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Abstract:
The notion that certain uses of public and private property can have negative effects beyond legally defined property boundaries is firmly embedded in land use law. We are now comfortable regulating land use to prevent and control for impacts to our natural resources, environmental quality, and nuisances to third parties. This idea is partly rooted in economic theory - i.e., the existence of negative externalities - but also in the theory of ecology - i.e., the notion that property is inextricably part of a network of social and economic relationships and that its impacts traverse legally defined property boundaries. But not all impacts, or costs, of land use are properly accounted for in land use regulation. This Article highlights a category of social costs that remain largely exogenous to the norms underlying our system of land use controls. Scholars from a variety of disciplines recognize the importance of social capital to, and the deleterious impacts from its loss on, urban communities. Yet legal scholars have not taken seriously social capital when normatively evaluating urban land use regulation and policy. This Article argues that the failure to account seriously for the ways that land use decisions interact with social capital, particularly in the most socially vulnerable communities, underlies many contemporary disputes involving the persistent fragmentation and social inequities of urban metropolitan space. The Article concludes by suggesting that only through a rethinking of the city commons can we begin to take social capital seriously in land use policy and law. Instead of conceptualizing the city as an aggregation of private property rights, we should instead seek to identify and protect common resources and interests in the city commons through limited access rights and collaborative governance strategies that preserve and draw upon existing social networks to manage common city resources.

Abstract:
This Essay examines the move by environmental and natural resources agencies to devolve decision making influence to local, multi-stakeholder, collaborative groups. The emerging use of such decision making mechanisms - such as forestry and watershed partnerships and community advisory committees - reflects the need for more creative solutions to the current generation of environmental problems and for improved decision making processes for identifying and equitably distributing the costs and benefits of environmental decisions. In seeking more participatory, local and holistic decision making mechanisms, the move toward devolved collaboration intersects and converges with another prominent movement, environmental justice, in ways that are crucial for the future of environmental decision making.

This Essay examines the points of convergence and divergence between these two important currents in modern environmental decision making. On the one hand, the interest-convergence of these two powerful currents in modern environmentalism has been a crucial element shaping the direction of environmentalism from the 1990s into the new century. There are now more voices than ever calling for the creation of democratic, sustainable communities and for a more comprehensive approach to environmental problems that address the connections between environmental, economic and civic health. Yet, despite the interest-convergence of these two powerful currents in modern environmentalism, there are dangers lurking at their intersection. This Essay argues that while devolved collaboration can theoretically ameliorate some regulatory inequities, it may also add renewed legitimacy to racial and class distributional inequities, further entrenching them in the landscape of environmental decision-making. Perhaps as importantly, devolved collaboration will introduce new equity problems in environmental decision-making by modifying current patterns of participation and representation in unforeseen ways. Like its predecessor decision making approaches, this evolving model, thus far, is indifferent to (or innocent about) the social structural and institutional conditions necessary to realize its own promises, including its aspiration of more equitable decisions.

This Essay concludes that the movement toward devolved collaboration should best be regarded as the collective expression of a core set of normative principles that can guide the shaping of environmental decision making processes in a context-specific fashion. These normative principles can be used to tailor a mix of decision making mechanisms to specific environmental problems in particular ecological, social, economic, and political contexts. This contextualized approach brings with it the additional virtue of preserving the accountability of centralized authorities for ensuring fidelity to these principles in specific contexts instead of leaving this task to unaccountable, fragmented local groups.

Abstract:
This Article is part of a symposium on "Race, Economic Justice and Community Lawyering." In it, we explore how contemporary urban development practices present intriguing challenges for lawyers representing community-based organizations working to proactively rebuild their communities into ones that are both socially just and ecologically sustainable. Lawyers representing such organizations have become used to reacting against the environmentally unsustainable decisions others make that shape the character and decrease the quality of their surrounding communities. More recently, however, these lawyers have had to become more proactive players, helping client organizations envision the type of development that will best serve their constituents and obtain the tools to implement that vision, including extracting community benefits from private developers who supply the development capital. This new role requires a shifting, flexible mix of skills and a more dynamic interaction with the organization and its varied functions - policy, community education, lobbying, and organizing.

This new role is what we call "integrative lawyering," an emergent model of community lawyering that we identify and explore in the context of our experience working for and with an environmental justice organization, West Harlem Environmental Action ("WE ACT"), in New York City. We argue that "integrative lawyering" has emerged at WE ACT, and similar organizations, through the efforts of lawyers and community based organizations to intervene in, and respond to, the changing political and economic dynamics of contemporary urban development. Specifically, the decentralization of political power and capital in urban development has significantly shifted the roles of public and private players in development deals. The City, or local government, has become a weaker player in a more dispersed system of influence/power that drives urban development today, while communities now view themselves as potential players in the development "game."

We illustrate how these dynamics play out within the context of an ongoing and contested proposal by Columbia University in New York City to expand its campus into West Harlem, thereby threatening a number of grave environmental, economic, social, and development consequences to nearby communities. WE ACT's intense involvement in planning, developing, resourcing and negotiating the community response to the University's proposal exposes the limitations of relying exclusively on legal/regulatory tools to extract gains for community interests in the thick political economic context of urban development. This experience also illuminates the demands placed on lawyers operating in this new context to engage more fully and dynamically in and with the entire range of the organization's multi-faceted efforts.

We argue that to be effective in navigating the political and economic forces illustrated in the WE ACT case study, community lawyers need to work "integratively" in two interconnected ways - "role integration" and "organizational integration". At the level of role integration, WE ACT's lawyers, like their client, have needed to integrate a broad range of practice areas, skills and roles when seeking to build/enhance community efficacy. And at the level of organizational integration, they have also needed to ensure that their work is thoroughly integrated into the overall strategy, programs, and processes of the community based organization so that the lawyering ties closely with the organization's community efficacy efforts. We conclude by identifying the ways that WE ACT's legal team, working with its organizers and other staff members, has been working to synthesize the organization's legal, education, policy and lobbying efforts toward the creation of new structures for community ownership of land, housing and other facilities that its constituents seek to gain from the expansion project. Although the Columbia University expansion project is ongoing and remains contested, the model of integrative lawyering that is developing at WE ACT yields immediate lessons that transcend this particular dispute.

Abstract:
Antidiscrimination law and scholarship for a long time has been engaged in the debate over whether a discriminatory intent or disparate impact test best captures the type of discrimination the law should, or can, prohibit. In this article, I suggest that we move beyond this dichotomous debate and focus instead on how courts reason about discrimination cases brought under both the intent and impact doctrines. I identify a distinct pattern, or framework, in the way courts reason about discrimination in both types of cases that defies neat doctrinal labels. This reasoning process, which I short handedly refer to as causation, is at the heart of evidentiary structures in both intent and impact actions. Unfortunately, the reigning distinction between intentional and disparate impact discrimination, an increasingly blurry one, has obscured the more important focus on the element of causation which, in my view, constitutes the normative core of antidiscrimination law.

Beyond illustrating this common causal element, a close examination of the causal reasoning processes in antidiscrimination law provides a window into understanding why, despite the existence of generous evidentiary mechanisms, intent and impact actions have ceased being a viable avenue of relief for discrimination plaintiffs. What this examination reveals is that courts in intent and impact actions share a common way of reasoning about discrimination and, in particular, the causal inquiry at the heart of discrimination claims. Both intent and impact causes of action are premised on a three-step process of causal inquiry: status inference, neutral explanation, and causal attribution. This three-step causal inquiry is itself based in, and reliant upon, two types of reasoning processes - counterfactual and contrastive thinking - that social scientists have found dominate causal determinations. These two reasoning processes not only permeate causal thinking, but are also shaped by various influences - normative expectations and cognitive biases, for example - that critically shape these reasoning processes and can have a determinative role on causal attributions. Informed by this research, I illustrate that the causal inquiry at the heart of evidentiary structures in both intent and impact actions has, over time, become vulnerable in two respects.

First, the evidentiary structures employed to discern causation in intent and impact cases are deeply vulnerable to attribution mistakes that may occur as a result of unconscious stereotypes and cognitive biases that can distort the causal attribution judgments by legal fact finders. As others have written, unconscious biases and cognitive stereotypes account for much of modern day discrimination. Legal decision makers and fact finders not apt to detect these biases either in themselves or in others when evaluating discrimination claims. This article demonstrates how the same cognitive biases that give rise to discrimination in the society can also distort causal judgments about that discrimination. This danger is embedded in the evidentiary frameworks in both intent and impact cases, which allow the causal inquiry underlying discrimination claims to be determined by comparative reasoning exercises - i.e. explanations and analysis seeking to distinguish disparately treated and affected individuals and groups - that invite reliance on the very stereotypical categorization structures at the root of status discrimination. Many discrimination claims fail because courts are uneven at best, and often neglectful, in evaluating these explanations against existing antidiscrimination norms.

But there is a deeper vulnerability in the evidentiary structure of antidiscrimination law that is more destabilizing to the causal inquiry which lies at its center. That is the erosion of certain normative presumptions that underlie evidentiary structures in intent and impact cases. The Court has rooted its evidentiary frameworks in a set of normative assumptions about the existence, operation, and prevalence of status discrimination in our society. Based on these assumptions, the Court has aided plaintiffs in establishing an inference of discrimination (or status influence) by employing a counterfactual heuristic that imagines what decision making processes and outcomes would look like in a world free of discrimination and deems deviations from those processes and outcomes as evidence of discrimination in a particular case. However, despite the formal retention of these evidentiary structures over time, there has been steady erosion of the normative assumptions underlying them. The erosion of these presumptions has had a correspondingly devastating impact on the ability of plaintiffs to prove status discrimination especially given the increasing distance from the worst and most overt forms of discrimination, the increasing subtle and structural nature of discrimination, and the shift in public attitudes about the existence of status bias.

This analysis, then, calls into question the belief among civil rights advocates that survival of the disparate impact cause of action and the dismantling of the intent standard will preserve the civil rights gains of the past. While certainly these two steps would give the appearance of stemming the rollback of these gains, they would ultimately prove to be insufficient and unsatisfactory. Unless this understanding changes in the near future, courts will continue to be an inhospitable forum for discrimination victims and no amount of doctrinal reform will significantly alter the odds that the court will see the increasingly subtle and sophisticated nature of contemporary discrimination.

Abstract:
In a recent essay in ELR, David Coursen queries whether environmental justice policies, which seek to avoid disproportionate environmental burdens on poor and minority communities, are on a 'collision course' with the Equal Protection Clause. In concluding that a potential collision is more illusory than real, Coursen offers a number of reasons why governmental actions to promote environmental justice have not been challenged in court and, even if they were to be, would not be subjected to strict judicial scrutiny. In this essay, I respond to Coursen's query. I argue that Coursen’s Article is important for highlighting the curious fact that, to date, no equal protection challenge to an environmental justice policy has been adjudicated in the courts, even though these policies are explicitly race-conscious and would seem vulnerable to such challenge. Yet, one might fairly ask whether Coursen’s quest to explain this fact at once proves too much and too little. On the one hand, Coursen makes too much of the potential constitutional obstacles that a challenger might face if a claim were to be brought. On the other hand, Coursen makes too little of the fact that existing environmental justice policies fall short of using race as a decisionmaking criterion to alter or change the structure of environmental regulatory decisions, which are largely based on technical, quantitative decisions subject to judicial deference. It is this latter reason, one might plausibly argue, that accounts for the lack of constitutional challenges to existing environmental justice policies. That is, perhaps environmental justice policies have remained relatively uncontroversial, both as a constitutional and policy matter, because they have not sought to use race as a criterion or means to adjust or redistribute levels of environmental protection to vulnerable minority populations.

Abstract:
This essay is part of a collection of papers focused on the legal, policy and human challenges posed by the global growth of megacities in Latin America. The contention of this essay is that the problem of urban informality presents in some ways a classic "commons" problem. Informal settlements are able to thrive in cities across the world because, in spite of the existence of fairly well developed planning and land use rules, undeveloped urban land is "up for grabs" to land speculators (who purchase the land and then subdivide it) and ultimately to as many settlers as the land can accommodate. The framework that I offer here casts the commons problem in the context of informal settlements as in part created by "regulatory slippage." By de facto removing unappropriated land from regulatory reach it reverts, in practice, back to its natural, unregulated state where there is little or no restriction on its use.

Illegal subdividers and the individual purchasers who occupy the land are in a sense recreating the commons drama, or tragedy. Much like the herdsman in Hardin's tragedy scenario, in the case of informal settlements, individual users (e.g. pirate subdividers) have no incentive not to continue to (over) populate and consume the land while externalizing the cost of that use to others. As a result, urban land is being quickly consumed and its availability is slowly disappearing. Moreover, the costs eventually imposed on the local populace from the establishment and existence of informal settlements-i.e. the costs of upgrading, formalizing, and integrating the settlements into the urban metropolis-might be better (or more efficiently) spread through a different mechanism for using peripheral urban land to house the poor. The analytical traction that the Tragedy of Commons offers is to allow us to do so along the spectrum of public and private governance choices and the tradeoffs that they entail. This essay explores these choices, their tradeoffs, and offers some thoughts about each in the context of informal settlements.

Abstract:
No abstract available.

Abstract:
For the better part of the twentieth century, neither the subject of race, nor its racialized subjects, played a significant role in legal scholarship. Only recently have legal scholars began seriously to engage matters of race and the experiences of people of color in the United States. This chapter, which will appear in the 2008 version of the Oxford Manual of Law and Politics, tracks why, and when, race moved from being virtually nonexistent to occupying the margins and finally assuming a prominent place in legal scholarship. It critically maps the ways in which scholars have addressed the problem of race in legal theory in an attempt to provide context for ongoing debates about the persistence of racial inequality, to underscore the limitations of early theories about race and discrimination, and, finally, to highlight the promise of engagement with "traditional" legal theories for understanding the nature of racial subordination. Part I explores legal discourse on race in the years preceding the groundbreaking U.S. Supreme Court decision, Brown v. Board of Education. Part II considers Brown and its aftermath, tracking the origins of the legal process theory embraced by scholars during the 1950s, 1960s, and 1970s. Part III discusses the rejection of legal process theory that characterized the 1980s and 1990s, and charts the emergence of Critical Race Theory (CRT), a movement that made race and the experiences of racial minorities the subject of legitimate intellectual discourse in American legal scholarship. Finally, Part IV looks at recent scholarly work in the area of race, documenting, among other things, the multiple understandings of race, identity, and subordination now prevalent in many legal communities. The chapter ends by identifying fruitful areas of future study regarding the place of race in American law.

Abstract:
The protests in Seattle and Genoa embody the growing controversy surrounding the World Trade Organization (WTO). The popular protest, which is echoed in the academic literature, centers on the tension between the free trade commitment of the General Agreement on the Tariffs and Trade (GATT) and domestic policies regarding such matters as environmental, health, consumer, and labor protection. The WTO and its related dispute resolution bodies have increasingly been confronted with challenges by importing trade partners claiming that environmental and health regulations violate multilateral international trade commitments. In a series of cases adjudicated by early GATT panels (pre-1995), and the newly formed WTO dispute settlement bodies (post-1995), an emerging jurisprudence has developed a framework for resolving such conflicts.

In this article we illustrate how this jurisprudential framework, and the cases that comprise it, articulate and apply an anti-discrimination norm that pervades the GATT. In applying the GATT's anti-discrimination norm, the WTO's jurisprudence strikes a balance between "free trade" and its sovereign members' pursuit of non-trade interests, some of which openly conflict with liberalized trade practices. This balancing accords with the fundamental structure of the GATT as a "negative integration" treaty, the character of which necessarily constrains the WTO's ability to undermine the sovereign policy choices of its contracting parties, particularly when those policy choices implicate public interest regarding values such as environmental and public health protection. If properly articulated and applied, we argue, the anti-discrimination jurisprudence of the WTO embodies a legitimate application of the trade principles by which the GATT contracting States agreed to be bound.

In other words, the democratic legitimacy and other concerns raised by the protests and the general malaise associated with what has been loosely termed "globalization" are not implicated by the cases under review. While the liberalization of free trade raises highly complicated and legitimate concerns for domestic agendas on environmental health and other issues, the WTO anti-discrimination norm may root out protectionism, up to the point where the GATT intended domestic sovereignty to preempt supranational intrusion. That is not to say that the GATT is a wonderfully functioning treaty that does not implicate any concern for domestic sovereignty. The negative integration feature of GATT is a double-edged sword. At the same time as it shelters domestic measures from aggressive judicial review, it permits States to choose low levels of regulatory protection and uses this regulatory comparative advantage to attract manufacturers. How to address this and other problems associated with economic globalization lies beyond the scope of this Article, but is the subject of a forthcoming article.

Abstract:
"Intent and Incoherence" dissects the intent standard in equal protection jurisprudence, filtering it through the lens of democratic process theory. Most legal scholars and commentators writing in this area refer to, and critique, the "rule" of intent as a uniform standard in equal protection jurisprudence. However, it is clear from the Supreme Court's jurisprudence that different levels of intent are accepted and/or required in different contexts. A close look at the intent doctrine reveals that various levels of consciousness can satisfy the discriminatory intent standard, and hence violate the equal protection clause. The Court has yet to articulate what considerations or factors drive these different levels of intent.

Exactly what explains these disparate, and seemingly incoherent, levels of intent is the subject of this article. I identify a set of criteria which explain the application of these different levels of intent, using basic tenets underlying democratic process theory and its offspring, motive review theory. The article then sets out to "cohere" the intent doctrine according to these democratic process criteria, locating explicit references to these process criteria in the Court's reasoning. I argue that conceptualizing the different levels of intent along a continuum, according to the above mentioned criteria, provides a coherent account of the intent doctrine. Specifically, the degree of judicial restraint, and level of intent required to invalidate governmental action, depends upon 1) the type of actor making the decision, 2) the type of decision made, and 3) the substantive right affected by the decision.

The account of the intent doctrine offered in the article also provides a framework in which to assess the Court's fidelity to its normative and doctrinal commitments. I identify two areas where judicial review of facially neutral laws raises problematic questions in this regard. The first area involves review of allegedly discriminatory administration of facially neutral laws (e.g. McCleskey v. Kemp). The second area involves review of facially neutral gerrymandering legislation creating "majority-minority" voting districts (e.g. Shaw and Miller). Both areas illustrate a new type of incoherence in equal protection jurisprudence: that between the Court's treatment of certain types of governmental decisions and the normative justifications underlying such treatment.