Housing Law
A New “Plan for Transformation”: Improving Living Conditions in Chicago’s Public Housing
Public housing suffers from disinvestment, and, today, many residents live in substandard conditions. By combining the literature on public-housing history and tenant-rights law with the lived experiences of public-housing residents, this Essay uses Chicago as a case study to explore litigation and other advocacy strategies for systematically improving public-housing quality.
Churching NIMBYs: Creating Affordable Housing on Church Property
Faith communities across the United States are creating affordable housing on church property. Where sincerely held religious belief inspires their efforts, faith communities can assert religious liberty protections against land-use decisions that obstruct denser, multifamily developments. Legislative reforms can help them overcome the regulatory and financial hurdles of adaptive reuse.
Familial-Status Discrimination: A New Frontier in Fair Housing Act Litigation
A key exception to the Fair Housing Act’s prohibition of familial-status discrimination has allowed municipalities to weaponize senior-only housing to block the construction of affordable housing and perpetuate segregation. This Note documents this practice, offers a framework for advocates to challenge it through litigation, and proposes policy solutions.
Can Affordable Housing Be a Safety Net? Lessons from a Pandemic
COVID-19 posed an unprecedented challenge to housing stability. This Essay argues that the pandemic exposed the mismatch of affordable-housing programs (including housing voucher programs, tax credits, and emergency rental assistance) to short-term crises, whether personal or nationwide. Yet the pandemic also helped reveal what building a housing safety net requires.
A Federal Builder’s Remedy for Exclusionary Zoning
This Note argues that when a local zoning body blocks construction of low-income housing in order to exclude the poor, courts should provide a constitutional remedy. After articulating a doctrinal path through the Due Process Clause, this Note makes the normative case for this “builder’s remedy” for exclusionary zoning.
Pushed Out and Locked In: The Catch-22 for New York’s Disabled, Homeless Sex-Offender Registrants
New York’s poor, disabled sex-offender registrants are ensnared in a cruel catch-22: New York will not release them from prison without housing, but laws and policies make finding housing nearly impossible for this population. This Essay explores potential legal challenges to New York’s harmful, counter-productive, and unlawful regime.
Zoned Out: How Zoning Law Undermines Family Law’s Functional Turn
A fatal conflict in the legal definition of family lurks at the intersection of family law and zoning law. Family law has increasingly embraced “functional families,” those whose bonds can be traced to cohabitation, while zoning law has narrowed to restrict residency to individuals related by blood, marriage, or adoption.
Evicted: The Socio-Legal Case for the Right to Housing
Matthew Desmond’s Evicted: Poverty and Profit in the American City is a triumphant work that provides the missing socio-legal data needed to prove why America should recognize housing as a human right. Desmond’s masterful study of the effect of evictions on Milwaukee’s urban poor in the wake of the 2008 U.S. housing crisis humanizes the evicted, and their landlords, through rich and detailed ethnographies. His intimate portrayals teach Evicted’s readers about the agonizingly difficult choices that low-income, unsubsidized tenants must make in the private rental market. Evicted also reveals the contradictions between “law on the books” and “law-in-action." Its most significant contribution to American housing and poverty scholarship is the socio-legal data it provides to demonstrate the high economic and social costs America pays for its failure to consider housing a basic human right. Indeed, Desmond ultimately calls for an American right to housing and presents law and policy solutions in Evicted to advance such a right.
Exploiting the Poor: Housing, Markets, and Vulnerability
Matthew Desmond’s magisterial Evicted: Poverty and Profit in the American City is arguably the most important book about poverty in the United States in a generation. Just as Michael Harrington’s The Other America provided the country with a necessary window onto the poverty lurking below the surface of the affluent society of post-war America, so too Evicted brings to life the immense challenges and hardships of poverty in today’s economy. Desmond’s empathetic descriptions of the lives of poor individuals and families facing eviction and homelessness in two Milwaukee neighborhoods force readers to confront the inhumanity of society’s choice to not treat housing as a basic right.
Legal Responses to the Crisis of Forced Moves Illustrated in Evicted
Matthew Desmond’s Evicted: Poverty and Profit in the American City combines compelling narratives that illustrate many of the barriers to housing for individuals in poverty with quantitative data that speaks to the scope of the housing crisis in urban America. This Essay addresses what may be a lawyer’s most natural question upon finishing Desmond’s book: what can lawyers and the law do to reduce evictions and forced moves among tenants in poverty?
"We Don't Follow, We Lead": How New York City Will Save Mortgage Loans by Condemning Them
Sheltering Deprivations: FEMA, Section 408 Housing, and Procedural Redesign
116 Yale L.J. 1883 (2007).
Tenant Screening Thirty Years Later: A Statutory Proposal To Protect Public Records
116 Yale L.J. 1344 (2007) Most consumers learn about tenant-screening reports only when a landlord points to an item on such a report as the reason for rejecting an application and provides the tenant with a copy of that report as required by law. Legal scholars have criticized these reports for more than thirty years, however, observing that they are prone to error, open to abuse, and generally contrary to established public policies. This Note examines existing mechanisms used to regulate these reports and finds them inadequate, endorsing instead one state’s approach of “choking” information flows by disclosing eviction records only when the landlord prevails in court. In a digital age in which personal information is easily aggregated, court records should not be a vehicle for automatic damage to an individual’s renting prospects and reputation.
Living History: How Homeowners in a New Local Historic District Negotiate Their Legal Obligations
116 Yale L.J. 768 (2007) American historic preservationists are increasingly emphasizing the need to preserve not only prominent landmarks, but also the vernacular architectural culture of "ordinary neighborhoods." Preserving such neighborhoods often requires convincing homeowners to agree to legal restrictions on how they maintain their homes, yet to date, there has been no empirical research on how homeowners have responded to the policy tradeoffs inherent in making such a decision. This Note fills that gap, using extensive original empirical research to examine how homeowners in New Haven's recently approved City Point Local Historic District viewed and managed their legal obligations. This Note then draws upon these data to develop policy recommendations for improving local preservation efforts nationwide.
Unpacking the Household: Informal Property Rights Around the Hearth
As Aristotle recognized in The Politics, the household is an indispensable building block of social, economic, and political life. A liberal society grants its citizens far wider berth to arrange their households than to choose their familial and marital relationships. Legal commentators, however, have devoted far more attention to the family and to marriage than to the household as such. To unpack the household, this Article applies transaction cost economics and sociological theory to interactions among household participants. It explores questions such as the structure of ownership of dwelling units, the scope of household production, and the governance of activities around the hearth. Drawing on a wide variety of historical and statistical sources, the Article contrasts conventional family-based households with arrangements in, among others, medieval English castles, Benedictine monasteries, and Israeli kibbutzim. A household is likely to involve several participants and as many as three distinct relationships--that among occupants, that among owners, and that between these two groups (the landlord-tenant relationship). Individuals, when structuring these home relationships, typically pursue a strategy of consorting with intimates. This facilitates informal coordination and greatly reduces the transaction costs of domestic interactions. Utopian critics, however, have sought to enlarge the scale of households, and some legal advocates have urged household members to write formal contracts and take disputes into court. These commentators fail to appreciate the great advantages, in the home setting, of informally associating with a few trustworthy intimates. Read Professor Ellickson's Pocket Part Essay adapted from this Article. Read Professor Shoshana Grossbard's Response, Repack the Household: A Response to Robert Ellickson’s Unpacking the Household. Read Professor Robert Pollak's Response, Bargaining Around the Hearth.
The Creation of Homeownership: How New Deal Changes in Banking Regulation Simultaneously Made Homeownership Accessible to Whites and Out of Reach for Blacks
115 Yale L.J. 186 (2005) The Federal Government, in creating the section 203(b) mortgage insurance program during the New Deal, transformed homeownership in America into the main way that middle-class households build wealth. In the first three decades of the program's existence, however, this wealth-building opportunity was not shared with African-Americans. This Note reveals a pervasive, previously ignored regulatory system at both the state and federal level that gave the section 203(b) program a monopoly in offering the kinds of loans that first-time homebuyers needed. These statutes meant that even nongovernmental entities could not offer most African-Americans the opportunity to become homeowners.
The Political Economy of School Choice
111 Yale L.J. 2043 (2002) This Article examines the political economy of school choice and focuses on the role of suburbanites. This group has re- ceived little attention in the commentary but is probably the most important and powerful stakeholder in choice debates. Suburbanites generally do not support school choice pol- icies either public or private. They are largely satisfied with the schools in their neighborhoods and want to protect the physical and financial independence of those schools, as well as suburban property values, which are tied to the perceived quality of local schools. School choice threatens the independence of suburban schools by creating the pos- sibility that outsiders, especially urban students, will enter suburban schools and that local funds will exit local schools. When suburbanites face threats to their schools, they fight back, and they usually win. As this Article documents, sub- urbanites succeeded in insulating their schools from prior education reforms, including efforts to integrate schools and alter school funding regimes. A similar pattern is emerging in school choice plans, almost all of which work to protect the physical and financial autonomy of suburban schools and res- idents. If this pattern continues, school choice plans will be geographically constrained, will tend to be intradistrict, and will exist primarily in urban districts. These constraints will limit the ability of school choice to stimulate student academic improvement, racial and socioeconomic integration, and pro- ductive competition among public schools. Simply put, limited school choice plans will have limited impact, so that school choice will be neither a panacea, as its proponents argue, nor a serious threat to traditional public schools, as its opponents contend. To achieve the full theoretical benefits of school choice, we suggest that the choices offered to students must be broadened, especially in ways that will pro- vide greater opportunities for socioeconomic integration. In the final Part of the Article we consider ways to do so, including through increased access to government-funded, though not necessarily government-operated, preschools.
Connecticut Retrenches: A Proposal To Save the Affordable Housing Appeals Procedure
110 Yale L.J. 1247 (2001)