” and especially “queue jumping” commonly invokes misleading distinctions between corruption and order, markets and bureaucracies, and governments and courts. Moreover, queue talk obscures the first-order questions on which resource allocations in housing, health care, or immigration contexts must rely. By bringing much-needed complexity to the concept of “queues,” the Article explores ways in which general principles of allocative fairness may be both open to contestation and yet supportive of basic claims of rights.
Posted in Articles, Development (and Law), Health, housing, Immigration, Legal Aid, Politics, Socio-Economic Rights, Uncategorized, Urban Issues, Welfare
Article: Michael Haber, CED after #OWS: From Community Economic Development to Anti-Authoritarian Community Counter-Institutions, 43 Fordham Urb. L.J. 295 (2016).
Community Economic Development (“CED”) and community-based social justice non-profits more generally have been criticized by social justice lawyers, legal scholars, practitioners, and activists, who charge that these efforts too often overlook the structural drivers of inequality, strip social justice movements of their confrontational, activist politics, and fail to give community members meaningful control over their programs. Over the past decades, anti-authoritarian activists — perhaps most famously known through Occupy Wall Street — have developed new frameworks for social change movements based on philosophical commitments to horizontalism, autonomism, and prefigurative politics. Many anti-authoritarian activists have turned their attention to creating community-based social change groups. These groups often engage in both activism and service provision, but do so outside of traditional frameworks for community-based organizations. These “community counter-institutions” hold the potential to address some of the critiques of CED models, and may develop to become more confrontational, democratic, and inclusive community-based social change organizations that still provide essential community services as part of their work. Transactional social change lawyers can play an important supportive role in helping anti-authoritarian activists to develop these new models.
Video: Gunner’s Journey, by Jeremy Meek with Dine Policy Institute.
Opinion: Martha Minow and Robert Post, Standing up for ‘so-called’ law, Boston Globe (Feb. 10, 2017).