New Article: Timothy M. Mulvaney & Joseph William Singer, Move Along to Where? Property in Service of Democracy (A Tribute to André van der Walt). Abstract below:
When the police in cities that prohibit sleeping in public spaces command that people on the streets “move along,” advocacy groups for the homeless have started a campaign that pointedly asks “move along to where?” This question seeks to highlight the reality that homeless persons are being subjected to an order with which they have no capacity to comply. In this instance, the state is defining and rigidly enforcing property rights without concern for the consequences of its doing so; it apparently is only after this exercise in definition and enforcement that the state can move to respect fundamental democratic values—such as dignity and equality—in the space that remains.
Inspired by the work of André van der Walt, we here present the alternate thesis that property exists in service of the values that characterize our democracy. We advance this thesis through the lens of two stories of eviction—the leading cause of homelessness in the U.S.—in which our democratic values seemingly and, in our view, unacceptably are taking a backseat to property.
Article: Bethany Y. Li, Now is the Time: Challenging Resegregation and Displacement in the Age of Hypergentrification, 85 Fordham L. Rev. 1189 (2016).
Gentrification is reaching a tipping point of resegregating urban space in global cities like New York and San Francisco, often spurred by seemingly neutral government policies. The displacement resulting from gentrification forces low-income people from their homes into areas of concentrated poverty. Low-income communities consequently lose space, place, social capital, and cultural wealth that residents and small businesses have spent decades building up. This Article argues that communities at this tipping point must integrate litigation strategies directly aimed at stemming the adverse impacts of gentrification. Community organizing is integral to antidisplacement efforts, but litigation—and its injunctive powers—should play a larger role in protecting residents in hypergentrified neighborhoods. Using a rezoning that spurred gentrification in New York City’s Chinatown and Lower East Side as a case study, this Article considers how the Fair Housing Act, state constitutions, and a new vision of property law could counter the negative and often racially discriminatory effects of gentrification on low-income communities.
Article: Kathryn A. Sabbeth, Housing Defense as the New Gideon, 43 Harv. J. L. & Gender (forthcoming).
New York City is poised to become the first jurisdiction in the United States to guarantee a right to counsel for poor people at risk of losing their homes. Although millions of Americans are evicted every year, until recently, scholars and policymakers largely ignored the eviction phenomenon. New research demonstrates the frequency of eviction and the breadth of its economic and social impacts on individuals, their families, and society at large. Relying on studies showing that housing defense lawyers decrease eviction rates and promote positive social outcomes, NYC legislators concluded that a right to housing defense counsel would be both morally right and cost-effective. They introduced Intro 214-A to establish such a right and, in February 2017, the NYC mayor announced that his administration will provide the funds the bill needs to move forward. This Article is the first to analyze this ground-breaking legislation.
The right to appointment of criminal defense counsel recognized in Gideon v. Wainwright grew out of the Supreme Court’s response to the Civil Rights Movement. Using NYC’s housing defense bill as a case study, this Article identifies three ways in which the civil right to counsel has the potential to build on the Gideon model and expand it for today. First, in targeting the secondary effects of the eviction phenomenon, the NYC legislature moves beyond procedure to promote substantive outcomes. Second, its focus on housing defense recognizes a set of concerns that disproportionately impact Black women, thus building on the racial equality aims underlying Gideon and adding a move toward gender equality. Third, whereas the criminal defense model defends individuals against state power, the new bill applies to tenants of public and private landlords, thus checking abuses of private power.
The Article also addresses the dynamics of defensive lawyering, a feature of both the old and the new models of appointment of counsel. Defensive lawyering suffers from systemic limitations and fails to challenge social problems that could be addressed through affirmative suits—such as discrimination, harassment, and unsafe conditions. The availability of counterclaims in civil litigation, however, makes the civil defensive position more flexible than its criminal cousin, and may overcome some of these limits. The Article concludes that the new right to counsel holds significant promise.
Article: Matthew Dimick, Should the Law Do Anything About Economic Inequality?, SUNY Buffalo Legal Studies Research Paper No. 2016-011 (2016).
What should be done about rising income and wealth inequality? Should the design and adoption of legal rules take into account their effects on the distribution of income and wealth? Or should the tax-and-transfer system be the exclusive means to address concerns about inequality? A widely-held view argues for the latter: only the tax system, and not the legal system, should be used to redistribute income. While this argument comes in a variety of normative arguments and has support across the political spectrum, there is also a well-known law-and-economics version. This argument, known as the “double-distortion” argument, is simply stated. Legal rules that redistribute income only add to the economic distortions that are already present in the tax system. It would therefore be better for everyone, and especially the poor, to instead adopt an efficient, nonredistributive legal rule, and increase redistribution through the tax system.
This Article challenges the double-distortion argument from a law-and-economics perspective. There are two main arguments, in addition to several other subsidiary points. First, in the abstract, there is no reason to believe that legal rules that have redistributive effects will always reduce efficiency; indeed, they can sometimes increase efficiency. Examples from the regulation of product markets, labor markets, and financial markets underscore this claim. In these cases, legal redistribution is more efficient than redistribution through the tax system. Second, legal rules are likely to be more attractive than taxation precisely in cases where inequality itself or normative concerns about inequality is high. Under the optimal tax policy, higher inequality or greater concern about inequality will justify larger tax distortions. Therefore, a particular legal rule is more likely to be more efficient than the optimal tax policy under these circumstances. The ultimate conclusion is that a mix of legal rules and taxation, rather than taxation exclusively, will be the best way to address economic inequality.
Article: Daniel Shaviro, The Mapmaker’s Dilemma in Evaluating High-End Inequality, New York University Public Law and Legal Theory Working Papers (2016).
The last thirty years have witnessed rising income and wealth concentration among the top 0.1 percent of the population, leading to intense political debate regarding how, if at all, policymakers should respond. Often, this debate emphasizes the tools of public economics, and in particular optimal income taxation. However, while these tools can help us in evaluating the issues raised by high-end inequality, their extreme reductionism – which, in other settings, often offers significant analytic payoffs – here proves to have serious drawbacks. This paper addresses what we do and don’t learn from the optimal income tax literature regarding high-end inequality, and what other inputs might be needed to help one evaluate the relevant issues.
Article: Iris J. Goodwin, Access to Justice: What to Do About the Law of Wills, 5 Wisc. L. Rev. 947 (2016).
New Article: Paula A. Franzese, Abott Gorin & David J. Guzik, The Implied Warranty of Habitability Lives: Making Real the Promise of Landlord Tenant Reform, 69 Rutgers L. Rev. 1 (2017). Abstract below:
The implied warranty of habitability is an implicit promise that every residential landlord makes to provide tenant with premises suitable for basic human dwelling. Tenants can assert breach of the warranty affirmatively, in a suit against landlord for providing substandard housing, but most often assert the breach defensively in the context of landlord’s eviction proceeding against tenant for non-payment of rent. Still, national data suggests that notwithstanding its placement in the firmament of modern landlord-tenant law, few tenants actually assert breach of the implied warranty of habitability, whether affirmatively or defensively. Even in housing markets fraught with substandard rental dwellings, the warranty is underutilized. This Article endeavors to examine that lapse in the context of nonpayment of rent proceedings initiated by landlords in Essex County, New Jersey. Significantly, of the more than 40,000 eviction proceedings brought there in 2014, only 80 tenants asserted breach of the implied warranty of habitability as a defense.
The authors used that field to learn more about the efficacy of the defense and, when raised successfully, its capacity to prompt the remediation of on-site defects. They found that notwithstanding its relative paucity of use, when invoked the implied warranty of habitability can and does work to bring needed repair and improvement to otherwise substandard dwellings. Indeed, in more than half of the cases surveyed the implied warranty of habitability was used successfully to cure housing code violations on leased premises. Moreover, irrespective of whether the defense succeeded or failed the majority of tenants who did assert it stated unequivocally that they would resort to it again if faced with significant on-site infirmities. The warranty deserves an important place in the stock of affirmative actions and defenses available to aggrieved tenants. The considerable challenge is to remove obstacles to its assertion, whether in the form of onerous rent deposit requirements, the absence of centralized databases for courts and rent subsidizing agencies to use when making decisions regarding rent subsidies for substandard premises, the subversive practice of “tenant blacklisting,” the scarcity of effective assistance of counsel or tenants’ lack of awareness of their basic rights.
Blog Post: Rachel Rintelmann, Why I — and Legal Aid — Stand in Solidarity with LSC, Making Justice Real blog (Mar. 17, 2017).
News Article: Jose A. DelReal, Trump administration considers $6 billion cut to HUD budget, Washington Post (Mar. 8, 2017).