1. “The Failure of Our Good Intentions: Property and Dispossesion in Post-Katrina New Orleans” by Kali Murray

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June 25th, 2012

The property law of the United States in the last ten years has been defined by its failures rather than its successes.  Two failures loom: the post-recovery efforts associated with Hurricane Katrina from 2005 until present, and the post-recovery efforts associated with the ongoing housing crisis from 2008 until present.  The presence of failure is apparent; less apparent, though, is why such efforts have failed.  We have an opportunity here on City Square to explore an object lesson on the failure of good intentions in post-recovery efforts in New Orleans.  I suggest, ultimately, that this failure of good intentions offers us one key lesson in the shifting doctrinal content of property law—that is, the rise of “dispossession” along with “possession” as the framing concept of modern property law.

We can perceive these failures by juxtaposing two important Articles that seek to analyze the availability of low-income housing credit as an attempt to provide affordable housing in the wake of Hurricane Katrina. The first Article——and the subject of this discussion——Carol Brown and Serena Williams’s The Houses that Eminent Domain and Housing Tax Credits Built: Imagining a Better New Orleans,[1] “imagines” a diverse, social landscape that can be successfully shaped through a “combination of the smart exercise of eminent domain and of ‘housing production’ subsidies’——housing tax credits” that could be used to “rebuild the rental housing market of New Orleans.”[2]  Brown and Williams suggested that the post-recovery efforts after Hurricane Katrina provided a unique opportunity to reduce concentrated poverty in the city of New Orleans by first providing for the use of eminent domain in potentially destroyed neighborhoods, and then using low-income tax credits to construct affordable housing in New Orleans’s mixed-income neighborhoods and surrounding parishes.[3]  This private-public planning would then provide for ideal opportunities by fostering “community engagement” in selecting the sites for eminent domain, “regional approaches” that included “reducing barriers such as exclusionary zoning ordinances,” and other affirmative actions “to promote affordable housing” and “workforce development.”[4]  This Journal published Brown and Williams’s Article in 2007. The Article’s prescriptive policy choices reflect an experimental optimism about the ability of housing policy to reform the social landscapes of New Orleans.

In 2011 though, such experimental optimism appears to be naive, given the circumstances described by a second Article: Stacy E. Seicshnaydre’s recent work, How Government Housing Perpetuates Racial Segregation: Lessons from Post-Katrina New Orleans.[5]  Seicshnaydre suggests that while housing authorities throughout the region of New Orleans attempted to use the exact policy prescription suggested by Brown and Williams——the use of low-income housing credits to increase affordable housing and to decrease concentrated poverty——such attempts still failed.[6]  Such attempts failed because local governments perceived that the provision of affordable housing would destabilize their efforts to rebuild after Hurricane Katrina.  Indeed, Seicshnaydre records that local governments competed creatively to thwart any effort to undertake the type of model suggested by Brown and Williams.[7]  Bans of every sort seemed to be quite popular. Local governments enacted bans on affordable housing financed by low-income housing credits,[8] bans on multi-family housing, bans on rebuilding affordable housing destroyed by the hurricane,[9] and in one infamous incident bans on housing units occupied by families that were not “blood-relatives” of tenants or owners that had previously lived within the relevant neighborhood.[10]  Consequently, Seicshnaydre concludes that, even if housing subsidies are available (in the form of low-income housing credits or housing vouchers), it is simply not enough to provide the “initial intervention” of the housing subsidy, if “the federal government yields to a highly decentralized, laissez-faire scheme with regard to where the subsidy will be utilized.”[11]  Seicshnaydre, ultimately, suggests that significant federal government interference is needed in these types of recoveries to ensure that segregation or re-segregation does not occur, even in these moments of experimental optimism.[12]

The failure of our good intentions in post-recovery Katrina, then, suggests that property law in the United States still struggles to successfully incorporate the conceptual experience of dispossession.  Property law is framed around the experience of possession; that is, the property owner’s ability to control the propertied item.  Thus, the ability of low-income housing credit seeks to prompt the provision of housing, which in turn allows a low-income tenant to acquire the respective property, which in turn, creates a more virtuous citizen. This logic of “possession” reinforces our good intentions.  The experience of post-recovery Katrina, however, suggests that any attempt at recovery was going to take place within a social landscape of intense social and racial segregation, and that what Nicholas Blomley has termed the “social geographies of dispossession” were going to persist even when the post-recovery period suggested a “massive reworking of property relations” was necessary. [13]

Notably, Brown, Williams, and Seicshnaydre all suggest that if the federal government had intervened to prevent the ongoing experience of dispossession through the framework of discrimination outlined in the Fair Housing Act, it could have perhaps addressed efforts to prevent the provision of affordable housing.[14]  But, federal intervention predicated on crisis is not sustainable, given its potentially episodic nature.  Crisis prompts intervention, but dispossession within a social landscape starts before the crisis, and persists after the crisis.

Comparative experiences such as South Africa suggest that the conceptual commitment to recognizing dispossession as a key doctrinal principle needs to be interwoven within the relevant common law, statutory, and constitutional frameworks that embody property law.  For example, in Port Elizabeth Municipality v. Various Occupiers,[15] the Constitutional Court of South Africa, interpreting a statutory mandate as to the eviction of “squatters,” suggested that their dispossession should be not only within the statutory framework directly relevant to their particular circumstances,[16] but also within a relevant constitutional framework that specifically addresses the historical dispossession of black and coloured South Africans,[17] and within a common-law framework that attempted to use equitable flexibilities to remedy the potential injustice of unfair eviction.[18]  Port Elizabeth, thus, demonstrates a continual engagement with the historical and social reality of dispossession, and by doing so, avoids treating potential federal intervention as a mere response to crisis.  Obviously, how to translate this doctrinal commitment within the constitutional, statutory, and common law traditions of the United States and in relation to the specific problems of affordable housing is a difficult question.  Nevertheless, this task is a necessary one if the experimental optimism of Brown and Williams is to be achieved.



 * Assistant Professor of Law, Marquette University Law School, and Property Section Chair, AALS, 2011.

 F  Suggested citation: Kali Murray, Response, The Failure of Our Good Intentions: Property and Dispossession in Post-Katrina New Orleans, 39 Fordham Urb. L.J. City Square 101(2012), http://urbanlawjournal.com/?p=878.

       [1].  Carol Necole Brown & Serena M. Williams, The Houses that Eminent Domain and Housing Tax Credits Built: Imagining a Better New Orleans, 34 Fordham Urb. L.J. 689 (2007).

        [2].  Id. at 690.

        [3].  See id. at 696.

        [4].  Id. at 719-20.

       [5].  Stacy E. Seicshnaydre, How Government Housing Perpetuates Racial Segregation: Lessons from Post-Katrina New Orleans, 60 Cath. U. L. Rev. 661 (2011).

        [6].  See id. at 688-89 (discussing the anxiety of some in New Orleans over government-subsidized housing).

        [7].  See id. at 699–705 (discussing the reactions of a number of local governments to the possibility of government-subsidized housing in their areas).

        [8].  Id. at 690-91.

        [9].  Id. at 693-94.

     [10].  Id. at 696-97.

     [11].  See id. at 709 (“Where should government-assisted housing be located? . . .  [I]t should be located ‘everywhere.’”).

     [12].  Id. at 718.

     [13].  Nicholas Blomley, Legal Geographies—Kelo, Contradiction, and Capitalism, 28 Urb. Geography 198, 202-03 (2007).

     [14].  See Brown & Williams¸ supra note 1, at 711-12; Seicshnaydre, supra note 5, at 715-16.

     [15].  2005 (1) SA 217 (CC), available at http://www.saflii.org/za/cases/ZACC/2004/7.html.

     [16].  See id. at paras. 11-13.

     [17].  See id. at paras. 14-23.

     [18].  See id. at para. 12.  Note also that “coloured” is a South African designation for a person of mixed racial heritage and is thus different from the term “black.” See generally South Africa: Shades of Black, Economist, Sept. 9, 2006 (also available on Westlaw at 2006 WLNR 15549827).