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The Biggest Weakness of Conservative and Libertarian Public Interest Law:

In previous posts, I have discussed the rise of conservative and libertarian public interest law, chronicled in Steve Teles' recent book, The Rise of the Conservative Legal Movement. As Teles shows, groups like the Institute for Justice and Center for Individual Rights have made major inroads in a field once overwhelmingly dominated by the left. However, as Teles notes, the conservative/libertarian public interest movement still has one major weakness relative to its liberal rivals: the comparative paucity of lawyers available to litigate "follow-up" cases that enforce and build on major favorable precedents.

This is a very important shortcoming. One of the most powerful findings of social science research on judicial review is that even the most important precedents don't enforce themselves. Government officials and interest groups will generally do all they can to evade or ignore judicial decisions that restrict their powers. It took some twenty years of follow-up litigation (not to mention congressional intervention) to force southern public schools to obey Brown v. Board. There are many similar, even if less extreme, examples. In some cases, necessary follow-up litigation can be conducted by business interest groups with a financial stake in the outcome. For example, abortion clinics did some important follow-up litigation after Roe v. Wade. However, this will rarely be true of cases where the most important beneficiaries of a decision are poor or politically weak. In such situations, pro bono efforts by private attorneys can play a crucial role. And the poor and politically weak are the most important potential beneficiaries of libertarian public interest efforts in the fields of economic liberties and property rights, among others. The wealthy and powerful can usually defend their property rights and other economic interests in the political process and therefore have much less need for judicial protection.

As Teles describes in his book, liberal public interest lawyers can rely on an extensive network of attorneys in private law firms and bar associations to do follow-up work for them on a pro bono basis. Despite some modest efforts to create a parallel network, conservatives and libertarians lag far behind in this field. It is no accident that top lawyers at both IJ and CIR identified this as probably the most important weakness of right of center public interest law.

There are several possible explanations for this disparity, some of which I may discuss in a future post. But whatever the explanation, it's a serious problem that needs greater attention. Over the years, the Institute for Justice has tried to address by creating its "Human Action Network" to stimulate pro bono efforts, and by sponsoring summer clerks and law student conferences (my own interest in property rights issues stems from my time as a n IJ summer clerk in 1998). However, a great deal remains to be done, and no one group can possibly do it by itself.

UPDATE: Tim Sandefur of the Pacific Legal Foundation (a prominent libertarian public interest law firm) responds to this post by noting that PLF does do some important "follow up" litigation, and that it's not realistic to expect them and other similar groups to do much more of it, given resource and time constraints. I think Tim perhaps misunderstands my point (which may be a consequence of my not explaining it as well as I should have). It's not that PLF and other public interest firms should do the follow-up litigation themselves, but that there should be an infrastructure for having it done by outside lawyers (such as pro bono lawyers working at ordinary law firms); this is how liberal public interest "follow up" work gets done. I recognize that it's impossible for public interest law firms to do more than a small number of such cases on their own. That's precisely why they need a network of outside supporters to help them with it.

Justin (mail):
"And the poor and politically weak are the most important potential beneficiaries of libertarian public interest efforts in the fields of economic liberties and property rights, among others."

Shenanigans!
3.9.2008 11:11pm
EIDE_Interface (mail):
Justin:

Care to elaborate?
3.9.2008 11:23pm
glangston (mail):
I think Justin is channeling our Lord in Matthew 26:11.;)
3.9.2008 11:57pm
Justin (mail):
The people who get harmed in takings cases are property owners, people who tend to be richer and well off. Even though others may be incidentally harmed (even highly so) - such as tenants - the real party at interest is fairly well equipped to have legal assistance. After all, certainly the takings clause does not protect the tenents from their landlord voluntarily selling his building to a developer and/or government.
3.10.2008 12:17am
Cornellian (mail):
In the case of an absolute prohibition on takings, the more property you have, the better you're protected, since you have more stuff that's protected. The point that people with libertarian inclinations like to make is that we don't have an absolute prohibition, we have a semi-prohibition with some government ability to take stuff, and that ability tends to get exercised against people with relatively little political power, i.e. poor people. Governments confiscate poor neighborhoods to redevelop them, the don't do that to rich neighborhoods.

So it might be more precise to say that making takings more difficult protects people with some, but not a lot of property. Really poor people have little or no property worth taking, and rich people have the political power to protect themselves (and if they don't their money can quickly get them some).
3.10.2008 12:26am
happy-lee:
I think we all know that when it comes to cash, pinkos control the purse. To their armies we present a few minutement with good muskets.
3.10.2008 12:35am
GV:
Why do libertarian organizations always fall under the umbrella of a "libertarian/conservative" heading? Conservative legal groups are more of a threat to liberty than liberal legal groups. (At the very least, conservative legal groups are as big of a threat to liberty as liberals.) Sure, some liberals are on the "wrong" side of certain economic rights. But they're also generally on the pro-liberty side with respect to the Fourth, Fifth, Sixth, Seventh, Eighth, and Fourteenth Amendments. Conservative groups want narrow readings of each of those amendments. Likewise, while liberal groups are unfortunately on the wrong side of a few, limited First Amendment issues (school vouchers and campaign finance reform), they're on the pro-liberty side more often than conservatives (school prayer, government employee speech, student speech, etc.). Liberals are also generally on the pro-liberty side in the war on terror cases. Perhaps libertarian legal organizations would find more attorneys to help them "fight the good fight" if those same organizations didn't see themselves as part of a larger legal movement that was antithetical to that fight.

Generally, speaking, I think poor people are much more concerned about the gross abuses of the criminal justice system than whether the government takes a broad view of the takings clause. The poor, while politically powerless, have their interests aligned with the rich property owners with respect to property rights; as a result, legislatures seem much more willing to grant their citizens property rights that are broader than those guaranteed by the Constitution -- certainly more willing than they are to protect their citizens against police abuse. For every one poor and politically powerless person adversely affected by a "liberal" reading of the takings clause, one hundred more are adversely affected by a "conservative" reading of the Fourth or Sixth Amendments.
3.10.2008 12:50am
Frater Plotter:
How do people get out of being "poor and politically weak"? Two ways: they can attach themselves to a source of political favors; or they can acquire property and capital, and influence thereby. Although Mr. Bush has massively misused and corrupted the notion of an "ownership society" (on top of all of his other offenses against freedom and the law) it's still a basically good idea.

As has been argued by Hernando de Soto and others, much of the problem of poverty is the lack of legally defensible property rights. Eminent domain seizures of poor people's houses are one example of this. So is the use of zoning to exclude the creation of inexpensive or denser housing, or the use of inner-city property for business as well as housing.
3.10.2008 1:04am
gattsuru (mail) (www):
Justin
You can be property owner without being particularly well off economically. Moreover, you don't need to be a property owner to be harmed by abuse of eminent domain; having all the cheap if shitastic living quarters within most parts of a city bulldozed in order to get rid of 'blight' that may or may not exist can be quite unpleasant no matter who owned the property in the first place.

GV
Why do libertarian organizations always fall under the umbrella of a "libertarian/conservative" heading?


Firstly, I don't see it as a given that the point of the author's statements rely on such an analysis: the two groups could be
3.10.2008 1:56am
EIDE_Interface (mail):

Frater Plotter:
How do people get out of being "poor and politically weak"? Two ways: they can attach themselves to a source of political favors; or they can acquire property and capital, and influence thereby. Although Mr. Bush has massively misused and corrupted the notion of an "ownership society" (on top of all of his other offenses against freedom and the law) it's still a basically good idea.

As has been argued by Hernando de Soto and others, much of the problem of poverty is the lack of legally defensible property rights. Eminent domain seizures of poor people's houses are one example of this. So is the use of zoning to exclude the creation of inexpensive or denser housing, or the use of inner-city property for business as well as housing.


Please tell me about Bush's "massive offenses against freedom and law" other then he waterboarded KSM. You're going to have to do WAY better then that!
3.10.2008 2:07am
gattsuru (mail) (www):
Gr... sorry, accidentally posted early.

GV

Firstly, I don't see it as a given that the point of the author's statements rely on such an analysis: the two groups could simply be running into the same issues and it would remain correct.

Secondly, it's a common statement. Part of that is because self-identified libertarians tended to lean toward the conservative vote, to the degree that libertarian senate candidates were recognized as spoiling the Republican candidate's election/reelection runs. Part of that is modern media : when libertarians support a politically Democratic cause, they're one of the dozens of right-thinking organizations that get press, and thus get rather little. When libertarians support a politically Republican cause, they're a crazed minority alongside the NRA.

Another issue is simply trying to break down the 'official' libertarian standpoint, and then comparing it to the modern Conservative and Liberal movements. It's not hard to place every single point of a libertarian economic view as being opposed to the economic viewpoints of major or leading Liberal/Democratic candidates -- these people make Ayn Rand's outlandish and strawman opponents look realistic, to the point where people expect Directive 10-289 to show up on the ballot soon. On the other hand, there are some situations where the libertarian social viewpoint does not remain diametrically opposed to the conservative one : libertarians and conservatives have been fairly aligned on the Second Amendment and common law self-defense, in face of Democratic party opposition. Even if it's 100%-0% to 10%-90%, a media rather focused on simple duality is going to shoehorn that difference.
3.10.2008 2:11am
Vermando (mail) (www):
"And the poor and politically weak are the most important potential beneficiaries of libertarian public interest efforts in the fields of economic liberties and property rights, among others."

Aside from the takings clause defending economically blighted areas (which liberal groups are more than willing to defend, judging by the Columbia University example), what other benefit do they derive by libertarian public interest efforts in this field? I ask this quite honestly and openly.

I think that GV has a good point about the split between libertarian and conservative legal interest groups in the areas protective of liberty and defending the downtrodden / those who are unable to protect themselves. Certainly with regards to police powers this is true, as conservative judges are very friendly to prosecutors who invoke the war on drugs to justify takings, searches, and the like.

On the other hand, a big part of what good legal movements do concerns not just the literally poor, but consciousness raising amongst people who could be either poor or well-off, but in any case who do not yet see themselves and their struggles as part of a larger movement. I think specifically here of some of the excellent (from a legal effectiveness perspective - you can think what you want about the issues) work by liberal lawyers on first amendment cases and mostly Jewish attorneys on establishment clause cases in schools. I do not think that the problem for the litigants in any of those cases was necessarily money, but rather was that, without the work of the public interest / pro-bono advocates, they would not have known how to successfully frame their cases in a way that would have garnered legal protection. Though we now live in a more litigious society than ever, not every kid who gets picked on in school for not praying with the other kids knows that he is a potential symbol of constitutional justice.

From this perspective, I agree that the conservative public interest movement could benefit from a larger secondary legal market to prosecute follow-up cases, as with that will come a larger net to spot and take up the cases for potential litigants / appropriate test cases / natural extensions of the law.
3.10.2008 2:17am
Dave Hardy (mail) (www):
Generally, speaking, I think poor people are much more concerned about the gross abuses of the criminal justice system than whether the government takes a broad view of the takings clause.

Excellent point. I would note that most of my (limited) experience with takings in the DC region lay in takings of poor properties in order to expand sports stadiums for their wealthy owners, this use apparently being regarded as a public interest of the greatest magnitude.
3.10.2008 3:06am
arbitraryaardvark (mail) (www):
I think the focus needs to be not on pro bono dogoodism, but on figuring out how to make an honest buck at this kind of work. That means studying what statutes support legal fee awards, learning how to win and collect damages from government bad actors.
An example of someone who has done this well is James Bopp and the Madison Center in the campaign finance area. An example of someone who has tried and failed at this sort of thing would be me. In 1960 in Talley v California the Supreme Court said that the government can't require identification disclaimers on political literature. 48 years later, it still does, and my attempts to win lawsuits and effect change in this area have failed, mostly because of my own incompetence. As far as I know the underlying strategy for the project is still sound; I just haven't been able to make it work.
3.10.2008 3:06am
Public_Defender (mail):

It took some twenty years of follow-up litigation (not to mention congressional intervention) to force southern public schools to obey Brown v. Board.

Twenty years? Schools were still fighting in the 1980s, and conservatives are still fighting the battle. Part of Ronald Reagan's appeal was telling white parents that he would help make sure their kids wouldn't have to go to school with black kids. The San Antonio decision gave schools a road map on how to maintain a segregated school (if school district lines follow the lines of segregated neighborhoods, so be it). The Roberts Court continued the work of the Brown resistors by making sure that no one could consider race when trying to desegregate schools.


And the poor and politically weak are the most important potential beneficiaries of libertarian public interest efforts in the fields of economic liberties and property rights, among others.

The IJ has been very good at picking sympathetic cases, but a lot of "economic liberties and property rights" cases involve the right to use your property in a way that inflicts damage on your neighbors (pollution, environmental laws, zoning, etc.). Poor people don't have the means to buy their way out.

Wealthier people can use their economic power to prevent an industrial/heavy retail use from moving in next door to their homes. Poor people depend on government regulation. Libertarians would make existing cities (ones built up before the heavy use of restrictive covenants) free-fire zones for developers, leaving new suburban developments as the only places people could live if they wanted a true residential neighborhood.

Libertarians may help prevent a private developer from taking your home by eminent domain, but they will also help the developer fight against the zoning rules that you need to make sure your neighborhood stays a neighborhood.
3.10.2008 6:34am
Al Maviva (mail):
The people who get harmed in takings cases are property owners, people who tend to be richer and well off.

Shenanigans yourself, Justin. See, e.g. Poletown. I don't mind ipse dixits on data-free questions, but I have seen enough in practice to know this particular ipse dixit is BS. Along with slums, lower middle class / blue collar neighborhoods are particularly ripe targets for 'redevelopment,' economically motivated takings.

As for general access to counsel - I've seen many civil law clinics, services, and bar association poverty law projects, and most public defender services are means tested. The poor generally have access to counsel; though it can be resource-limited it's better than nothing. The lower middle class however, are frequently SOL, as they are "too wealthy" to obtain public representation, but often "too poor" to afford quality private counsel.
3.10.2008 8:28am
Justin (mail):
I know I'm up against true believers here, but once again most poor people don't own their own residences. Just because its their residence doesn't mean they have a property right in them.

I'd like to see data saying that " the poor and politically weak are <b>the most important potential beneficiaries </b>of libertarian public interest efforts in the fields of economic liberties and property rights." To me, it is complete hyperbole. The most important beneficiaries of economic liberties and property rights seems to be, fairly logically, property owners - who are certainly by and large not the poor and politically weak.

Also, as noted many times on this blog, the IJ and others are good at finding particularly sympathetic plaintiffs. So pointing to one or two outliers, even high profile ones, is not evidence. The plural of anecdote and all.

My guess is that most takings involve takings of people who are not the homeowners - either commercial property owners or landlord-types. I admit, I don't have the evidence either, but if someone does, I'd like to see it. But certainly what Ilya claims, appears, on its face, illogical.
3.10.2008 9:55am
Justin (mail):
errr that last homeowners should be "residents," and I don't know why the bold did not show up.
3.10.2008 9:57am
J. F. Thomas (mail):
I'd like to see data saying that " the poor and politically weak are the most important potential beneficiaries of libertarian public interest efforts in the fields of economic liberties and property rights." To me, it is complete hyperbole.

Well of course it is. But Ilya never lets facts get in the way of his libertarian fantasies. About 70% of U.S. households own their own home. And of course renters are concentrated in the lower incomes. "Libertarian" policies would of course lead us back to the good ol days of redlining, steering and blockbusting, all practices much more destructive of neighborhoods than zoning or takings.
3.10.2008 10:59am
gattsuru (mail) (www):
I believe blockbusting is still legal, and while there are some libertarian groups that oppose specific parts of the Civil Rights Act and Fair Housing Act, the requirement to ignore race for loans and housing advice is typically not one of them.

If you think eminent domain uses are harmless when they target landlords -- since landlords are always rich and politically strong -- may I remind you that the current law does not require the landlord to provide any money to the newly evicted poor and politically weak 30%, who now have to make a costly and disruptive move.
3.10.2008 11:36am
Cornellian (mail):
The lower middle class however, are frequently SOL, as they are "too wealthy" to obtain public representation, but often "too poor" to afford quality private counsel.

I'd guess about 90% of the population is too poor to afford quality private counsel to go the distance in a typical civil dispute if it's not a contingency fee situation. The civil justice system is largely inaccessible to people who are neither poor enough to qualify for legal aid, facing criminal charges (thus 6th Am right to counsel) or multi-millionaires.
3.10.2008 11:58am
J. F. Thomas (mail):
I believe blockbusting is still legal

Actually it is not. Discussing the racial makeup of a neighborhood or the presence of public or subsidized housing is against HUD and fair housing regulations. Of course that is a gross violation of the First Amendment. Realtors and sellers should be free to tell potential buyers that a neighborhood is majority black or going that way to warn decent white folk off.
3.10.2008 12:16pm
gattsuru (mail) (www):
That's great for preventing racial steering (well, not really, as the numbers are easily available elsewhere), but not so much for blockbusting.

Blockbusting is, unless I've picked the wrong reference source, when real estate agents exploit racial fears and the tendency of property values to drop due to fears of ghettoization, to cause white flight followed by the sale of the newly open homes to black people at raised prices. The process's most insidious methodology was that it did not require visibly objectionable behavior : the most objectionable tactics were real-estate agents recommending that black individuals be visible (at times hiring African-American individuals to walk around simply make the neighborhood 'look' like it was going to have more black individuals in it), and real estate agents would simply point out the decrease in property values while carefully avoiding any statement about why said property values dropped.

The process has largely disappeared from the less regulated markets by this point, mostly because more and more prosperous African-American and black individuals have demonstrated the idiocy of the assumptions that racial makeup is the sole reason behind ghettoization, decreasing power of the FHA/HUD's previous racist policies, as well as other causes (such as the promotion of home-equity insurance), but there are still concerns about it occurring without violating laws in places like Chicago.
3.10.2008 1:16pm
J. F. Thomas (mail):
The process has largely disappeared from the less regulated markets by this point.

Huh? fair housing laws are Federal laws. They are basically the same nationwide. The point remains that in Ilya's libertarian paradise, only the market, not any law, would prevent these practices from returning. Even with fair housing laws, steering, redlining and discriminatory housing practices still occur. The free market will make matters worse.
3.10.2008 1:32pm
Erick:
According to this census page, about 50% of people in the lowest income quintile own their homes.

So I think that, yes, there are many poor people who own their own homes.
3.10.2008 2:00pm
gattsuru (mail) (www):
You know, the "blockquote" tag does work on this blog.

<blockquote>Huh? fair housing laws are Federal laws. They are basically the same nationwide</blockquote>

They're not the only form of regulation, nor do are antiracism laws the only ones which have an effect on the housing market. Different states have varying requirements and regulations involved for the production, sale, resale, and inspection of a home. Regardless of whether these are good or not — as a non-libertarian myself, I'd consider a state requirement for a licensed expert to run natural gas pipes as an irritating but worthwhile law, although reasonable people are free to disagree — the end result of increased regulation is obviously going to be higher and more segmented costs for housing; the authors of this blog have touched on the subject several times.

Because of how blockbusting works, it usually operates 'best' when there are segmented market costs. If there's a wide variety of costs on axis X between A and C, and presuming the existence of non-racist banks such as ShoreBank, you're going to see a movement of low-income individuals to a variety of locations and homes between A and C at some value B correlating to the maximum amount those individuals could find acceptable. Increasing housing costs and segmentation result in an increase in both the values of A and C by a value and pulling all values of X between (A+C)/2 toward C, while leaving B the same. It remains obvious that B is going to cover more houses in the first setting than the second.
Unless the number of interested African-American individuals exceeds the number of available houses necessary to trigger white flight, and while white flight is triggered by a percentage coverage of black individuals for a given area, you'll find that the setting with more available houses is going to be more difficult and less practical to blockbust.
3.10.2008 2:05pm
gattsuru (mail) (www):
Huh? fair housing laws are Federal laws. They are basically the same nationwide


Wow, that's ironic. Okay, blockquote works unless you forget to put in your password before hitting the "Post Comment" button.
3.10.2008 2:06pm
J. F. Thomas (mail):
So I think that, yes, there are many poor people who own their own homes.

No one is disputing that. But of course it is a lower percentage than the population as a whole and I would imagine that if you were to break out the demographics the ownership in that quintile would be highest among rural dwellers (because both salaries and the cost of home ownership are lower) where the issues raised by zoning and takings are less pressing.
3.10.2008 2:26pm
Erick:

No one is disputing that.

Yes they are. They were saying that the number of poor homeowners was so small it wasn't worth talking about. That's clearly not true. Home ownership by the poor is a significant amount. It is not some tiny fraction of average homeownership. Accounting for differences in political power and likelihood of their neighborhood being declared blighted and condemned, it is very possible, even likely, that Ilya's originally statement about them being the most likely benefactors of stronger property rights is accurate.

I went and looked up statistics regarding ownership by income - after many posts by people just assuming the number was insigificant - maybe someone else could actually look up some numbers on rural ownership rather than just making assumptions that might be totally wrong.
3.10.2008 2:42pm
Gideon Kanner (mail):
With all due respect, Justin, you don't know what you are taking about. The primary victims of the anti-property movement are not the wealthy but the poor. I am not aware of any takings or restrictive regulations that target the wealthy. Property owners get paid when their property is taken, but their poor, month-to-month tenants are kicked out of their shabby dwellings and get nothing or next to nothing. The wealthy -- as in Kelo to take the most recent example -- get a windfall in the form of free land (in Kelo, 90-acres for 99 years at $1 per year), or at least enjoy a large land write-down. Check out the General Motors Poletown deal.

As for regulations, the biggest victims are the housing have-nots who have not yet entered a community because they can't afford to live there, and thus can't vote on its housing policy. Two or three presidential commissions on housing have studied this problem and have concluded that the NIMBY phenomenon is at fault. I recommend William Fischel's REGULATORY TAKINGS: LAW, ECONOMICS AND POLITICS (Harv. U. Press. 1995), particularly Chapter 6 which vividly describes how local land-use regulations in California are implicated in that state's status as the most expensive housing market.

Bottom line: the affluent love the eminent domain/land-use regulation climate because it constricts housing supply and causes market value of their homes to skyrocket, thus keeping competing seekers of the good life out off "their" turf. The poor and the lower middle class folks get screwed.
3.10.2008 5:45pm
J. F. Thomas (mail):
Bottom line: the affluent love the eminent domain/land-use regulation climate because it constricts housing supply and causes market value of their homes to skyrocket

This is overly simplistic. There are a myriad of reasons for unaffordable housing and why it is more expensive in some areas than others.

Do you really think that in the absence of government action, suburban areas are suddenly going to start building low income housing? I think you will find that the much more common situation is that communities object to government mandates to build low-income housing rather than builders stymied in their efforts to provide affordable housing. To pretend, that freed of government interference, the suburbs would suddenly become a mixed race and mixed income utopia is simply nonsense.
3.10.2008 6:12pm
Gideon Kanner (mail):
When I said "tou don't know what you are taking about," I obviously meant "talking about." A nice Freudian slip, that.
3.10.2008 6:14pm
Gideon Kanner (mail):
C'm on J.F. Thomas. No rational, informed person that I know of plumps for NO regulation. Even in Houston which has no zoning, they have some private regulations (CC &Rs). It's a case of excessive, restrictive regulations, not just regulations.

You want proof of the pudding? Try building a low-to medium-cost housing community in a desirable area. Just you try. My favorite from the late 1990s was the time when Rouse tried to build a 1400-unit subdivision of mid $200,000 homes in Howard County, Md., only to be confronted by local regulators who insisted that the homes had to be at least $320,000. And so it goes.
3.10.2008 6:27pm
Gideon Kanner (mail):
And speaking of Monsieur Freud, try "you" for "tou" -- the Force is obviously not with me today.
3.10.2008 6:28pm
dbclawyer:

Do you really think that in the absence of government action, suburban areas are suddenly going to start building low income housing?


While blockbusting and similar practices are morally reprehensible, there is no such thing as a right to live in a particular neighborhood.

Lawyers are needed for the "follow up" cases in order to guard against the proliferation of such manufactured "rights".
3.10.2008 6:38pm
Gideon Kanner (mail):
dbclayer:

"Suburban areas" don't build housing -- developers do. And in a reasonable market some of them will cater to the top end and some to the middle and bottom end of the market. But when they face unreasonable government restritions that limit what they can build, they tend to concentrate on the top end to maximize their profits per unit and to minimize NIMBY objections. For obvious reasons, few people complain when new housing in their neighborhood is more expensive than their existing homes.

There may not be a legal right to live in a particular neighborhood (though that is subject to the "fair share" principle), but since when is it any business of the government to forbid construction of affordable homes and decree who may or may not live where based on their wealth and income? How can that possibly fit within the parameters of the state police power on which zoning rests?
3.10.2008 7:55pm
David M. Nieporent (www):
Do you really think that in the absence of government action, suburban areas are suddenly going to start building low income housing?
"Areas" don't build housing. Developers do. And the biggest obstacle to developers building low income housing in suburban areas is the government.
3.10.2008 8:33pm
Justin (mail):
Gideon, the haughtiness aside, you're off. The poor resident non-owner does not have a right to contest the taking, no matter how much legal assistance he has. In any event, that the transaction happens publicly or privately is of no import to the poor person displaced. If the landlord doesn't want to sell, he has the resources to contest a taking (maybe not BIGLAW, but certainly competent litigation); if it's simply about business and getting the right price, the tenant is screwed either way.

In any event, the more direct way to help the poor would be regulations that protect tenants, not those that protect landlords.
3.11.2008 1:38am
Gideon Kanner (mail):
Justin:

One of us is indeed off. I was talking about the kept-out "outsiders" not being able to vote in the regulated community and with their votes affect land-use/housing policy -- not about them contesting the condemnation which they can do and which, in any event, is not involved in exclusionary zoning).

As for anyone contesting the taking, you overlook OIPs or "quick takes." The occupants are outtathere in 90 days on a condemnor's ex parte application or the filing of a declaration of taking which transfers title eo instanti -- none of that sissy due process stuff. Even on your premise, rational landlords are not noted for wasting money on litigation they can't win and which does not buy them time or any other advantage. Rational lawyers won't take such quixotic cases on a contingent fee basis.

So like it or not, the default advocate for the housing needs of lower and low cost housing consumers is -- ta,da! -- the big, bad developer who in pursuing his self-interest incidentally advances their housing needs.

My ultimate point is that you can't protect tenants who aren't there to be protected, because no housing they can afford is being built in the community. Inclusionary zoning has proven to be a pimple in terms of quantitative impact, or a joke when the "included" buyers of low[er]-cost housing turn around later and sell at a profit, as has happened in California. It also forces the market-rate housing buyers who pay full-pop prices, to subsidize the inclusionary ones, thus subsidizing higher prices and perpetuating the prioblem.

No one has yet figured out a better way of providing affordable housing than increasing its supply in the market.

And if I seemed haughty, my apologies. It's just that after 40+ years of this stuff, I can get impatient with people who though new to the problem, think they understand it better than those who have wrestled with it for decades, and who think they have just the solution.
3.11.2008 4:05am
Justin (mail):
Okay you're talking about zoning - which may be out of my area of expertise - but is also off topic.
3.11.2008 9:44am
dbclawyer:
Gideon,

I agree that the government does not have the right to stop a developer from building housing that falls into one price range as opposed to another.

The "police powers" of the state is a specious concept and so, therefore, are the zoning laws on which they rest.
3.11.2008 3:33pm