Volume 74, Issue 2 (Fall 2024)

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Articles

Getting to Home: Understanding the Collateral Consequences of Negative Records in the Rental Housing Market

Sara Sternberg Greene, Barbara Kiviat & Hesu Yoon | PDF

The United States faces a rental housing crisis marked by a scarcity of housing supply, leading to intense competition among prospective tenants. This crisis is a particular challenge for the more than one hundred million U.S. residents burdened with negative records such as criminal records, debts in collections, and evictions. Landlords have more access than ever to applicants’ information, yet little is known about how landlords process and think about these records to make housing decisions. This Article draws on theories of cultural sociology to provide a data-driven understanding of how landlords conceptualize the value of several types of personal records and what it means to use them legally and fairly. It offers a window into how decision-makers evaluate and ascribe meaning to records—including negative records, for which tenants can be denied housing—and how these meanings subsequently guide landlords’ rental decisions.

Through eighty-eight interviews with landlords, property managers, rental company executives, and tenant-screening company executives, this interdisciplinary, multistate study leverages comparisons across record type and organization size. It shows how access to housing largely depends on cultural understandings of the morality of different types of negative records.

Depending on the type of risk landlords perceive, they call upon different cultural archetypes when deciding how and why to include certain records in their decision-making. However, the processes by which landlords incorporate these cultural considerations vary by organizational size and stem from their perceptions of the law. This Article thus provides a key theoretical insight: Landlords operate with broadly shared cultural understandings about the nature of risk and the morality of various types of negative records, but with different conceptions of what it means to make rental decisions legally and fairly. Differences correspond with the structure and size of decision-makers’ organizations. This means that collateral consequences play out differently depending on the type of landlord a prospective tenant is dealing with. As part of this discussion, this Article further provides a novel understanding of how state and local data-use laws, as well as the Fair Housing Act, operate on the ground. Ultimately, the theoretical insights from this study can help inform housing policy going forward.

Antitrust Without Competition

Daniel Francis | PDF

Competition is everywhere in antitrust. Courts, agencies, and scholars routinely insist that antitrust can, does, and should measure the legality of conduct by asking whether it has harmed or promoted “competition.” The idea that competition is, without further definition, a coherent value that can be increased or reduced—and used to guide the development and application of antitrust rules—has dominated doctrine for a century, and is deployed freely by judges, enforcers, and writers across the political spectrum.

This does more harm than good, and it should stop. There is no single value or quantity, in economics or antitrust law, that competition just is. Competition has long been essentialized, in both disciplines, in countless inconsistent ways. And its enduring dominance in antitrust doctrine causes real harms: indeterminacy and confusion, because the purported criterion cannot resolve concrete cases; utopianism, because it conceals antitrust’s fundamental need for hard choices among desirable goals; and bluntness, because today’s courts respond to antitrust’s vague tests by erring in favor of defendants.

Antitrust would be better off without competition as a purported orienting value or criterion. There are multiple meaningful and plausible evaluative criteria available to which doctrine might turn instead. One such measure, “harm-centric antitrust,” would orient antitrust to guard against welfare harms resulting from the unprivileged suppression of rival incentive, or rival ability, to meet demand. This is not the only option: there are plenty of other plausible orientations for the antitrust project. But the undefined “promotion of competition” is not among them. It is time to let it go.

Relocating Justice

Ruhan Sidhu Nagra | PDF

Managed retreat—the planned relocation of people facing imminent climate threats—is an inevitable part of future climate adaptation in the United States. Given that Black, Brown, and low-income communities are disproportionately vulnerable to climate hazards, managed retreat has significant justice implications. This Article explores what I call an apparent “justice paradox”—two “justice problems” with managed retreat that seem to point to opposite solutions. On the one hand, managed retreat can be inaccessible to marginalized communities, many of whom lack the resources to successfully navigate the relocation process. This justice problem suggests that decision-makers should prioritize managed retreat for marginalized communities since they are in greater need of relocation assistance. On the other hand, managed retreat can disproportionately harm marginalized communities, who may experience greater relocation-related psychosocial and financial harms. This justice problem suggests that decision-makers should avoid managed retreat for marginalized communities.

This Article argues that although these justice problems appear to indicate opposite solutions, they in fact reveal the same structural flaws with our current approach to climate-induced relocation and therefore call for the same remedies. First, both justice problems reflect the logic of racial capitalism and, specifically, the limitations of market-based economic approaches to managed retreat. Second, both problems manifest the ongoing failure to conceptualize and seize managed retreat as an opportunity to redress historic and systemic injustices. Finally, both problems are rooted in a lack of self-determination for marginalized communities facing climate threats. Addressing these structural issues will require fundamental transformations in how we think about climate adaptation.

Note

(CTRL + F)ourth Amendment Searches of Digital Storage Devices: A Novel Framework

James Mullen | PDF

Judges frequently analogize physical precedents when applying Fourth Amendment law to searches of digital storage devices. But these analogies do not map well from physical to digital spaces because they overlook fundamental structures of digital storage. And the stakes are high—courts’ errors lead to oversearches that irreparably harm device owners regardless of the suspects’ guilt or innocence. This Note examines the structure of common digital storage devices and courts’ erroneous attempts to apply Fourth Amendment law to them.

This Note also proposes a novel two-phase framework that would curb oversearch. The framework uses a forensic program to conduct a limited analysis of digital devices to estimate the probability that the device contains the sought-after evidence. Judges then use that probability when weighing the reasonability of a thorough search of the device. By expanding the reasonability determination for the search and seizure of digital devices, this Note’s proposed framework would reduce oversearch and improve conformity with traditional Fourth Amendment law.