The New Progressive Property and the Low-Income Housing Conflict

By Bray, Zachary | Brigham Young University Law Review, July 1, 2012 | Go to article overview
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The New Progressive Property and the Low-Income Housing Conflict


Bray, Zachary, Brigham Young University Law Review


ABSTRACT

The foundation of property law has been much debated in recent years, as several scholars have sought to provide a theoretical alternative to what they call the dominant, "law-and-economics" approach to property. In place of the law-and-economics approach, these scholars advance a new theoretical approach, which I call athe new progressive property." At its core, this new approach favors rules thought to promote the collective well-being of the larger community while ensuring that relatively disadvantaged members of society have access to certain basic resources. This Article explores the boundaries and practical implications of the new progressive property. To do so, I focus on two potential examples of this theoretical approach related to low-income housing: the federal Section 8 housing voucher program and local rentcontrol ordinances. I argue that Section 8 is a better example than rent control of the new progressive-property approach, even though rent control has previously been identified as a practical example of the new progressive property and Section 8 has not.

I then turn to examine a deep conflict at the intersection of Section 8 and rent control, which presents an important opportunity to further test and refine the new progresnve property. In particular, I argue that this underexamined low-income housing conflict provides good reasons to abandon rent control, even from a progressive-property perspective. In addition, the low-income housing conflict between Section 8 and rent control sheds light on the ambiguous relationship between law-and-economics analysis and the progressive-property framework. More specifically, I argue that the conflict between rent control and Section 8 demonstrates that even the most basic law-and-economics tools must be incorporated into a progressive-property framework to achieve the ends of the new progressive property.

ABSTRACT .................... 1110

I. INTRODUCTION .................... 1111

II. A REVIEW OF RECENT PROGRESSIVE-PROPERTY ACCOUNTS .................... 1117

A. The Communitarian Nature of the New Progressive Property .................... 1119

B. Individual Property Rights and the New Progressive Property .................... 1121

C. The Contrast Between the New Progressive-Property and the Law-and-Economics Approaches .................... 1123

D. The Role of Virtue Ethics Within the New Progressive Property .................... 1127

III. SECTION 8 AND RENT CONTROL AS EXAMPLES OF THE NEW PROGRESSIVE PROPERTY .................... 1128

A. Section 8 as an Example of the New Progressive Property .................... 1129

B. Rent Control as an Example of the New Progressive Property .................... 1139

IV. LESSONS FOR THE NEW PROGRESSIVE-PROPERTY APPROACH FROM THE INTERSECTION OF RENT CONTROL AND SECTION 8 .................... 1148

A. Recent Litigation at the Intersection of Rent Control and Section 8 .................... 1148

B. Lessons from the Anti-Progressive Conflict at the Intersection of Rent Control and Section 8 .................... 1156

V. CONCLUSION .................... 1166

I. INTRODUCTION

For much of the past decade, groups of landlords in rentcontrolled jurisdictions have sought to exploit the intersection between die federal Section 8 housing voucher program1 and local rent-control ordinances,2 arguing diat the baseline eviction standards set forth in the federal program preempt the more tenant-protective eviction controls present in rent-control ordinances. More specifically, these landlords have issued form notices purporting to evict Section 8-assisted tenants in rent-controlled units for reasons acceptable under federal regulations but precluded by local rentcontrol ordinances. Predictably, these efforts prompted a spate of state and federal litigation by tenants-rights advocates.3 Although the preemption issues central to this litigation are important in their own right, beyond them lurks a larger, more interesting, and more significant problem: namely, die underlying conflict at the intersection of Section 8 and local rent-control ordinances, despite their superficially similar progressive aims.

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