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Intermediation Effects in Litigation Finance

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Adrian Ivashkiv

Litigation finance now bankrolls some of the highest-profile lawsuits, attracting both attention and controversy. Because this new market facilitates lawsuits, it might serve either to promote access to justice or to facilitate frivolous, speculative litigation. This Article offers two insights for that ongoing debate. First, it argues that the market for investable lawsuits may be much smaller than is often imagined, muting its social impact in either direction. Second, it provides new reasons to think that, to the degree that litigation finance facilitates new lawsuits, those suits are unlikely to be frivolous. Continue reading →

Judicial Ethics, the Supreme Court, and the Rule of Law

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Charles Gardner Geyh

It’s a great time to be alive for a judicial ethicist. There aren’t very many of us. We tend to tag along in the shadow of the lawyer ethics people—the cool kids in the schoolyard. Pimply and off-putting though we may be, we have a particular set of skills that, thanks to the Supreme Court and its recent shenanigans, have suddenly acquired relevance as judicial misconduct has been thrust into the national spotlight. So don’t step on my moment. I want to make the most of it. Continue reading →

Initiating Remedies for Our Unconstitutional and Unlawful Residential Segregation

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Richard Rothstein

In 1866, Congress passed a Civil Rights Act outlawing burdens on freed slaves not also imposed on free whites, reasoning that racial discrimination—both public and private—undermined effective emancipation. However, subsequent Supreme Court jurisprudence did not honor or uphold this law and its progeny. Had it done so, the hard-fought promise of equality would not have been broken, the America we know today would not be so racially segregated, and the “badges and incidents” of slavery could have been timely eliminated. The racial segregation of America’s neighborhoods is not, as was long thought, merely the result of private activities such as unethical mortgage lending and the use of racially restrictive covenants. Continue reading →

Gilead: Municipal Liability for Punitive Damages Under the Fair Housing Act

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Robert G. Schwemm

The 1968 Fair Housing Act (“FHA”) has always been understood to apply to local governments, which have proved to be among the most frequent and significant violators of this law, especially in their opposition to housing of particular value to racial minorities and persons with disabilities. Yet not until the Second Circuit’s decision last year in Gilead Community Services, Inc. v. Town of Cromwell did an appellate court approve an FHA-based punitive-damage award against a municipality. Before Gilead, district courts had generally blocked such awards, applying § 1983’s immunities to protect local governments and their officials from the FHA’s full set of remedies. In rejecting this approach, Gilead charts a new course, offering a potential breakthrough for deterring municipal housing discrimination. Continue reading →

Legal and Policy Responses to Sexual Harassment in Housing

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Rigel C. Oliveri

The sexual harassment of low-income women by their housing providers is a clear national problem that has only recently become the focus of coordinated nationwide enforcement efforts by federal agencies, including the Department of Justice. While these developments are welcome, the problem requires proactive responses as well. Continue reading →

Eliminating Extratextual Exemptions from the Fair Housing Act

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Stacy E. Seicshnaydre

The Supreme Court has held that the language of the Fair Housing Act (“FHA”) is “broad and inclusive,” and the Court has given it a broad construction. Correspondingly, the traditional interpretive canons suggest that courts must construe exceptions narrowly. However, some courts have restricted coverage under the FHA by broadly reading an exception or by inferring an exception. Continue reading →

Revisiting Geography and Sovereignty in the Digital Age

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Melvin J. Kelley IV

Fair housing advocates have already brought successful lawsuits challenging the use of property technology (“PropTech”) where it has been found to perpetuate or replicate discriminatory practices in a range of contexts including the use of automated screening tools to evaluate prospective tenants. While substantive interventions in unlawful exclusions and differential treatment via PropTech are laudatory, this Article argues that these steps do not go far enough and moreover, that insufficient attention has been paid to the procedural implications of the federal Fair Housing Act (“FHA”) as a source of ex ante enforcement. Continue reading →

Big Banks: Go Small!

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Rashmi Dyal-Chand

Despite the promise of the Fair Housing Act and other civil rights laws, racial gaps in wealth, homeownership, and mortgage lending persist today. Our nation’s biggest banks deny mortgage loan applications to Black and Brown consumers at a rate higher than the rest of the industry, often claiming that lending to historically marginalized consumers is too risky. Instead, these lending institutions focus on providing highly profitable financial services to wealthy consumers. Continue reading →

Slum Managers

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Anika Singh Lemar

All sorts of landlords—governmental landlords, cooperatives, large-scale corporate landlords, and mom-and-pops—engage in slumlording to some degree. Despite that fact, some of the most popular proposed solutions to the problem focus on a property owner’s size and corporate form, rather than its property management practices. Continue reading →