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Substantive Private Law Development since World War II

Substantive private law responded to the same social trends that affected the bar. In the trial courts, a pronounced shift occurred from civil to criminal matters, and on the civil side there was a shift from cases involving market transactions (e.g., contract, property, debt collection) to family, criminal, and tort cases. A similar change occurred in the makeup of appellate case loads of state supreme courts and federal courts of appeal. Judges increasingly construed statutes and administrative regulations that treated areas once the exclusive preserve of the common law. The absolute increase in the numbers of statutes and rules was a manifestation of the law explosion. A single fat volume could encompass the laws of a state in the nineteenth century; a whole book shelf was often necessary by the 1980s. The Supreme Court's constitutional revolution of 1937,

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which dethroned substantive due process and freedom to contract, enhanced legislative and administrative intervention into society and diminished the sanctity of property and contract rights. The traditional lines demarcating private law categories blurred, leading to the creation of protean bodies of new law, such as products liability, which gave judges extensive new policy-making authority.

 

Property: Entitlements, Zoning, and Landlord-Tenant

The welfare state introduced a new form of property called entitlements. The federal government (and to a lesser extent state governments), beginning in the New Deal, became a source of wealth. The entitlements that government created came in many forms. They were direct income and benefits, such as social security, unemployment compensation, aid to dependent children, veteran's benefits, and state and local welfare. They also included government jobs and contracts, licenses to practice a profession or engage in a trade, franchises to operate certain services (such as taxis), the use of public lands and resources, and access to services (such as technical information about some aspect of agriculture, labor, or waste disposal). 23

The question of whether these entitlements composed a body of property rights was argued before the Supreme Court in the 1960s and 1970s. Liberal public-interest lawyers claimed that the high court should shield the recipients of these entitlements from the capricious activities of the bureaucratic state by granting certain of them (e.g., the poor, veterans, unwed mothers, dependent children) special constitutional protection. The justices refused to equate these entitlements with traditional property rights, finding in the leading case of Dandridge v. Williams ( 1970) that most entitlements were the product of social and economic regulation that state and federal government were free to exercise as long as they did so on a reasonable basis. Simply being poor, for example, did not grant a person any special claim to constitutional protection. More generally, the Court has held that what government granted, the bureaucratic state could revoke or modify without compensation. In most instances, an agency investigated, tried, and heard appeals from its decisions about claims to these entitlements. Even in instances, such as veterans' benefits, where courts heard appeals, a party first had to exhaust all administrative channels, a time-consuming process.



 

Zoning

Zoning was an activity derived from the police powers of the states, which usually delegated it to local municipalities. Industrialization and urbanization at the end of the nineteenth century presented issues so complex that the traditional common law action of nuisance proved unavailing in dealing with them.

New York City in 1916 passed the first comprehensive zoning ordinance, and it became a model for the rest of the country. The ordinance divided the city into residential, commercial, and unrestricted-use zones. The framers of the measure sought to save this elaborate system of controls from "legally fatal rigidities" by empowering an appointed administrative board to grant relief in cases where the new law created unnecessary hardships. 24

The tangled web of motives behind this first exercise in land-use planning characterized the subsequent history of zoning. Advances in building materials and architec

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tural design had made the skyscraper a reality, and these buildings acted as magnets that drew ever-larger populations into the cities and poured thousands of workers onto the streets. More than population control was involved, however. Fifth Avenue merchants wanted the new ordinance in order to prevent ethnic workers in the adjoining garment district from encroaching on their elegant sidewalks and wealthy clientele. From the beginning, therefore, in zoning law "[t]he nugget of the idea of stability was not a concern over the quality of urban life nearly as much as a preoccupation with real estate values." 25

Zoning evolved as a matter of state and local concern. The Supreme Court in the landmark case of Village of Euclid v. Ambler Realty Co. ( 1926) upheld local zoning control as a rational extension of traditional public-nuisance law, with the advantage of alerting all owners before the fact of what they could and could not do with their land. "A nuisance," the justices concluded, "may be merely a right thing in the wrong place, like a pig in the parlor instead of the barnyard." 26

Zoning laws after World War II went hand-in-hand with suburban development. The automobile opened the countryside, low land values put housing within reach of many people, and the suburbs offered the prosperous white middle class a refuge from the inner-city blacks. Between 1950 and 1960, for example, builders erected one- quarter of all of the residential structures in the nation at that time, and almost all of this growth occurred in the suburbs. Large-scale developments required flexible land use, and zoning decisions "increasingly [became] the rule of man rather than the rule of law." 27 Projects such as the massive Levittown, New York development depended on innovations such as the floating-zone concept, in which a local government could craft the ordinance, in the name of the public good, to suit the needs of a particular developer.

Once established, many suburban communities tightened their land-use laws, both to keep others out and to prevent an alteration in the environment that made them appealing in the first place. Snob-zoning ordinances included provisions controlling the size of building lots and floor areas. In the celebrated case of Lionshead Lake, Inc. v. Wayne Tp. in 1952, the New Jersey Supreme Court sustained such requirements, even though "[c]ertain well-behaved families will be barred from these communities, not because of any acts they do or conditions they create, but simply because the income of the family will not permit them to build a house at the cost testified to in this case." 28 The civil rights revolution of the 1960s produced both case and statute law that forbade discrimination in housing based on race, but local governments through their zoning authority continued to set standards that limited the entrance of low- income groups.

 

Landlord and Tenant

The civil rights movement, public-interest lawyering, and a boom in large-scale luxury apartment buildings contributed to the new landlord-tenant law of the 1960s. Until the 1960s the common law remained favorable to the landlord, and public regulation was the exception. State civil rights legislation included fair housing codes that prohibited discrimination based on race, ethnicity, or religion, and the same principles, under Title VIII of the Civil Rights Act of 1968, applied where federal funds financed apartment construction. The crumbling of traditional deference to the landlord in the

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case law was also "traceable in no small degree to the fact that, under the Johnson administration's ' Great Society' programs, legal assistance was made much more accessible to indigent persons than it had been in the past." 29 Mundane landlord- tenant cases became vehicles by which activist lawyers engaged in social engineering. The slums, however, were not the only places from which new legal demands flowed. Tenants in large-scale luxury apartment buildings hired legal counsel to press their demands for greater control over their premises from impersonal corporate landlords.

The most far-reaching judicial assault on the common law of landlord and tenant occurred in the District of Columbia. Many states, especially California and New York, passed legislation that restricted the traditional rights of landlords, and some localities even imposed rent controls. Neither Congress nor local government in the District of Columbia had undertaken similar measures; yet the district, with its low- income black population and highly transient white population, was plagued by problems. Furthermore, Judge J. Skelly Wright, a philosophical liberal trained in the civil law system of Louisiana, presided over the District of Columbia Circuit Court of Appeals, which was in the forefront of consumer law reform. Wright's civil law background was important because in that system "the law has always viewed the lease as a contract, and . . . that perspective has proved superior to that of the common law [which viewed it as property]." 30

The District of Columbia Circuit Court of Appeals between 1960 and 1970 decided three landmark cases that sketched the outlines of what might be called a tenants' bill of rights. In Whetzel v. Jess Fisher Management Co. ( 1960), the court permitted a tenant to bring a suit for injuries suffered because the landlord had failed to maintain the building in keeping with the city code. In Edwards v. Habib ( 1968), the court overturned the practice of retaliatory eviction. A tenant had rented on a month-to- month basis and, when she complained to the city about sanitary code violations, the landlord ordered her out. The court held that even through the tenant's lease had expired, the landlord was not allowed to evict the tenant because she had blown the whistle. Finally, in Javins v. First National Realty Corp. ( 1970), the court eliminated at one stroke several common law rules that had long aided landlords. The court found that landlords had a positive duty with respect to the conditions of the premises, that the tenant was bound to pay rent only when the premises met the conditions agreed to by the landlord, and that a tenant did not have to vacate a residence before asserting the right to refuse to pay rent based on the conditions of the premises. These opinions had their most dramatic effect on the poor, but the revised common and statutory law of landlord and tenant also protected more affluent individuals, who had greater access to counsel and sounder financial resources.

The "new" property, zoning, and the revised law of landlord and tenant manifested the ethos of liberal legalism that pervaded the postwar United States. Zoning and landlord-tenant law fostered some government control over property for the public good, but such activity was clearly within the broad traditions of U.S. legal history and did nothing to redistribute property between haves and have-nots.

 


Date: 2015-01-29; view: 644


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