Posted by Authored by: Tyler Clark
While it is not a new idea that economic inequality continues to inform political thought, it is clearer today that the line separating politics and law was always perhaps an artificial one. Private property rights — “capital” — that coordinate disparities in both wealth and income have come to almost entirely personify developed nations. The wealthiest 10 percent of income earners, for instance, now own over 93 percent of all stock market wealth among U.S. households. As property law evolves, we continue to confront questions about the scope of rights for those laying claim to useful property, for how long and why.
Ideally a jurisprudential tilt to preserve fair exchange and socially beneficial behavior should consider how stakeholders are not always all on equal footing. Placing property law’s historical canon at the fore could remind courts why a privileged gentry acquired and fortified their rights to a fledgling nation’s economic core by either conquest or endowment. But with a new legal framework that helps generate an equitable distribution of the economic pie, we may create a political economy resilient to the whims of those with real clout to make law opposed to egalitarian goals.
One obstacle in realizing this vision, however, lies within the treatment of property law in its wellspring 1L course. Here, several motifs about how humans relate to one another (e.g., between landowner and migrant farm worker; between tenant and landlord) are often straightjacketed. Only the casebook drives discussions, and the curriculum presents a challenge- students must learn many arcane laws of property, professors must trim the fat in order to provide what the market demands of graduates — preparation for the Bar exam.
Lost in translation, then, is deeper examination of a doctrine that often stamps “winners” and “losers” in pervasive ways. This seems surprising given that property law purports to balance “societal interests against economic development.” So how might we better appraise the role that legal institutions have in rectifying actionable conduct through the lens of property?
One way to find out is by turning to New York City’s Rent Guidelines Board (RGB), which holds authority to restrict rent increases on rent-stabilized housing. With the artificial boundary between the law and political goals laid bare, the RGB must balance housing policy (social interests) clashing against the interests of owners — both individual and corporate — who make up a bulk of the city’s housing market (economic development). Given the concentrated control of property in one of the least affordable cities in America, some economists show that rules permitting rent prices to exceed operating costs of privately-owned buildings is a boon to landlords because it extracts wealth from tenants, then transfers that wealth upward at a premium.
A recent New York Appellate Court decision reveals a mechanism making these extractions methods possible. The Court defeated a law which protects tenants who pay their rent with “source of income” vouchers, burdening those low and fixed income renters in their search for adequate housing. The Court determined that the voucher system policy violated the constitutional rights of owners because it requires building safety inspections. This outcome effectively proscribes housing access which, in turn, reinforces a systematic tendency of courts to safeguard some interests while throttling others.
Direct state action that successfully weighed the social interests of those similarly disenfranchised against the rights of owners came during the Civil Rights Movement. Kinetic racial segregation pressured Congress to codify the Fair Housing Act (FHA) into law in 1968. The FHA expanded enhanced housing standards to roughly 12 million people, inducing meaningful economic mobility — a goal the RGB ostensibly shares. The FHA represents a landmark initiative to protect our vulnerable neighbors from unscrupulous practices, creating a basis to achieve housing equality against friction from property law’s problematic legacy in America.
To build a moral economy better positioned to defend tenants and workers against wayward actors, we must fully appreciate the historical context still animating property law disputes today. Honest introspection of uneven bargaining and market power means repairing the principles within property law’s own synthesis that degrade broader visions of economic justice. With yawning contempt for cracks throughout our institutions, it is time to mold property law for the 21st century.
About the Author
Tyler Clark is a current 1L at UIC Law. He holds a master’s degree in economics from the University of Utah. His research focuses on Law & Political Economy, Antitrust, and Economic History.
