Rulli, Louis, Seizing Family Homes from the Innocent: Can the Eighth Amendment Protect Minorities and the Poor from Excessive Punishment in Civil Forfeiture? (2017). University of Pennsylvania Journal of Constitutional Law, Vol. 19, p. 1483, 2017; U of Penn Law School, Public Law Research Paper No. 17-48. [Abstract below]
Civil forfeiture laws permit the government to seize and forfeit private property that has allegedly facilitated a crime without ever charging the owner with any criminal offense. The government extracts payment in kind — property — and gives nothing to the owner in return, based upon a legal fiction that the property has done wrong. As such, the government’s taking of property through civil forfeiture is punitive in nature and constrained by the Eighth Amendment’s Excessive Fines Clause, which is intended to curb abusive punishments.
The Supreme Court’s failure to announce a definitive test for determining the constitutional excessiveness of civil forfeiture takings under the Eighth Amendment has led to disagreement among state and federal courts on the proper standard. At the same time, the War on Drugs has resulted in an explosion of civil forfeiture filings against the property of ordinary citizens — many are whom are innocent of any wrongdoing — and therefore there is a profound need for a robust constitutional test that satisfies the Eighth Amendment’s original purposes. This need has grown more urgent because civil forfeiture practices are increasingly plagued by police abuses motivated by self-gain, and recent studies show that civil forfeitures disproportionately affect low-income and minority individuals who are least able to defend their hard-earned property.
This Article documents the aggressive use of civil forfeiture in Pennsylvania and, by way of illustration, presents the plight of elderly, African-American homeowners in Philadelphia who were not charged with any crime and yet faced the loss of their homes because their adult children were arrested for minor drug offenses. In such cases, the Eighth Amendment should play a vital role in preventing excessive punishments. But some courts mistakenly apply a rigid proportionality test, upon prosecutorial urging, that simply compares the market value of the home to the maximum statutory fine for the underlying drug offense. When a home value is shown to be less than the maximum fine, these courts presume the taking to be constitutional. Under such a one-dimensional test, prosecutors routinely win because the cumulative maximum fines for even minor drug offenses almost always exceed the market values of modest, inner-city homes. This cannot be the proper test. Instead, this Article contends that the proper constitutional test for excessiveness must be a searching, fact-intensive inquiry, in which courts are required to balance five essential factors: (1) the relative instrumentality of the property at issue to the predicate offense; (2) the relative culpability of the property owner; (3) the proportionality between the value of the property at issue and the gravity of the predicate offense; (4) the harm (if any) to the community caused by the offending conduct; and (5) the consequences of forfeiture to the property owner.
Jotwell finally published Nicole Stelle Garnett’s excellent review of Christopher Serkin’s recent article, Penn Central Take Two, 92 NOTRE DAME L. REV. 913 (2016). But I hope I will be forgiven for abusing my role as editor of this blog to post my own celebratory review of Serkin’s article here, even though it really will only perhaps interest property scholars. I wrote it for Jotwell but then found out that Nicole Stelle Garnett had already “claimed” Serkin’s article so I held off publishing this until I could link to her review.
Weakening Regulatory Chains: TDRs and Takings Claims by Ezra Rosser
Donald J Smythe, The Power to Exclude and the Power to Expel, SSRN, September 5, 2017. [Abstract below]
Property laws have far-reaching implications for the way people live and the opportunities they and their children will have. They also have important consequences for property developers and businesses, both large and small. It is not surprising, therefore, that modern developments in property law have been so strongly influenced by political pressures. Unfortunately, those with the most economic resources and political power have had the most telling influences on the way property laws have developed in the United States during the twentieth century. This article introduces a normal form game – I call it the “Not-In-My-Backyard Game” – to illustrate the motivations of various parties with interests in the direction of American property law. As the analysis indicates, affluent residents and upscale businesses owners have incentives to pressure suburban governments for zoning regulations that effectively exclude less affluent residents from their neighborhoods. Affluent residents and corporations who want to relocate into urban neighborhoods have incentives to pressure city governments to use eminent domain to facilitate urban redevelopment projects, and the takings often effectively expel many less affluent residents and smaller businesses from their neighborhoods. The analysis accords with the historical evidence. In the early twentieth century suburban governments began to use zoning ordinances to exclude poor and less affluent residents from suburban neighborhoods. Around the middle of the twentieth century, city governments began to use takings to effectively expel less affluent residents and smaller businesses from urban neighborhoods. The United States Supreme Court upheld the powers of local governments to exclude and expel, and state courts acquiesced to them. The consequence has been high and rising land prices, housing unaffordability, homelessness, and the perpetuation of the de facto segregation of the American people by income, wealth, race, ethnicity, religion, and national origin.
Boyack, Andrea J., Limiting the Collective Right to Exclude (May 24, 2017). Fordham Urban Law Journal, Vol. 44, 2017. [Abstract below]
For decades, society’s disparate interests and priorities have stymied attempts to resolve issues of housing affordability and equity. Zoning law and servitude law, both of which have been robustly empowered by decades of jurisprudence, effectively grant communities the legal right and ability to exclude various sorts of residences from their wealthiest neighborhoods. Exclusion by housing type results in exclusion of categories of people, namely, renters, the relatively poor, and racial minorities. Although our society’s housing woes may indeed be intractable if we continue to treat a group’s right to exclude with the level of deference that such exclusionary efforts currently enjoy, this treatment is unjustifiable. Courts should acknowledge and consider the broad public and private costs that are created by a group’s unfettered right to exclude. A more balanced approach would weigh individual autonomy to control property and various public harms resulting from community exclusions against legitimate community needs to exclude certain residents and uses. Judicial limits of the collective right to exclude may enable real progress toward fair and affordable housing to be achieved at last.
Karen Tokarz and Zachary Schmook, Law School Clinic and Community Legal Services Providers Collaborate to Advance the Remedy of Implied Warranty of Habitability in Missouri, 53 Wash. U. J. L. & Pol’y 169 (2017). Abstract Below:
This Essay discusses the economic and public policy concerns regarding the implied warrant of habitability law and the ability of tenants in the state of Missouri can raise effective defenses to rent and possession/eviction actions. The authors, Tokarz and Schmook, director and supervising attorney, respectively, of Washington University’s Civil Rights and Community Justice Clinic, evaluate these issues in light of Kohner Props., Inc. v. Johnson, which currently awaits a decision from the Missouri Supreme Court. Tokarz and Schmook use statistical analysis to identify recent trends in favorable results for landlords in disputes with tenants and stress the effects the Missouri Supreme Court’s decision in Kohner could have in future cases involving tenant rights.
Oliver Milman,’We don’t have anything’: landlords demand rent on flooded Houston homes, The Guardian, September 4, 2017. [“Displaced families say they are struggling to pay rent on damaged dwellings, as an acute housing crisis grips south-east Texas after Hurricane Harvey”]
Abigail Hauslohner, Jonathan O’Connell, Poorer tenants fear being pushed out by planned Congress Heights complex, Washington Post, Oct. 14, 2015. [An overview of the issues facing low income tenants in the Districts Congress Heights area.]
Audrey G. McFarlane, Randall K. Johnson, Cities, Inclusion and Exactions, 102 Iowa L. Rev. 2145 (2017). Abstract Below:
Cities across the country are adopting mandatory inclusionary zoning. Yet, consensus about the appropriate constitutional standard to measure the propriety of mandatory inclusionary zoning has not been fully reached. Under one doctrinal lens, inclusionary zoning is a valid land use regulation adopted to ensure a proper balance of housing within the jurisdiction. Under another doctrinal lens, challengers seek to characterize inclusionary zoning as an exaction, a discretionary condition subject to a heightened standard of review addressing the specific negative impact caused by an individual project on the supply of affordable housing in a jurisdiction. Drawing from the experience of Baltimore, Maryland’s inclusionary zoning ordinance, this Article considers the impact that the uncertainty in the law may have had on the type of inclusionary zoning ordinance adopted by the city. This Article argues that the conversation about inclusionary zoning,land use regulation, and exactions has been formulated in the context of imagery about development that leaves places like Baltimore out. The imagery in these narratives is of an individual landowner powerless in the face of government overreach. The reality is different in those places where land developers are not powerless and instead are often politically influential repeat players. Thus, the real problem presented may be not how to craft doctrine to prevent cities from asking too much of developers, but instead to craft doctrine that ensures cities do not give away too much.
Op-Ed: Peter Moskowitz, Evict the Rich, The Outline, Aug. 22, 2017 [arguing for the use of eminent domain to build affordable housing].