Public Toilets: An Essential Public Service
Taunya Lovell Banks
University of Maryland Francis King Carey School of Law
Public toilets, popularized in the late 19th and early 20th century, have largely disappeared, supplanted by toilets in office buildings, hotels, department stores, restaurants and theaters. Thus, private businesses who often limit access to their customers control access to toilet facilities in the public sphere. As a result, many people lack reasonable access to toilets outside their home as private operators determine who has access and when. Lack of toilet access in the public sphere is not limited to homeless individuals; it extends to others whose needs often are invisible to the casual observer – taxi drivers, utility workers, gas and electric service workers, people doing street repair and pedestrians on main streets after normal business hours. Many urban cities criminalize public urination. Criminalizing a natural and necessary bodily function like urinating and defecating while not providing public toilet facilities seems unconscionable. The consequences of a public urination conviction extend beyond criminal liability. There are health issues that come with “holding it.” Some of the health effects attributed to lack of access to toilets include incontinence, UTIs, and diabetes. Toilets in public spaces have long been a battleground for social justice, most recently for transgendered individuals. In this article, I assert that the lack of government operated or sponsored public toilets in urban areas and their replacement with toilets controlled by private business creates opportunities to discrimination against people seeking access to those toilets based on occupation, socio-economic status, gender-identification and even medical condition. Forcing a person denied access to public toilets to soil themselves or endanger their health by “holding it” constitutes an indignity that can substantially interfere with an individual’s ability to participate fully in public life, an essential aspect of American citizenship. I argue that the lack of public toilets is a public health problem. Thus from a public health perspective governments should be more pro-active in making public toilets more widely available especially in dense population centers.
Housing and Mortgage Law Reform in Spain
University of Akron School of Law
My paper will focus on the intersecting areas of law, social justice, and political economy. Spain is in the process of crafting significant new consumer legislation in the wake of the global financial crisis. Like other European nations, Spain sought to fuel its economic growth, in part, by linking the country’s future to housing with all of its attendant products and services such as mortgage loans and construction jobs. This policy proved to be disastrous with the onset of the severe global economic downturn. Women who are the sole providers for their family, children, and immigrants have been identified as the most vulnerable populations suffering discrimination in the mortgage lending and foreclosure/eviction processes.
The rising unemployment rate (approximately 25%) and the lending practices of banks, which channeled residential borrowers into risky mortgages, have left Spain and many homeowners in dire straits. In Spain, all residential mortgage loans are recourse loans. Meaning that, if a homeowner experiences difficulty with making his mortgage payments, ultimately defaulting on the loan, the bank can still hold him liable for any remaining difference between the value of the house and the outstanding loan amount after foreclosure. Even worse, the protection of personal bankruptcy is not a readily accessible option for mortgage defaulters in Spain. Foreclosures have reached an alarming level. According to one source, more than 400,000 homes have been foreclosed upon during the period of 2007 through 2012. The massive number of evictions prompted the mobilization of social and political groups such as PAH (“Platform of People Affected by Mortgages”) demanding that the government intervene. The plight of homeowners remained unaddressed until social pressures and media coverage of several suicides motivated the Spanish government to take some action. Additional support has emerged in the guise of a decision from the European Court of Justice.
My article will explore the following issues: (i) whether mortgage law reform may serve as the foundation for larger social policy reforms addressing low wages, poverty, and homelessness and (ii) what are likely to be the most effective sources (e.g., International Human Rights Law, European Union Directives, political protest, super legal structures such as the European Court of Justice, models from other nations such as the United States) for remediating the critical issues of housing instability and over-indebtedness that confront the most vulnerable populations.
In connection with the aforementioned areas of inquiry, I will examine the ECJ’s ruling in the 2013 case Aziz v. Caixa d’Estalvis de Catalunya. In Aziz, the ECJ held that Spanish mortgage laws offer “incomplete and insufficient” protection to borrowers. Based upon the ruling, Spanish courts may place a moratorium on the eviction of homeowners who are delinquent on their mortgage payments. My article will consider the adequacy of the ECJ’s ruling and associated regulations that have been enacted following the court’s decision to provide relief to suffering borrowers. The paper also will include recommendations for further protections that Spain can adopt to protect consumers in this realm.
Residential Segregation, Rental Unaffordability, and Neighborhood Decline: Taming the Three-Headed Housing Hellhound
Professor Andrea J. Boyack, Washburn University School of Law
1700 S.W. College Ave., Topeka, KS 66621
For the past decade, America’s residential real estate has tried to escape from market hell, only to find the path to equitably distributed, quality, affordable housing blocked by a monstrous reality with three heads: (1) increasingly inadequate and expensive rental housing, (2) persistent de facto housing segregation, and (3) a record number of abandoned homes dragging down community property values and quality of life. Each of the monster’s heads significantly inhibits market recovery. Abandoned homes are a barrier to neighborhood stability and cause wide and various social and economic harms. Most of the neighborhoods at greatest risk of being decimated by vacant homes are segregated, low-income, majority-minority communities that, for generations, have been cut off from stable mortgage capital, robbed of community investment and quality local public goods, and injured by inequitable zoning laws. At the same time, the homeownership rate in the United States has now fallen below 64% for the first time in decades, and the associated increased rental demand has outpaced affordable rental supply and has driven rental rates higher than ever before.
In the Greek myth, Hercules is only able to defeat Cerberus, the three-headed hellhound, by grabbing all three of its necks at once. In a similar vein, all three of these difficult housing problems are best addressed in concert. Repurposed abandoned homes can be put into productive use as affordable rental homes or community amenities to enhance neighborhood quality. High rental demand can be dispersed into high-opportunity neighborhoods to deliberately, yet naturally, de-segregate housing. And a growing supply and broader distribution of rental housing options will support community inclusiveness and stabilize rental rates. Success in this housing quest requires, however, that US housing policy look beyond homeownership. A more defensible and sustainable modern American Dream would instead prioritize quality, dispersed, and affordable rental housing that can provide individual dignity and independence derived from having “a place to call home.”
The Takings Clause of Boyle Heights
Yxta Maya Murray*
Los Angeles gentrifies with a stunning speed as I write this article. The people of the city’s swiftly transforming neighborhood, Boyle Heights, want the process modified to stop the dislocation of poor Latinx residents, or halted altogether. In the Winter and Spring of 2017, I ventured into the neighborhood and interviewed residents, and people who perform social work in the community, to understand the conflict. As I listened to folks’ stories, I learned that residents possessed sophisticated conceptions of property rights, of who owned these rights in Boyle Heights, and of when their property proved “taken” in violation of human dignity and also legal principles. These doctrines veered from the understanding of property rights and takings under the Fifth Amendment of the U.S. Constitution,and yet bore striking resonances to the property rights advocated by current social movements and progressive property theory. In this writing, argue such community fathomings of property rights should apply to Takings analyses.
*Professor, Loyola Law School.
Patience A. Crowder Associate Professor of Law Founding Director, Community Economic Development Clinic University of Denver Sturm College of Law 2255 E. Evans Ave. Denver, CO 80208. Email: firstname.lastname@example.org
Impact Transaction: Incluzionary Zoning as an Equitable Model for Small Business Development
The full impact of the Great Recession will not be known for years; however, its debilitating effect on state and local governments is clear. While the Great Recession materialized differently in different states, state and local governments suffering from financial anemia decimated their community and economic development programs. Compounded by cuts in spending at the federal level, shrinking philanthropic resources and property tax revenue, and dormant housing and construction industries, state and local governments froze or reduced spending on redevelopment projects and economic development programs. Private industries behaved similarly. In an extreme case, California shuttered its redevelopment agencies. Along with the consequences of the foreclosure crises, these shifts or cessations in spending led to devastating effects on the availability of affordable housing, particularly the construction of new affordable housing, the start-up and maintenance of job and workforce training programs, and, for purposes of this proposal, programs and resources available for small business development. Redevelopment, however, is on the rebound. Some state and local governments are beginning to creep out of shell shock to respond to the crisis in innovative ways. As the economy begins to stabilize, the revival and reinvention of such programs necessitates a renewed vigilance against any inequities that are inherent in redevelopment practices and the implementation of related programs.
In a world of rising litigation costs and clogged judicial dockets, transactional advocacy in the public interest can play an equally critical role in advancing equity and equality. Redevelopment is a transactional practice. In recent scholarship I proposed what I consider to be the next step in the evolution of transactional law and practice: impact transaction. Impact transaction is the strategic use of agreements and other transactional mechanisms between cross-sector parties to achieve broad social change. Since the Supreme Court’s 1954 decision in Brown v. Board of Education, impact litigation has become the default strategy for initiating social change in the United States; the 2015 term’s gay marriage decision in Obergefell v. Hodges is but the most recent example. Impact litigation has been the preferred strategy for initiating large-scale social change in the United States. However, as the battlegrounds of the War on Poverty have expanded from America’s urban cores to its suburban satellites, a new strategy is urgently needed to combat the dimensions of 21st Century poverty. This proposal seeks to address that task by presenting impact transaction, a transactional strategy for large-scale social change. More specifically, this proposal seeks to present a new strategy for impact transaction: inclusionary zoning for small business development.
Inclusionary zoning is a market-based strategy for increasing affordable housing and creating mixed-income communities by requiring or encouraging developers “to set aside a certain percentage of housing units in new or rehabilitated projects for low- and moderate-
income residents.” Inclusionary zoning has yielded mixed results, but affordable housing advocates continue to promote it as a tool for the construction of affordable housing— particularly in light of increasing rates of gentrification in metropolitan regions across the country. Affordable housing, however, is only one piece of the redevelopment puzzle, and commercial business owned by people of color in redeveloping communities can also be displaced by gentrification. To achieve truly holistic community development, state and local governments must also promote equitable policies for small business development. This proposal presents inclusionary zoning as a new form of small business development. Just as inclusionary zoning for housing provides for set asides for affordable housing, inclusionary zoning for small business development calls for set asides of affordable retail space and business incubator services for historically disadvantaged business owners in redeveloped spaces. Using inclusionary zoning housing ordinances as a model, this proposal will present model legislation for inclusionary zoning for small business.
I am the founding director of the Community Economic Development Clinic at Denver Law. My clinic, and, by extension, my scholarship, is specifically designed to promote equitable development by working on projects that address inequities in redevelopment. This proposal speaks to matters relevant in existing client representations by presenting a new method by which to correct traditional, but misaligned, attempts at small business development for historically disadvantaged business owners.
John Whitlow Assistant Professor, UNM School of Law email@example.com
Law Clinics in the Neoliberal City: Assessing CUNY School of Law’s Tenant Law and Organizing Project
The dominant legal services paradigm with regard to tenant advocacy is highly individuated, prioritizing eviction prevention over lawyering strategies that support community organizing and redistributive policy and law reform campaigns. Such prioritization dovetails with traditional approaches to clinical legal education that privilege student work on individual cases in discrete legal areas over more politicized modes of lawyering. This article intervenes in that context by advocating for a model of clinical law practice capable of addressing the deep, structural forces underlying inequality and gentrification, while also winning victories for clients and training students to be effective public interest lawyers. Through an exploration of models of law and organizing in the clinical law setting and of the political-economic forces driving urbanization in New York City in recent decades, I argue that such an endeavor requires a framework of clinical practice that uses legal services to build solidarities among poor and working class tenants in gentrifying sections of the city, and that critically engages the core tenets of neoliberalism.
Real estate markets in global cities are rich sources of economic growth and speculation, and the policy tools required to regulate these markets often reside beyond the scale of local governments. In this setting, the work of an anti-displacement law clinic must be nimble, strategic, and interdisciplinary. As it confronts a crisis of affordable housing that is altering the race and class composition of many urban neighborhoods, such a clinic must strike the proper balance between direct legal services that yield urgently-needed results for clients and support for organizing and policy initiatives aimed at protecting large groups of tenants from deleterious market effects. Moreover, because of the complexity of market-driven gentrification, the law clinic’s legal services must be configured to span multiple legal areas—e.g., landlord-tenant, land use, consumer protection, etc.—and to support organizing and policy efforts that operate across municipal and state scales of governance and that challenge the dominant mode of market-driven urbanization. In the midst of all this, the clinic must also train students to become effective social justice advocates.
This article lays out the building blocks of this project—the strategic combining of legal services and community organizing efforts, and a critique of the paradigm of neoliberal urbanization— and relates them to the work of CUNY School of Law’s Tenant Law and Organizing Project (“TLOP”), which partnered with grassroots community organizations to advocate for decent, affordable housing in gentrifying neighborhoods of New York City. By exploring TLOP’s advocacy efforts, we are able to take a preliminary cut at assessing the challenges and possibilities of the clinical framework envisioned here—its capacity to win vital gains for tenants in the context of broader community organizing efforts, to address structural inequality and displacement, and to train soon-to-be public interest attorneys. At the article’s core is an argument for an anti-displacement law clinic that imagines and fights for an alternative mode of urbanization—one rooted in a view of cities as democratic, pluralist, and egalitarian sites of social and political change.