Duncan Kennedy

Housing Law

1. Introduction
2. Essays on Housing Law
3. Other Authors

Introduction

Since 1980, I’ve taught a course on low income housing law and policy with Jeanne Charn, one of the founders of the Harvard Law School clinical program, a housing law practitioner, and formerly the Director of the Hale and Dorr Legal Services Center in Jamaica Plain, MA. (See links to her writings in the Other Authors section.) The course has always had a clinical component, and was designed to provide a set of criteria to guide strategic choices in representing low income tenants. A main theme of the course has been that both the defense and the critique of typical pro-tenant legal regimes, from rent control to low income housing tax credits, were unsatisfying for two reasons. First, they tended to ignore the complex dynamics of urban residential neighborhoods, and, second, they tended to eschew careful economic analysis of the likely distributive effects of tenant protection regimes.

My first housing article, The Effect of the Warranty of Habitability on Low Income Housing: “Milking” and Class Violence, uses distributive analysis and neighborhood theory to argue that, contrary to the still common discouraging notion that tenant protections inevitably “hurt the people they are trying to help,” a targeted enforcement of the warranty would help not just the client but low income tenants as a group.

The two articles from the book A Fourth Way, were written just after the fall of communism in Eastern Europe, in response to a Hungarian group looking for a non-communist but left wing proposal for the reconfiguration of the housing stock of the city of Budapest. This is one of the few frankly “utopian” things I’ve written. The articles attempt to formulate an ideal low income housing policy for a regulated market economy in a moment of political openness and new beginnings. Needless to say, nothing like what we proposed was implemented (the government basically just privatized the stock to existing occupants, with many of the consequences the articles predicted). The Limited Equity Cooperative as a Vehicle for Low Income Housing in a Race and Class Divided Society returns to the utopian theme, but focusing on this particular form as a vehicle in our own decidedly non-utopian context. It includes a section that revisits the debate between critical legal scholars and critical race theorists.

Legal Economics of U.S. Low Income Housing Markets in Light of “Informality” Analysis tries to bring together in a single short form the approach to analyzing the consequences of housing regimes that we’ve been working on for many years. It also tries to incorporate the lessons of “legal pluralist” sociology about the prevalence of informal norms and formal illegality in low income neighborhoods world wide. It shows how the analysis of the non-operativeness of many legal rules can be incorporated into the economic analysis of the distributive effects of housing regimes. Cost-Benefit Analysis of Debtor Protection Rules in Sub-prime Market Default Situations applies all the techniques developed in the earlier articles to the problem of accelerating foreclosures of low income homeowners who bought their homes during the Clinton-era jump in the availability of residential mortgage credit.

Many students in the course write papers, and no fewer than fifteen of them have been published (often after massive further work during and after law school) in law reviews. These are included here under OTHER AUTHORS. These papers extend, develop and sometimes critique the approach of the course in many areas of housing law and urban economics. They also reflect the wide range of methodologies and normative orientations that the students chose to pursue starting from the framework we offered. The specific topics covered are rent control, intentional infliction of emotional harm in the landlord/tenant context, Mount Laurel, eviction free zones, selective housing code enforcement, gentrification, the role of law in creating urban racial geography, the HUD “reinvention,” Section 8 discrimination, public housing in Singapore, mediation in landlord/tenant disputes, the economics of inclusionary zoning, and real estate tax reform.

Essays on Housing Law

• The Bitter Ironies of Williams V. Walker-Thomas Furniture Co. In the First Year Law School Curriculum, 71 Buff. L. Rev. 225 (2023)
• A Wagner Act for Tenant Unions, with Karl Klare & Michael Turk, LPE Project Blog (2023)
• In Defense of Rent Control and Rent Caps, LPE Project Blog (2020)
• The Fed Should Bail Out Low-Income Tenants and Not Just Banks and Landlords, Just Money (2020)
• Stones of Hope, How African Activists Reclaim Humain Rights to Challenge Global Poverty (2010)
• Cost-Benefit Analysis of Debtor Protection Rules in Subprime Market Default Situations, in Eric Belsky and Nicolas Retsinas, eds., Building Assets, Building Credit (Brookings Institution Press 2005)
• Legal Economics of U.S. Low Income Housing Markets in Light of “Informality” Analysis, 4 J. Law in Society 71 (2002)
• The Limited Equity Cooperative as a Vehicle for Affordable Housing in a Race and Class Divided Society, 46 Howard L. J. 85 (2002)
• Limited Equity Housing Cooperatives as a Mode of Privatization, in G. Alexander & G. Skapska, eds., A Fourth Way? Privatization, Property, and the Emergence of New Market Economies (Routledge, 1994), with Leopold Specht
• Neither the Market nor the State: Housing Privatization Issues, eds., A Fourth Way? Privatization, Property, and the Emergence of New Market Economies (Routledge, 1994)
• The Effect of the Warranty of Habitability on Low Income Housing: “Milking” and Class Violence, 15 Fla. St. L. Rev. 485 (1987)

Other Authors

These articles were written in connection with the course.

• Molly McUsic, Reassessing Rent Control: Its Economic Impact in a Gentrifying Housing Market, 101 Harv. L. Rev. 1835 (1988)
• Susan Keller, Does the Roof Have to Cave In?, The Landlord/Tenant Power Relationship and the Intentional Infliction of Emotional Distress, 9 Cardozo L. Rev. 1663 (1988)
• Rachel Fox, The Selling Out of Mount Laurel: Regional Contribution Agreements in New Jersey’s Fair Housing Act, 16 Fordham Urban L. J. 535 (1988)
• Lawrence Kolodney, Eviction Free Zones: The Economics of Legal Bricolage in the Fight Against Displacement, 18 Fordham Urban L. J. 507 (1991)
• Robin Kinning, Selective Housing Code Enforcement and Low-Income Housing Policy: Minneapolis Case Study, 21 Fordham Urban L. J. 159 (1993)
• Keith Aoki, Race, Space, and Place: The Relation Between Architectural Modernism, Post-modernism, Urban Planning, and Gentrification, 20 Fordham Urban L. J. 699 (1993)
• Richard Ford, The Boundaries of Race: Political Geography in Legal Analysis, 107 Harv. L. Rev. 1841 (1994)
• Jennifer J. Curhan, The HUD Reinvention: A Critical Analysis, 5 B.U. Pub. Int. L. J. 239 (1995)
• Paula Beck, Fighting Section 8 Discrimination: The Fair Housing Act’s New Frontier, 31 Harv. C.R. – C.L. Rev. 155 (1996)
• Erica Fox, Alone in the Hallway: Challenges to Effective Self-Representation In Negotiation, 1 Harv. Negotiation L. Rev. 85 (1996)
• Andrew G. Dietderich, An Egalitarian’s Market: The Economics of Inclusionary Zoning Reclaimed, 24 Fordham Urban L.J. 23 (1996)
• Jeffrey James Minton, Rent Control: Can and Should It Be Used to Combat Gentrification?, 23 Ohio Northern U. L. Rev. 823 (1997)
• Aya Gruber, Public Housing in Singapore: The Use of Ends-Based Reasoning in the Quest for a Workable System, 38 Harv. Int’l L.J. 236 (1997)
• Dimitri Evseev, Making Mixed-Income Communities Possible: Tax Base Sharing and Class Desegregation, 114 Harv. L. Rev. 1575 (2001)
• Rafael Mares, Enforcement of the Massachusetts Lead Law and Its Effect on Rental Prices and Abandonment, 12 Journal of Affordable Housing 3, 343 (Spring 2003)