Category Archives: housing

New Article: “Conflation, Intractability and Affordable Housing”

New Article: Steven J. Eagle, Conflation, Intractability and Affordable Housing, forthcoming Fordham Urb. L.J. Abstract below:

This Article examines the varying and often-conflicting views of “affordable housing” of different social and economic groups. It asserts that attempts to deal with affordable housing issues must take into account the shelter, cultural, and economic needs of those populations, and also the effects of housing decisions on economic prosperity. The article focuses on affordable housing goals such as making available an ample supply of housing in different price ranges; attracting and retaining residents who contribute to the growth and economic prosperity of cities; ensuring that neighborhood housing remains available for existing residents, while preserving their cultural values; and providing adequate housing in high-cost cities for low- and moderate-income persons and the overlapping concern for “fair housing” for families of all races and backgrounds.

Thereafter, the Article examines the benefits and detriments of various means of providing more affordable housing, including fair-share mandates, rent control, and inclusionary zoning (including whether that leads to impermissible government takings of private property). It then briefly considers the merits and demerits of federal subsidy programs.

The Article briefly considers conceptual and practical problems in implementing the Supreme Court’s 2015 Inclusive Communities disparate impact holding, and HUD’s 2015 regulations on “Affirmatively Furthering Fair Housing.” Finally, it discusses how the concept of “affordable housing” conflates the separate issues of high housing prices and poverty, and how housing prices might be reduced through removal of regulatory barriers to new construction.

Throughout, the Article stresses that advancing affordable housing goals have both explicit and implicit costs, and that goals often are conflicting. To those ends, it employs economic and sociological as well as legal perspectives.

News Coverage: “Affluent and Black, and Still Trapped by Segregation”

News Coverage: John Eligon & Robert Gebeloff, Affluent and Black, and Still Trapped by Segregation, N.Y. Times, Aug. 20, 2016.

 

New Article: “Equitably Housing (Almost) Half a Nation of Renters”

New Article: Andrea J. Boyack, Equitably Housing (Almost) Half a Nation of Renters (forthcoming Buffalo L. Rev. 2016).  Abstract below:

America’s population of renters is growing faster than the supply of available rental units. Rental vacancies are reaching new lows, and rental rates are reaching new highs. Millions of former homeowners have lost their homes in foreclosure and, due to today’s much tighter mortgage underwriting realities, will not realistically re-enter the ranks of owner-occupants. For a number of reasons – variety of incomes, different stages in life, and a range of personal preferences and lifestyles – homeownership is not for everyone. And yet federal government housing policy has consistently prioritized homeownership over renter-specific issues, such as affordability and rental supply and distribution. State and local housing assistance programs are shockingly insufficient to meet ballooning needs. Reallocation of focus and funds at the federal level, however, could help grow the supply of rental housing and provide renters at all income levels a realistic chance of occupying quality and affordable rental housing, even in a “high opportunity” neighborhood.

The government must first reorient its myopic housing policy focus away from an over-emphasis on building homeownership. It must free up government funds for use in support of affordable rental housing. In addition, government funds and agency efforts should be carefully allocated to increase the availability of housing assistance and government gap funding of affordable housing as well as to encourage private investment in the supply of affordable rental housing.

News Coverage: “Rent-to-Own Homes: A Win-Win for Landlords, a Risk for Struggling Tenants”

News Coverage: Alexandra Stevenson & Matthew Goldstein, Rent-to-Own Homes: A Win-Win for Landlords, a Risk for Struggling Tenants, N.Y. Times, Aug. 21, 2016.

 

News Coverage: “As the nation’s capital booms, poor tenants face eviction over as little as $25”

News Coverage:  Terrence McCoy, As the nation’s capital booms, poor tenants face eviction over as little as $25, Wash. Post, Aug. 8, 2016.

New Book: “The Poverty Law Canon: Exploring the Major Cases”

Poverty Canon CoverI am excited to announce that The Poverty Law Canon: Exploring the Major Cases (Marie Failinger & Ezra Rosser eds., Univ. of Michigan Press, 2016) is now published and available through both the Michigan Press website and Amazon, etc (the library edition is $95 and the paperback is $39.95).

I have a bit more to say about this book, below, but first I want to highlight the contents of the book.  The book came out of a 2013 conference and features a great group of contributors as can be seen from the chapter list:

 

Introduction – Ezra Rosser

Part I: Victories

When Paupers Became People: Edwards v. California (1941) – Clare Pastore

Remaking the “Law of the Poor”: Williams v. Walker-Thomas Furniture Co. (1965)  – Anne Fleming

Sylvester Smith, Unlikely Heroine: King v. Smith (1968) – Henry Freedman

Legal Services Attorneys and Migrant Advocates Join Forces: Shapiro v. Thompson (1969)  – Elisa Alvarez Minoff

Dignity and Passion: Goldberg v. Kelly (1970) – Melanie B. Abbott

Litigating in the Zeitgeist: Rosado v. Wyman (1970) – Wendy A. Bach

Part II: Losses

A Sweeping Refusal of Equal Protection: Dandridge v. Williams (1970) – Julie A. Nice

Privacy as a Luxury Not for the Poor: Wyman v. James (1971) – Michele Estrin Gilman

A Tragedy of Two Americas: Jefferson v. Hackney (1972) – Marie A. Failinger

Denying the Poor Access to Court: United States v. Kras (1973) – Henry Rose

“The Poor People Have Lost Again”: San Antonio Independent School District v. Rodriguez (1973) – Camille Walsh

Part III: The Modern Era

Reflecting and Foreshadowing: Mathews v. Eldridge (1976) – John J. Capowski

Chronicle of a Debt Foretold: Zablocki v. Red Hail (1978) – Tonya L. Brito, R. Kirk Anderson, and Monica Wedgewood

The Movement for a Right to Counsel in Civil Cases: Turner v. Rogers (2011) – Kelly Terry

Public Housing as Housing of Last Resort: Department of Housing and Urban Development v. Rucker (2002) – Nestor M. Davidson

 

As with any effort to put together a list of important cases, there are cases that arguably should have been included and/or excluded; the chapters represent a combination of the importance of the cases and the interests of the contributors.  But I hope this book will be of interest to those interested in poverty or poverty law in the United States.

“The contributors include some of the best academics who write and teach about poverty. The back stories of these cases are multidimensionally interesting—the clients, the legal strategies, the lawyers themselves, the historical and political context, the effect on the law, the backstage of the Supreme Court and the role of the law clerks.” – Peter Edelman

As one of the editors, I want to thank Michigan Press for taking a chance on this book, Marie Failinger for being such a great co-editor, and all the contributors for their patience as this book made its slow way from idea to something that can be picked up.


I want to end on a personal note.  I see The Poverty Law Canon as being closely related to the Juliet Brodie, Clare Pastore, Ezra Rosser & Jeff Selbin, Poverty Law, Policy, and Practice (2014) in that both are efforts to think through and share the connection between poverty and law in a manner that hopefully will appeal to scholars and students.  The books are linked in my mind, and not only because of the work involved.  I dedicated my role on the textbook to my late father-in-law, Mario Castro, and my part of the dedication page of The Poverty Law Canon reads:

To my students and to my colleagues and mentors at American University Washington College of Law, especially Susan Bennett, Claudio Grossman, and Ira Robbins. It is a privilege to get to teach and write in your company.

Thanks for putting up with this long aside, now buy your copy and tell your librarian to do the same!  =)

New Article: “Discrimination in Evictions: Empirical Evidence and Legal Challenges”

New Article: Deena Greenberg, Carl Gershenson & Matthew Desmond, Discrimination in Evictions: Empirical Evidence and Legal Challenges, 116 Harv. C.R.-C.L. L. Rev. 115 (2016).  Abstract below:

Tens of thousands of housing discrimination complaints are filed each year. Although there has been extensive study of discrimination in the rental market, discrimination in evictions has been largely overlooked. This is because determining whether discrimination exists in evictions presents several challenges. Not only do landlords typically have a non-discriminatory reason for evictions (e.g., nonpayment), but they also wield tremendous discretion over eviction decisions—discretion that can be informed by conscious or unconscious bias against a protected group. Detecting discrimination in evictions, moreover, poses a number of challenges that conventional methods of assessing housing discrimination are ill-suited to address. This Article is among the first to empirically investigate racial and ethnic discrimination in eviction decisions. It does so by drawing on the Milwaukee Area Renters Study, a novel observational study of 1,086 rental households. Statistical analyses reveal that among tenants at risk of eviction, Hispanic tenants in predominantly white neighborhoods were roughly twice as likely to be evicted as those in predominantly non-white neighborhoods. Hispanic tenants were also more likely to get evicted when they had a non-Hispanic landlord. This Article discusses possible explanations for these findings and evaluates legal and policy solutions for addressing discrimination in the eviction process.

New Article: “Residual Value Capture in Subsidized Housing”

New Article: Brandon M. Weiss, Residual Value Capture in Subsidized Housing, 10 Harv. L. & Pol’y Rev. 521 (2016).  Abstract below:

This Article argues that our primary federal subsidized housing production program, the Low-Income Housing Tax Credit (LIHTC), will result in the unnecessary forfeit of billions of dollars of government investment and the potential displacement of tens of thousands of households beginning in 2020 when LIHTC property use restrictions start to expire. The LIHTC example is presented as a case study of an inherent dynamic of public-private partnerships—namely, the potential capture by for-profit providers of “residual value.” For purposes of this Article, this is value generated by a public-private transaction that is unnecessary to incentivize a private provider to deliver the contracted for good or service.

Drawing on corporate organizational theory, which has highlighted the role that nonprofits play in solving certain contract failures and generating positive externalities, the Article argues that, in certain contexts, partnering with nonprofit providers can be an effective approach to increasing the share of residual value that flows to public purposes. The LIHTC program is one such context, given that a nonprofit preference results in a three-sector approach whereby the federal government provides tax credits to nonprofit developers that must attract private investor equity. This framework leverages institutional strengths, including the access to capital of government, the relative fidelity to public purposes of nonprofits, and the market-based underwriting and oversight of for-profit investors.

News Coverage: “ How Banks Stole Homes From the Most Vulnerable New Yorkers”

News Coverage: Michelle Chen, How Banks Stole Homes From the Most Vulnerable New Yorkers, The Nation, July 15, 2016.

New Article: “Structural Subjugation: Theorizing Racialized Sexual Harassment in Housing”

New Article: Kate Sablosky Elengold, Structural Subjugation: Theorizing Racialized Sexual Harassment in Housing, 27 Yale J. L. & Feminism 227 (2016).  Abstract below:

This Article identifies and analyzes the structural forces that permit and ignore racialized sexual harassment in housing. Although scholarship on sexual harassment in housing is sparse, the existing research and resulting body of law generally advances a narrative focused on the female tenants’ economic vulnerability and violation of the sanctity of her home. The narrative advanced in scholarship and advocacy, along with the resulting jurisprudence, presents an archetype of a deviant male landlord abusing his authority to take advantage of women sexually who, because of their economic circumstances, have no alternatives. This Article terms it the “dirty old man” narrative. Drawing attention to the racialized sexual harassment that lies beneath the stock story for many African American female tenants, this Article dismantles that narrative. The purpose of the scholarship is two-fold. The first is to expose, for the first time, the undercurrent of racialized sexual victimization that is absent from the “dirty old man” narrative. To do that, this project methodically examines court filings in sexual harassment cases brought by the Attorney General under the federal Fair Housing Act and analyzes the entire body of federal and state court opinions assessing residential sexual harassment claims. The second objective is to identify the structural factors — cultural acceptance of the “Black Jezebel” myth, legal rights, access, and generational economic and racial hierarchies — that operate together to perpetuate racialized sexual harassment in rental housing, an analysis that draws on social science research, along with critical race, critical feminist, and intersectionality theories. This Article contends that those structural forces are the same factors that have operated to permit and hide the sexual subjugation of Black women in the private sphere throughout history — during slavery, as domestic workers, and in the present-day failure to prosecute sexual assault against Black women. Ultimately, it argues that the prevailing “dirty old man” narrative risks silencing both the individual stories of racialized sexual harassment at home and the larger conversation about the structural forces permitting and ignoring the abuse.