8 posts

This House is Not Your Home: Litigating Landlord Rejections of Housing Choice Vouchers Under the Fair Housing Act

By Maia Hutt

Over 2.2 million low-income households participate in the federal Housing Choice Voucher (HCV) program. Voucher holders, who are disproportionately people of color and individuals with disabilities, are frequently discriminated against or denied housing by landlords. This Note argues that prospective tenants who are rejected by landlords for participating in the HCV program have a right of action against landlords under the Fair Housing Act’s disparate impact provisions. The Supreme Court’s recent decision in Inclusive Communities provides the necessary framework for evaluating these claims, and suggests that federal courts’ historical rejection of disparate impact claims brought by voucher holders is no longer good law. Integrating state and local source of income protection laws into the Inclusive Communities burden-shifting resolves the tension between state and federal approaches to source of income protection, and vitiates the rights of voucher holders.

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Retaking Mecca: Healing Harlem through Restorative Just Compensation

By Meron Werkneh

Neighborhood redevelopment often brings about major cultural shifts. The Fifth Amendment‟s Takings Clause allows for the taking of private property only when it is for public use, and requires just compensation. Courts have expanded the “public use” requirement to allow “urban renewal projects” where the economic development of the area stands as the public purpose. The consequent influx of private developers in the name of economic revitalization has led to the displacement of many communities — particularly those made up of low-income people of color.

This displacement has been extremely visible in Harlem. Harlem was once considered the Mecca of black art and culture, but the last few decades have brought changes that may cost it this title. Rampant land condemnations and redevelopment efforts incited a noticeable socioeconomic shift in the historic neighborhood. Residents and small business owners pushed against these eminent domain actions, but to no avail — Harlem‟s gentrification continued. Rising rents and institutional barriers compelled the slow exodus of longtime African American residents and business owners unable to afford the increasing costs.

This Note explores the expansion of “public use” after Kelo v. City of New London, noting how it encouraged gentrification, particularly in Harlem. It argues that the current compensation scheme does not meet the constitutional standard of being “just” because it does not account for the loss of the community as a unit, or the dignitary harm suffered due to forcible displacement in the name of “revitalization.” Finally, it proposes Community Benefits Agreements as the vehicles through which gentrifying communities can receive restorative compensation, offering recommendations for creating a CBA that could begin to heal Harlem.

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Dynamically Interpreting Property in International Regulatory Takings Regimes

By Hao Zhu

The North American Free Trade Agreement (NAFTA)’s Article 1110 — which created an expropriations remedy for foreign investors — has expanded into an international regulatory takings regime over the last two decades. Newer international trade agreements, such as the Trans Pacific Partnership Agreement (TPPA), have continued to include expropriations provisions by default, further expanding the reach of these takings regimes.

This Note focuses on the NAFTA in order to explore the tension within international regulatory takings regimes, between investor property interests and sovereign interests to regulate for the public welfare. First, this Note traces the contours of international regulatory takings doctrines, organizing them in a Penn Central framework. Against other commentators, this Note argues that though the case law has not been a model of clarity, the law has settled into a framework analogous to Penn Central. Second, this Note elaborates on and rejects the critique that international regulatory takings regimes erode states’ sovereignty to regulate for the public welfare, while acknowledging that the structural problem of private law tribunals deciding the public law values of property needs to be addressed.

To address this structural problem, this Note proposes that the NAFTA’s authoritative bodies interpret property dynamically, in light of the public welfare concerns raised by global climate change. Specifically, this Note proposes that the NAFTA’s Free Trade Commission issue authoritative Notes of Interpretation to dynamically interpret Article 1110 to shift the balance toward sovereign regulatory power to address global climate change. Lastly, this Note applies that interpretation of Article 1110 to the facts of the dispute between TransCanada Corp. and the United States over the Keystone XL oil pipeline, ultimately concluding that no regulatory takings occurred.

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An Injury to the Inheritance: Locating an Affirmative Obligation to Climate Adaptation in the Law of Waste

By Samuel Niiro

As global temperatures continue to rise, most climate policy conversations have focused on mitigation measures, aimed at reducing the proliferation of greenhouse gases and curbing the rise in temperatures. Discussions, especially in legal literature, about climate adaptation measures — those intended to, for example, prepare for rising sea levels or increasing incidence of extreme weather events — have generally focused on the powers and responsibilities of government actors. Private citizens too, however, may also have a duty to prepare for climate change.

The law of waste is a longstanding doctrine under which holders of a current possessory interest in real property, such as tenants or mortgagors, bear certain responsibilities towards holders of concurrent or future interests, such as lessors or mortgagees. This Note argues that a subset of the law of waste, called permissive waste, may be read to impose a duty to affirmatively pursue climate adaptation measures on tenants and other similarly-situated individuals. Part II provides background information on current efforts to find a legal basis for a duty to pursue climate adaptation. Part III examines the history of the law of waste, with particular attention to the concept of permissive waste. Parts IV and V outline how the law of waste could be applied to the problem of climate adaptation, exploring the necessary conditions for such a claim to be made as well as the uses and limitations of using the law of waste in this fashion.

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The Starting Point: Structuring Newark’s Land Use Laws at the Outset of Redevelopment to Promote Integration Without Displacement

By Malina Welman

In 2017, New Jersey’s largest municipality, Newark, made history when its city council passed an inclusionary zoning ordinance requiring, in part, that at least twenty percent of new residential projects be set aside for moderate- and low-income households. Acknowledging the surge of development moving down along New Jersey’s Gold Coast, policymakers brought forth this legislation to ensure that, as Newark inevitably redevelops into a more economically prosperous urban center, the city concurrently provide a realistic opportunity to generate affordable housing. By placing affordability at the forefront of its concerns, Newark has thus demonstrated its commitment to equitable growth, but this Note principally argues that in isolation, the inclusionary zoning ordinance is more symbolic than it is effective upon analyzing its terms. Therefore, while a mandatory, city-wide inclusionary zoning program is a necessary first step, true integration in redeveloping cities can only be realized by enacting a combination of anti-displacement and equitable growth regulations tailored to the particular needs of its residents.

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Misappropriation vs. Alteration: Post-Kelly Efforts to Criminalize Fraud Targeting Confidential Government Information

By Luke Urbanczyk

The federal wire and mail fraud statutes criminalize “any scheme or artifice to defraud” that uses interstate wires or mailings to obtain “money or property by means of false or fraudulent pretenses, representations, or promises.” But what exactly counts as property, triggering the statutes’ criminal penalties? In Carpenter v. United States, the Supreme Court held that confidential business information is property for purposes of the fraud statutes. In Cleveland v. United States and Kelly v. United States, the Court established that a scheme to alter a regulatory choice—which implicates the government’s role as a sovereign—does not deprive the government of property. The Court has left unclear, however, whether confidential government information can satisfy the fraud statutes’ property requirement.

After highlighting the uncertain status of the law governing schemes that misappropriate confidential government information, this Note argues that as a matter of property theory, the government has a property interest in its confidential information because it has the right to exclude others from this information and that Kelly represents a mere application of Cleveland’s narrow exception to this rule. Finally, this Note proposes a test to distinguish schemes that target government property from those that implicate the government’s sovereign capacity: when fraudulent schemes seek to misappropriate confidential government information they target property, but when they seek to alter a governmental decision, they do not.

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Prose to Policy: How Wendell Berry’s Distinct Strain of Agrarianism Can Influence Farm Policy

By Jack Sherrick

Industrial agricultural practices have greatly increased food yields but cause significant harm to the environment and rural communities. Over half of the topsoil of the United States has been washed away in the past seventy years and an even higher percentage of the country’s farmers have voluntarily left or been driven out of the profession. Wendell Berry, a celebrated author and farmer, is a staunch critic of industrial agriculture. His writings primarily concern healthy rural communities, sustainable agriculture, and the relationship between the two. Academics and policymakers alike have appreciated Berry’s writings for their nostalgia and aesthetics, yet few readers have conducted legal treatments of or crafted policy in accordance with his work. This Note explains why there has been so little analysis and fills that gap, using Berry’s writings as the basis of a framework for farm reform.

This Note analyzes the values present in Berry’s work and transmutes them into a cognizable policy framework. Part I examines the harms caused by industrial agriculture and shows how the current legal-regulatory framework preserves and promotes an unworkable status quo. Part II introduces Berry and addresses issues in his thought that impede robust legal and policy analysis. Part III uses Berry’s writings, supplemented by legal and political theories, to construct a policy framework designed to foster and utilize agrarian values. Part IV applies the framework to the Farm Bill and suggests several reforms for the bill’s 2023 reauthorization.

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A Taking by Another Name: Challenging Historic Preservation After Cedar Point

By Matthew H. Winesett

In the 1922 case Pennsylvania Coal v. Mahon, Justice Holmes proclaimed that regulations going “too far” constituted takings under the Fifth Amendment. But over a century later, courts rarely find a land-use restriction they think fits this description. This is largely due to Penn Central Transportation Company v. City of New York, the Supreme Court’s “landmark case about landmarks” establishing the judiciary’s highly permissive stance toward historic preservation laws. Though initially employed to save beloved structures from destruction, preservation ordinances have proliferated to prevent the redevelopment of tens of thousands of buildings, worsening the country’s housing shortage.

Fortunately, there are signs that the Roberts Court is open to correcting course. In the 2021 case Cedar Point Nursery v. Hassid, the Court reinterpreted two well-established precedents governing takings challenges to favor property owners over regulators. Though so far cabined to “physical” takings, Cedar Point may signal the Court’s appetite for takings challenges to historic preservation laws as well.

Part I of this Note discusses the history of preservation in the United States and the Supreme Court’s deferential takings jurisprudence regarding such regulations. Part II explores the costs of this deference, both to individual property owners and society at large. Part III analyzes Cedar Point in light of the Court’s underused but still-extant line of property-protecting precedents to suggest that the Court’s deference to historic preservation laws may soon change. Part IV then offers several avenues that courts could take in the wake of Cedar Point to declare abusive historic preservation practices as takings necessitating compensation, and thereby clarify Takings Clause doctrine in the process.

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