Category Archives: housing

New Article: “Implicit Legislative Bias: The Case of the Mortgage Interest Deduction”

New Article: Leigh Osofsky and Kathleen DeLaney Thomas, Implicit Legislative Bias: The Case of the Mortgage Interest Deduction, 56 UC Davis L. Rev. 1 (2022). Abstract below:

The home mortgage interest deduction is over 100 years old. The deduction has been subject to increasing and, at times, withering criticism from commentators. Scholars have argued that the mortgage interest deduction may be a particularly ineffective and regressive way to subsidize homeownership. Other scholars have made the important point that the mortgage interest deduction has a disparate racial impact: homeowners are disproportionately white, so the deduction disproportionately benefits white people at the expense of people of color. Yet, the mortgage interest deduction has retained remarkable and costly staying power despite all the critiques.

How has the mortgage interest deduction persisted over a century, despite extensive critique? We argue that an underappreciated part of the story of the mortgage interest deduction is how its very creation arose out of implicit racial bias and other cognitive biases. First, scholars and policymakers ignored the racialized history of homeownership in the United States and relied on racist tropes in studying the potential economic benefits of the deduction. After such associations occurred, policymakers misattributed to homeownership benefits that were really, at least in part, benefits that flowed from whiteness. Perceiving positive benefits from homeownership, legislators viewed it as a good worth subsidizing through the tax system. Cognitive biases such as confirmation bias then made it unlikely that, once in place, the mortgage interest deduction would be substantially changed.

This understanding of the mortgage interest deduction should upset any future attempts to characterize the deduction as a neutral, albeit flawed, way to subsidize desirable values. More generally, this case study illustrates a phenomenon that merits more attention in the legal literature: how implicit racial bias and other cognitive biases in the legislative process make flawed legislation, like the mortgage interest deduction, more likely to be made and more difficult to upend. We conclude by offering suggestions for minimizing bias in future legislation and for reforming existing legal policy that already reflects such bias.

New Symposium: “American Cities Struggling with Economic Justice Reform”

New Symposium: American Cities Struggling with Economic Justice Reform, 52 Seton Hall L. Rev. (2022). Contained Articles and Comments listed below:

Articles:

Comments:

New Article: Longer Trips to Court Cause Evictions

New Article: David A. Hoffman and Anton Strezhnev, Longer Trips to Court Cause Evictions, (2022). Abstract below:

Studying ~200,000 evictions filed against ~300,000 Philadelphians from 2005 through 2021, we focus on the role of transit to court in preventing tenants from asserting their rights. Over the time period, nearly 40% of all tenants were forced to leave their residences because they didn’t show up to contest cases against them. An important driver of that result is easy access to the courthouse. Controlling for a variety of potential confounds at the tenant and landlord level, residents of private tenancies with longer mass transit travel time to the courthouse are more likely to default. A one hour increase in estimated travel time increases the probability of default by between 3.9 to 8.6 percentage points across different model specifications. The effect holds within landlords, when controlling for the direct distance to court and even weekend travel time. However, it is absent in public housing evictions, where timing rules are significantly laxer, and during Covid-19, when tenants had the opportunity to be present virtually. We estimate that had all tenants been equally able to get to court in 10 minutes or less, there would have been 4,000 to 9,000 fewer default evictions over the sample period. These results open up a new way to study physical determinants of access to justice, illustrating that where a courthouse is located—and its relationship to urban transit—can affect individual case outcomes. We consequently suggest that increased use of video technology in court may reduce barriers to justice.

New Article: Rent Regulations After Cedar Point

New Article: Abigail Flanigan, Rent Regulations After Cedar Point, Colum. L. Rev. (2022, forthcoming). Abstract below:

In 2021, the Supreme Court decided Cedar Point Nursery v. Hassid, 141 S. Ct. 2063 (2021), a landmark case that established a new categorical rule in takings law: When the government enacts a regulation authorizing a temporary invasion of a property owner’s land, it effects a per se taking under the Fifth Amendment for which it must pay just compensation. By examining the interaction of this holding with legal challenges to New York’s Housing Stability and Tenant Protection Act (HSTPA) of 2019, this Note explores the implications of this decision for rent regulation legislation.

This Note considers alternative analytical paths a court considering a constitutional challenge to rent regulation legislation could pursue in the wake of Cedar Point. Under the maximalist approach, the court could find that the HSTPA infringes on the landlord’s “right to exclude” and is thus a compensable taking. Under the minimalist approach, the court could apply one of the Cedar Point exceptions to uphold the HSTPA as constitutional. Ultimately, this Note argues that the maximalist approach is at odds with precedent, endangers anti-discrimination housing laws, and hampers the government’s ability to make housing more economically accessible for citizens who may not otherwise have access to adequate shelter, and concludes that courts should apply an expansive reading of the Cedar Point exceptions to rent regulation legislation like the HSTPA.

New Article: Coercion, Criminalization, and Child ‘Protection’: Homeless Individuals’ Reproductive Lives

New Article: Bridget Lavender, Coercion, Criminalization, and Child ‘Protection’: Homeless Individuals’ Reproductive Lives, 169 Uni. of Pa. L. Rev. 1609 (2021).

New White House Report: “President Biden Announces New Actions to Ease the Burden of Housing Costs”

As President Biden said last week, tackling inflation is his top economic priority. Today, President Biden is releasing a Housing Supply Action Plan to ease the burden of housing costs over time, by boosting the supply of quality housing in every community. His plan includes legislative and administrative actions that will help close America’s housing supply shortfall in 5 years, starting with the creation and preservation of hundreds of thousands of affordable housing units in the next three years. When aligned with other policies to reduce housing costs and ensure affordability, such as rental assistance and downpayment assistance, closing the gap will mean more affordable rents and more attainable homeownership for Americans in every community. This is the most comprehensive all of government effort to close the housing supply shortfall in history.

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: “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 Book: “Hot City”

Red Hot City by Dan ImmergluckNew Book: Dan Immergluck, Hot City, (Forthcoming, 2022). Overview below:

An incisive examination of how growth-at-all-costs planning and policy have exacerbated inequality and racial division in Atlanta.

Atlanta, the capital of the American South, is at the red-hot core of expansion, inequality, and political relevance. In recent decades, central Atlanta has experienced heavily racialized gentrification while the suburbs have become more diverse, with many affluent suburbs trying to push back against this diversity. Exploring the city’s past and future, Red Hot City tracks these racial and economic shifts and the politics and policies that produced them.

Dan Immergluck documents the trends that are inverting Atlanta’s late-twentieth-century “poor-in-the-core” urban model. New emphasis on capital-driven growth has excluded low-income people and families of color from the city’s center, pushing them to distant suburbs far from mass transit, large public hospitals, and other essential services. Revealing critical lessons for leaders, activists, and residents in cities around the world, Immergluck considers how planners and policymakers can reverse recent trends to create more socially equitable cities.

New Article: Power and Possibility in the Era of Right to Counsel, Robust Rent Laws & COVID-19

New Article: Erica Braudy and Kim Hawkins, Power and Possibility in the Era of Right to Counsel, Robust Rent Laws & COVID-19, 28 Geo. J. Poverty L. & Pol’y 117 (2021). Abstract below:

New York City (NYC) finds itself in an unprecedented housing crisis as the coronavirus (COVID-19) pandemic reveals with devastating force that safe, sustainable and affordable housing is both a human right and a public health necessity. The profound humanitarian and economic devastation of COVID-19 puts millions of New Yorkers at risk of eviction—especially those within Black and Latinx communities. In addition, the pandemic hit just as the legal landscape for tenants was transformed through landmark legislation ensuring the Right to Counsel in eviction proceedings and sweeping reforms of New York’s rent laws. The unparalleled COVID-19 pandemic, the influx of hundreds of new tenant attorneys resulting from the Right to Counsel, and the robust rent law reforms fundamentally alter the role and powerful potential of housing advocacy and the very function of NYC’s Housing Court. These three forces provide an opportunity for housing attorneys representing low-income tenants to imagine new and creative ways to provide housing security and build tenant power.

This Article canvasses the fundamental shifts in the NYC housing landscape and the movement to expand tenants’ rights. It urges lawmakers to take bold action to avoid an eviction pandemic and shield tenants from homelessness and crushing debt. Next, it lays a blueprint for housing attorneys, both experienced and novice, to aggressively use the new tenant-friendly rent laws, creatively maximize underused tools, and leverage their collective strength to re-envision housing as a human right. The combination of the Right to Counsel, which has filled the ranks with passionate tenant attorneys, an empowered and progressive state legislature, and a vibrant tenants’ movement has created a powerful force to demand comprehensive and far-reaching housing and racial justice for all New Yorkers and redefine the housing world that lies beyond the virus.