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Overparticipation: Designing Effective Land Use Public Processes
No full textThere are more opportunities for public participation in the planning and zoning process today than there were in the decades immediately after states adopted the first zoning enabling acts. As a result, today, public participation, dominated by nearby residents, drives most land use planning and zoning decisions. Enhanced public participation rights are often seen as an unqualified good, but there is a long history of public participation and community control cementing racial segregation, entrenching exclusion, and preventing the development of affordable housing in cities and suburbs alike. Integrating community engagement into an effective administrative process requires addressing the various ways in which existing public participation
processes have failed to serve their purported goals. This Article critically examines how public participation operates in land use planning and approvals. It then proposes a new model, drawing lessons from other administrative processes, in an effort to balance public input, legal standards, and expertise
Health Justice Strategies to Combat the Pandemic: Eliminating Discrimination, Poverty, and Health Disparities During and After COVID-19
No full textExperience with past epidemics made it predictable that people living in poverty, people of color, and other marginalized groups would bear the brunt of the coronavirus pandemic due to the social determinants of health (SDOH). The SDOH are subdivided into structural and intermediary determinants. Structural determinants include forms of subordination (discrimination and poverty) that influence intermediary determinants (health care, housing, and employment). The COVID-19 pandemic has magnified and accelerated the harms caused by these determinants, limiting health equity among historically marginalized groups and low-income populations. Black, Latino, and Indigenous populations have higher COVID-19 infection and mortality rates, higher rates of unemployment, less access to health care, and greater risk of eviction during the pandemic, among other significant inequities. Without robust and swift government interventions, the impacts of the pandemic will be wide and deep. This Article analyzes mechanisms of these determinants in the pandemic setting and provides solutions using the health justice framework
Economic Challenges for the Law of Contract
No full textThis Essay introduces general equilibrium theory (GET) and mechanism design theory (MD) in a general sense (rather than in piece meal applications) to the study of contract law. As a positive matter, this introduction reveals three understudied areas: (i) when the equilibrium contract is individually rational but collectively irrational; (ii) the role of courts in market completion projects; and (iij) the implementation of renegotiation-proof mechanisms. As a normative matter, incorporating GET and MD insights into the study of contract law supports broad freedom of contract and formalist interpretative practices. Lastly, this Essay points to several areas for future research, highlighting the central role of law and economics analysis in identifying feasible mechanism design programs for contract law
An Opportunity Zone Falls in a Forest
No full textA recent press account summarizing research on the question of who benefits from economic development tax subsidies began:
At its best, the federal New Markets Tax Credit program has subsidized projects like a community-owned grocery store in West Oakland. Or a new permanent home for an immigrant rights organization in Queens, New York. Or the re-purposing of a 180-
acre former steel production site on the far South Side of Chicago into spaces for retail, green manufacturing and food production, and the largest indoor recreational space in the region. At its worst, the same program has subsidized high-priced condominiums or even convention centers that spark or accelerate gentrification. Unpacked, the paragraph contends that economic development
subsidies, when well-spent, fund amenities that do not lead to gentrification. The paragraph, however, makes a number of
assumptions about what sorts of subsidized transactions might yield gentrification: Community-owned retail does not lead to
gentrification and high-priced condominiums do. Consider, however, the preferences of potential gentrifiers, well-paid, college-educated people living in or near low-income neighborhoods. Many readers of the quoted article, in fact, are probably potential gentrifiers. And, as they read this list of subsidized deals, it seems likely that many of them thought to themselves, "I would love to live in a neighborhood with a community-owned grocery store." A community-owned grocery store - where presumably there had previously been no grocery store - would make many potential gentrifiers more likely to move to that former food desert. Similarly, an indoor recreational space sounds like an attractive amenity for families of all income bands.
But neighborhoods with convention centers are not generally considered particularly attractive. And the empirical research is quite
clear that even "high-priced condominiums" do not raise nearby rents and they sometimes help to stabilize or decrease them. That is not surprising: Developers like to build their "high-priced condominiums" where rents are already rising; they do not typically
look to roll the dice in low-rent neighborhoods with no preexisting upward rent trajectory.
In other words, the lede understood the conventionally accepted truth - high-end condominiums are a sign of gentrification - but
misunderstood the causation. And perhaps it also misunderstood whether the tax credits that subsidized these transactions actually caused the transaction to occur, a question we need to take especially seriously in the context of Opportunity Zones, the cousin of the New Markets Tax Credit that was the subject of this symposium
The Supreme Court 2020 Term Foreword: Regime Change
No full textOn the last day of oral argument this Term, in an atypical May convening, the Justices of the Supreme Court grappled with how to integrate two recent reforms to the federal sentencing regime in the case of Terry v. United States.1 In 2010, Congress had enacted the Fair Sentencing Act and reduced the by-then notorious i00:i sentencing disparity between crack and powder cocaine offenses to i8:i. The Act was a triumph for criminal justice reformers after decades of advocacy highlighting the racially disproportionate and loaded nature of the disparity
The Impact of Student Assistance on the Granting and Service of Temporary Restraining Orders
No full textTemporary Restraining Orders ("TROs") provide victims of domestic violence temporary ex parte court-ordered protection against further abuse. Because the vast majority of TRO applications are filed pro se, legal and logistical hurdles often prevent deserving applicants from receiving the legal protection to which they are entitled. Chief among these hurdles is the fact that TROs do not go into effect until they are served on respondents, yet service rates are very low.
In this Article, we study the factors that affect whether judges grant ex parte TRO applications and whether the TROs are subsequently served. In particular, we evaluate the impact ofa program in New Haven, Connecticut, that uses law students to provide clerical, non-legal assistance to applicants. We find that applicants assisted by Yale Law School students are no more
or less likely to have their applications granted, but that student assistance is associated with a double-digit percentage point increase in in-hand service. Factors that affect grant rates include gender, judge assignment, and various severity factors like police involvement. We confirm earlier evidence that service rates of TROs are exceptionally low, and we find that in-hand service rates are relatively lower for people of color. We conclude by proposing possible reforms to law school interventions and the TRO
application process that would reduce granting and service hurdles for pro se applicants
If the Music Hadn’t Stopped, or Reflections on the Great Kerfuffle: Historicism’s Continuing Grasp for Truth
No full textI was pretty indifferent to my undergraduate education, but I hated law school because it was full of things one couldn’t do. One couldn’t use a statute analogically, couldn’t take into account realpolitik when analyzing cases, couldn’t rethink legal education from the bottom up, and it was pretty much “out there” to count votes when predicting case outcomes. Six years later, when in 1973 I came to teach at Buffalo, I experienced a quite different world; there were all sorts of possibilities. The great intellectual kerfuffle that went by many names—structuralism, post-structuralism, postmodernism, even Marxism and Critical Legal Studies (CLS)—burned brightly in at least some of the law schools and much of the humanities. Everyone knew that knowledge was constructed, whether one got it from fancy French Theory or merely good old American Philosophy. All knowledge was situated and apparently all judgment as well. It need not be epistemologically grounded in either timeless verities or methodological assumptions. My experience of intellectual life was much like Olivier Messiaen’s of hearing music in the cacophony of bird song in spring. All sorts of new things might be thought about in new ways and in many fields
Weinstein on Sentencing (2021)
No full textHas Judge Weinstein, over the course of decades, fundamentally changed the contours of federal law and practice in criminal sentencing? I think he would say “not enough.” But that’s not for lack of trying. In addition to many law review articles and speeches,1 he has written scores of sentencing opinions that exceed the standards of the most exacting academic—thorough, analytically impregnable, and heavily footnoted—attempting to get the Second Circuit, the Supreme Court, and Congress to remake sentencing
law.
He has not waged these battles alone—but more than any judge I can think of, he has waged them continually and on every front, with powerful intelligence and humanity. In these ways, he is one of the creators of today’s new sentencing landscape, in which judges are allowed to consider not just what the Sentencing Commission proclaims, but what justice requires.
Never content to rest on his laurels, Judge Weinstein has, in the years since United States v. Booker2 and its progeny, turned his sights primarily on the Federal Sentencing Guidelines’ (“guidelines”) tough cousin, mandatory minimums. And, never shy about stirring up a little controversy, he’s taken on sentencing in terrorism and child pornography cases
Statutory Diagrams
No full textWe live in a republic of statutes, yet understanding those statutes has become so cognitively difficult that judges cannot properly interpret them, citizens cannot properly understand them, and legislatures cannot properly write them. This Note presents a new tool for reducing the cognitive difficulty of understanding and applying statutes: statutory diagrams. The Note presents the theoretical case for diagrams as well as empirical evidence from a randomized control experiment demonstrating diagrams’ efficacy. The Note also presents theoretical and empirical evidence for diagrams’ primary drawback: the risk of biasing the interpretation of an ambiguous statute. This Note then explores how statutory diagrams could be utilized at each stage of a statute’s life, exploring the unique benefits and risks of each use. Both textualist and purposivist judges can use diagrams to better actualize the normative values underlying their interpretive theories. Agencies can diagram statutes they administer to better communicate the statutory scheme to those it governs. Legislatures can use diagrams as part of the drafting process to avoid drafting errors. Finally, legislatures could formally enact the diagrams into law
Policing as Public Good: Reflecting on the Term "To Protect and Serve" as Dialogues of Abolition
No full textThis Essay is based on a lecture that was to be delivered in person in March 2020 but was cancelled as a result of the initial ravages of the COVID-19 pandemic. That a discussion of policing in the United States was cancelled because of what may well turn out to be the most significant public health crisis of this decade, if not this century, is important as these two subjects are intimately related. Sociologists and others have long noted that crime, and especially violent crime, is concentrated in places.1 Research is also clear that the state's primary response to concentrated violence in communities has been to send police and other apparatus of the criminal legal system to respond to crime rather than to provide state supports and other resources better aimed at
preventing the circumstances that render certain neighborhoods susceptible to violence. Criminal legal system exposure is, however, fundamentally linked to underlying inequalities in distributions of wealth and power, and those inequalities are concentrated geographically. Police contact, imprisonment, and other aspects of system exposure burden the same neighborhoods that are weighed down by lack of affordable housing, inadequate schools, food insecurity, lead poisoning, poor water quality, and so on-a state of affairs that has persisted in some places for generations. Indeed, political scientist Lisa Miller calls the state's failure (or refusal) to protect those living in racially-marginalized communities from violence through comprehensive, preventative measures racialized state failure.
This is where the COVID-19 crisis intersects with policing and violence. Exogenous crises, whether pandemics or natural disasters,
interact with extant inequalities and compound them. From the COVID-19 pandemic, to the HIV/AIDs crisis, to Hurricane Katrina, recent history shows how disasters expose and amplify the spatial dimensions of racialized state failure. That the same activists and organizers who were calling for police abolition were also enacting local mutual aid projects to fill the state's void in the pandemic is not coincidence. Rather, it illustrates how current calls for police abolition and defunding are simply an extension of their long-standing work to transform the state's orientation toward racially subjugated citizens. When participants in uprisings across the country call for defunding armed first responders, as well as greater investment in both community organizations and
government services better targeted at supporting communities in need, it can be understood as a call to reimagine how the state responds to projects of public safety. To be sure, one can understand this dialogue as a jumping off point for reconceiving the fundamentals of the relationship between the state and the citizens that comprise it.
In the pages below, this Essay highlights how ordinary people discuss a reconceptualization of policing in ways that respond to the current moment. The data comprise a set of over 850 conversations recorded and transcribed between 2016 and 2018, and that took place between dyads of people located across fourteen neighborhoods among six cities: Baltimore, Chicago, Los Angeles, Milwaukee, Mexico City, and Newark. As detailed below, these conversations were collected through an innovative technology, "Portals," which allowed the conversationalists to speak to one another as if they were in the same room even though they were actually hundreds or even thousands of miles away from one another. Each conversation, initiated by a prompt, encouraged the
speakers to discuss their experiences with police and with violence. These conversations yield rich insight regarding how people who regularly have contact with what political scientists Joe Soss and Vesla Weaver call the "second face of the state.