Pub Date : 2022-01-01DOI: 10.36644/mlr.121.1.public
Seth Mayer
Contingency fee contracts predicate an attorney’s compensation on the outcome of a case. Such contracts are widely accepted when used in civil litigation by private plaintiffs who might not otherwise be able to afford legal representation. However, such arrangements are controversial when government plaintiffs like attorneys general and local governments retain private lawyers to litigate on behalf of the public in return for a percentage of any recovery from the lawsuit. Some commentators praise such public client contingency fee contracts, which have become commonplace, as an efficient way to achieve justice. Critics, however, view them as corrupt, undemocratic, and unethical. This Comment contributes to this debate by arguing that public client contingency fee contracts are not only permissible, as some have argued, but that certain legal doctrines obligate government entities to form these contracts. First, this Comment contends that the principle that government litigators have a special duty to “seek justice” obligates government actors to enter into public client contingency fee contracts. The obligation to form such contracts is triggered when civil justice requires enforcement, but constraints prevent government attorneys from pursuing litigation. This contention undermines critics’ claim that the “seek justice” principle means public client contingency fee contracts are impermissible. Second, this Comment argues that the public trust doctrine also obliges government entities to form public client contingency fee contracts in some instances. These arguments undermine attacks on public client contingency fee contracts and demonstrate the existence of a heretofore ignored obligation in public civil litigation.
{"title":"Public Client Contingency Fee Contracts as Obligation","authors":"Seth Mayer","doi":"10.36644/mlr.121.1.public","DOIUrl":"https://doi.org/10.36644/mlr.121.1.public","url":null,"abstract":"Contingency fee contracts predicate an attorney’s compensation on the outcome of a case. Such contracts are widely accepted when used in civil litigation by private plaintiffs who might not otherwise be able to afford legal representation. However, such arrangements are controversial when government plaintiffs like attorneys general and local governments retain private lawyers to litigate on behalf of the public in return for a percentage of any recovery from the lawsuit. Some commentators praise such public client contingency fee contracts, which have become commonplace, as an efficient way to achieve justice. Critics, however, view them as corrupt, undemocratic, and unethical. This Comment contributes to this debate by arguing that public client contingency fee contracts are not only permissible, as some have argued, but that certain legal doctrines obligate government entities to form these contracts. First, this Comment contends that the principle that government litigators have a special duty to “seek justice” obligates government actors to enter into public client contingency fee contracts. The obligation to form such contracts is triggered when civil justice requires enforcement, but constraints prevent government attorneys from pursuing litigation. This contention undermines critics’ claim that the “seek justice” principle means public client contingency fee contracts are impermissible. Second, this Comment argues that the public trust doctrine also obliges government entities to form public client contingency fee contracts in some instances. These arguments undermine attacks on public client contingency fee contracts and demonstrate the existence of a heretofore ignored obligation in public civil litigation.","PeriodicalId":47790,"journal":{"name":"Michigan Law Review","volume":null,"pages":null},"PeriodicalIF":2.7,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69684822","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-01-01DOI: 10.36644/mlr.120.6.community
Jeena Shah
A Review of An Equal Place: Lawyers in the Struggle for Los Angeles. By Scott L. Cummings.
《平等地位:为洛杉矶而战的律师》书评。斯科特·l·卡明斯著。
{"title":"Community Lawyering in Resistance to Neoliberalism","authors":"Jeena Shah","doi":"10.36644/mlr.120.6.community","DOIUrl":"https://doi.org/10.36644/mlr.120.6.community","url":null,"abstract":"A Review of An Equal Place: Lawyers in the Struggle for Los Angeles. By Scott L. Cummings.","PeriodicalId":47790,"journal":{"name":"Michigan Law Review","volume":null,"pages":null},"PeriodicalIF":2.7,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138507602","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-01-01DOI: 10.36644/mlr.120.6.carceral
Kate Levine
A Review of The Feminist War on Crime: The Unexpected Role of Women’s Liberation in Mass Incarceration. By Aya Gruber.
回顾女权主义对犯罪的战争:妇女解放在大规模监禁中的意外作用。阿雅·格鲁伯著。
{"title":"The Progressive Love Affair with the Carceral State","authors":"Kate Levine","doi":"10.36644/mlr.120.6.carceral","DOIUrl":"https://doi.org/10.36644/mlr.120.6.carceral","url":null,"abstract":"A Review of The Feminist War on Crime: The Unexpected Role of Women’s Liberation in Mass Incarceration. By Aya Gruber.","PeriodicalId":47790,"journal":{"name":"Michigan Law Review","volume":null,"pages":null},"PeriodicalIF":2.7,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138507615","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-01-01DOI: 10.36644/mlr.120.8.lawyering
M. Fletcher, Wenona T. Singel
This Article describes how the statutory structure of child welfare laws enables lawyers and courts to exploit deep-seated stereotypes about American Indian people rooted in systemic racism to undermine the enforcement of the rights of Indian families and tribes. Even when Indian custodians and tribes are able to protect their rights in court, their adversaries use those same advantages on appeal to attack the constitutional validity of the law. The primary goal of this Article is to help expose those structural issues and the ethically troublesome practices of adoption attorneys as the most important Indian Child Welfare Act (ICWA) case in history, Brackeen v. Haaland, reaches the Supreme Court.
本文描述了儿童福利法的法定结构如何使律师和法院利用植根于系统性种族主义的对美洲印第安人根深蒂固的刻板印象来破坏印第安家庭和部落权利的执行。即使印第安人的监护人和部落能够在法庭上保护自己的权利，他们的对手也会利用同样的优势在上诉中攻击该法律的宪法有效性。本文的主要目的是帮助揭露那些结构性问题和收养律师的道德问题，因为历史上最重要的印度儿童福利法(ICWA)案件，Brackeen v. Haaland到达最高法院。
{"title":"Lawyering the Indian Child Welfare Act","authors":"M. Fletcher, Wenona T. Singel","doi":"10.36644/mlr.120.8.lawyering","DOIUrl":"https://doi.org/10.36644/mlr.120.8.lawyering","url":null,"abstract":"This Article describes how the statutory structure of child welfare laws enables lawyers and courts to exploit deep-seated stereotypes about American Indian people rooted in systemic racism to undermine the enforcement of the rights of Indian families and tribes. Even when Indian custodians and tribes are able to protect their rights in court, their adversaries use those same advantages on appeal to attack the constitutional validity of the law. The primary goal of this Article is to help expose those structural issues and the ethically troublesome practices of adoption attorneys as the most important Indian Child Welfare Act (ICWA) case in history, Brackeen v. Haaland, reaches the Supreme Court.","PeriodicalId":47790,"journal":{"name":"Michigan Law Review","volume":null,"pages":null},"PeriodicalIF":2.7,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69684203","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-01-01DOI: 10.36644/mlr.120.5.unfair
Andrew Parks
Rising enthusiasm for consumer data protection in the United States has resulted in several states advancing legislation to protect the privacy of their residents’ personal information. But even the newly enacted California Privacy Rights Act (CPRA)—the most comprehensive data privacy law in the country— leaves a wide-open gap for internet data scrapers to extract, share, and monetize consumers’ personal information while circumventing regulation. Allowing scrapers to evade privacy regulations comes with potentially disastrous consequences for individuals and society at large.This Note argues that even publicly available personal information should be protected from bulk collection and misappropriation by data scrapers. California should reform its privacy legislation to align with the European Union’s General Data Privacy Regulation (GDPR), which requires data scrapers to provide notice to data subjects upon the collection of their personal information regardless of its public availability. This reform could lay the groundwork for future legislation at the federal level.
{"title":"Unfair Collection: Reclaiming Control of Publicly Available Personal Information from Data Scrapers","authors":"Andrew Parks","doi":"10.36644/mlr.120.5.unfair","DOIUrl":"https://doi.org/10.36644/mlr.120.5.unfair","url":null,"abstract":"Rising enthusiasm for consumer data protection in the United States has resulted in several states advancing legislation to protect the privacy of their residents’ personal information. But even the newly enacted California Privacy Rights Act (CPRA)—the most comprehensive data privacy law in the country— leaves a wide-open gap for internet data scrapers to extract, share, and monetize consumers’ personal information while circumventing regulation. Allowing scrapers to evade privacy regulations comes with potentially disastrous consequences for individuals and society at large.This Note argues that even publicly available personal information should be protected from bulk collection and misappropriation by data scrapers. California should reform its privacy legislation to align with the European Union’s General Data Privacy Regulation (GDPR), which requires data scrapers to provide notice to data subjects upon the collection of their personal information regardless of its public availability. This reform could lay the groundwork for future legislation at the federal level.","PeriodicalId":47790,"journal":{"name":"Michigan Law Review","volume":null,"pages":null},"PeriodicalIF":2.7,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138507610","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-01-01DOI: 10.36644/mlr.120.8.argument
Karen Pita Loor
Protesting is supposed to be revered in our democracy, considered “as American as apple pie” in our nation’s mythology. But the actual experiences of the 2020 racial justice protesters showed that this supposed reverence for political dissent and protest is more akin to American folklore than reality on the streets. The images from those streets depicted police officers clad in riot gear and armed with shields, batons, and “less than” lethal weapons aggressively arresting protesters, often en masse. In the first week of the George Floyd protests, police arrested roughly 10,000 people, and approximately 78 percent of those arrests were for nonviolent misdemeanor offenses or criminal violations. Moreover, troubling figures regarding the racial breakdown of protest-related arrests, along with anecdotes from activists, suggest that just as with routine policing, the experiences of Black and white people differ during protests—even when they protest side by side—with police potentially targeting Black activists for arrest. This Article exposes how police officers’ easy access to a wide arsenal of criminal charges serves to trample on expressive freedoms and explains how a new and clearer understanding of the Fourth Amendment’s application to expressive conduct should curb the police’s seemingly unbounded power to arrest protesters. In Part I of this Article, I revisit and review the roots and rationale of the Expressive Fourth Amendment doctrine, which posits that there is an expressive component to Fourth Amendment protection. In Part II, I discuss the criminal statutes that police often use to make arrests during protests and then focus more narrowly on the arrests in New York City in the early days of the George Floyd demonstrations, including the racial makeup of arrestees. In Part III, I explain how the presiding understanding of the Fourth Amendment places minimal limits on a police officer’s ability to arrest, regardless of an individual’s engagement in expressive political conduct. Thereafter, I describe how the Expressive Fourth Amendment should apply to arrests and serve to curtail an officer’s ability to engage in warrantless arrests of protesters for nonviolent misdemeanors.
{"title":"An Argument Against Unbounded Arrest Power: The Expressive Fourth Amendment and Protesting While Black","authors":"Karen Pita Loor","doi":"10.36644/mlr.120.8.argument","DOIUrl":"https://doi.org/10.36644/mlr.120.8.argument","url":null,"abstract":"Protesting is supposed to be revered in our democracy, considered “as American as apple pie” in our nation’s mythology. But the actual experiences of the 2020 racial justice protesters showed that this supposed reverence for political dissent and protest is more akin to American folklore than reality on the streets. The images from those streets depicted police officers clad in riot gear and armed with shields, batons, and “less than” lethal weapons aggressively arresting protesters, often en masse. In the first week of the George Floyd protests, police arrested roughly 10,000 people, and approximately 78 percent of those arrests were for nonviolent misdemeanor offenses or criminal violations. Moreover, troubling figures regarding the racial breakdown of protest-related arrests, along with anecdotes from activists, suggest that just as with routine policing, the experiences of Black and white people differ during protests—even when they protest side by side—with police potentially targeting Black activists for arrest. This Article exposes how police officers’ easy access to a wide arsenal of criminal charges serves to trample on expressive freedoms and explains how a new and clearer understanding of the Fourth Amendment’s application to expressive conduct should curb the police’s seemingly unbounded power to arrest protesters. In Part I of this Article, I revisit and review the roots and rationale of the Expressive Fourth Amendment doctrine, which posits that there is an expressive component to Fourth Amendment protection. In Part II, I discuss the criminal statutes that police often use to make arrests during protests and then focus more narrowly on the arrests in New York City in the early days of the George Floyd demonstrations, including the racial makeup of arrestees. In Part III, I explain how the presiding understanding of the Fourth Amendment places minimal limits on a police officer’s ability to arrest, regardless of an individual’s engagement in expressive political conduct. Thereafter, I describe how the Expressive Fourth Amendment should apply to arrests and serve to curtail an officer’s ability to engage in warrantless arrests of protesters for nonviolent misdemeanors.","PeriodicalId":47790,"journal":{"name":"Michigan Law Review","volume":null,"pages":null},"PeriodicalIF":2.7,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69684331","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-01-01DOI: 10.36644/mlr.121.3.algorithmic
Sarah Bender
Artificial intelligence (AI) has entered election administration. Across the country, election officials are beginning to use AI systems to purge voter records, verify mail-in ballots, and draw district lines. Already, these technologies are having a profound effect on voting rights and democratic processes. However, they have received relatively little attention from AI experts, advocates, and policymakers. Scholars have sounded the alarm on a variety of “algorithmic harms” resulting from AI’s use in the criminal justice system, employment, healthcare, and other civil rights domains. Many of these same algorithmic harms manifest in elections and voting but have been underexplored and remain unaddressed. This Note offers three contributions. First, it documents the various forms of “algorithmic decisionmaking” that are currently present in U.S. elections. This is the most comprehensive survey of AI’s use in elections and voting to date. Second, it explains how algorithmic harms resulting from these technologies are disenfranchising eligible voters and disrupting democratic processes. Finally, it identifies several unique characteristics of the U.S. election administration system that are likely to complicate reform efforts and must be addressed to safeguard voting rights.
{"title":"Algorithmic Elections","authors":"Sarah Bender","doi":"10.36644/mlr.121.3.algorithmic","DOIUrl":"https://doi.org/10.36644/mlr.121.3.algorithmic","url":null,"abstract":"Artificial intelligence (AI) has entered election administration. Across the country, election officials are beginning to use AI systems to purge voter records, verify mail-in ballots, and draw district lines. Already, these technologies are having a profound effect on voting rights and democratic processes. However, they have received relatively little attention from AI experts, advocates, and policymakers. Scholars have sounded the alarm on a variety of “algorithmic harms” resulting from AI’s use in the criminal justice system, employment, healthcare, and other civil rights domains. Many of these same algorithmic harms manifest in elections and voting but have been underexplored and remain unaddressed. This Note offers three contributions. First, it documents the various forms of “algorithmic decisionmaking” that are currently present in U.S. elections. This is the most comprehensive survey of AI’s use in elections and voting to date. Second, it explains how algorithmic harms resulting from these technologies are disenfranchising eligible voters and disrupting democratic processes. Finally, it identifies several unique characteristics of the U.S. election administration system that are likely to complicate reform efforts and must be addressed to safeguard voting rights.","PeriodicalId":47790,"journal":{"name":"Michigan Law Review","volume":null,"pages":null},"PeriodicalIF":2.7,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69685800","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-01-01DOI: 10.36644/mlr.120.6.mystifying
Katherine Shaw
A Review of Let the People Pick the President: The Case for Abolishing the Electoral College. By Jesse Wegman.
《让人民选举总统:废除选举人团制度的理由》书评杰西·韦格曼著。
{"title":"“A Mystifying and Distorting Factor”: The Electoral College and American Democracy","authors":"Katherine Shaw","doi":"10.36644/mlr.120.6.mystifying","DOIUrl":"https://doi.org/10.36644/mlr.120.6.mystifying","url":null,"abstract":"A Review of Let the People Pick the President: The Case for Abolishing the Electoral College. By Jesse Wegman.","PeriodicalId":47790,"journal":{"name":"Michigan Law Review","volume":null,"pages":null},"PeriodicalIF":2.7,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138507601","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
For some defendants, sentencing may be even more harrowing than a determination of guilt or innocence. Those facing capital punishment have the most to lose at the sentencing phase. The Supreme Court is not ignorant to this reality, finding in Ring v. Arizona that “the Sixth Amendment would be senselessly diminished” if it had no application to death penalty proceedings. Yet under its permissive jurisprudence, the Court has suggested that the Sixth Amendment is satisfied in the death penalty context even if its protections vanish postconviction. This Note argues instead that the Sixth Amendment—specifically the jury right—should protect defendants more during the capital sentencing phase, not less. Ultimately, it contends that defendants have a constitutional right to jury sentencing by a unanimous verdict before facing the death penalty.
{"title":"More than Just a Factfinder: The Right to Unanimous Jury Sentencing in Capital Cases","authors":"Richa Bijlani","doi":"10.36644/mlr.120.7.more","DOIUrl":"https://doi.org/10.36644/mlr.120.7.more","url":null,"abstract":"For some defendants, sentencing may be even more harrowing than a determination of guilt or innocence. Those facing capital punishment have the most to lose at the sentencing phase. The Supreme Court is not ignorant to this reality, finding in Ring v. Arizona that “the Sixth Amendment would be senselessly diminished” if it had no application to death penalty proceedings. Yet under its permissive jurisprudence, the Court has suggested that the Sixth Amendment is satisfied in the death penalty context even if its protections vanish postconviction. This Note argues instead that the Sixth Amendment—specifically the jury right—should protect defendants more during the capital sentencing phase, not less. Ultimately, it contends that defendants have a constitutional right to jury sentencing by a unanimous verdict before facing the death penalty.","PeriodicalId":47790,"journal":{"name":"Michigan Law Review","volume":null,"pages":null},"PeriodicalIF":2.7,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69683699","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-01-01DOI: 10.36644/mlr.121.2.failed
Noah M Kazis
This Article uncovers a critical disjuncture in our system of providing affordable rental housing. At the federal level, the oldest, fiercest debate in low-income housing policy is between project-based and tenant-based subsidies: should the government help build new affordable housing projects or help renters afford homes on the private market? But at the state and local levels, it is as if this debate never took place. The federal government (following most experts) employs both strategies, embracing tenant-based assistance as more cost-effective and offering tenants greater choice and mobility. But this Article shows that state and local housing voucher programs are rare, small, and limited to special populations. States and cities almost exclusively provide project-based rental assistance. They move in lockstep despite disparate market conditions and political demands: project-based spending overwhelmingly predominates in both high- and lowrent markets and in both liberal and conservative states. States have done so across decades of increased spending. This uniform subnational approach suggests an unhealthy federalism—neither efficient nor experimental. This Article further diagnoses why states have made this unusual choice, identifying four primary culprits: (1) fiscally-constrained states use project-based models to minimize painful cuts during recessions; (2) incomplete federal housing subsidies inadvertently incentivize project-based spending; (3) the interest groups involved in financing and constructing affordable housing are relatively more powerful subnationally; and (4) rental assistance’s unusual, lottery-like nature elevates the value of visible spending over cost-effectiveness. Finally, this Article points the way toward reform, offering two paths forward. Taking a federalist perspective allows for a new understanding of federal housing statutes. Better cooperative models—expanding either the federal or state role in providing affordable housing—could accept states’ limitations in providing rental assistance and exploit their strengths.
{"title":"The Failed Federalism of Affordable Housing: Why States Don't Use Housing Vouchers","authors":"Noah M Kazis","doi":"10.36644/mlr.121.2.failed","DOIUrl":"https://doi.org/10.36644/mlr.121.2.failed","url":null,"abstract":"This Article uncovers a critical disjuncture in our system of providing affordable rental housing. At the federal level, the oldest, fiercest debate in low-income housing policy is between project-based and tenant-based subsidies: should the government help build new affordable housing projects or help renters afford homes on the private market? But at the state and local levels, it is as if this debate never took place. The federal government (following most experts) employs both strategies, embracing tenant-based assistance as more cost-effective and offering tenants greater choice and mobility. But this Article shows that state and local housing voucher programs are rare, small, and limited to special populations. States and cities almost exclusively provide project-based rental assistance. They move in lockstep despite disparate market conditions and political demands: project-based spending overwhelmingly predominates in both high- and lowrent markets and in both liberal and conservative states. States have done so across decades of increased spending. This uniform subnational approach suggests an unhealthy federalism—neither efficient nor experimental. This Article further diagnoses why states have made this unusual choice, identifying four primary culprits: (1) fiscally-constrained states use project-based models to minimize painful cuts during recessions; (2) incomplete federal housing subsidies inadvertently incentivize project-based spending; (3) the interest groups involved in financing and constructing affordable housing are relatively more powerful subnationally; and (4) rental assistance’s unusual, lottery-like nature elevates the value of visible spending over cost-effectiveness. Finally, this Article points the way toward reform, offering two paths forward. Taking a federalist perspective allows for a new understanding of federal housing statutes. Better cooperative models—expanding either the federal or state role in providing affordable housing—could accept states’ limitations in providing rental assistance and exploit their strengths.","PeriodicalId":47790,"journal":{"name":"Michigan Law Review","volume":null,"pages":null},"PeriodicalIF":2.7,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69684676","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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