Category Archives: housing

New Article: This House is Not Your Home: Litigating Landlord Rejections of Housing Choice Vouchers Under the Fair Housing Act

New Article: Maia Hutt, This House is Not Your Home: Litigating Landlord Rejections of Housing Choice Vouchers Under the Fair Housing Act, Columbia 53 J. L. & Soc. Prob. 391 (2018).

Abstract below:

Over 2.2 million low-income households participate in the federal Housing Choice Voucher (HCV) program. Voucher holders, who are disproportionately people of color and individuals with disabilities, are frequently discriminated against or denied housing by landlords. This Note argues that prospective tenants who are rejected by landlords for participating in the HCV program have a right of action against landlords under the Fair Housing Act’s disparate impact provisions. The Supreme Court’s recent decision in Inclusive Communities provides the necessary framework for evaluating these claims, and suggests that federal courts’ historical rejection of disparate impact claims brought by voucher holders is no longer good law. Integrating state and local source of income protection laws into the Inclusive Communities burden-shifting resolves the tension between state and federal approaches to source of income protection, and vitiates the rights of voucher holders.

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New Article: Trapped in Tragedies: Childhood Trauma, Spatial Inequality, and Law

New Article: David Dante Troutt, Trapped in Tragedies: Childhood Trauma, Spatial Inequality, and Law, 101 Marq. L. Rev. 601 (2018). Abstract below:

Each year, psychological trauma arising from community and domestic violence, abuse, and neglect brings profound psychological, physiological, and academic harm to millions of American children, disproportionately poor children of color. This Article represents the first comprehensive legal analysis of the causes of and remedies for a crisis that can have lifelong and epigenetic consequences. Using civil rights and local government law, this Article argues that children’s reactions to complex trauma represent the natural symptomatology of severe structural inequality—legally sanctioned environments of isolated, segregated poverty. The sources of psychological trauma may be largely environmental, but the traumatic environments themselves are caused by spatial inequality. This Article sets forth a theory of structural inequality that demonstrates the importance of place-based differences in institutional functioning and the role of such disparities in producing the neurobiological, psychological, and behavioral outcomes comprehensively described in the literature from those disciplines (including the results of an original study of Newark, New Jersey school children). International analogies show how similarly human beings process traumatic events. This alternative legal analysis of child trauma compels a different remedial approach to both intervention and prevention. It argues that interventions like special education reform are necessary but problematic because they risk pathologizing the African American poor and exhausting institutional capacity. Instead, it provides a framework for prevention focused upon increasing mobility options and reforming local institutions.

New Article: How Patent Law Keeps the Hope of Fair Housing Alive for All, Even after Bank of America Corporation v. City of Miami

New Article: Jesse Snyder, How Patent Law Keeps the Hope of Fair Housing Alive for All, Even After Bank of America Corporation v. City of Miami, 21 Harv. Latino L. Rev. (2018). Abstract below:

In 2015, Circuit Judge Jimmie V. Reyna warned that the inexorable expansion of free speech protection could enable businesses to post signs like “SPICS NOT WELCOME,” simply because of their personal expressive prerogatives. Those words came from his dissent in In re Tam, which had an understated connotation that civil-rights legislation writ large could be destabilized and eventually extirpated. The en banc majority opinion authored by Circuit Judge Kimberly A. Moore was reticent about those musings. Although the Supreme Court in October Term 2016 affirmed Judge Moore’s views on free speech in the context of trademark law, it said nothing how those views affect civil rights or fair housing now that an entity can ostensibly trademark a business under a racial epithet. Returning to Judge Reyna’s point, if some barriers preventing a segregated society are removed, can other laws provide more than a makeweight defense to prevent minority communities from drifting into the margins?

The Court released Tam during the same term that it released Bank of America Corporation v. City of Miami, a May 1, 2017, opinion involving a city’s challenge to, among others, predatory lending to Latino-majority communities. Although Bank of America recognized that cities have Article III standing to sue under the Fair Housing Act for economic injuries suffered from predatory lending, the Supreme Court rejected the Eleventh Circuit’s more lenient causation standard, favoring proof of “some direct relation between the injury asserted and the injurious conduct alleged.” Doubtless the result could have been worse for cities suing on the premise that racially discriminatory lending caused municipal blight. The courthouse doors could have closed if the Court had declined to recognize Miami’s standing to bring a lawsuit under the Fair Housing Act. The visceral reaction to the approbated standard announced in Bank of America is that cities face a daunting task to prove causation.

This paper argues that patent law can inform analysis on and demonstrate how cities can prove causation between discriminatory lending practices and the blighted atmospherics of depressed housing. In three parts, the paper provides an overview of the Fair Housing Act, reviews Bank of America, and discusses how patent law can assist in proving whether predatory lending causes a city economic harm. Bank of America is an exemplar of how purported predation can harm Latino communities writ large and writ small. All is not forlorn for cities seeking relief from lending practices that discriminate among loan applicants. The auspice of a more exacting causation standard does not doom these lawsuits; it forces cities early on to perform the economic analysis necessary to prove actual damages. Patent law offers experts versed in detecting what attribute drives consumer decisions. Although loss of tax revenue from economic blight is fraught with complexity, economists have the tools in a proper adversarial system to present competing views on what caused a city’s downturn. Upon presentation of admissible evidence, whether the banks or cities prevail should turn on a jury’s decision about whether racially motivated predation proximately caused a city—and indirectly its residents—to suffer financial calamity.

 

News Coverage of Poverty: With Market Hot, Landlords Slam the Door on Section 8 Tenants

News coverage of poverty: Glenn Thrush, With Market Hot, Landlords Slam the Door on Section 8 Tenants, NYTimes.com, Oct. 12, 2018.

New Article: Exclusionary Taxation

New Article: Shayak Sarkar & Josh Rosenthal, Exclusionary Taxation, Harv. Civ. Rights – Civ. Lib. L. Rev. (2018), Forthcoming. Abstract below:

Property tax assessments appear to be technocratic calculations. But they may be calculated to discriminate, even unintentionally. California’s constitutional limitations on property taxes, as first enacted by Proposition 13 in 1978, remain the poster child for the so-called “property tax revolt” of the late twentieth century. Such laws privilege preexisting homeowners by capping assessments at historic levels far below contemporary value. As property prices rise, beneficiary homeowners may even bequeath this taxpayer windfall to their descendants and immortalize these underassessments. Newer, increasingly diverse residents end up paying higher taxes because the law treats them with less regard than their more pedigreed neighbors. These tax policies are rationalized as providing “stability” to the existing residents. The aggrieved have found cold comfort in the Constitution, with the Supreme Court upholding the core of California’s system in the canonical Nordlinger v. Hahn.

In this Article, we argue that even if such exclusionary tax policies do not violate the Constitution, they likely violate another facet of federal law: the Fair Housing Act’s disparate impact liability. Our contributions are threefold. First, as a procedural matter, we identify recent caselaw that offers a means for such legal challenges to enter the courthouse door. Although state and federal courts in the twentieth century erected barriers to judicial review of property tax policies, we argue that the landscape has changed.

Second, using California as a case study, we illuminate the contours of a Fair Housing Act challenge to discriminatory, acquisition-value assessments. We do so with reference to prior and ongoing tax litigation in diverse municipalities, namely Long Island and metropolitan Detroit. We thus explore the federal prohibition of what we call “exclusionary taxation.”

Third and most significantly, we train our sights on the justifications for exclusionary taxes. We map, and begin to reconcile, the tensions between, on one hand, recognized local government interests in “stability,” and, on the other, property-based inclusion of a demographically-evolving America. We argue that, while property tax assessments can be used to protect existing homeowners, they must be employed through narrowly tailored methods, such as circuit breakers or deferred payment, rather than overly broad acquisition-value assessment systems. While the latter might pass constitutional muster, they fail to comply with the Fair Housing Act’s vision of property-based pluralism.

New Blog Post: A Novel Solution for the Homeless: House Them in Backyards

backyardhousing

New blog post: Jennifer Medina, A Novel Solution for the Homeless: House Them in Backyards, NYTimes.com, Oct. 29, 2018.

New Article: Exclusionary Megacities

New Article: Wendell Pritchett & Shitong Qiao, Exclusionary Megacities, 91 So. Cal. L. Rev. 3 (2018) Forthcoming. Abstract below:

Human beings should live in places where they are most productive, and megacities, where information, innovation and opportunities congregate, would be the optimal choice. Yet megacities in both China and the U.S. are excluding people by limiting housing supply. Why, despite their many differences, is the same type of exclusion happening in both Chinese and U.S. megacities? Urban law and policy scholars argue that Not-In-My-Backyard (NIMBY) homeowners are taking over megacities in the U.S. and hindering housing development therein. They pin their hopes on an efficient growth machine that makes sure “above all, nothing gets in the way of building.” Yet the growth-dominated megacities of China demonstrate that relying on business and political elites to provide affordable housing is a false hope. Our comparative study of the homeowner-dominated megacities of the U.S. and growth-dominated megacities of China demonstrates that the origin of exclusionary megacities is not a choice between growth elites and homeowners, but the exclusionary nature of property rights. Our study reveals that megacities in the two countries share a property-centered approach, which prioritizes the maximization of existing property interests and neglects ultimate housing consumers’ interests, resulting in unaffordable housing. Giving housing consumers a voice in land use control and urban governance becomes the last resort to counteract this result. This comparative study shows that the conventional triangular framework of land use comprising government, developers, and homeowners is incomplete, and argues for a citizenship-based approach to urban governance. The essential component of this approach is clearly defining the boundary between the political and property markets, facilitating citizens’ equal access and participation in the political market that set general parameters for development while leaving individual development decisions to the property market.

New Blog Post: America’s Worsening Geographic Inequality

New Blog Post: Richard Florida, America’s Worsening Geographic Inequality, CityLab, Oct. 16, 2018.

UCLA Online Symposium on Gentrification, Displacement, and Dispossession

UCLA Symposium on Gentrification, Displacement, and Dispossession.

New Article: One-strike 2.0: How Local Governments are Distorting a Flawed Federal Eviction Law

New Article: Kathryn V. Ramsey. One-strike 2.0: How Local Governments are Distorting a Flawed Federal Eviction Law, 65 UCLA L. Rev. 1146 (2018). Abstract:

In recent years, local governments across the country have passed crime-free housing ordinances (CHOs) for private-market rental properties. These ordinances increase the risk of eviction for many tenants by requiring or encouraging private-market landlords to evict tenants for low-level criminal activity, sometimes even a single arrest. CHOs are based on a federal law known as the one-strike policy, which has been applied to public housing tenants since 1988 and upheld by the U.S. Supreme Court in 2002. Unlike the one-strike policy, which applies only to federal public housing tenants, CHOs put an unprecedented number of private-market tenants across the country at significant risk of eviction and its attendant consequences, including homelessness, neighborhood instability, and higher incidences of poverty. This Article examines CHOs as an outgrowth of the federal one-strike policy, and it argues that they are significantly more harmful to tenants than the one-strike policy has been. The Article identifies serious legal issues raised by CHOs and suggests that, before adopting or enforcing CHOs, municipalities should consider these legal problems in conjunction with the crime problem that CHOs purport to address and the other problems that CHOs can create. This more complete calculus weakens the case for crime-free housing ordinances in rental housing.