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Boundary Work in Black Middle-Class Communities

Journal Paper
Stephen Clowney
2 SAVANNAH L. REV. 225 (2015)

Abstract

Most African-Americans are not poor. In fact, an overwhelming majority of black Americans are squarely entrenched in the rungs of the (lower) middle class. Despite this statistical reality, almost all of the legal scholarship on African-Americans focuses on the struggles of the very poorest black citizens. Articles on welfare benefits, unemployment, public housing projects, and even the cultural dust-ups over teen motherhood almost uniformly center on the urban ghetto and the lives of impoverished African-Americans. Rarely do scholars focus on the promise and problems particular to the growing cadre of black middle-class enclaves. This brief Article hopes to reverse the trend. Building on insights from sociology and economics, the following pages explore the housing situation of middle-class African-Americans and the resulting geographic setting of non-poor black neighborhoods. In short, this Article asks three questions: (1) Where do black strivers live?, (2) Why does it matter?, and, (3) Can the law mitigate the spatial phenomena that restrict black achievement?

 

Rule of Flesh and Bone: The Dark Side of Informal Property Rights

Journal Paper
Stephen Clowney
2015 U. ILL. L. REV. 59

Abstract

Is the state really necessary? Social norms scholars have long argued that, in the absence of a strong central government, local communities can fashion orderly rules to distribute property entitlements and regulate their enforcement. At its core, this Article argues that while the legal scholarship has fully explored the benefits of social norms, academics have yet to flesh out the drawbacks of governance systems based on private ordering principles. Specifically, scholars have overlooked the presence and subsequent costs of violence that arise in the absence of centralized enforcement mechanisms.  My argument has two pieces. To start, I demonstrate that property scholarship has ignored the amount of actual violence that occurs in systems of private ordering. I then highlight some of the costs of this hidden violence, for both individuals and communities.  To make these points I reexamine the three canonical examples of “successful” private ordering regimes — the California Gold Rush, the Maine lobstermen, and the cattle ranchers of the American West. In each instance my research shows that violence is a more pervasive menace than the legal literature has indicated. And, ultimately, the presence of intimate physical violence not only imposes autonomy costs on the individuals ensconced in systems regulated by private ordering, it also calls into question the overall efficiency of social norms.

 

Landscape Fairness: Removing Discrimination From the Built Environment

Journal Paper
Stephen Clowney
2013 UTAH L. REV. 1

Abstract

At its core, this Article argues that the everyday landscape is one of the most overlooked instruments of modern race-making. Drawing on evidence from geography and sociology, the paper begins by demonstrating that the built environment inscribes selective and misleading versions of the past in solid, material forms. These narratives — told through street renamings, parks, monuments, and buildings — ultimately marginalize African-American communities and transmit ideas about racial power across generations.  After demonstrating that the landscape remains the agar upon which racial hierarchies replicate themselves, the Article then pivots and examines current efforts to rid the built environment of discriminatory spaces. I put forth that contemporary attacks on the landscape are doomed to fail. The approaches suggested by academics in law and geography either turn a blind eye to the political economy of local decision-making or fail to consider entrenched legal precedent.  The final section of the manuscript lays out a policy proposal that could spark a new focus on issues of “landscape fairness.” I argue in favor of a set of basic procedural requirements that would force jurisdictions to reconsider the discriminatory places within their borders. Procedural mandates would force government to internalize values it might otherwise ignore, allow citizen-critics to challenge dominant historical narratives, and push communities to view the past (and future) in much more diverse terms.

 

Doing Affirmative Action

Journal Paper
Stephen Clowney
111 MICH. L. REV. FIRST IMPRESSIONS 27 (2013)

Abstract

Based on the two years I worked in the Admissions Office at Princeton University, I argue that many opponents of racial preferences misunderstand how selective universities evaluate applicants and, as a result, their policy arguments are weaker than generally believed. More specifically, I rebut three major critiques put forth by skeptics of affirmative action. First, I claim that racial preferences are less robust than most critics imagine. Second, I argue that affirmative action imposes fewer costs on both whites and blacks than critics indicate. Finally, I show that racial preferences have less weighty moral consequences than critics believe. In fact, an attack on affirmative action — divorced from a larger project of increasing fairness in college admissions — amounts to an attack on black social mobility.

Property in Law: Government Rights in Legal Innovations

Journal Paper
Stephen Clowney
72 OHIO ST. L.J. 1 (2011)

Abstract

This Article makes the case that local governments should have intellectual property rights over the text of the laws they create. I argue that just as patents promote risky but ultimately valuable scientific experimentation, granting some form of IP protection to cities and states could result in a socially beneficial upsurge in legal experimentation.  This piece begins by presenting evidence that local legislatures currently have little incentive to pass bold, imaginative statutes. The problem, in a nutshell, is that while legal experimentation creates many risks, the benefits of innovation remain largely externalized. The Article then contends that intellectual property protection for legal experimentation can raise social welfare by increasing incentives to produce reform. For example, a municipality that enacts a new and effective zoning scheme – and has IP rights in its work – would not only stand to attract new residents and businesses, but it would also have the power to license its innovations to neighboring jurisdictions. Part III answers potential criticisms of the idea, focusing on the complaint that intellectual property would slow the spread of successful legal advances. The final section of the manuscript explores which available IP paradigm – copyright or patent – would better regulate property-in-law claims.

 

Invisible Businessman: Undermining Black Enterprise with Land Use Rules

Journal Paper
Stephen Clowney
2009 U. ILL. L. REV. 1061

Abstract

This Article is an attempt to better understand and address the feeble rate of self-employment in African-American neighborhoods. My animating thesis is that black business lags, at least in part, because commentators have overlooked a key constraint on African-American entrepreneurship: land use regulation. In both the legal academy and in the halls of government, scholars have failed to understand how land use rules restrict commercial development in minority communities. More specifically, the literature has never acknowledged that zoning – the process of dividing an entire municipality into districts and designating permitted uses for each area – sharply limits the formation and expansion of entrepreneurship in black neighborhoods. Drawing on both sociological and empirical evidence, this paper begins by providing a brief recap of the importance of entrepreneurship in black places. The Article then contends that land use fees, municipal zoning board decisions, and the general insistence on separating residential from commercial uses all impress unique and disproportionate harms on African-American merchants, making it difficult to find affordable business space in suitable locations. The final section of the manuscript lays out a policy proposal that could spark a revival of inner-city entrepreneurship. I argue, in short, that transferring government-owned abandoned buildings to fledgling entrepreneurs would provide black merchants the space they need, without raising the ire of local homeowners.

 

In Their Own Hand: An Analysis of Homemade Willmaking

Journal Paper
Stephen Clowney
43 REAL. PROP. TR. & EST. L.J. 27 (2008)

Abstract

Holographic wills – wills that are handwritten and unwitnessed – are traditionally thought of as a risky, do it yourself brand of estate planning. In the author’s view, this is wrong. Using two years’ of probate records from Pittsburgh, Pennsylvania, this Article demonstrates that holographs are an indispensable tool for testators who are either unwilling or unable to commission a traditional will. Homemade testaments provide a low-cost alternative to intestacy, improve the overall quantity of will-making, function as a safety-net for testators who fall suddenly ill, and rarely result in litigation. The triumph of holographic wills also suggests, strongly, that state legislatures should consider reducing the number of requirements necessary to create a formal, attorney-authored will.

 

Logic for Law Students: How to Think Like a Lawyer

Journal Paper
Ruggero J. Aldisert, Stephen Clowney, Jeremy Peterson
69 PITT. L. REV. 1 (2007)

Abstract

Law schools no longer teach logic. In the authors’ view this is tragic, given that the fundamental principles of logic continue to undergird the law and guide the thinking of judges. In an effort to reverse the trend, this essay explains the core principles of logic and how they apply in the law school classroom. The manuscript begins by examining the basics of the deductive syllogisms and then turns to inductive generalizations and the uses and abuses of analogies. The authors claim that students who master the basics of logic laid out in this article will be better lawyers and will feel more comfortable when they find themselves presenting arguments to judges and juries.

An Empirical Look at Churches in the Zoning Process

Journal Paper
Stephen Clowney
116 YALE L.J. 859 (2007) (student comment)

Abstract

Using data from New Haven, Connecticut, this study attempts to examine empirically whether churches face discrimination in the zoning context. Specifically, in this paper I scrutinize local government records to determine whether religious institutions are treated fairly in the zoning appeals process. This study contributes to the ongoing discussion over the regulation of religious land uses by answering two questions. First, to what extent does the Board of Zoning Appeals treat churches differently from secular applicants? Second, are there disparities between the fates of small religious sects and mainstream denominations in applications for zoning exemptions? My research casts some doubts upon the dominant narrative, which suggests churches have been routinely victimized by local zoning boards.

 

Environmental Ethics and Cost-Benefit Analysis

Journal Paper
Stephen Clowney
18 FORDHAM ENVTL. L. REV. 105 (2007)

Abstract

A heated debate has emerged among legal academics over the continued appropriateness of using cost-benefit analysis (CBA) as a decisionmaking tool in federal administrative agencies. Environmentalists and other progressive thinkers argue that regulators should abandon CBA in favor of more holistic procedures. In response, this manuscript provides three original defenses of cost-benefit analysis and hopes to show that CBA advances basic tenets of the environmental movement. Specifically, this Note argues that cost-benefit analysis 1) promotes thoughtful deliberation, 2) protects the dignity of those in contested policy debates, and, 3) improves the standing of environmental groups in the eyes of the public.

A Walk Along Willard: A Revised Look at Land Use Coordination in Pre-Zoning New Haven

Journal Paper
Stephen Clowney
115 YALE L.J. 116 (2005) (student note)

Abstract

This paper seeks to forge a richer understanding of the costs and benefits of zoning. To accomplish its goal, this piece undertakes a small-scale, block-by-block examination of New Haven, Connecticut before the advent of modern zoning systems. This Note quantitatively demonstrates the serious tradeoffs between government regulation and strong private property rights, and concludes that previous studies of New Haven have oversimplified the knotty problems posed by land use regulation.