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Risk, Property Rights, and Antidiscrimination Law in Rental Housing: Toward a Property-in-Action Framework

Published online by Cambridge University Press:  16 March 2020

Marco Brydolf-Horwitz
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Abstract

Landlords’ decisions significantly shape the housing outcomes of poor and stigmatized renters. Despite this important gatekeeping role, studies of antidiscrimination law have not thoroughly examined how private market actors respond to reform efforts or how private property rights potentially enable them to evade regulation. This study draws on ethnographic data gathered between late 2015 and early 2018 to examine how and why Seattle landlords opposed an ordinance regulating the use of criminal records in rental housing. The findings indicate that landlords’ opposition stems from their expectation that property protects owners’ ability to control their exposure to risk. Yet conceptions of property and risk perception alone cannot explain how landlords can evade regulation. Toward this end, I show how private property rights facilitate adaptation by which landlords can legally circumvent the intent of the law. The study highlights the value of a sociolegal framework of property in action, which incorporates cultural notions of ownership, legal rights, and the regulatory and market environments that shape owners’ discretion. I suggest that greater attention to risk discourse and property rights will deepen our understanding of the limits of antidiscrimination law and the ability of private market actors to adapt to, and resist, legal reform efforts.

Type
Articles
Information
Law & Social Inquiry , Volume 45 , Issue 4 , November 2020 , pp. 871 - 901
Copyright
© 2020 American Bar Foundation

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Footnotes

Earlier versions of this article benefited from feedback generously offered at the Law and Society Association’s Junior Scholars Workshop, a symposium on criminal justice reform held at Princeton University, and the CLASS workshare at the University of Washington. Special thanks to Katherine Beckett, Sara Curran, Chelsea Moore, Sarah Quinn, Emma Rodman, and four anonymous reviewers at Law and Social Inquiry for their helpful comments and suggestions.

References

REFERENCES

Alexander, Michelle. 2012. The New Jim Crow: Mass Incarceration in the Age of Colorblindness. Rev. ed. New York: New Press.Google Scholar
Avery, Beth, and Hernandez, Phil. 2018. Ban the Box: U.S. Cities, Counties, and States Adopt Fair Hiring Policies. New York: National Employment Law Project.Google Scholar
Bartram, Robin. 2019. “The Cost of Code Violations: How Building Codes Shape Residential Sales Prices and Rents.” Housing Policy Debate 29, no. 7: 931–46.CrossRefGoogle Scholar
Becher, Deborah Lynn. 2014. Private Property and Public Power: Eminent Domain in Philadelphia. Oxford: Oxford University Press.CrossRefGoogle Scholar
Bell, Jeannine. 2013. Hate Thy Neighbor: Move-in Violence and the Persistence of Racial Segregation in American Housing. New York: New York University Press.CrossRefGoogle Scholar
Blomley, Nicholas K. 2004. Unsettling the City: Urban Land and the Politics of Property. New York: Routledge.CrossRefGoogle Scholar
Bonastia, Chris. 2000. “Why Did Affirmative Action in Housing Fail during the Nixon Era? Exploring the ‘Institutional Homes’ of Social Policies.” Social Problems 47, no. 4: 523–42.CrossRefGoogle Scholar
Bourdieu, Pierre. 1986. “The Force of Law: Toward a Sociology of the Juridical Field.” Hastings Law Journal 35, no. 5: 805–13.Google Scholar
Bureau of Justice Statistics. 2014. Survey of State Criminal History Information Systems, 2014. Washington, DC: US Department of Justice.Google Scholar
Burstein, Paul. 1991. “Legal Mobilization as a Social Movement Tactic: The Struggle for Equal Employment Opportunity.” American Journal of Sociology 96, no. 5: 1201–25.CrossRefGoogle Scholar
Claeys, Eric R. 2011. “Bundle-of-Sticks Notions in Legal and Economic Scholarship.” Econ Journal Watch 8, no. 3: 205–13.Google Scholar
Clark, Lynn M. 2007. “Landlord Attitudes toward Renting to Released Offenders.” Federal Probation 71, no. 1: 20–29.Google Scholar
Connolly, N. D. B. 2014. A World More Concrete: Real Estate and the Remaking of Jim Crow South Florida. Chicago: University of Chicago Press.CrossRefGoogle Scholar
Crenshaw, Kimberlé Williams. 1988. “Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law.” Harvard Law Review 101, no. 7: 1331–87.CrossRefGoogle Scholar
Crowder, Kyle, Carll, Erin, Herting, Jerald, and Hess, Chris. 2018. Seattle Rental Housing Study. Seattle: University of Washington.Google Scholar
Dagan, Hanoch, and Heller, Michael. 2005. “Conflicts in Property.” Theoretical Inquiries in Law 6, no. 1: 37–58.CrossRefGoogle Scholar
Davis, John Emmeus, ed. 2010. The Community Land Trust Reader. Cambridge, MA: Lincoln Institute of Land Policy.Google Scholar
Desmond, Matthew. 2016. Evicted: Poverty and Profit in the American City. New York: Crown Publishers.Google Scholar
Desmond, Matthew. 2018. “Heavy Is the House: Rent Burden among the American Urban Poor.” International Journal of Urban and Regional Research 42, no. 1:160–70.CrossRefGoogle Scholar
Desmond, Matthew, and Perkins, Kristin L.. 2016. “Are Landlords Overcharging Housing Voucher Holders?” City & Community 15, no. 2: 137–62.CrossRefGoogle Scholar
Desmond, Matthew, and Valdez, Nicol. 2013. “Unpolicing the Urban Poor: Consequences of Third-Party Policing for Inner-City Women.” American Sociological Review 78, no. 1: 117–41.CrossRefGoogle Scholar
Edelman, Lauren B. 1992. “Legal Ambiguity and Symbolic Structures: Organizational Mediation of Civil Rights Law.” American Journal of Sociology 97, no. 6: 1531–76.CrossRefGoogle Scholar
Edelman, Lauren B. 2016. Working Law: Courts, Corporations, and Symbolic Civil Rights. Chicago: University of Chicago Press.Google Scholar
Edelman, Lauren B., Petterson, Stephen, Chambliss, Elizabeth, and Erlanger, Howard S.. 1991. “Legal Ambiguity and the Politics of Compliance: Affirmative Action Officers’ Dilemma.” Law & Policy 13, no. 1: 73–97.CrossRefGoogle Scholar
Edelman, Lauren B., Uggen, Christopher, and Erlanger, Howard S.. 1999. “The Endogeneity of Legal Regulation: Grievance Procedures as Rational Myth.” American Journal of Sociology 105, no. 2: 406–54.CrossRefGoogle Scholar
Ellen, Ingrid Gould, and Karfunkel, Brian. 2016. Renting in America’s Largest Metropolitan Areas. New York: New York University Furman Center.Google Scholar
Espeland, Wendy Nelson, and Stevens, Mitchell L.. 1998. “Commensuration as a Social Process.” Annual Review of Sociology 24, no. 1: 313–43.CrossRefGoogle Scholar
Ewick, Patricia, and Silbey, Susan S.. 1998. The Common Place of Law: Stories from Everyday Life. Chicago: University of Chicago Press.CrossRefGoogle Scholar
Feeley, Malcolm M., and Simon, Jonathan. 1992. “The New Penology: Notes on the Emerging Strategy of Corrections and Its Implications.” Criminology 30, no. 4: 449–74.CrossRefGoogle Scholar
Fourcade, Marion, and Healy, Kieran. 2007. “Moral Views of Market Society.” Annual Review of Sociology 33, no. 1: 285–311.CrossRefGoogle Scholar
Fourcade, Marion, and Healy, Kieran. 2013. “Classification Situations: Life-Chances in the Neoliberal Era.” Accounting, Organizations and Society 38, no. 8: 559–72.CrossRefGoogle Scholar
Fourcade, Marion, and Healy, Kieran. 2017. “Categories All the Way Down.” Historical Social Research 42, no. 159: 286–96.Google Scholar
Freeman, Alan. 1989. “Antidiscrimination Law: The View from 1989.” Tulane Law Review 64, no. 6: 1407–42.Google Scholar
Freund, David M. P. 2007. Colored Property: State Policy and White Racial Politics in Suburban America. Chicago: University of Chicago Press.CrossRefGoogle Scholar
Galanter, Marc. 1974. “Why the ‘Haves’ Come Out Ahead: Speculations on the Limits of Legal Change.” Law & Society Review 9, no. 1: 95–160.CrossRefGoogle Scholar
Gilderbloom, John I., and Appelbaum, Richard P.. 1987. “Toward a Sociology of Rent: Are Rental Housing Markets Competitive?” Social Problems 34, no. 3: 261–76.CrossRefGoogle Scholar
Glenn, Brian J. 2000. “The Shifting Rhetoric of Insurance Denial.” Law & Society Review 34, no. 3: 779–808.CrossRefGoogle Scholar
Glesner, Barbara A. 1992. “Landlords as Cops: Tort, Nuisance and Forfeiture Standards Imposing Liability on Landlords for Crime on the Premises.” Case Western Reserve Law Review 42, no. 3: 679–792.Google Scholar
Gowan, Peter, and Cooper, Ryan. 2018. Social Housing in the United States. Washington D.C.: People’s Policy Project.Google Scholar
Gramsci, Antonio. 1985. Selections from the Prison Notebooks of Antonio Gramsci. 8th ed. New York: International Publishers.Google Scholar
Greif, Meredith. 2018. “Regulating Landlords: Unintended Consequences for Poor Tenants.” City & Community 17, no. 3: 658–74.CrossRefGoogle Scholar
Hannah-Moffat, Kelly, Maurutto, Paula, and Turnbull, Sarah. 2009. “Negotiated Risk: Actuarial Illusions and Discretion in Probation.” Canadian Journal of Law and Society 24, no. 3: 391–409.CrossRefGoogle Scholar
Hohfeld, Wesley Newcomb. 1917. “Fundamental Legal Conceptions as Applied in Judicial Reasoning.” Yale Law Journal 26, no. 8: 710–70.CrossRefGoogle Scholar
Hunt, Alan. 1981. “Dichotomy and Contradiction in the Sociology of Law.” British Journal of Law and Society 8, no. 1: 47–77.CrossRefGoogle Scholar
Johnson, Olatunde. 2011. “The Last Plank: Rethinking Public and Private Power to Advance Fair Housing.” Journal of Constitutional Law 13, no. 5: 1123–91.Google Scholar
Joint Center for Housing Studies. 2018. The State of the Nation’s Housing 2018. Cambridge, MA: Harvard University.Google Scholar
Katz, Larissa. 2008. “Exclusion and Exclusivity in Property Law.” University of Toronto Law Journal 58, no. 3: 275–315.CrossRefGoogle Scholar
Krippner, Greta R. 2017. “Democracy of Credit: Ownership and the Politics of Credit Access in Late Twentieth-Century America.” American Journal of Sociology 123, no. 1: 1–47.CrossRefGoogle Scholar
Lamb, Charles M. 2005. Housing Segregation in Suburban America since 1960: Presidential and Judicial Politics. Cambridge, UK: Cambridge University Press.CrossRefGoogle Scholar
Lawson, Steven F. 1976. Black Ballots: Voting Rights in the South, 1944–1969. Lanham, MD: Lexington Books.Google Scholar
Lee, Bill Lann. 1999. “An Issue of Public Importance: The Justice Department’s Enforcement of the Fair Housing Act.” Cityscape 4, no. 3: 35–56.Google Scholar
Leonard, Jonathan S. 1984. “The Impact of Affirmative Action on Employment.” Journal of Labor Economics 2, no. 4: 439–63.CrossRefGoogle Scholar
Listokin, David, and Hattis, David B.. 2005. “Building Codes and Housing.” Cityscape 8, no. 1: 21–67.Google Scholar
Macpherson, C. B. 1978. “The Meaning of Property.” In Property, Mainstream and Critical Positions, 1–13. Toronto: University of Toronto Press.Google Scholar
Massey, Douglas S., and Denton, Nancy A.. 1993. American Apartheid: Segregation and the Making of the Underclass. Cambridge, MA: Harvard University Press.Google Scholar
McCann, Michael. 1994. Rights at Work: Pay Equity Reform and the Politics of Legal Mobilization. Chicago: University of Chicago Press.Google Scholar
McCann, Michael. 2014. “The Unbearable Lightness of Rights: On Sociolegal Inquiry in the Global Era.” Law & Society Review 48, no. 2: 245–73.CrossRefGoogle Scholar
Merrill, Thomas W. 1998. “Property and the Right to Exclude.” Nebraska Law Review 77: 730–55.Google Scholar
Novak, William J. 1996. The People’s Welfare: Law and Regulation in Nineteenth-Century America. Chapel Hill: University of North Carolina Press.Google Scholar
Pager, Devah. 2007. Marked: Race, Crime, and Finding Work in an Era of Mass Incarceration. Chicago: University of Chicago Press.CrossRefGoogle Scholar
Pedriana, Nicholas, and Stryker, Robin. 2017. “From Legal Doctrine to Social Transformation? Comparing U.S. Voting Rights, Equal Employment Opportunity, and Fair Housing Legislation.” American Journal of Sociology 123, no. 1: 86–135.CrossRefGoogle Scholar
Penner, J. E. 1996. “The Bundle of Rights Picture of Property.” University of California Los Angeles Law Review 43: 711–820.Google Scholar
Penner, J. E. 1997. The Idea of Property in Law. Oxford: Oxford University Press.Google Scholar
Perin, Constance. 1977. Everything in Its Place: Social Order and Land Use in America. Princeton, NJ: Princeton University Press.Google Scholar
Ragin, Charles C. 1994. Constructing Social Research: The Unity and Diversity of Method. Thousand Oaks, CA: Pine Forge Press.Google Scholar
Rona-Tas, Akos. 2017. “The Off-Label Use of Consumer Credit Ratings.” Historical Social Research 42, no. 159: 52–76.Google Scholar
Rosen, Eva. 2014. “Rigging the Rules of the Game: How Landlords Geographically Sort Low-Income Renters.” City & Community 13, no. 4: 310–40.CrossRefGoogle Scholar
Schwemm, Robert G. 2007. “Why Do Landlords Still Discriminate (and What Can Be Done about It).” John Marshall Law Review 40, no. 2: 455–511.Google Scholar
Sewell, William H. 1992. “A Theory of Structure: Duality, Agency, and Transformation.” American Journal of Sociology 98, no. 1: 1–29.CrossRefGoogle Scholar
Simon, Jonathan. 1988. “The Ideological Effects of Actuarial Practices.” Law & Society Review 22, no. 4: 771–800.CrossRefGoogle Scholar
Singer, Joseph William. 2000. Entitlement: The Paradoxes of Property. New Haven, CT: Yale University Press.CrossRefGoogle Scholar
Squires, Gregory D., ed. 2017. The Fight for Fair Housing: Causes, Consequences, and Future Implications of the 1968 Federal Fair Housing Act. New York: Routledge.Google Scholar
Stryker, Robin. 2001. “Disparate Impact and the Quota Debates: Law, Labor Market Sociology, and Equal Employment Policies.” Sociological Quarterly 42, no. 1: 13–46.CrossRefGoogle Scholar
Suchman, Mark, and Edelman, Lauren. 1996. “Legal Rational Myths: The New Institutionalism and the Law and Society Tradition.” Law & Social Inquiry 21, no. 4: 903–41.CrossRefGoogle Scholar
Swidler, Ann. 1986. “Culture in Action: Symbols and Strategies.” American Sociological Review 51, no. 2: 273–86.CrossRefGoogle Scholar
Thacher, David. 2008. “The Rise of Criminal Background Screening in Rental Housing.” Law & Social Inquiry 33, no. 1: 5–30.CrossRefGoogle Scholar
Travis, Adam. 2019. “The Organization of Neglect: Limited Liability Companies and Housing Disinvestment.” American Sociological Review 84, no. 1: 142–70.CrossRefGoogle Scholar
Travis, Jeremy. 2005. But They All Come Back: Facing the Challenges of Prisoner Reentry. Washington, DC: Urban Institute Press.Google Scholar
Turner, Margery Austin, Santos, Rob, Levy, Diane K., Wissoker, Doug, Aranda, Claudia, and Pitingolo, Rob. 2013. “Housing Discrimination against Racial and Ethnic Minorities 2012.” Washington, DC: US Department of Housing and Urban Development.Google Scholar
Valverde, Mariana. 2011. “Seeing Like a City: The Dialectic of Modern and Premodern Ways of Seeing in Urban Governance.” Law & Society Review 45, no. 2: 277–312.CrossRefGoogle Scholar
Waters, Mary. 2016. “Crime and Immigration: New Forms of Exclusion and Discrimination.” Issues in Science and Technology 33, no. 1: 29–38.Google Scholar
Weber, Max. 1978. Economy and Society: An Outline of Interpretive Sociology. Berkeley: University of California Press.Google Scholar
Yinger, John. 1995. Closed Doors, Opportunities Lost: The Continuing Costs of Housing Discrimination. New York: Russell Sage Foundation.Google Scholar

CASES CITED

Yim, Chong et al. v. City of Seattle, No. 96817-9 (Wash. Nov. 14, 2019).Google Scholar

LEGISLATION CITED

Civil Rights Act of 1964, 78 Stat. 241.

Fair Chance Housing Ordinance, Ord.125393, SMC §14.09 (2017).

Fair Housing Act of 1968, 82 Stat. 73.

Voting Rights Act of 1965, 79 Stat. 437.