This post is part of a series highlighting some of our favorite entries from the archives. Read the rest of the posts here.
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Twenty-two percent of renters in the United States currently spend their entire income on rent. More than 770,000 people sleep in homeless shelters or outside – the highest number recorded since tracking began. Meanwhile, one leading landlord industry group boasts that the value per square foot of American apartment stock has increased 627% since 1993.
How did we get into this mess, and how do we get out of it? The posts in this collection explain how racialized capitalism built the financialized real estate market, examine the legal underpinnings of homelessness and eviction that drive today’s housing crisis, and explore ways to challenge entrenched real estate interests—from disrupting landlords’ market power through regulation to pursuing public ownership to building tenant power capable of getting us to the emancipatory housing horizon we seek.
Legal Geographies of Racism and Capitalism in Keilee Fant v. City of Ferguson, Missouri – Angela Harris
The history of racial segregation in housing markets, Angela Harris argues, offers a prime example of the way that racism and capitalism shape, create, and maintain physical spaces through processes of investment and disinvestment. Looking at St. Louis, Missouri beginning in 1916, Harris walks through city zoning practices, federal mortgage lending policies, and development strategies that blocked the construction of public and low-income housing. Together, these policies exemplify how the “institutions of slavery, segregation, and incarceration were never just about conscious enmity against people based on the color of their skin, but also about the markets made possible by the denial of full citizenship to certain populations.”
Property Law as Poverty Law – Michelle Wilde Anderson
In this post, Anderson suggests that 1L Property courses should center housing and land because they matter most for understanding American poverty and rising inequality. She offers a series of guiding questions, cases, topics, and exercises to ground one’s study of property in learning “how law helps protect money and drive poverty.” It’s an essential primer for students and a roadmap for faculty.
What Is the Relationship Between Homelessness and the Law? – Christoper Essert
What, exactly, is the problem of homelessness? And what is the relationship between this problem and the law? On the first score, Chris Essert follows Jeremy Waldron in holding that to be homeless is not merely to suffer from unmet needs – to be cold or hungry or exposed – but also to be unfree. Specifically, “it is to lack a space where it’s up to you what happens, where you are the one whose legal rights determine what others can do.” Seen this way, it is clear what causes homelessness: our system of property rights. The homeless are always under the power of others because they are always subject to the property rights of others. Given this, he argues, any state that imposes a system of private property is obligated to ensure that all of its subjects have homes of their own.
Race for Profit: A Symposium – Keeanga-Yamahtta Taylor, K-Sue Park, Mehrsa Baradaran, Rasheedah Phillips
In this symposium on Keeanga-Yamahtta Taylor’s book, Race for Profit: How Banks and the Real Estate Industry Undermined Black Homeownership, the authors reflect on the long history of housing discrimination and exploitation. Kicking off the series, Taylor explains how exploitative real estate practices continued well after housing discrimination was banned in the 1960s. K-Sue Park steps back further in time, explaining that real estate in the United States has always been built on a foundation of racial exploitation, with the government working for more than 300 years to convert “indigenous lands into the enclosures that would create the real estate market” and generate economic value. Mehrsa Baradaran focuses on the theme of “predatory inclusion” in Taylor’s book, explicating how market actors have profited from preying on the poor, with programs targeting Black homeowners producing more debt than wealth. Lastly, Rasheedah Phillips zooms in on a particularly damning consequence of this history of racial housing injustice – evictions, which primarily effect single Black mothers – and suggests several policy interventions that could “begin to unravel those structural and institutional inequities that consistently leave Black families and other marginalized and vulnerable people behind.”
Who Says Evictions Should Be Efficient? – Kathryn A. Sabbeth
The crusade for “efficiency” in civil procedure is easily weaponized by the powerful to take resources and rights away from the people. One need only look to eviction courts – where the average trial lasts less than two minutes – to see this in practice. In this post, Kathryn Sabbeth illustrates how the “summary” eviction process enables courts to conserve judicial resources, staunch the development of the law, forestall meaningful tenant defenses and follow-up proceedings, waste tenants’ time, and maximize landlord and landlord attorneys’ profits. For Sabbeth, the emphasis on efficiency only serves to mask who wins and who loses, and in eviction court, this “means more profit for those with capital and less justice for those without.”
In Defense of Rent Control and Rent Caps Part I and Part II – Duncan Kennedy
In this pair of posts, Kennedy takes typical real estate industry arguments against rent control head on. From the classic “Econ 101 and empirical studies say rent control can’t work” to “rent control will cripple housing supply” to “Section 8 and subsidized affordable housing projects are a better solution,” Kennedy dismantles each of these self-interested, market-essentialist industry talking points in turn. This scorcher offers a sample: “It is ironic, to say the least, for the industry to argue that the public should respond first by compensating their victims with subsidies and then by deregulating the industry so they can build more luxury units for the rich.”
“In A Good Economy Homelessness Goes Up”: Inflation and the Housing Question – David Stein
As part of a symposium on price stability beyond the Fed, David Stein unpacked why inflation is especially hard on renters. Because housing prices generally increase alongside the business cycle, renters are “crushed as workers during a recession, and then crushed again with housing costs as the economy recovers.” Additionally, price-setting landlords with massive market power exploit the inflation-focused news cycle to “widen profit margins well beyond cost increases,” with renters unable to resist due to the dearth of better options. In response, Stein offers a progressive anti-inflation policy that reads as a roadmap for a pro-renter policy agenda.
Leftist Benefits Are In-Kind, Actually – Lydia Nicholson & Privatized “Affordable Housing” Is A Scam – Jacob Woocher
These two posts offer a critique of the common liberal approaches to housing policy, namely demand-side subsidies like Housing Choice Vouchers and supply-side subsidies for housing developers. Nicholson explains that any increase in cash benefits for tenants will “simply incentivize private housing providers to raise rents” without requiring them “to provide good housing,” ultimately only serving to “legitimate the commercial housing market.” Woocher documents the “many and profound problems with the dominant model of privatized ‘affordable housing’ in the United States,” which serves to “strengthen the institutions and logics of capitalism, preventing us from building or even imagining different ways of relating to housing and land.” Both Nicholson and Woocher argue instead for publicly owned housing as the way forward.
Emancipatory Horizons in Tenant Organizing – Tara Raghuveer
In this reflection on non-reformist reforms, Raghuveer tells the story of the North Lawn tenants and their fight against an out of state landlord’s attempt to evict them en masse. The tenants were guided by a simple but radical goal: “We won’t go.” And they won. While victories like these won’t topple the real estate regime, Raghuveer explains, “the victory was only possible through, and was informed by, a vision for the world as it should be.” This small-scale victory also makes evident the political importance of tenant unions: in forming this union, these renters not only opened up new possibilities and secured their homes, but they were transformed from a disparate set of individuals into a much more powerful collective. Such collective action is a critical step toward a world where everyone has a home.
Social Housing and Housing Justice: Pathways to Housing Decommodification – Jacob Udell, Celeste Hornbach, Oksana Mironova, Samuel Stein
Part of our symposium on Decommodifying Urban Property, this post describes a vision of a housing system “that puts more emphasis on housing’s value as home and less on its value as real estate.” The authors outline a collection of policies that sketch the path to housing decommodification, including “policy and funding that transfers land and housing to social ownership and policies that make extractive and predatory housing models less viable and organizing more feasible.” An excellent primer for anyone interested in better understanding social housing.
Law And Countervailing Tenant Power In The Real Estate State – John Whitlow & A Wagner Act for Tenant Unions – Duncan Kennedy, Karl Klare, & Michael Turk
As real estate has become increasingly financialized at the hands of private equity and its ilk, tenants have responded by getting organized. Focusing on tenants across New York City fighting back against baseless evictions, withholding of essential services, and rent increases, John Whitlow explains how law could facilitate countervailing power by enabling tenants to “form tenant unions that are empowered to bargain collectively with landlords.” In his estimation, legal structures can offer tenants the tools they need to weaponize their solidarity. Kennedy, Klare, and Turk similarly argue for institutionalizing countervailing tenant power in bargaining with landlords, drawing a comparison to the employer-labor relationship. Specifically, they sketch out a statute modeled after the New Deal “Wagner Act” (which established the National Labor Relations Board) that would entitle tenants to organize into unions and bargain with landlords on rent, building conditions, repairs, and evictions, all under the oversight of a government-run Housing Disputes Resolution Board.
Why Should Tenant Unions Look to Labor Law? – Greg Baltz & Shakeer Rahman
While Whitlow, Kennedy, and Klare focus on the similarities between tenant and labor organizing, Baltz and Rahman counsel keeping the distinctions in mind – namely, that tenants and laborers “serve different functions for capitalism.” They argue that tenants are better conceived of as consumers in need of consumer protections (for example, housing codes are akin to product standards), and that they should use their political power to universalize these protections, rather than subject them to individual bargaining processes. They also warn that formalizing collective bargaining could codify a “perpetual détente” with landlords, undermining the tenant union’s ultimate goal: decommodified housing under tenant control.
