Category Archives: Homeless

New Article: “Comparative Property Law and the Pandemic: Vulnerability Theory and Resilient Property in an Age of Crises”

New Article: Lorna Fox O’Mahony, Mar L. Roark, Comparative Property Law and the Pandemic: Vulnerability Theory and Resilient Property in an Age of Crises, 82 La. L. Rev. 790 (2022). Abstract below:

Political and property crises present vital new questions for property theorists, and analyses of state responses to these crises cast new light on how property systems, and property law, adapt and evolve to meet complex challenges—while remaining institutionally resilient themselves. The novel coronavirus pandemic was an extreme, exceptional, unexpected, significant “shock” event, with financial, economic, social, cultural, and political impacts on a scale not experienced since at least the 1930s. The pandemic posed an unexpected, unpredictable, and urgent threat to human life that demanded immediate action, delivered under intense public scrutiny. The challenges were “wicked”: governments were compelled to act, in conditions of uncertainty and in response to a complex set of high-stakes problems, with imperfect information about the impacts of policy choices or the likely endpoint of the pandemic. 1 In acting swiftly to protect their populations, governments adopted radical strategies to shore up housing and home, to tackle street homelessness, and to protect tenants and mortgagors from the threat of eviction. Perhaps most notably, pandemic policies to protect housing intervened with private property law in ways that were unimaginable before spring 2020. In this Article, we examine the range of ways that governments adapted their approaches to property, housing, and homelessness during the pandemic. We analyze the adaptation of property rules in the pandemic using the new theoretical and methodological framework of “Resilient Property.” We consider the implications of the actions to adjust the laws and policies that govern property, housing, eviction, and homelessness, and reflect on the legacies of these actions for property theories and property law.

New Article: The Negative Right to Shelter

New Article: Ben A. McJunkin, The Negative Right to Shelter, forthcoming Calif. L. Rev. Abstract below:

For over forty years, scholars and advocates have responded to the criminalization of homelessness by calling for a “right to shelter.” As traditionally conceived, the right to shelter is a positive right—an enforceable entitlement to have the government provide or fund a temporary shelter bed for every homeless individual. However, traditional right-to-shelter efforts have failed. Despite the continuing prominence of right-to-shelter rhetoric, only four U.S. jurisdictions have embraced such a right. Moreover, the shelter systems in these states are troublingly inadequate, mired in administrative bureaucracy and cabined by strict eligibility limits. The right-to-shelter movement has even proven pernicious. Centering a positive right to shelter in the discourse surrounding homelessness has rendered the weaknesses in shelter offerings invisible, and courts increasingly reify temporary emergency shelters as a justification for criminalizing unsheltered homelessness.

This Article proposes an alternative conception of the right to shelter as a negative right. It outlines a framework for recognizing a fundamental, constitutional right to shelter oneself without government interference. Self-sheltering activities, in this sense, would include everything from the simple use of blankets or bedding to the erection of temporary encampments in public spaces. It situates this new right within the traditions of constitutional due process jurisprudence premised on respecting human dignity. As the Article details, human dignity in the constitutional sense is understood both as ensuring a specific capacity for self-determination, particularly with respect to bodily autonomy and interpersonal relationships, and protecting against group-based subordination of disfavored classes. These interests are inescapably implicated by the decision to self-shelter while homeless. Recognizing a negative right to shelter is therefore an essential step to protect the dignity of homeless individuals while dismantling the plethora of criminal laws that currently plague them.

New Article: A Prosecutorial Solution to the Criminalization of Homelessness

New Article: Andrew I. Lief, A Prosecutorial Solution to the Criminalization of Homelessness, 169 U. Pa. L. Rev. 1971 (2021).

New Article: Addressing the Eviction Crisis and Housing Instability Through Mediation

New Article: Karen Tokarz, Samuel Hoff Stragand, Michael Geigerman, & Wolf Smith, Addressing the Eviction Crisis and Housing Instability Through Mediation, 63 Wash. U. J. L. & Pol’y 243 (2020). Abstract below:

The United States faces a staggering eviction crisis. St. Louis City and St. Louis County illustrate the numbers found in major cities throughout the country. The high number of eviction lawsuits filed in these areas present opportunities to address evictions outside of litigation, specifically through housing court mediation. The Mediation Project provides free mediation services for the pro se housing dockets in both St. Louis City and St. Louis County Circuit Courts. Using the Mediation Project as an example, this Article proposes that mediation is one of the cheapest, easiest, and most effective ways to intervene to decrease housing evictions and promote housing stability.

New Report: Addressing Homelessness Through Hotel Conversions

Hotel-Acquisitions-Final-December-2021-coverNew Report: Carolina Reid,Shazia Manji & Hayden Rosenberg, Addressing Homelessness Through Hotel Conversions (Terner Center Report, Dec. 2021).

New Article: Challenging Domestic Injustice Through International Human Rights Advocacy: Addressing Homelessness in The United States

New Article: Eric Tars et al., Challenging Domestic Injustice Through International Human Rights Advocacy: Addressing Homelessness in The United States, 42 Cardozo L. Rev. 913 (2021). Abstract Below:

This Article explores how international human rights norms and procedures can serve as a powerful tool in addressing injustice in the United States context, using work addressing the criminalization of homelessness as a case study. Moreover, it explores how civil and political rights and negative obligations by the government can serve as an entry point for asserting a more robust understanding of rights that includes social and economic rights and affirmative obligations by government. The Article documents and analyzes original work led by the National Homelessness Law Center and other pioneering advocates, reflecting on lessons learned and next steps to make the human right to housing a legal obligation in our country.

New Article: Creating “Criminals”: Homelessness in the Sunshine State

New Article: Karin Drucker, Creating “Criminals”: Homelessness in the Sunshine State, Harv. Civil Rights-Civil Liberties L. Rev. (2020). Abstract Below:

Criminalizing homelessness and poverty is an American tradition. Socalled “vagrancy laws,” which prohibited “vagrants,” “wander[ers,]” and “habitual loafers” from being in public, found their first big defeat in Papachristouv. City of Jacksonville. In that case, the Supreme Court struck down such laws as unconstitutionally vague. To this day, unhoused plaintiffs continue to challenge vagrancy-type laws on vagueness grounds. However, this case study from Sarasota, Florida—which draws on litigation history, legislative revisions, and enforcement data—reveals that vagueness doctrine has had perverse consequences for defendants charged under modern-day vagrancy laws. This Note begins with vagueness doctrine’s stated aims—reducing “arbitrary” police enforcement, reducing racial discrimination, and improving notice to defendants. Examining one jurisdiction in Florida, this Note shows that successful vagueness challenges have improved notice to possible defendants and constrained police ability to “arbitrarily” enforce the city’s ordinance. However, vagueness challenges have also led to unexpected results related to police power, racial discrimination, and the severe punishment that defendants receive. Vagueness challenges prompted Sarasota’s local leaders to rewrite its statute with increasingly detailed language. This “tailoring” of the law helped to give police enormous power to decide who will be found guilty, fined, and incarcerated. This Note also argues that courts’ use of vagueness doctrine to reduce racial discrimination is misplaced. Finally, the data show that the law was enforced almost entirely against unhoused people, whom it punished via substantial incarceration and fines. This Note reveals the aspirations of a doctrine and theorizes about its actual effects on both statutes and enforcement. It concludes that, in this jurisdiction, vagueness doctrine appears to accomplish some of its stated goals, but it also empowers police within a system that makes “criminals” of the region’s most vulnerable residents.

New Article: Serial Eviction Filing: Civil Courts, Property Management, and the Threat of Displacement

New Article: Lillian Leung et al., Serial Eviction Filing: Civil Courts, Property Management, and the Threat of Displacement, 100 Social Forces 316 (2021). Abstract Below:

Drawing on over 8 million eviction court records from twenty-eight states, this study shows the role that eviction filings play in extracting monetary sanctions from tenants. In so doing, it documents an unanticipated feature of housing insecurity: serial eviction filings. Serial eviction filings occur when a property manager files to evict the same household repeatedly from the same address. Almost half of all eviction filings in our sample are associated with serial filings. Combining multivariate analysis with in-depth interviews conducted with thirty-three property managers and ten attorneys and court officials, we document the dynamics and consequences of serial eviction filings. When legal environments expedite the eviction process, property managers use the housing court to collect rent and late fees, passing costs on to tenants. Serial eviction filings exacerbate tenants’ housing cost burden and compromise their ability to find future housing. Using tract-level rent and filing fees, we estimate that each eviction filing translates into approximately $180 in fines and fees for the typical renter household, raising their monthly housing cost by 20%. The study challenges existing views of eviction as a discrete event concentrated among poor renters. Rather, it may be better conceived of as a routinized, drawn-out process affecting a broader segment of the rental market and entailing consequences beyond displacement.

New Article: Catch-22? Applicability of the Takings Clause to Removal of Homeless Persons’ Property from Public Areas

New Article: Tim Donaldson, Catch-22? Applicability of the Takings Clause to Removal of Homeless Persons’ Property from Public Areas, 55 Gonzaga L. Rev. 439 (2020).

News Coverage: Mobile Home Owners Fear Evictions as Pandemic Protections End

News Coverage: Matthew Goldstein, Mobile Home Owners Fear Evictions as Pandemic Protections End, N.Y. Times, June 22, 2021.