Affordable Housing: Of Inefficiency, Market Distortion, and Government Failure

Michael Diamond*

In this essay, I examine the types of costs that are imposed on society as a whole due to the absence of a sufficient number of decent housing units that are affordable to the low-income population. These costs present themselves in relation to health care, education, employment, productivity, homelessness, and incarceration. Some of the costs are direct expenditures while others are the result of lost opportunities.

My hypothesis is that these costs are significant and offer, at the very least, a substantial offset to the cost of creating and subsidizing the operation of the necessary number of affordable housing units that are currently missing. I suggest a series of reasons why, in the face of this potentially inefficient outcome, the market/society does not produce the required units.

The essay is conceptual in nature, not empirical. I recognize the issues associated with the quantification of often opaque costs and with their causal relationship to the lack of affordable housing. It is clear, however, that the costs are sizable and the correlations are strong and therefore, I believe, the hypothesis requires empirical study.

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Professor of Law, Georgetown University Law Center. I would like to acknowledge the generous contributions of Josh Teitelbaum, David Hyman, and Gregg Bloche who, through several discussions with each, helped me to refine ideas presented here. I would also like to acknowledge the valuable research assistance of Gabriel Angelo Quevedo and the tremen- dous editing support of Betsy Kuhn.

Fifty Years of Fair Housing: Learning from the Past, Looking to the Future

The Hon. L. Douglas Wilder*

I think sometimes you need to wonder where we were in 1968. It wasn’t just the Fair Housing Act that was passed in 1968. What happened in 1968? George Wallace was running for presi- dent. Hubert Humphrey was running for president, and Richard Nixon as well. It wasn’t just the assassination of Dr. King, we al- so had the assassination of Robert Kennedy. We likewise had the Vietnam War, and America was a mess. We had something else occurring in 1968. That was the Kerner Commission Report, that Dr. Crutcher mentioned had been instrumental in the fair hous- ing bill. And they made recommendations. I happened to have been a part of that last month in Minnesota, and had great occa- sion to talk with Fred Harris, who was the last surviving member of the Kerner Commission, Senator from Oklahoma. And also, Walter Mondale and I had a long time to talk.

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* Governor of the Commonwealth of Virginia, 1990–1994. Professor, L. Douglas Wilder School of Government and Public Affairs, Virginia Commonwealth University. This Keynote Address was delivered by the author at the 2018 University of Richmond Law Review Symposium, The 50th Anniversary of the Fair Housing Act—Past, Present, and Future, on October 5, 2018, at the University of Richmond School of Law.

Fair Housing Act at Fifty

Sara Pratt* 

I am a Virginian by birth; I grew up in Lynchburg, Virginia. You may be asking yourself how a civil rights advocate grew up in Lynchburg, Virginia. Living in Virginia provided formative experiences for me that brought me to a fair housing-oriented life, and career. I started out learning about civil rights in a Presbyterian youth camp, on the campus of Hampden-Sydney College. I was in high school and we were studying Will Campbell’s book, Race and the Renewal of the Church. And they brought over two young black students from Prince Edward County who had never been to public schools.

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* Counsel, Relman, Dane and Colfax. This article was adapted from the Lunchtime Address that was delivered by the author at the 2018 University of Richmond Law Review Symposium, The 50th Anniversary of the Fair Housing Act—Past, Present, and Future, on October 5, 2018, at the University of Richmond School of Law.

Housing Supply and the Common Wealth

The Rev. Benjamin P. Campbell * 

It’s a powerful thing to mark the fiftieth anniversary of the Fair Housing Act of 1968, something that actually happened and has actually had an effect. I grew up in segregated Virginia, so I have a pretty powerful sense of the passage of time here. It’s given us the opportunity today to review and mark human progress, to take stock of where we are and to identify the efforts and issues of our time. The victories here have changed the nation, and the task is still daunting.

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* Pastor Emeritus of Richmond Hill. Pastoral Associate at St. Paul’s Episcopal Church, Richmond. These Closing Remarks were delivered by the author at the 2018 University of Richmond Law Review Symposium, The 50th Anniversary of the Fair Housing Act—Past, Present, and Future, on October 5, 2018, at the University of Richmond School of Law.

Superficial Proxies for Simplicity in Tax Law

Emily Cauble*

Simplification of tax law is complicated. Yet, political rhetoric surrounding tax simplification often focuses on simplistic, superficial indicators of complexity in tax law such as word counts, page counts, number of regulations, and similar quantitative metrics. This preoccupation with the volume of enacted law often results in law that is more complex in a real sense. Achieving real simplification—a reduction in costs faced by taxpayers at various stages in the tax planning, tax compliance, and tax enforcement process—often requires enacting more law, not less. In addition, conceptualizing simplicity in simplistic terms can leave the public vulnerable to policies advanced under the guise of simplification that have real aims that are less innocuous. A perennial example involves lawmakers proposing a reduction in the number of tax brackets under the heading of simplifying tax law. In reality, this change does very little, if anything, to simplify law in a meaningful sense, and its truer aim is to reduce progressivity in the tax code. Although the tax legislation ultimately enacted in December 2017 did not change the number of brackets applicable to individual taxpayers, political discourse preceding its enactment once again touted a reduction in the number of tax brackets as a simplifying measure.

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* Professor of Law, DePaul University. The author would like to thank Jordan Barry, Jennifer Bird-Pollan, John Brooks, Steven Dean, Wendy Netter Epstein, Miranda Perry Fleischer, Brian Galle, Heather Field, Will Foster, David Herzig, Sarah Lawsky, Daniel Morales, Susan Morse, Leigh Osofsky, and David Walker for their helpful comments on this article.

The Historical Case for Constitutional “Concepts”

Glenn E. Chappell*

The concepts/conceptions dichotomy is prominent in both the philosophy of language and the field of constitutional interpretation. It is most prominently illustrated through the provisions in the Constitution that contain broad, open-ended moral language. Those who hold the “conceptions” view believe that the legal content of those provisions includes both abstract moral concepts and its communicators’ subjective beliefs about, or conceptions of, how those concepts should apply. Under this view, the judge’s role is mostly empirical: he is tasked with examining historical evidence to ascertain those conceptions, which in turn supply applicational criteria by which he can decide specific cases. Alternatively, those who hold the “concepts,” or conceptual, view believe that the Constitution’s language directs the reader to objective moral concepts only; hence, its legal content does not contain any particular person’s or group of persons’ conceptions of those concepts. Thus, under this view, the judge’s task is mostly analytical: he must attempt to analyze the concepts to ascertain their defining criteria and develop applicational criteria from that analysis.

Through a focused study of the interpretive methods of William Cushing, James Madison, and lawmakers in the Virginia House of Delegates, this article demonstrates that this debate has existed since at least the founding era, and that the above-named founding-era authorities held a conceptual view of the Constitution’s language, as evidenced by the logic-driven, as opposed to historical, research-driven, mode of construction they employed to apply the Constitution’s provisions to particular cases. Specifically, they analyzed the Constitution’s text, structure, and moral authority to develop an American conception of the concept at issue—a conception wholly unconcerned with the subjective beliefs of any particular person or polity as to how the concept should apply. Finally, this article sets forth a preliminary sketch of the conceptual approach’s normative claim. It concludes that the conceptual approach taken by these authorities better respects the constitutional text, the Rule of Law, and the ideal of objectivity in law than those that seek to derive legal content from the conceptions of past actors.

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* Law Clerk to the Honorable Anthony J. Trenga, United States District Court for the Eastern District of Virginia, 2018–2019; Law Clerk to the Honorable Gerald Bard Tjoflat, United States Court of Appeals for the Eleventh Circuit, 2017–2018. J.D., 2017, Duke University School of Law; B.A., 2011, Saint Leo University. The views expressed in this article are my own and do not necessarily reflect those of my employers. I owe special gratitude to Ryan Pitts for his generous contributions to this article, which include hours of proofreading, editing, and challenging discussion, and to Judge Tjoflat for his mentorship and encouragement. I would also like to thank Cory Fleming, Spencer Hughes, and Alexander Flynn Kasnetz for their helpful suggestions and edits, and my family for their unending patience and support. Finally, I would like to thank the editors of the University of Richmond Law Review for their superb, indispensable work in preparing this article for publication.

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