Susan F. French INFLECTION POINT: PRIVATE LAND USE COVENANTS, THE HOUSING CRISIS AND THE WARMING PLANET 52 UIC John Marshall Law Review 741 (Spring, 2019) Two major problems have brought us to what should be an inflection point in the ways we use land in the United States: the housing crisis and the warming planet. They will require significant changes in residential, industrial, and agricultural patterns and practices, both public and private. To alleviate the housing crisis, it will be necessary to... 2019
Blanche Bong Cook JOHNNY APPLESEED: CITIZENSHIP TRANSMISSION LAWS AND A WHITE HETEROPATRIARCHAL PROPERTY RIGHT IN PHILANDERING, SEXUAL EXPLOITATION, AND RAPE (THE "WHP") OR JOHNNY AND THE WHP 31 Yale Journal of Law & Feminism 57 (2019) Abstract: Title 8, United States Code, Section 1409--one of this country's citizenship transmission laws--creates a white heteropatriarchal property right in philandering, sexual exploitation, and rape (the WHP). Section 1409 governs the transmission of citizenship from United States citizens to their children, where the child is born abroad,... 2019
Rachel E. Sachs JUDGE POSNER'S RECONSTRUCTION OF PROPERTY THEORY 86 University of Chicago Law Review 1201 (Special 2019) The many other terrific contributions to this Symposium analyze clearly and thoughtfully the impact Judge Posner's judicial opinions have had on a wide range of legal fields. This contribution, by contrast, begins by committing a cardinal sin: it rejects the premise of the Symposium. To be clear, I argue that Judge Posner has fundamentally reshaped... 2019
Diego Gil Mc Cawley LAW AND INCLUSIVE URBAN DEVELOPMENT: LESSONS FROM CHILE'S ENABLING MARKETS HOUSING POLICY REGIME 67 American Journal of Comparative Law 587 (Fall, 2019) This Article addresses the recent international trend in development theory and practice towards an enabling markets approach in housing policy. This approach delegates to housing markets the responsibility of providing affordable housing and therefore limits the role of government to stimulating the private sector through targeted subsidies. I... 2019
Javon T. Henry LOW INCOME HOUSING TAX CREDITS AND THE DANGERS OF PRIVATIZATION 16 Pittsburgh Tax Review 247 (Spring, 2019) Current federal affordable housing policy is ineffective because it is being used as a business platform to attract economic development instead of improving the quality of affordable housing. The low-income housing tax credit program (LIHTC or the Credit) is the largest national low-income affordable housing program. The federal government enacted... 2019
Matthew P. Main MAKING CHANGE TOGETHER: THE MULTI-PRONGED, SYSTEMS THEORY APPROACH TO LAW AND ORGANIZING THAT FUELED A HOUSING JUSTICE MOVEMENT FOR THREE-QUARTER HOUSE TENANTS IN NEW YORK CITY 27 Georgetown Journal on Poverty Law and Policy 31 (Fall, 2019) The overlapping consequences of mass incarceration, a sweeping opioid epidemic, and an unprecedented homelessness crisis culminated in the birth of an exploitative underground industry of unlicensed, unregulated housing--known as three-quarter housing--in New York City. Three-quarter houses are generally small buildings that hold themselves out... 2019
Joseph J. Railey MARRIED ON SUNDAY, EVICTED ON MONDAY: INTERPRETING THE FAIR HOUSING ACT'S PROHIBITION OF DISCRIMINATION "BECAUSE OF SEX" TO INCLUDE SEXUAL ORIENTATION AND GENDER IDENTITY 36-37 Buffalo Public Interest Law Journal 99 (2017-2019) An openly gay male and his partner decide to rent an apartment together. After finding a unit they like, the couple contacts the landlord; the landlord declines to rent to the couple because of their alternative lifestyle. At the same time, a transgender female and her wife are looking for a home together; they are unable to find a realtor... 2019
Jill M. Fraley MODERN WASTE LAW, BANKRUPTCY, AND RESIDENTIAL MORTGAGES 41 Cardozo Law Review 485 (December, 2019) Around the time of the subprime mortgage collapse, lenders began in earnest to sue borrowers by adapting the traditional law of waste. Today, these claims continue to rise in frequency and to expand to more jurisdictions. Lender waste claims provide a work around for state mortgage laws that prohibit personal deficiency judgments after... 2019
E. Perot Bissell V MONUMENTS TO THE CONFEDERACY AND THE RIGHT TO DESTROY IN CULTURAL-PROPERTY LAW 128 Yale Law Journal 1130 (February, 2019) This Note identifies problems in cultural-property law that the recent wave of removals of Confederate memorials has illustrated. Because cultural-property law's internal logic tends inexorably towards supporting preservation, it has no conceptual framework for recognizing when a culture might be justified in destroying its own cultural property. I... 2019
K. Heidi Smucker NO PLACE LIKE HOME: DEFINING HUD'S ROLE IN THE AFFORDABLE HOUSING CRISIS 71 Administrative Law Review 633 (Summer, 2019) Introduction. 634 I. HUD: An Agency or Writer of Federal Checks?. 636 A. The Evolution of Rental Housing Assistance: What Worked and What Didn't. 637 B. A Funnel for Federal Funding. 639 II. Houston (and San Francisco, D.C., and New York), We Have a Problem. 640 A. The Rise (and Potential Fall) of San Francisco's Restrictive Zoning. 641 B.... 2019
Alix Rogers OWNING GERONIMO BUT NOT ELMER MCCURDY: THE UNIQUE PROPERTY STATUS OF NATIVE AMERICAN REMAINS 60 Boston College Law Review 2347 (November, 2019) Introduction. 2349 I. The Treatment of Native American Remains from Early America to 1989. 2355 II. The Treatment of Non-Native Human Remains in America. 2360 A. Collecting in the Name of Science. 2360 B. Collecting in the Name of Medicine. 2362 III. The Native American Graves Protection and Repatriation Act. 2365 A. Federal or Tribal Land &... 2019
Elizabeth Elia PERPETUAL AFFORDABILITY COVENANTS: CAN THESE LAND USE TOOLS SOLVE THE AFFORDABLE HOUSING CRISIS? 124 Penn State Law Review 57 (Fall, 2019) Approximately 3.8 million privately-owned residential housing units in America today contain affordability covenants recorded in their chains of title. State and local agencies and the District of Columbia use these covenants to ensure that publicly-subsidized properties are actually used to provide affordable housing. With rents at all-time highs... 2019
Brandon M. Weiss PROGRESSIVE PROPERTY THEORY AND HOUSING JUSTICE CAMPAIGNS 10 UC Irvine Law Review 251 (October, 2019) L1-2Introduction . L3253 I. Progressive Property Theory as a Response to Law & Economics. 256 A. Against a Background of Law & Economics. 256 B. The Emergence of Progressive Property Theory. 257 II. Housing Justice Campaigns. 261 A. Inclusionary Zoning--Property Theory in the Context of U.S. Supreme Court Litigation. 263 1. 616 Croft Ave., LLC v.... 2019
Paula A. Franzese , Stephanie J. Beach PROMISES STILL TO KEEP: THE FAIR HOUSING ACT FIFTY YEARS LATER 40 Cardozo Law Review 1207 (February, 2019) C1-2Table of Contents Introduction. 1207 I. Historical and Theoretical Antecedents: How Government Created and Enforced Housing Segregation. 1209 II. Barriers to Achieving the Promise of the Fair Housing Act. 1212 A. Dwindling and Deteriorating Stocks of Affordable Housing. 1212 B. Compounding the Harms: Tenant Blacklisting. 1221 C. Not in My... 2019
Valerie Schneider RACISM KNOCKING AT THE DOOR: THE USE OF CRIMINAL BACKGROUND CHECKS IN RENTAL HOUSING 53 University of Richmond Law Review 923 (March, 2019) One of the harshest collateral consequences of an arrest or conviction is the impact a criminal record can have on one's ability to secure housing. Because racial bias permeates every aspect of the criminal justice system as well as the housing market, this collateral consequence--the inability to find a place to live after an arrest or... 2019
Andrea J. Boyack RESPONSIBLE DEVOLUTION OF AFFORDABLE HOUSING 46 Fordham Urban Law Journal 1183 (October, 2019) The federal government has been heavily involved in promoting housing affordability since the 1930s and continues to have a critical role to play. Over the past several decades, the federal government has financed affordability by promoting development and income subsidies, but specific allocation decisions have devolved. Housing inequities can... 2019
Jill C. Morrison RESUSCITATING THE BLACK BODY: REPRODUCTIVE JUSTICE AS RESISTANCE TO THE STATE'S PROPERTY INTEREST IN BLACK WOMEN'S REPRODUCTIVE CAPACITY 31 Yale Journal of Law & Feminism 35 (2019) Abstract: 2019 marks 400 years since the first Africans were brought to the Virginia colony as captives, and deemed not human beings but rather the property of others. Black women have endured reproductive oppression since our arrival in the United States. This Article argues that current methods of reproductive oppression attempt to restore the... 2019
Dotan Oliar, James Y. Stern RIGHT ON TIME: FIRST POSSESSION IN PROPERTY AND INTELLECTUAL PROPERTY 99 Boston University Law Review 395 (March, 2019) How should we allocate property rights in unowned tangible and intangible resources? This Article develops a model of original acquisition that draws together common law doctrines of first possession with original acquisition doctrines in patent, copyright, and trademark law. The common denominator is time: in each context, doctrine involves a... 2019
Wendy Jennings SEPARATING FAMILIES WITHOUT DUE PROCESS: HIDDEN CHILD REMOVALS CLOSER TO HOME 22 CUNY Law Review 1 (Winter, 2019) Introduction. 3 I. Family Separation Traumatizes Children and Their Parents. 8 A. Removing a Child from Her Parent Harms the Child. 8 B. Removing a Child from His Parent Has Long-Term Consequences for Families and Impacted Communities. 9 II. The Basic Path of New York Child Abuse and Neglect Cases. 10 A. How Does an Abuse or Neglect Case Begin?. 11... 2019
Melvin J. Kelley IV TESTING ONE, TWO, THREE: DETECTING AND PROVING INTERSECTIONAL DISCRIMINATION IN HOUSING TRANSACTIONS 42 Harvard Journal of Law & Gender 301 (Summer, 2019) A review of the past fifty years has generated a consensus that the federal Fair Housing Act (FHA), also known as Title VIII, has fared far less well in addressing discrimination than its counterpart in employment, Title VII. Included among these failings is the relative dearth of intersectionality theory in fair housing jurisprudence. While courts... 2019
Kate Walz , Patricia Fron , Vice President of Advocacy, Sargent Shriver National Center on Poverty Law, 67 East Madison St. Suite 2000, Chicago, IL 60603, 312.263.3830,, Executive Director, Chicago Area Fair Housing Alliance, 401 S THE COLOR OF POWER: HOW LOCAL CONTROL OVER THE SITING OF AFFORDABLE HOUSING SHAPES AMERICA 12 DePaul Journal for Social Justice 1 (Winter, 2019) Abstract: Some cities, such as Chicago, have power structures that allow hyperlocal control over the siting of affordable housing--and maintain racial segregation of residential housing as a result. Advocates can push for structural changes that can curb this power and reduce racial segregation. These changes include citywide comprehensive... 2019
Davida Finger THE EVICTION GEOGRAPHY OF NEW ORLEANS: AN EMPIRICAL STUDY TO FURTHER HOUSING JUSTICE 22 University of the District of Columbia Law Review 23 (Spring, 2019) Low-income tenants in the U.S. have weak bargaining power, as well as limited housing and mobility options in the housing market. With no enforceable right to housing, tenants are stuck--quite literally in the case of uninhabitable rental property--in unsafe and unhealthy living conditions. Poverty and economic instability make it challenging for... 2019
Julián Castro THE FAIR HOUSING ACT AFTER FIFTY YEARS: OPENING REMARKS 40 Cardozo Law Review 1091 (February, 2019) Fifty years ago, on this day in late March, the United States was about to go through one of the darkest stretches in modern American history. At the end of March 1968, President Lyndon Johnson announced that he would not run for reelection. Just a few days later, of course, on April 4th, Martin Luther King Jr. was assassinated. A couple of months... 2019
Elizabeth Julian THE FAIR HOUSING ACT AT FIFTY: TIME FOR A CHANGE 40 Cardozo Law Review 1133 (February, 2019) C1-2Table of Contents Introduction. 1133 I. The Evolution of the FHA Over the First Twenty Years. 1137 II. The Next Twenty Years. 1138 III. The 2008 Report of the National Commission on Fair Housing and Equal Opportunity. 1140 IV. Looking Back, Looking Forward. 1143 V. The Duty to Affirmatively Further Fair Housing?. 1145 VI. Non-Governmental... 2019
Craig Flournoy THE FAIR HOUSING ACT: ENACTED DESPITE THE MAINSTREAM MEDIA, NEUTERED BY THE FEDERAL GOVERNMENT'S UNWILLINGNESS TO ENFORCE IT 40 Cardozo Law Review 1101 (February, 2019) We cannot be satisfied as long as the Negro's basic mobility is from a smaller ghetto to a larger one. --Dr. Martin Luther King, Jr., I Have a Dream This Article examines the 1968 Fair Housing Act from two perspectives. The first Part discusses the urban riots of the mid-1960s; the failure of the white press to examine the connection between the... 2019
Palma Joy Strand THE INVISIBLE HANDS OF STRUCTURAL RACISM IN HOUSING: OUR HANDS, OUR RESPONSIBILITY 96 University of Detroit Mercy Law Review 155 (Winter, 2019) They are led by an invisible hand . Adam Smith Psychologist Beverly Daniel Tatum, author of the keystone work on racial identity development, defines racism as a system of advantage based on race. Recently, as I read the revised 2017 20 anniversary edition of Why Are All the Black Kids Sitting Together in the Cafeteria?, I noticed that while... 2019
Deborah N. Archer THE NEW HOUSING SEGREGATION: THE JIM CROW EFFECTS OF CRIME-FREE HOUSING ORDINANCES 118 Michigan Law Review 173 (November, 2019) America is profoundly segregated along racial lines. We attend separate schools, live in separate neighborhoods, attend different churches, and shop at different stores. This rigid racial segregation results in social, economic, and resource inequality, with White communities of opportunity on the one hand and many communities of color without... 2019
John Infranca THE NEW STATE ZONING: LAND USE PREEMPTION AMID A HOUSING CRISIS 60 Boston College Law Review 823 (March, 2019) Introduction. 825 I. Localism And Land Use. 830 II. The First Generation of State Land Use Interventions. 836 A. Massachusetts: A Focus on Streamlining Development Approvals and Encouraging Zoning Reform. 837 B. New Jersey: A Focus on Planning and Development Approvals. 839 C. California: A Focus on Planning and Procedure. 841 D. Some Trends. 844... 2019
Abraham Bell , Gideon Parchomovsky THE PRIVACY INTEREST IN PROPERTY 167 University of Pennsylvania Law Review 869 (March, 2019) Once upon a time, there existed a clear nexus between property and privacy. Protection of property rights was an important safeguard against intrusions of the privacy interests of owners both by the government and by private actors. Gradually, however, the symbiotic relationship between privacy and property has been forgotten by scholars and... 2019
Audrey G. McFarlane THE PROPERTIES OF INTEGRATION: MIXED-INCOME HOUSING AS DISCRIMINATION MANAGEMENT 66 UCLA Law Review 1140 (October, 2019) Mixed-income housing is an increasingly popular approach to providing affordable housing. The technique largely went unnoticed until developers of mixed-income housing constructed buildings containing separate entrances for rich and poor residents. The ensuing poor door controversy illustrated that mixed-income housing, as both a method of... 2019
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