Sarah Schindler & Kellen Zale, How the Law Fails Tenants (And Not Just During a Pandemic), 68 UCLA L. Rev. Disc. 146 (2020), [journal]
In the wake of the COVID-19 pandemic, all levels of government are considering how to protect public health by keeping people in their homes, even if they can no longer afford their monthly mortgage or rent payments. The protections that have emerged thus far have been far more protective of homeowners than renters. This essay exposes how the disparity in legal protections for these two groups is not unique to this pandemic. Rather, the crisis has merely uncovered longstanding, deep-rooted patterns within legal doctrines, governmental programs, and public policies that bestow favorable treatment upon homeowners at the expense of renters. This essay situates the current crisis within our existing research addressing the disparate treatment of renters and owners. It examines the historic distinctions between freeholds and leaseholds that have resulted in different treatment of the two groups, exposes the ways the existing legal doctrine primarily harms poor people and people of color, and proposes steps that can be taken to bring more parity to the legal treatment of renters and owners.
Rachel D. Godsil, Viewing the Cathedral from Behind the Color Line: Property Rules, Liability Rules and Environmental Racism, 53 Emory L.J. 1807 (2004) SSRN, HeinOnline.
Abstract:
For more than twenty-five years, property scholars have been applying the theorem developed by Ronald Coase and systematized in the now-classic law review article, Property Rules, Liability Rules and Inalienability: One View of the Cathedral, by Guido Calabresi and A. Douglas Melamed. More recently, property theorists and proponents of behavioral law and economics have begun to challenge the assumptions stemming from Coase, Calabresi and Melamed and to develop alternative accounts of nuisance and takings theory. This literature has entirely sidestepped, however, the role of race and poverty in the location of polluting industries. Using the story of Waterfront South, a segregated, environmentally beleaguered community in Camden, New Jersey, I explore the historical role of government in creating racially segregated and polluted inner cities. This article's unique contribution is to fashion a remedy to common law nuisance claims that: (1) forces polluters to internalize the harmful effects of their actions, (2) responds to the market distortion in property value caused by the long history of racism; and most importantly, (3) optimizes the utility of residents.
According to what I call a Residents' Choice Rule, courts should pre-set a damages award at the replacement cost of each residents' home in a nearby non-segregated community, and allow the residents to choose either injunctive relief or damages by majority vote. Building upon insights from cognitive decision theory, this hybrid rule allows residents of the community to decide whether they would be better off with a damages remedy or an injunction and minimizes the externally constructed impediments to their decision-making. The rule also has implications for takings jurisprudence because I contend that when the government exercises its power of eminent domain in segregated and underserved communities, compensation should be adjusted to reflect the devaluation caused by systematic racism.
Bernadette Atuahene, "Our Taxes Are Too Damn High": Institutional Racism, Property Tax Assessment, and the Fair Housing Act, 112 Nw. U. L. Rev. 1501 (2018), [journal]
To prevent inflated property tax bills, the Michigan Constitution prohibits property tax assessments from exceeding 50% of a property’s market value. Between 2009 and 2015, the City of Detroit assessed 55%–85% of its residential properties in violation of the Michigan Constitution, and these unconstitutional assessments have had dire consequences. Between 2011 and 2015, one in four Detroit properties have been foreclosed upon for nonpayment of illegally inflated property taxes. In addition to Detroit, the other two cities in Michigan’s Wayne County where African-Americans comprise 70% or more of the population—Highland Park and Inkster—have similarly experienced systemic unconstitutional assessments and unprecedented property tax foreclosure rates. This Essay explores whether property tax administration policies in Wayne County disparately impact African-Americans in violation of the Fair Housing Act. I find that unconstitutional assessments and property tax foreclosures occur at a significantly higher rate in Wayne County’s predominately African-American cities than in its predominately white ones. More importantly, the county’s property tax equalization policy has failed to correct these disparities, leading to a violation of the Fair Housing Act. Unjust property tax administration was frequently used to dispossess African-Americans of their lands and other property during the Jim Crow era. Although the motives may be different, this deplorable form of institutional racism is resurgent in Michigan.
Bernadette Atuahene, Predatory Cities, 108 Cal. L. Rev. 107 (2020), [journal]
Between 2011 and 2015, the Wayne County Treasurer completed the property tax foreclosure process for one in four properties in Detroit, Michigan. No other American city has experienced this elevated rate of property tax foreclosures since the Great Depression. Studies reveal that the City of Detroit systematically and illegally inflated the assessed value of most of its residential properties, which led to inflated property tax bills unaffordable to many homeowners. Extraordinary tax foreclosure rates and extensive dispossession resulted. Consequently, Detroit has become a “predatory city”—a new and important sociolegal concept that this Article develops.
Predatory cities are urban areas where public officials systematically take property from residents and transfer it to public coffers, intentionally or unintentionally violating domestic laws or basic human rights. Detroit is not alone. Ferguson, Missouri, New Orleans, Louisiana, and Washington, D.C. are among the other US cities where state actors have used illegal methods to augment public coffers. Although this practice affects many urban areas, US legal scholarship has almost completely overlooked the phenomenon of predatory cities. This Article is the first attempt to understand the intersecting economic, social, and political factors that have caused these struggling cities to become predatory. Through an ethnographic study of illegal property tax assessments in Detroit, I find that predatory systems, rather than a few predatory people, initiated and perpetuated the illicit practices. More specifically, several factors made the City and its residents extremely vulnerable, and thus susceptible, to predation. Against this backdrop of vulnerability, certain legal and governance failures created structural opportunities for predation to advance at scale. Using the Detroit case, this Article identifies, defines, and examines the phenomenon of predatory cities, which scholars and policy makers must begin to better understand and address.
Regina Austin, "Not Just For The Fun of It!": Governmental Restraints on Black Leisure, Social Inequality, and The Privatization of Public Space, 71 S. Cal. L. Rev. 667 (1998), HeinOnline
Debra Threedy, United States v. Hatahley: A Legal Archaeology Case Study in Law and Racial Conflict, 34 Am. Indian L. Rev. 1 (2008), SSRN, HeinOnline
Abstract (from SSRN):
In this case study, the author examines the ways in which race affects the progress and outcome of litigation under the Federal Tort Claims Act. The litigation is brought by individual Navajo plaintiffs against the federal government for the destruction of over a hundred horses and burros. The background conflict over access to public land is laid out, and then the article looks at the difficulty in assessing damages, the impact of the litigation on the underlying land claims, and the question of judicial bias.