New Article: Andrea J. Boyack, Sustainable Affordable Housing, 50 Ariz. St. L.J. 455 (2018). Abstract below:
Sustainable real estate development is an essential component of intergenerational justice, in part because the real estate sector creates more than 20% of the world’s carbon emissions. Governments, recognizing that environmentally sustainable real estate development involves higher upfront costs, have encouraged green building by offering publicly funded incentives such as tax credits, grants, reduced approval fees, and streamlined permitting. Using market measurement innovations such as the Dow Jones Sustainability Index, investors can promote environmentally sustainable development by prioritizing real estate developers that embrace environmentally conscious practices. Even though real estate in general still underperforms in many other sectors in terms of its environmental sustainability, trends are encouraging. Commercial real estate has embraced green building as a concept, and the World Economic Forum predicts that approximately 55% of all new commercial properties in 2020 will be “built green.”
The affordable housing sector, however, needs more than marginal governmental carrots and sticks to be able to implement sustainability practices. Environmental sustainability will elude affordable housing as long as it remains in its current, financially unsustainable state. Government housing assistance programs are unpredictable, underfunded, and may to some extent perpetuate rather than solve the problem of housing need. The nation’s supply of affordable housing is rapidly declining in quality as well as quantity, and rising housing costs and stagnant incomes mean that an ever-increasing number of lower-income households must devote an unsustainably high percentage of their income toward housing costs. Our affordable housing system cannot go green until the system stops operating in the red. Properly conceived, affordable sustainability of housing and sustainable affordability of housing are mutually enforcing concepts. Successful housing laws and policy must therefore find a way to achieve both.
ABA Journal of Affordable Housing & Community Development Law Call for Papers: Sustainability in Affordable Housing, Fair Housing & Community Development. Abstracts due October 15, 2018; Drafts due January 1, 2019
The Journal of Affordable Housing & Community Development Law (the Journal) invites articles and essays on the theme of sustainability in affordable housing, fair housing and community development. Contributions could explore sustainability from environmental, economic, social or political perspectives and address topics ranging from green building and disaster preparedness/response to affordable housing preservation to funding for local fair housing organizations. Articles and essays could analyze new issues, tell success stories and draw lessons, or explore problems and propose legal and policy recommendations. The Journal welcomes essays (typically 2,500–6,200 words) or articles (typically 7,000-10,000 words).
In addition, the Journal welcomes articles and essays on any of the Journal’s traditional subjects: affordable housing, fair housing and community/economic development. Topics could include important developments in the field; federal, state, local and/or private funding sources; statutes, policies or regulations; and empirical studies.
The Journal is the nation’s only law journal dedicated to affordable housing and community development law. The Journal educates readers and provides a forum for discussion and resolution of problems in these fields by publishing articles from distinguished law professors, policy advocates and practitioners.
Interested authors are encouraged to send an abstract describing their proposals to the Journal’s Editor-in-Chief, Tim Iglesias, at firstname.lastname@example.org by October 15, 2018. Submissions of final articles and essays are due by January 1, 2019. The Journal also accepts submissions on a rolling basis. Please do not hesitate to contact the Editor with any questions.
New Article: Kevin D. Judd, Empowering Up: Reversing the Economic Legacy of Racial Segregation, 2 Howard Hum. & Civ. Rts. L. Rev. 1 (2017-2018).
News Coverage: Luis Ferré-Sadurní, Fixing Public Housing: A Day Inside a $32 Billion Problem, NYTimes.com, July 26, 2018. “The agency faces a daunting backlog of more than 170,000 open work orders for repairs, almost double the number housing officials say they can actually manage.”
New Article: K. Sabeel Rahman, Constructing Citizenship: Exclusion and Inclusion Through the Governance of Basic Necessities, Columbia L. Rev. Vol. 119, Forthcoming (2018). Abstract below:
While income inequality has become an increasingly central focal point for public policy debate and public law scholarship, systemic inequality and exclusion are produced not just by disparities in income but rather by more hidden and pernicious background rules that systematically disadvantage and subordinate constituencies. This paper focuses on a particularly crucial — and often underappreciated — site for the construction and contestation of systemic inequality and exclusion: the provision of, and terms of access to, basic necessities like water, housing, or healthcare. We can think of these necessities as “public goods” in a broader moral and political sense: these are foundational goods and services that make other forms of social, economic, or political activity possible, and thus carry a greater moral and political importance. This paper argues that the way in which we administer these essential public goods represents one of the major ways in which law and public policy constructs systemic forms of inequality and exclusion. Conversely, the paper also argues that promoting equality and inclusion requires a more inclusionary approach to the administration of these public goods.
In Part I the paper develops the central theoretical argument that the provision of and access to basic necessities constitutes a central vector for structural inequality and exclusion — and more broadly, for the moral ideals of inclusion, equality, and citizenship itself. The importance of these public goods makes communities subordinate and vulnerable to those actors that can exert control over these goods. This normative critique parallels historical efforts to secure greater economic and social citizenship in part by contesting the power of actors that control infrastructure, from the Progressive Era fights over public utilities to civil rights battles over public accommodations. Part II then identifies three specific patterns of structural exclusion produced through the maladministration of these public goods: bureaucratic exclusion, fragmentation, and privatization. These three strategies are more subtle than direct denial of access; they represent a kind of “second-order” exclusion operating through background rules of governance and administration. Part III then imagines what a more inclusionary governance regime built to prevent these more subtle forms of exclusion would look like. Here the paper identifies three particular strategies for inclusionary administration of public goods: expanded enforcement authority; greater governmental accountability; and direct public provision.
Finally, Part IV of the paper links this exploration of structural inequality, exclusion, and public goods to broader debates in public law scholarship. First, this focus on public goods represents an important application and extension of the recently renewed interest in inequality and “constitutional political economy,” suggesting a concrete legal and institutional context in which the normative ideas and historical narratives developed in this literature can have purchase. Second, the focus on public goods also provides greater weight and context to current debates over the “deconstruction” of administrative agencies, particularly in context of economic inequality and racial and gender exclusion.
Posted in Access to Justice, Articles, Consumption / Consumer Protection, Criminalization of Poverty, deserving/undeserving, Development (and Law), Health, housing, Inequality, Legal Academia, Measuring Poverty, Socio-Economic Rights
New Article: John Treat, Establishing a More Effective SAFMR System: The Cost and Benefits of HUD’s 2016 Small Area Fair Market Rent Rule, 51 U. Mich. J. L. Reform 643 (2018). Abstract below:
This Note analyzes the new HUD rule finalized in November 2016, which dramatically changed the structure of the Housing Choice Voucher program in select metropolitan areas. In August 2017, HUD suspended automatic implementation of the rule until 2020 for twenty-three of the twenty-four selected metropolitan areas, but in December 2017, a preliminary injunction was granted requiring HUD to implement the rule as of January 1, 2018. The rule as written changes the method for calculating the vouchers from using a metropolitan area-wide average to calculating a separate level for each zip code. Such a change could greatly deconcentrate poverty and reduce economic and racial segregation; a result that the current status quo has failed to accomplish. The new rule, however, is not without its flaws. This Note offers a number of recommendations for changing the rule to address these flaws: (1) tweaking metro area selection criteria to include large, highly-segregated areas; (2) granting public housing agencies flexibility in implementing the rule; (3) including new protections for gentrifying neighborhoods and additional funding for landlord outreach and mobility counseling; and (4) revising methodology to increase accuracy. Despite the problems with the new rule, as long as HUD is truly committed to implementing it, its benefits are likely to outweigh its flaws.