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Thursday, May 29, 2014

Murray on Class and Takings

Murray-webYxta Maya Murray (Loyola - LA) has posted Peering (Georgetown Journal on Poverty Law & Policy) on SSRN.  Here's the abstract:

“Peering” designates a legal practice of gazing at poor people. Legal actors literally peer, that is, look at the poor; they also peer in another fashion, which determines whether the visual subject is their peer. If the observed falls short of the observer’s social class, the law fixes them in their “proper place.” In the Fifth Amendment takings context, this means they are at risk for condemnation.

This article traces peering’s evolution in Fifth Amendment law. It notes peering’s initial descent: From the 1920s until the 2000s, courts looked “down” at the poor, often describing them as monstrous. “Slums” – edifices typically depicted as housing contagious subhumans – proved perfect objects of condemnations since they threatened the upper strata. In the 1980s, however, another legal gaze flourished: One that looked “up,” and whose bearers peered themselves with wealthy developers. In cases stemming from Michigan’s 1981 Poletown Neighborhood Council v. City of Detroit to the Supreme Court’s 2005 Kelo v. City of New London, we find rhetoric signaling legislative and judicial alignment with affluence. Here, lawmakers and judges approved condemnations that fostered “world class” and “cutting edge” corporate factories. I call this the ascendant or aspirational gaze, and in its exuberant optics, both the poor and the middle class find themselves vulnerable to “economic rejuvenation” takings. An active lobby of activists and judges challenge this gaze with petit bourgeois perspectives, leading to reform. But the poor submerge in these visuals, finding vanishing chances to escape “blight” condemnations.

To understand and combat peering, I study Columbia University’s recent expansion into West Harlem. I contemplate New York Court of Appeals’ 2010 Matter of Kaur v. New York State Urban Development Corporation, which approved of Manhattanville’s condemnation, and also the political rhetoric and blight reports that justified the taking. I additionally reference interviews with members of the Harlem community, and offer their home photographs as counter‐images to the ones that filled the blight reports. Inspired by the legal history I recount, as well as the testaments and images offered by Harlem residents, I describe the racist, classist, and violent meanings of blight findings. I reject “blight” as unsalvageable, but sketch a Fifth Amendment doctrine that would foster what one Harlem leader describes as a “decent life.”

http://lawprofessors.typepad.com/property/2014/05/murray-on-class-and-takings.html

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