Op-Ed: “How the Ruling Class Remade New Orleans”

Thomas Adams, How the Ruling Class Remade New Orleans, Jacobin Magazine, August 2015. [“The language of social justice has been used to sell intensified neoliberalism in post-Katrina New Orleans.”]

New Article: “Post-Disaster Housing Through the Lens of Litigation: The Katrina Housing Justice Docket”

New Article: Davida Finger, Post-Disaster Housing Through the Lens of Litigation: The Katrina Housing Justice Docket, 61 Loyola L. Rev. 591 (2015).

New Article: “Searching for Equity Amid a System of Schools: The View from New Orleans”

New Article: Robert A. Garda Jr., Searching for Equity Amid a System of Schools: The View from New Orleans, 42 Fordham Urban Law Journal 613 (2015).  Abstract below:

Today, New Orleans education stands at a crossroads in deciding how to achieve equity for its vulnerable student populations. One route relies on centralizing services, planning, and oversight to ensure that every school provides an appropriate education to any type of student that walks through the schoolhouse door. This path embraces the version of inclusion equality set forth in Brown v. Board of Education: “separate educational facilities are inherently unequal.” The other route relies on the market driven reform underlying the charter movement to create specialized schools to fill the unmet demands of vulnerable populations. This route embraces an emerging view of equality- where separate can be equal, possibly even superior, if parents are empowered to maximize their child’s academic outcomes in specialized settings. This Article argues that New Orleans is headed down this latter route and identifies the lessons that can be learned from its evolution to a system of schools.

News Coverage: “Katrina: Why Legal Advocates Are Crucial for Victims of Disaster”

News Coverage: Katrina: Why Legal Advocates Are Crucial for Victims of Disaster | Chiraag Bains Huffington Post, 8/31/2015

New Report and Article on Post-Katrina Public Housing in New Orleans

New Report: HUD, Housing Recovery on the Gulf Coast: Summary Report, Oct. 2011.  Abstract below:

Congress frequently provides supplemental appropriations through the U.S. Department of Housing and Urban Development’s (HUD’s) Community Development Block Grant (CDBG) program to help communities recover from natural and manmade disasters. These Disaster Recovery Grants have been used to help New York City recover from the attack on the World Trade Center on September 11, 2001; to help towns in the upper Midwest recover from severe flooding in 1993, 1997, and 2008; and to help the Gulf Coast in the wake of Hurricanes Katrina and Rita in 2005. Recent research by Abt Associates Inc., under contract with HUD, examines how $19.7 billion in Disaster Recovery Grants were used in Louisiana, Mississippi, and Texas to help with recovery from those devastating hurricanes of 2005.

New Article: Stacy E. Seicshnaydre, How Government Housing Perpetuates Racial Segregation: Lessons from Post-Katrina New Orleans, 60 Catholic Univ. L. Rev. 661 (2011).  Abstract below:

This Article contends that post-Katrina New Orleans exemplifies the exclusionary dynamic in which government-assisted housing operates throughout America and the fundamental failure of American housing policy at the federal, state, and local levels to prevent the racial segregation that inevitably results. Federal law has prohibited racial segregation in government-housing programs for decades, yet it has proven difficult to reverse entrenched patterns of segregation in these programs. Patterns of racial segregation have been particularly intractable in New Orleans, which, prior to Hurricane Katrina in 2005, boasted the second-highest level of poverty concentration in the nation and relatively high levels of poverty concentration in all of the major government-housing programs. Furthermore, low-income white residents in pre-Katrina New Orleans had greater access to middle-income neighborhoods throughout the metropolitan area of New Orleans than low-income black residents, who were overwhelmingly concentrated into high-poverty neighborhoods.

Hurricane Katrina, with its massive levee failures and neighborhood flooding, offered an opportunity for New Orleans to emerge as a more inclusive region; new government-assisted housing could have helped facilitate inclusion, while also responding to the regional-housing needs of the area. However, rental housing bans proliferated throughout the region, primarily in communities that had previously served as affordable suburban alternatives for lower- and middle-income whites in prior decades. These communities sought not only to prevent the development of new rental housing, but also to limit the repair of rental housing that preexisted the storm. At the same time, other communities in metropolitan New Orleans that were the least affordable, most homogeneous, and nationally recognized as desirable places to live were not targeted for government-assisted housing, and thus did not pass similar sweeping rental bans. Therefore, rather than using recovery efforts to reverse racially segregated housing patterns, the region took steps to exacerbate them.

This Article describes a perennial dynamic of two impulses pulling in opposite directions – the anywhere-ist and nowhere-ist impulses, which conspire to perpetuate segregation. The anywhere-ists are primarily focused on securing as much federally assisted housing as possible; the nowhere-ists are primarily focused on keeping it out of their communities. This dynamic has created a “path of least resistance,” whereby government-assisted housing continues to be provided in places where it already exists or in places that are already open and affordable.

Ultimately, federal intervention in the housing market must encompass more than providing a subsidy. It must open neighborhoods not already open, make affordable what is not already affordable, enable housing subsidies to act as gateways to educational and employment opportunity, and inform families historically excluded from housing markets about their choices. Any federal housing interventions that are not so designed will almost certainly exacerbate existing racial segregation and poverty concentration, as they have done for decades, and – as post-Katrina New Orleans illustrates – as they will continue to do, again and again and again.

-Thanks to the Property Law Prof Blog for highlighting both of these.

Article: “Conviviality, Cosmopolitan Citizenship, and Hospitality”

Article (not new but I just came across it): Michelle A. McKinley, Conviviality, Cosmopolitan Citizenship, and Hospitality, 5 Unbound 55 (2009) …

This essay examines the relationship between refugeehood/statelessness and cosmopolitan citizenship. I ask what cosmopolitanism as a normative project contributes to refugee and asylum law that remains unfulfilled bythe current Westphalian system. I use the prism of statelessness to explore the commonalities between cosmopolitanism and nationalism with an emphasis on deterritorialized modes of citizenship. I argue that while citizenship is mostcommonly regarded as a territorially bounded concept, post-colonial citizenships are deterritorialized: maintained through travel, pilgrimage, labor migration, forced upheaval, and complex residential patterns that traverse boundaries. Thus, this essay examines the affective ties of post-colonial, cosmopolitan citizenship and their impacton the policies and practices of international refugee and asylum law.

 

New Article: “Against Flexibility”

New Article: David Super, Against Flexibility, 96 Cornell L. Rev. __ (forthcoming 2011).  Abstract below:

Contemporary legal thinking is in the thrall of a cult of flexibility. We obsess about avoiding decisions without all possible relevant information while ignoring the costs of postponing decisions until that information becomes available. We valorize procrastination and condemn investments of decisional resources in early decisions.

Both public and private law should be understood as a productive activity converting information, norms, and decisional and enforcement capacity into outputs of social value. Optimal timing depends on changes in these inputs’ scarcity and in the value of the decision they produce. Our legal culture tends to overestmate the value of information that may become available in the future while discounting declines over time in decisional resources and the utility of decisions. Even where postponing some decisions is necessary, a sophisticated appreciation of discretion’s components often exposes aspects of decisions that can and should be made earlier.

Disaster response illustrates the folly of legal procrastination as it shrinks the supply of decisional resources while increasing the demand for them. After Hurricane Katrina, programs built around flexibility failed badly through a combination of late and defective decisions. By contrast, those that appreciated the scarcity of decisional resources and had developed detailed regulatory templates in advance provided quick and effective relief.

-Thanks to the Legal Theory Blog for the heads up!

New Article: “How the New Federalism Failed Katrina Victims”

New Article: Erin Ryan, How the New Federalism Failed Katrina Victims, in LAW AND RECOVERY FROM DISASTER: HURRICANE KATRINA, Robin Malloy & John Lovett, eds., 2009.  The abstract is below:

This book chapter explores the Katrina response effort to illustrate the governmental decision-making that operates in the shadow of the interpretive model of federalism in use by courts and policymakers.

In the American federal system, citizens are of both the United States and the individual states in which they reside, and subject to the respective laws of each. The Constitution enumerates those powers under which the federal government is authorized to make law, and the states may regulate in any area not preempted by legitimate federal law. Yet the fact that Americans are citizens of two separate sovereigns does not resolve the precise contours of the relationship between the two. Constitutional analysis reveals pockets of textual ambiguity that must be resolved by application of some interpretive federalism theory – a model that describes how the federal system should work. Even within a single structural polity like the U.S., then, conceptual variation may exist in construing the details of the relationship between sovereigns and the framework of federalism designed to protect it.

This has been aptly demonstrated by the U.S. Supreme Court’s ongoing experimentation with federalism constraints, in pursuit of its evolving vision of the dual sovereignty that is mandated but incompletely described by the Constitution. American dual sovereignty is implied in various provisions that refer to the separate states, but most encapsulated as a constitutional directive in the Tenth Amendment – which establishes that the Constitution (1) delegates some powers to the federal government, (2) prohibits some to the states, and (3) reserves powers that fit in neither of these two sets to the states (or perhaps the people). Standing alone, its only unique contribution is to suggest that there are at least some unspecified powers that belong wholly to the states. But it does not specify what these are; we can only parse them out by negative inference to other constitutional provisions that specifically delegate federal authority or proscribe state action. It further affirms that the Constitution delegates some authority to the federal government, and, read together with the Supremacy Clause, suggests that at least some is wielded exclusively at the federal level, preempting contrary state law.

However, neither the Tenth Amendment nor the Supremacy Clause nor any other provision in the Constitution decisively resolves whether there may also be regulatory spaces in which both the states and the federal government may operate. Drawing the conclusion that such overlapping regulatory space exists requires an interpretive leap, but so does the extrapolation of wholly mutually exclusive spheres of authority. Either conclusion demands application of some exogenous theory about what American federalism means, or what, in essence, federalism is for. That we have relied on one theory or another to resolve the matter (in ways that may eventually come to seem obvious if only by virtue of their repetition) does not negate the role of federalism theory in getting us to that point.

For interpreters of the American Constitution, then, the relevant choice is not one between federalism and non-federalism, but of *which* federalism – which model of federalism best promotes the kind of governance that we seek. These are, of course, the real stakes at hand. Vividly demonstrating those stakes, Hurricane Katrina called for governmental response from the most local to the most national level, requiring regulatory decisionmakers to contend with questions about how federalism principles should dictate their interaction. This chapter, drawn from Federalism and the Tug of War Within, 66 MD. L. REV. 503 (2007), explores the stakes of this central question of constitutional interpretation.

New York Times story on resistance to construction of low-income housing in post-Katrina New Orleans area

Good story about resistance to based on class and race fears to low income housing proposals in post-Katrina New Orleans area (St. Bernard Parish): Campbell Robertson, “Housing Battle Reveals Post-Katrina Tensions,” New York Times, Oct. 3, 2009.

-Thanks to Eric Adams for the heads up!

Report: “Delivering Legal Aid After Katrina: The Equal Justice Works Katrina Legal Initiative”

New Report of Interest: Sara Debus & Seri Irazola, “Delivering Legal Aid After Katrina: The Equal Justice Works Katrina Legal Initiative,” Urban Institute Research Report, August 2009.  Abstract below:

Hurricanes Katrina and Rita led to a myriad of legal needs in the Gulf Coast area at a time when the region’s legal infrastructure was weakened. Equal Justice Works implemented the Katrina Legal Initiative, an innovative legal aid disaster relief program to assist the affected communities. This report details the implementation of this program; describes the program goals, activities, and impacts; analyzes whether the program met the stated goals; and offers recommendations for comparable programs in the future. Lessons learned from the Katrina Legal Initiative can help to inform future disaster relief efforts on the part of the legal community.

Equal Justice Works Katrina Initiatives page is here.