New Article: “Homelessness and the Impossibility to Obey the Law”

Skolnik, Terry, Homelessness and the Impossibility to Obey the Law,  43 Fordham Urban Law Journal 741 (2016). [Abstract below]

Building on Jeremy Waldron’s work, this article argues that it can be impossible for homeless people to obey the law in certain contexts. This occurs where there are insufficient public resources to allow homeless people to comply with the law, or the homeless lack the capacity or opportunity to obey quality of life rules. This article explores the moral objections to enforcing quality of life rules in such circumstances, how courts view homeless people’s impossibility to obey the law, as well as policy and litigation strategies applicable in such cases.


Tangential post [apologies in advance]: my brief review of Christopher Serkin, Penn Central Take Two, 92 NOTRE DAME L. REV. 913 (2016)

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

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Op-Ed: “Mathematics of Inequality”

Taylor McNeil, Mathematics of Inequality, Tufts Now, October 28, 2017. [“Boghosian runs the numbers and shows that without redistribution of wealth, the rich get richer and everyone else gets poorer.”]

New Article: “Delaware’s Constitutional Mirror Test: Our Moral Obligation to Make the Promise of Equality Real”

Strine, Leo E., Delaware’s Constitutional Mirror Test: Our Moral Obligation to Make the Promise of Equality Real (September 22, 2017). U of Penn Law School, Public Law Research Paper No. 17-43. [Abstract below]

This lecture, delivered as the 2017 James R. Soles Lecture on the Constitution and Citizenship at the University of Delaware, addresses whether Delaware has lived up to the constitutional principles of equality. Delaware, although a part of the Union, was a slave state, and after the Civil War, a Jim Crow state. It was slow to embrace the ruling in Brown v. Board of Education, although Delaware Chancellor Collins J. Seitz had ruled for the black plaintiffs in Belton v. Delaware and ordered their admission to the formerly all-white schools. Ultimately, a metropolitan desegregation remedy was put in place by the federal courts in the late 1970s, after state officials dragged their feet and failed to implement an effective plan for desegregation.

The Court’s remedy effectively desegregated the New Castle County schools and prevented the creation of schools with high concentrations of poverty. In the 1990s, the State sought and obtained freedom from court supervision, arguing that it had gone beyond the court’s mandate in desegregating schools and could be trusted to ensure the rights of all children. Now, it is 2017. What has happened?

Delaware’s major city, Wilmington, remains divided among four school districts with a majority suburban voting base, created by the State to implement the court-ordered desegregation plan, but these school districts no longer seek to create racial balance in their schools. Wilmington now has elementary schools that are overwhelmingly high-minority and high-poverty. Middle schools of the same kind exist, and persistent economic and educational gaps between white and black children exist. During this period of resegregation, crime has grown in northern New Castle County to the point where Wilmington has a murder rate among the highest in the nation. Drop-out rates and youth crime rates among black kids far exceed those among white kids.

Yet, no extra resources have been given to the schools that face the greatest challenges and, in fact, in terms of the most important resource — teachers — the staff in urban schools have less experience than the staff in suburban schools with high income and low minority populations.

In this lecture, Chief Justice Strine asks whether Delawareans, having said we could protect the rights of our black children, are prepared to face the constitutional mirror test, and to recognize that kids who have less, need more — especially kids and families who have been victimized by hundreds of years of discrimination.

Rather than just identify the problem, Chief Justice Strine outlines a potential reform plan that would reorganize the New Castle County schools so that Wilmington was part of one well-resourced and geographically compact Northern New Castle County school district. This would allow for the selection of a high quality educational leader who could put in place a coherent plan to address the needs of poor children.

The Chief Justice also suggests the following: a 220-day school year; a full day, including an early arrival option with breakfast, after-school homework time, nutritious snacks, and activities; and a requirement that students grade seven and up engage in an after-school activity year round.

Because this plan is focused on poverty, it addresses racial inequality in a race-neutral way—nearly 60% of black families in Delaware are at or below 200% of the federal poverty level, as compared to 26% of white families. The plan also addresses the needs of all twenty-first century families as the extended school year would reduce the need for expensive summer camps and tutors; the extended school day and added extracurricular activities would reduce before and after-care costs for working parents; and the addition of nutritious meals during the school day would reduce the burden on impoverished families.

Further, the plan can be scaled up and implemented across the state, cutting redundancies and inefficient overhead costs throughout Delaware school districts and providing a coherent district-wide approach to classroom instruction.

In terms of how it can be financed, Chief Justice Strine points out that Delawareans pay far lower tax rates than they did when the state was more prosperous. He notes that failing to invest in education will continue to cost Delawareans in terms of crime, lost jobs, and hopelessness, finally asking, “[H]ow can we afford not to if we really care about our constitutional commitment to equality?”

Op-Ed: “Designing a More Inclusive City”

Allison Arief, Designing a More Inclusive City, New York Times, October, 20, 2017. [“City Center Plaza, like so many urban plazas everywhere, gives the appearance of public space while simultaneously restricting access to it.”]

New Article: “Seizing Family Homes from the Innocent: Can the Eighth Amendment Protect Minorities and the Poor from Excessive Punishment in Civil Forfeiture?”

Louis S. Rulli, Seizing Family Homes from the Innocent: Can the Eighth Amendment Protect Minorities and the Poor from Excessive Punishment in Civil Forfeiture?, 19:5 Univ. Pen. L. Rev. 1112, (2017).

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 ham (if any) to the community caused by the offending conduct; and (5) the consequences of forfeiture of the property owner.

Op-Ed: “Why I’ve Started to Fear My Fellow Social Justice Activists”

Frances Lee, Why I’ve Started to Fear My Fellow Social Justice Activists, Yes! Magazine, October 13, 2017. [“We are alienating each other with unrestrained callouts and unchecked self-righteousness. Here’s how that can stop.”

New Report: “Extending Temporary Protected Status for Honduras: Country Conditions and U.S. Legal Requirements”

New Report: Center for Latin American & Latino Studies (CLALS) at
American University et al., Extending Temporary Protected Status for Honduras: Country Conditions and U.S. Legal Requirements (Nov. 2017). Abstract below:

In January 1999, the U.S. government announced the designation of Honduras for Temporary Protected Status (TPS). This designation was premised on the significant disruptions and damage caused by Hurricane Mitch, which had ravaged Honduras in late October 1998. TPS for Honduras has been extended over the years, and the current period of designation is set to expire in early January 2018. In the current political moment, there is concern about whether this TPS designation will be extended once again.

This report provides a background on TPS, and also undertakes a detailed examination of the justifications offered over the years for extending TPS for Honduras. Each of these past extension decisions concluded, as required by the TPS statute, that Honduras is not able to adequately handle the return of its nationals who are residing in the U.S. with TPS. Our analysis reveals that the U.S. government has premised these past extension decisions on six categories of factors: climate and environment; economy; infrastructure; public health; safety and security; and governance.

The report proceeds to assess these same factors in present-day Honduras. Honduras remains extremely vulnerable to natural disasters, which have compromised the country’s infrastructure and stalled recovery efforts. Serious challenges persist for the Honduran economy, including high levels of unemployment and underemployment. Honduras also suffers from a severe shortage of housing, higher-than-average levels of food insecurity, and limited capacity in the health sector. Finally, the security situation in Honduras continues to deteriorate, fueling displacement, and placing strains on a government already weakened by corruption and impunity. These findings compel the conclusion that TPS for Honduras should be extended.

Op-Ed: “Why is ‘Affordable’ Housing So Expensive to Build”

Joe Cortright, Why is ‘Affordable’ Housing So Expensive to Build, City Lab, October 19, 2017. [As costs keep rising, it’s becoming harder and harder for governments to subsidize like they’ve done in the past.]

Op-Ed: “What Harvey Weinstein tells us about the liberal world”

Thomas Franks, What Harvey Weinstein tells us about the liberal world, The Guardian, October 21, 2017. [“To call this man a hypocrite is to state the obvious”]