Category Archives: Discrimination

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.

New Article: “Civil Rights Catch 22s”

New Article: Jonathan Feingold, Civil Rights Catch 22s, 43 Cardozo L. Rev. 2 (2022). Abstract below:

Civil rights advocates have long viewed litigation as a vital path to social change. In many ways, it is. But in key respects that remain under-explored in legal scholarship, even successful litigation can hinder remedial projects. This perverse effect stems from civil rights doctrines that incentivize litigants (or their attorneys) to foreground community plight—such as academic underachievement or over-incarceration. Rational plaintiffs, responding in kind, deploy legal narratives that tend to track racial biases and regressive theories of inequality. When they do, even successful lawsuits can harden the structural and behavioral forces that produce and perpetuate racial inequality.

I refer to this dynamic as a “civil rights catch 22.” To concretize this phenomenon and its effects, I explore recent right-to-education lawsuits featuring low-income students of color. The cases reveal how doctrine can drive plaintiffs to portray themselves and their communities through a lens of poverty and illiteracy. Even if strategic from a litigation perspective, the proliferation of such narratives can entrench disparities across educational domains.

For decades, critical race theorists have revealed how the law “constructs” race. This article builds on that canon but shifts the lens to litigation itself. For those committed to meaningful racial reform, better understanding this dynamic is essential—particularly given the emancipatory role that civil rights litigation is understood to fulfill.

New Article: “Homeownership While Black: A Pathway to Plunder, Compliments of Uncle Sam”

New Article: Richard Winchester, Homeownership While Black: A Pathway to Plunder, Compliments of Uncle Sam. Abstract below:

Historically, the federal government played no role in regulating housing finance. That changed when New Deal legislation created the Federal Housing Administration to provide insurance on home mortgages. FHA insurance was expected to eliminate the risk that banks ordinarily faced when lending money for a home purchase, thereby encouraging them to make loans to finance the construction of new homes. This federal intervention both lowered the cost of mortgage credit and stimulated housing construction. However, because the FHA did not insure mortgages on homes located in areas where blacks lived, banks stopped offering mortgage loans to blacks, and builders refused to sell homes to black buyers. Facing an undersupply of housing and mortgage credit, black families were exploited by real estate predators who got rich at their expense in a shadow market that emerged to meet their needs. These predators bought homes from whites at a discount and resold them to blacks at a premium under a rent-to-own arrangement called an installment contract. Aside from featuring much higher monthly payments than a mortgage, such a contract required the buyer to forfeit the home and their entire monetary investment if they defaulted. The FHA’s anti-black policies created the conditions for this shadow market to thrive for three decades before Congress outlawed the agency’s discriminatory policies. In the interim, homeownership proved to be a wealth eroding proposition for vast numbers of blacks

New Article: “Expanding Civil Rights to Combat Digital Discrimination on the Basis of Poverty”

New Article: Michele E. Gilman, Expanding Civil Rights to Combat Digital Discrimination on the Basis of Poverty, 75 SMU L. Rev. 1 (2022, Forthcoming). Abstract below:

We live in a datafied society in which a vast network of public and private entities collect and combine our personal data. Algorithms sort these data troves and generate digital profiles that serve as gatekeepers to life’s necessities such as jobs, housing, health care, and education. Several scholars and civil rights organizations have highlighted the potential for algorithmic bias in these artificial intelligence systems, and examples of digital discrimination on the basis of race, gender, and other protected characteristics are ubiquitous. As a result, there are numerous legislative proposals and emerging litigation strategies for countering algorithmic bias. However, these civil rights initiatives leave out one group of Americans who are particularly vulnerable to digital discrimination – people experiencing poverty. Low-income people are suffering in the datafied society, while businesses amass large profits at their expense and governments digitally deny them social safety net benefits. This Article explores the harms poor people suffer from algorithms used in tenant screening, credit scoring, higher education admissions, and online advertising platforms. In light of these harms, this Article argues that existing and new laws prohibiting digital discrimination should include low socio-economic status as a protected characteristic. This legal reform would limit the digital harms low-income people suffer, enhance economic opportunity for millions of Americans, advance the fight for racial justice, and generate the data needed to improve anti-poverty policymaking.

New Article: Criminalizing Property Rights: How Crime-Free Housing Ordinances Violate the Fifth Amendment

New Article: Laura Flint, Criminalizing Property Rights: How Crime-Free Housing Ordinances Violate the Fifth Amendment, 70 Emory L. J. 1369 (2021). Abstract Below:

Crime-free housing ordinances allow municipalities to force private landlords to evict tenants who have committed crimes or allowed a guest who has committed a crime into their home, regardless of the tenant’s knowledge. These ordinances have proliferated throughout the country since the turn of the century and pose interesting questions about landlord and tenant rights under the Constitution. This Comment explores a new strategy for landlords and tenants attempting to confront these ordinances—challenging them under the Fifth Amendment. The Supreme Court has recognized two types of takings that are due just compensation under the Fifth Amendment: possessory and regulatory takings. This Comment argues that compulsory evictions, as mandated by crime-free housing ordinances, qualify as possessory and regulatory takings for tenants, but not for landlords. While the landlord’s property rights have only been circumscribed because he or she has to find a new tenant and has lost the revenue from the original tenant, the tenant loses all of his or her property rights in the tenant’s leasehold estate after eviction under a crime-free housing ordinance. Additionally, government actors may engage in physical invasions to effectuate the eviction and “total taking” of the property. The taking is for the public purpose of reducing and preventing crimes, and the tenant is owed just compensation under the Takings Clause. Compulsory evictions under crime-free housing ordinances are unconstitutional without just compensation under the Fifth Amendment.

New Article: Race and Medical Double-Binds

New Article: Craig Konnoth, Race and Medical Double-Binds, Colum. L. Rev. Forum (2021). Abstract Below:

Race and medicine scholarship is beset by a conundrum. On one hand, some racial justice scholars and advocates frame the harms that racial minorities experience through a medical lens. Poverty and home­lessness are social determinants of health that medical frameworks should account for. Racism itself is a public health threat. On the other hand, other scholars treat medicine with skepticism. Medical frameworks, they argue, will reify racially charged narratives of biological inferiority. This Piece affirmatively claims that the debate is unresolvable. Rather, the re­lationship between race and medicine should be conceptualized as a double-bind, a concept that creates space for mutually contradictory claims. Indeed, such contradictions are a feature of a double-bind such that the harm a minority faces is intensified. This understanding also breaks ground for antidiscrimination scholarship more generally, which histori­cally has assumed that prominent double-bind frameworks do not apply to racial minorities. Accu­rately mapping all sides of the conceptual space that race and medi­cine advocacy scholarship occupies creates space for future work to think of ways in which to resolve the double-bind.

New Article: Mass Institutionalization and Civil Death

New Article: Rabia Belt, Mass Institutionalization and Civil Death, 96 N.Y.U. L. Rev. 857 (2021). Abstract Below:

Most scholars who study felon disenfranchisement trace its roots back to Reconstruction. Southern states drew up laws to disenfranchise people convicted of felonies as an ostensibly race-neutral way to diminish the political power of newly freed Black Americans. Viewed against this historical backdrop, the onset of mass incarceration in the current era expands the impact of a practice intended to be both racist and punitive from the start.

This account is true, but it is incomplete. Non-criminal mass institutionalization has also played—and continues to play—a role in systematic disenfranchisement. Marshaling a wealth of archival and historical evidence, from newspapers, legislative debates, congressional hearings, and court cases, I reveal that institutional disenfranchisement is not just about mass incarceration—a singular phenomenon sparked by the Civil War that happens solely within the carceral state and targeted only freed Black people. Institutional disenfranchisement began much earlier, included more spaces than the prison, and initially targeted white men. Indeed, the more familiar prison disenfranchisement had a shadowy twin within the welfare state. Civil death includes more ghosts than previously imagined.

New Article: Dismantling the Master’s House: Reparations on the American Plantation

New Article: Jordan Brewington, Dismantling the Master’s House: Reparations on the American Plantation, 1952 Yale L. J. 2273 (2021). Abstract Below:

In southeastern Louisiana, many plantations still stand along River Road, a stretch of the route lining the Mississippi River that connects the former slave ports and present-day cities of New Orleans and Baton Rouge. Black communities along River Road have long experienced these plantations as sites of racialized harm. This Note constructs a normative framework for local reparations that centers these descendant communities and explores the use of eminent domain to break up the landholdings of current plantation owners to make those lands available to descendants. Beyond the descendants in Louisiana’s river parishes, this Note is aimed at inspiring a discussion about reparations in other local contexts—across institutions, cities, and states—that are also sites of historical and continued subjugation.

New Article: Populations, Pandemics, and Politics

New Article: Martha Albertson Fineman, Populations, Pandemics, and Politics, forthcoming Int’l J. Discrimination L. (2021)

Discussions about social justice and governmental responsibility are often framed in abstract terms, referencing aspirational concepts such as “equality” or “autonomy.” While this is particularly evident in law, grand narratives also shape policies related to public health and welfare, as well as many other areas that overlap with law. Of specific interest in the context of this collection is the idealized rendition of the body that permeates these grand narratives. In law, as well as in political theory, philosophy, economics, and ethics, the body is abstracted to the point that its material realities and their implications for social policy can be conveniently ignored.

The pandemic has disrupted, even discredited, dominant political narratives, which minimized or ridiculed the need for safety nets and other social welfare policies. COVID-19 has forced a consideration of the inescapably and uncomfortably concrete into public consciousness, opening up the possibility for a revisioning of our thinking about both individual and societal requirements and responsibilities. Fortunately, vulnerability theory presents a constructive and needed alternative to the traditional paradigm for thinking about the nature of the state and its social institutions and relationships in this post-pandemic reality.

New Article: When Falling Behind on Rent Leads to Jail Time

New Article: Matt Williams, When Falling Behind on Rent Leads to Jail Time, ProPublica (Oct. 26, 2020).

It was bad enough when Jazmon Allen lost her waitressing job in March at a Hot Springs, Arkansas, barbecue restaurant during statewide closures meant to curb the pandemic. Then after she fell behind on her rent came the shock that only happens to tenants in Arkansas: In May, her landlord filed a criminal complaint for failing to pay and failing to vacate the property.