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Volume 117 - Issue 1


Family | Home | School

Baldwin Clark, LaToya | August 28, 2022

The state grants residents who live within a school district’s border an ownership interest in that district’s schools. This interest includes the power to exclude nonresidents. To attend school in a school district, a child must prove that she lives at an in-district address and is a bona fide resident. But in highly-sought-after districts and schools, establishing a child’s bona fide residence may be highly contested. In this Essay, I show that education law, policies, and practices fail to recognize a child’s residence when the child’s family and living situation do not comport with a particular ideal of family life. This ideal is rooted in the archetype of the White, middle-class nuclear family headed and controlled by two parents and living in a single dwelling around which all family life revolves—a “home.” While this idea may be normatively familiar, it is elusive for many families. For many families, especially the race–class–gender subordinated, “family” looks and functions differently from the archetype. Parents are rarely the only or primary caregivers for children in these families, and home-making is likely to occur across multiple sites, not just one “home.” By valorizing the nuclear family and its accouterments—and refusing to consider other family forms as sufficient to establish residency—residency requirements not only impede access to educational resources for those who are most in need, but also entrench a race–class–gender-specific ideal of the family and ignore the reality of how many families actually function.

Ownership Concentration: Lessons from Natural Resources

Casado Pérez, Vanessa | August 28, 2022

Concentration of ownership over land or other resources is both a sign and a cause of inequality. Concentration of ownership makes access to such resources difficult for those less powerful, and it can have negative effects on local communities that benefit from a more distributed ownership pattern. Such concentration goes against the antimonopoly principles behind the homesteading land policies and the legal regimes that regulate many natural resources. This Essay suggests that where concentration is a concern, one might draw lessons for reform by looking to the field of natural resources law, which employs a range of deconcentration mechanisms affecting fisheries, mineral extraction, farmland, and the like that have proven a considerable success. These deconcentration mechanisms have taken mostly two forms: restrictions on how much one rights holder can hold and restrictions on who can hold rights. These deconcentrating measures are more likely to be adopted in resources with a defined, relatively small market, with homogeneous uses and users, and where community externalities from concentration are assessable.

Climate Change Adaptation as a Problem of Inequality and Possible Legal Reforms

Dana, David A | August 28, 2022

Climate change will necessitate adaptation in all parts of the United States, but some individuals and localities will be better able to adapt than others. Wealth inequalities among individuals and localities already are translating—and will continue to translate—into inequalities between the rich and poor in their capacity to adapt. Current federal disaster aid programs and policies exacerbate these inequalities by favoring the wealthy, and future government resource management decisions and investments also may broaden the gap between rich and poor in terms of the economic and other costs they will bear from climate change. Some have suggested broadening Takings Clause liability as a means to address the problem of inequality and climate change adaptation. However, these suggested doctrinal reforms, if anything, would skew government actors to provide even greater protection to wealthy communities and even less to low-income ones. Broadening the public trust doctrine could help address some of the inequality problems associated with climate change, but the most important reforms needed involve the integration of equality analysis and equality concerns into all levels of administrative decision-making. And those reforms, in turn, will require a climate-aware, equality-focused, and politically effective electorate.

Streaming Property

Fennell, Lee Anne | August 28, 2022

People acquire property rights in objects and real estate in order to capture the stream of services that these assets can provide over time. The thing or parcel itself is merely a delivery mechanism, a way of packaging and protecting rights to that value stream. And, significantly, these assets cannot stream services to anyone without a set of facilitating conditions and complementary goods, such as public infrastructure, that do not lie within the asset owner’s individual control. This Essay argues that we can gain fresh traction on inequality by recasting property as service streams rather than as owned things. Doing so emphasizes the costs of structuring property entitlements in ways that monopolize or squander streams of services. It also reveals new opportunities to repackage valuable service streams into asset-like formats to create durable and flexible claims on resources. Finally, a focus on services directs fresh attention to what people actually want and need from resources over time—a dynamic inquiry whose answer encompasses the spatial and ecological services that are now of overwhelming importance.

Flint’s Fight for Environmental Rights

Hall, Noah D | August 28, 2022

This Essay reviews the recent development of environmental rights within U.S. constitutional law, advanced through a series of federal court decisions in the wake of the Flint water crisis. The residents of Flint were poisoned and lied to by their government for nearly two years. They experienced how American environmental governance has failed at the state and federal levels and how our environmental laws leave individuals and communities unprotected. And then Flint fought back, in the courts, for five years. Flint residents have been overwhelmingly successful, achieving some justice for themselves and advancing substantive rights and remedies within our constitutional framework for all Americans. Their legal victories established precedents for courts to use their equitable powers to order systemic remedies to environmental injustices, protect the right to bodily integrity—as guaranteed by the Fourteenth Amendment’s Substantive Due Process Clause—against involuntary pollution and toxic exposure, and hold the U.S. government accountable for inaction in administering our environmental laws. Flint’s fight for environmental rights has turned the Flint water crisis into a breakthrough event in environmental and constitutional law.

The Missing U.S. VAT: Economic Inequality, American Fiscal Exceptionalism, and the Historical U.S. Resistance to National Consumption Taxes

Mehrotra, Ajay K | August 28, 2022

Since the 1970s, economic inequality has soared dramatically across the globe and particularly in the United States. In that time, one of the obstacles of using fiscal policy to address inequality has been the growing myth of the “overtaxed American”—the misguided notion that U.S. taxpayers pay more in taxes than residents of other advanced, industrialized countries. This myth has persisted, in part, because of the peculiar and distinctive nature of the fractured American fiscal and social welfare state. Even a cursory review of comparative tax data shows that the United States, by most measures, is a low-tax country compared to other affluent nations. One reason for this shortfall is the missing U.S. value-added tax (VAT).

Unlike the United States, other developed countries fund robust social spending through a balanced mix of levies, including by relying on broad-based national consumption taxes such as a VAT, which produces a tremendous amount of government revenue. By contrast, the United States has historically rejected comprehensive national consumption taxes, suggesting something distinctive about American fiscal policy. This American fiscal exceptionalism leads to a series of important research questions that may help us understand the relationship among fiscal policy, social welfare spending, and economic inequality: Why is the United States such an outlier in global comparisons of national taxes? Why have Americans historically resisted broad-based national consumption taxes of any kind? Simply put, why is there no U.S. VAT?

This Essay begins to address these fundamental questions by, first, synthesizing the existing literature to provide several stylized facts about global economic inequality and the particular concentration of wealth in the United States. Second, the Essay explores the distinctive and peculiar nature of the modern American fiscal and social welfare state, illustrating how the U.S. reliance on direct and progressive taxes and indirect and stealth social welfare spending may be perpetuating the myth of the overtaxed American. Finally, the essay identifies three key historical time periods when the United States seriously considered, but ultimately rejected, a broad-based national consumption tax. This Essay focuses mainly on the first period of the early 1920s, when post-World War I historical conditions provided tax experts, lawmakers, and social groups an opportunity to consider the adoption of a wide-ranging national consumption tax. The Essay concludes with some reflections on how the missing U.S. VAT may inform future tax reform and attempts to address economic inequality.

Compulsory Terms in Property

Mulvaney, Timothy M | August 28, 2022

The state’s imposition of compulsory terms in property relations—such as habitability warranties binding landlords and tenants and minimum wages binding employers and employees—has long been conceived by analysts generally situated on the political right as an affront to individual freedom and inevitably harmful to the terms’ intended beneficiaries. This critique, though, seems to have special purchase in public discourse today not only within its traditional circle of supporters on the right but, at least in some instances, for a sizable number on the left as well. The bipartisan acceptance of this critique is serving as a substantial roadblock to a wide range of reforms to the property system that take aim at resource inequities. Breathing life into these types of reform efforts, therefore, necessarily will require a renewed counterassault on this going critique’s foundations. Building on and contemporizing central insights of the legal realist and critical legal studies movements, this Essay explores some of the key characteristics of those circumstances in which the state’s compelling terms in social and market relationships surrounding property may well be justified on deontological or consequentialist grounds. In so doing, the Essay seeks to generate momentum toward a renewed discourse that eschews knee-jerk opposition to compulsory terms in property in favor of one that engages with the rationales for and against such terms in a context-sensitive fashion.

Property Law and Inequality: Lessons from Racially Restrictive Covenants

Rose, Carol M | August 28, 2022

A long-standing justification for the institution of property is that it encourages effort and planning, enabling not only individual wealth creation but, indirectly, wealth creation for an entire society. Equal opportunity is a precondition for this happy outcome, but some have argued that past inequalities of opportunity have distorted wealth distribution in contemporary America. This article explores the possible role of property law in such a distortion, using the historical example of racially restrictive covenants in the first half of the twentieth century. I will argue that the increasing professionalization and standardization of real estate practices in that era included racial covenants to appeal to a predominately white market clientele, resulting in a curtailment of opportunities for African Americans to acquire wealth in real estate. Racial covenants have been unenforceable under constitutional law since 1948, but I will argue that they were also a distortion of standard property law and that they undermined the principles on which property law rests. Courts could have recognized this at the outset and later, but for some reasons that this article suggests, they did not, with long-lasting repercussions for racial wealth inequalities.

American Courts’ Image of a Tenant

Shoked, Nadav | August 28, 2022

What is the core of current American residential landlord–tenant law, and how was that core formed? This Essay argues that in the past few decades courts have settled on a two-pronged landlord–tenant law regime. The law provides tenants with assurances respecting the quality of the units they rent. It does not, conversely, provide them with any assurances respecting the price of the rental units—and, therefore, respecting their ability to remain in those units.

The first component of the regime was established through the well-known judicial creation and endorsement of the warranty of habitability. The second component’s entrenchment is often attributed to legislative reforms that rejected rent control. In fact, however, courts played a major role in instating this component as well. Through a heretofore largely ignored resort to multiple local government law doctrines, courts have consistently rejected municipal measures aimed at regulating the pricing of rental units.

This prevalent distinction courts have instituted between quality controls (which they require) and price controls (which they reject) cannot be justified in traditional economic terms. The academic literature does not support the contention that one measure is more effective in aiding poor tenants than the other. The current regime can hardly be viewed, therefore, as geared toward redistribution and fairness. Rather, this Essay argues, the distinction between quality and price controls that characterizes American landlord–tenant law serves to operationalize a certain view of the meaning of tenancy in modern times. Courts engaged in what they perceived as a traditional common law exercise of updating the contours of the landlord–tenant legal relationship. In doing so, they were inspired by, and then implemented, an image of the new urban tenant as requiring—and expecting—certain amenities and rights. Importantly, this image of the modern tenant was general and class neutral. It thus lent support to measures benefitting—at least theoretically—all tenants, but not to those explicitly, and exclusively, focused on poor tenants.

Eviction Court Displacement Rates

Summers, Nicole | August 28, 2022

This Essay introduces the concept of eviction court displacement rates, defined as the percentage of eviction filings that result in tenant displacement. The Essay argues that a jurisdiction’s eviction court displacement rate provides crucial insight into the role of its legal system in driving substantive eviction outcomes. The Essay then compiles existing data on court displacement rates and compares those rates across jurisdictions. This comparison reveals massive variation in court displacement rates nationwide. In some jurisdictions, a tenant’s likelihood of displacement upon receiving an eviction filing is approximately one in twenty. In other jurisdictions, it is higher than one in two. The Essay outlines the challenges involved in distilling the factors underlying this variation. Notwithstanding these challenges, it identifies and assesses potential explanations for the disparities. The Essay calls for empirical analysis to understand precisely which parts of the eviction legal system—the substantive laws, procedures, and access-to-justice factors—shape eviction court outcomes.

Debt Governance, Wealth Management, and the Uneven Burdens of Child Support

Tait, Allison | August 28, 2022

Child support is a ubiquitous kind of debt, common to all income and wealth levels, with data showing that approximately 30% of the U.S. adult population has either been subject to paying child support or has received it. Across this field of child support debt, however, unpaid obligations look different for everyone, and in particular the experiences around child support debt diverge radically for low-income populations and high-wealth ones. On the low-income end of the spectrum, child support debt is a sophisticated and adaptive governance technology that disciplines and penalizes those living in or near poverty. Being in child support debt on the high-wealth end of the spectrum, however, produces completely opposite outcomes. Child support payors with wealth have the ability to insulate themselves from debt and the consequences of nonpayment in ways that other families and individuals can never replicate. In this way, child support debt is a legal and financial formation that embodies divergent rules, disparate modes of enforcement, and unequal opportunities. It is a bimodal system that punishes low-income debtors and exculpates high-wealth ones across racialized and differentiated populations. And, understood in this way, the system is an amalgam of oppressive but supple forces that bear traces of the imperial, the colonial, the historical, and the inherited.

Challenging Equality: Property Loss, Government Fault, and the Global Warming Catastrophe

Underkuffler, Laura S | August 28, 2022

One of the bedrock principles of American property law is that all property owners and all property are protected equally. We do not believe—when it comes to compensation for loss—that poor owners are compensated rigidly and rich owners are not, or that property in private homes is protected rigidly and property in commercial or industrial structures is not. When it comes to compensation due to public or private fault, we believe in absolute equality. Equal treatment of property is at the heart of the liberal state and is the promise of American property law. This Essay challenges that bedrock idea. The ultimate inadequacy of finite resources limits government decisions about their distribution, including compensation of private owners for their loss under takings law and other theories. In fact, the idea that public payment for private loss is “resource neutral,” particularly in the context of government fault-based claims, has always been a mythical one. When it comes to legal protection and rights to public compensation, ideas of equal protection for all kinds of property loss are neither currently implemented by American law, nor should they be. When loss occurs, and the adequacy of public resources fails, all property is not equal. It is not equal in origin, societal value, or deserved compensation. If there has been plausible deniability of this truth in the past, it will be shattered by the looming demands of global-warming catastrophe.