New Article: Ilya Somin, Why Growing Government is a Greater Political Menace than Growing Inequality, Boston University Law Review Online, Vol. 28, p. 21-26, 2018. Abstract below:
In his important new book, The Crisis of the Middle-Class Constitution, Ganesh Sitaraman argues that growing economic inequality over the last several decades and the resulting decline of the middle class is “the number one threat to American constitutional government.” He also contends that the American Founding Fathers sought to establish a “middle-class constitution” in which the avoidance of extremes of wealth and poverty would ensure the stability of democratic government. These are bold and provocative claims, but large elements of them fail to withstand scrutiny. Economic inequality is not as serious a threat to our political system as the growing size and complexity of government. These forces make it increasingly difficult for ordinary people to exercise effective control over government—or even to understand what it is doing.
In addition, Sitaraman’s focus on the Founders’ fear of excessive inequality of wealth leads him to ignore their much stronger concern for protecting liberty and property rights, and limiting and decentralizing government power. These latter ideas can help us address the more dangerous elements of our present situation.
While Sitaraman overstates the dangers of inequality, he is right to highlight the perils of declining opportunity for the poor and lower-middle class, and the ways in which the modern state offers all too many opportunities for the wealthy and powerful to enrich themselves at the expense of the public interest. But there are ways to mitigate these problems, while simultaneously reducing the size and complexity of government that have undermined democratic accountability and empowered unscrupulous elites.
New Op-Ed: Emily Badger, Anonymous Owner, L.L.C.: Why It Has Become So Easy to Hide in the Housing Market, N.Y. Times, April 30, 2018.
It is no easy thing to get a faceless company to court.
New Reports: 6 new reports from Homeless Rights Advocacy Project. Overview and links to the reports from Seattle University’s news release:
The reports identify common problems with existing laws and policies and offer effective, legally sound alternatives. Links to all current reports are included below. All current and previous HRAP reports can be accessed by visiting the HRAP homepage.
One report offers the first statewide analysis of laws that restrict begging:
- Begging restrictions are often illegal and can create more problems than they solve. The vast majority of Washington cities (86 percent) criminalize begging, and most of these laws (83 percent) can result in criminal charges. These laws can lead to serious collateral consequences that make it extremely difficult for already vulnerable people to access housing and employment. Read the full report.
Four of the reports are geared to the network of city officials, non-profit organizations and others working to alleviate homelessness:
- Accessory dwellings have potential. Several cities around the country are experimenting with accessory dwellings -small units in residential backyards – to address housing shortages and homelessness crises. This guide analyzes innovative case studies in Colorado, Washington, California, and Oregon to provide lessons on structural design, project funding, screening and matching residents and hosts, potential legal liabilities, zoning regulations, and public relations considerations. Read the full report.
- Authorized encampments can be effective interim solutions. Cities are also trying authorized encampments as temporary solutions, but implementation has been haphazard due to a dearth of practical guidance. This guide summarizes the challenges and opportunities posed by various encampment models along the West Coast. Read the full report.
- Faith communities can be key partners. Faith-based organizations, such as churches, mosques and synagogues, are important providers of social services; they also enjoy special legal protections, allowing them to provide shelter even when prohibited by local law. This guide surveys successful practices and key considerations from faith communities in Washington and Colorado. Read the full report.
- Safe parking is a must for people living in vehicles. Vehicle residents are a growing part of homeless populations. This guide examines case studies of successful safe parking programs in Washington and California that mitigate harm to vehicle residents and offer support that can lift people out of poverty and into stable, permanent housing. Read the full report.
The final report is a practical guide for homeless individuals and others who have been arrested:
- Unhoused people who are arrested can be their own best advocate. Public defenders often are overworked and have little time to spend with clients; many defendants do not even receive one. But even represented unhoused defendants can help themselves with HRAP’s first-of-its-kind guide to navigating court, which introduces common legal terms and timelines, and provides strategies for those experiencing homelessness to advocate for themselves. Read the full report.
Op-Ed: Thomas B. Edsall, The Democrats’ Gentrification Problem, N.Y. Times, April 19, 2018. [Includes links to many good related articles about the split in the party when it comes to SES and a description of most law professors — the Brahmin Left.]
Call-for-papers: “Property Rights and Human Rights: New Possibilities in an Age of Inequality” – Conference in Melbourne, Australia, Aug. 9-10, 2018, cfp deadline March 20, 2018.
New (Short) Article: Vanessa Calder, Zoning, Land-Use Planning, and Housing Affordability, Cato Inst., SSRN Feb. 2018. Abstract below:
Local zoning and land-use regulations have increased substantially over the decades. These constraints on land development within cities and suburbs aim to achieve various safety, environmental, and aesthetic goals. But the regulations have also tended to reduce the supply of housing, including multifamily and low-income housing. With reduced supply, many U.S. cities suffer from housing affordability problems.
This study uses regression analysis to examine the link between housing prices and zoning and land-use controls. State and local governments across the country impose substantially different amounts of regulation on land development. The study uses a data set of court decisions on land use and zoning that captures the growth in regulation over time and the large variability between the states. The statistical results show that rising land-use regulation is associated with rising real average home prices in 44 states and that rising zoning regulation is associated with rising real average home prices in 36 states. In general, the states that have increased the amount of rules and restrictions on land use the most have higher housing prices.
The federal government spent almost $200 billion to subsidize renting and buying homes in 2015. These subsidies treat a symptom of the underlying problem. But the results of this study indicate that state and local governments can tackle housing affordability problems directly by overhauling their development rules. For example, housing is much more expensive in the Northeast than in the Southeast, and that difference is partly explained by more regulation in the former region. Interestingly, the data show that relatively more federal housing aid flows to states with more restrictive zoning and land-use rules, perhaps because those states have higher housing costs. Federal aid thus creates a disincentive for the states to solve their own housing affordability problems by reducing regulation.
Conference website here.
-Thanks to Heather Hughes for the heads up!
New Article: David Blankfein-Tabachnick & Kevin A. Kordana, Kaplow and Shavell and the Priority of Income Taxation and Transfer, 69 Hastings L.J. 1 (2017). Abstract below:
This Article rejects a central claim of taxation and private law theory, namely, Kaplow and Shavell’s prominent thesis that egalitarian social goals are most efficiently achieved through income taxation and transfer, as opposed to egalitarian alterations in private law rules. Kaplow and Shavell compare the efficiency of rules of tort to rules of tax and transfer in meeting egalitarian goals, concluding that taxation and transfer is always more efficient than other private law legal rules. We argue that Kaplow and Shavell reach this conclusion only through inattention to the body of private law that informs the very basis of their discussion: underlying property entitlements. This Article contends that Kaplow and Shavell’s comparison of rules of taxation to rules of tort fails to take proper account of the powerful role that (re)assigning underlying property entitlements plays in achieving egalitarian goals, even at the level of formal theory. We conclude that, contrary to Kaplow and Shavell’s prominent claim, as a matter of efficiency, the rules of income taxation and transfer are not always preferable to alterations in the initial assignment of property entitlements in achieving distributive or egalitarian goals.
New Article: James W. Ely Jr., Buchanan and the Right to Acquire Property, Cumberland L. Rev., SSRN 2017. Abstract below:
This article examines the impact of the Supreme Court decision in Buchanan v. Warley (1917) invalidating residential segregation laws as a deprivation of property rights without due process of law. The decision was premised on a strong affirmation of the right to acquire property. The article explores the historical background and contemporary significance of the right to acquire property. It notes that early state constitutions expressly recognized such a right. It points out that the right to acquire found practical expression in hostility to state-conferred monopoly and in the right to follow common occupations, two doctrines which evolved under the due process clause of the Fourteenth Amendment. The article stresses that the right to acquire property, as in Buchanan, serves to protect the interests of the economically disadvantaged, racial minorities, and fledgling entrepreneurs.
Although courts continued to invoke the right to acquire property, by the early twentieth century such right was increasingly limited by the spread of occupational licensing and enactment of laws hampering competition in certain businesses. This trend was facilitated by the emergence of New Deal jurisprudence which downplayed the rights of property owners and emphasized judicial deference to the economic judgment of legislators. As judicial review of economic regulations became largely perfunctory, occupational licensing and entry barriers proliferated in the years following World War II. Recently, however, some courts have looked skeptically at laws restricting entry into common occupations. The article concludes that the right to acquire property, although often ignored, retains some vitality.