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Risk, Property Rights, and Antidiscrimination Law in Rental Housing: Toward a Property-in-Action Framework

Published online by Cambridge University Press:  16 March 2020

Marco Brydolf-Horwitz
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Abstract

Landlords’ decisions significantly shape the housing outcomes of poor and stigmatized renters. Despite this important gatekeeping role, studies of antidiscrimination law have not thoroughly examined how private market actors respond to reform efforts or how private property rights potentially enable them to evade regulation. This study draws on ethnographic data gathered between late 2015 and early 2018 to examine how and why Seattle landlords opposed an ordinance regulating the use of criminal records in rental housing. The findings indicate that landlords’ opposition stems from their expectation that property protects owners’ ability to control their exposure to risk. Yet conceptions of property and risk perception alone cannot explain how landlords can evade regulation. Toward this end, I show how private property rights facilitate adaptation by which landlords can legally circumvent the intent of the law. The study highlights the value of a sociolegal framework of property in action, which incorporates cultural notions of ownership, legal rights, and the regulatory and market environments that shape owners’ discretion. I suggest that greater attention to risk discourse and property rights will deepen our understanding of the limits of antidiscrimination law and the ability of private market actors to adapt to, and resist, legal reform efforts.

Type
Articles
Information
Law & Social Inquiry , Volume 45 , Issue 4 , November 2020 , pp. 871 - 901
Copyright
© 2020 American Bar Foundation

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Footnotes

Earlier versions of this article benefited from feedback generously offered at the Law and Society Association’s Junior Scholars Workshop, a symposium on criminal justice reform held at Princeton University, and the CLASS workshare at the University of Washington. Special thanks to Katherine Beckett, Sara Curran, Chelsea Moore, Sarah Quinn, Emma Rodman, and four anonymous reviewers at Law and Social Inquiry for their helpful comments and suggestions.

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LEGISLATION CITED

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