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Trespassing on the Law: Critical legal engineering as a strategy for action research
Abstract
This paper proposes Critical Legal Engineering [CLE] as a new methodology for legal‐geographic action research. While legal geography is on the rise, geographers rarely participate in legal or judicial process, and when they do – for example as court expert witnesses – they merely respond to the preestablished agendas of the legal system. I argue that legal geographers’ knowledge on the nature of law and its relations with society is a source of power that could allow them to set legal agendas and pluralize legal discussions. CLE assumes that legal geographers can put forward technical legal arguments, thus using law’s own tools to implement normative agendas implied in critical research. However, CLE demands a dialectical attitude that preserves the contradiction between political ends and legal technology – while pursuing both of them at the same time. As I show, CLE can realize critical agendas in three ways. First, it coopts the legitimacy provided by the legal system, lending it to the agendas that are otherwise perceived as ‘too radical’. Second, elevated by the law these radical agendas may gain greater power to influence political‐economic realities even before the legal outcomes are decided. Finally, CLE draws out of ‘technical’ legal discussions into the heat of the public debate, thus politicizing the law. Having developed this methodological proposition in the course of my research on urban movements, I illustrate it with the strategy of Berlin’s campaign Deutsche Wohnen & Co. Enteignen [DWE] which has crafted a legal argumentation based on Art. 15 of the German Constitution to pursue remunicipalizion (or de‐privatizaton) of housing.
... Such programs have been implemented with particular intensity at the urban level, as cities have increasingly become strategically important spaces in national and global economies and the primary laboratories for neoliberal policy interventions (Harvey, 1989;López-Morales, 2010). Brenner & Theodor describe how neoliberal programs Such citizen-led campaigns have predominantly taken the form of mass mobilization in support of deprivatization or socialization culminating in public referenda or forced political change (Terhorst et al., 2013;Becker et al., 2016;Kusiak, 2021); however, the Hillside Villa Tenants Association (HSVTA) in Chinatown, Los Angeles exemplifies a different approach. For five years, this single tenant body fought for City Council to use eminent domainlegislation that enshrines the state's right to seize private property for public use while compensating the property owner-to acquire their 124-unit apartment building. ...
... HSVTA's struggle distinguishes itself from other citizen-led remunicipalization efforts through its scale and tactics. This struggle, carried out by a single tenant body through organizing as opposed to mass mobilization and pursuing a strategy of 'critical legal engineering' (Kusiak, 2021) through their demand for eminent domain, contributes new strategic perspectives to the existing remunicipalization literature. It also provides a potential pathway for other tenants facing displacement as a result of expiring LIHTC affordability covenants-a situation that, nationally, will affect nearly 500,000 units by 2030(National Low-Income Housing Coalition, 2018. ...
... Eminent domain, which is regularly used by municipal governments for highway expansion or to facilitate for-profit projects such as stadium construction or urban renewal efforts, usually results in the displacement of low-income communities of color in the process (Davis, 1990;Parson, 2005;Rothstein, 2017). Yet by calling for eminent domain, HSVTA engage in what Kusiak (2021) calls 'critical legal engineering': politicizing and coopting the legal system, utilizing it to lend legitimacy to agendas such as housing expropriation that would otherwise be perceived as 'too radical.' In this sense, Hillside Villa's campaign bears similarities to the Deutsche Wohnen & Co Enteignen campaign, which sought to expropriate Berlin's corporate landlords by using Article 15 of the German Basic Law (Grundgesetz) in response to the city privatizing large swaths of public housing stock after reunification, resulting in a 40 percent reduction of state-owned units and the rapid commodification of the city's housing market (ibid.; ...
Citizen-led remunicipalization campaigns have gained momentum globally over the past two decades. A notable example is the five-year campaign by the Hillside Villa Tenants Association in Chinatown, Los Angeles. Facing severe rent increases after the expiration of a LIHTC affordability covenant in 2018, tenants pursued a novel strategy of forcing city council to remunicipalize their building through eminent domain, re-politicizing the law to prevent displacement and ensure decommodification and tenant control. Although they achieved a significant victory in May 2022 when city council voted to acquire their building, this decision was reversed two years later, with city council opting instead to pay the landlord $15 million to extend the affordability covenant. This article explores the tactics employed by the tenants, the struggle’s inflection points, and the unique challenges associated with housing remunicipalization in the ‘real estate state,’ contributing new strategic perspectives for tenants facing displacement by LIHTC or other mechanisms.
... However, we argue this recent focus on 'socially responsible investment' is rhetorical at best given the debt-fuelled and inflationary tactics of for-profit landlords (Wetzstein, 2017). Instead of 'patient' commitment to long-term housing investment (Brill et al., 2023), we regard the deployment of such narratives as corporate 'whitewashing' at a time of open criticism of corporate landlords (Kusiak, 2021). In so doing, we engage with Rosenman (2019) who conceptualizes social impact investing as an outcome of the 'financialization of good intentions.' ...
... When the company sought to merge with Deutsche Wohnen in 2020, it was heavily criticized for becoming too large and monopolistic (Inverardi et al, 2021). Following the successful Berlin referendum to expropriate Deutsche Wohnen (Kusiak, 2021), the company thus realized that a social compromise was needed to legitimatize its entry into the Berlin market. This resulted in the waiving of potential claims for rental back payments to sell 14,750 apartments to public housing companies in Berlin (Vonovia, 2023). ...
Real estate investment trusts, institutional investors and other global asset managers have gained a controversial reputation for becoming for-profit landlords in the public and private rental housing sector. However, in recent years of increased public attention they have sought to improve their image by presenting themselves as patient investors that are willing to focus on long-term investment rendering steady but stable cash flows with beneficial social outcomes. In this paper, we criticize this discursive reframing of the “patient” or “responsible” corporate landlord. Rather than contributing to affordable and sustainable housing solutions, we argue that financial profit-making remains the prime interest of actors like Ampere Gestion (France), Bartra Capital Property (Ireland) and Vonovia (Germany). In doing so, we make two contributions to ongoing debates on housing financialization and social impact financing. First, by deploying the narrative of corporate responsibility we scrutinize how for-profit landlords seek to create public goodwill and deflect social criticism for their otherwise profit-driven housing operations. Second, by demonstrating that states actively facilitate this emerging sub-market of “socially responsible” housing investment, we show that traditional boundaries between public, affordable and private rental housing are increasingly blurring.
... These activities seldom start from scratch and are often preceded by numerous initiatives from civil society or political activism. For example, attempts to reform the private rental sector of Berlin cannot be seen as independent from civil society groups calling out for stricter rental laws and tenant rights against the malpractices of corporate landlords (Kusiak 2021). In Amsterdam and Miami, local housing policy aimed at improving affordable living conditions is strongly backed by local business and civil society groups (Wijburg 2021b). ...
Introduction to the special issue "Social Movements against Housing Financialization".
... Por tanto, la ley impone una narrativa que actúa performativamente a través de un efecto de verdad que despolitiza los conflictos socioespaciales (Ricca, 2017;Kusiak, 2021), al tiempo que visibiliza la espacialización de los territorios legalmente reconocidos sin aglutinar sus conflictivos procesos de interacción y disputa política (Braverman, 2011;Gill et al., 2020). Es precisamente por el carácter contingente, transversal y complementario de la perspectiva geográfica del derecho (Orzeck y Hae, 2020) que dicho punto de vista puede contribuir a someter a revisión crítica todas estas naturalizaciones y poner de manifiesto el carácter político de las actuaciones normativas sobre el espacio público. ...
En las últimas dos décadas, se han producido múltiples procesos de renovación urbana que han dado lugar a nuevas formas de espacialidad y territorialidad en la ciudad, especialmente a partir de la consolidación de las políticas de seguridad global surgidas tras el 11S y reforzadas durante más de veinte años, dando lugar a múltiples formas de segregación y fragmentación urbana. En Madrid, dichas dinámicas se reforzaron más si cabe tras la proclamación del estado de alarma con motivo de la pandemia global declarada a causa de la COVID-19 en marzo de 2020 y, especialmente, tras la aplicación por parte del gobierno regional de cierres en las denominadas Zonas Básicas de Salud (ZBS). A partir de la metodología de la Geografía Legal, este trabajo examina las regulaciones aplicadas como desarrollo de dichas ZBS entre septiembre de 2020 y mayo de 2021, a través de un estudio que compara los mecanismos de restricción territorial impuestos a través de dicha normativa y los indicadores epidemiológicos publicados. En último término, el análisis se cuestiona acerca de los vínculos entre las Zonas Básicas de Salud y las dinámicas securitarias desarrolladas en Madrid en relación a una estructura urbana fragmentada y basada en la desigualdad de clase social.
... Remembering and reclaiming this legacy after decades of neoliberal marketisation is a strategy for reactualising it today. The urban movement that perhaps has gone furthest in this sense is the 'Expropriate Deutsche Wohnen & Co' campaign in Berlin, which has sought to leverage Article 15 of the German Constitution to socialise 250,000 apartments owned by large-scale corporate landlords in the city (Kusiak, 2021). ...
In contemporary urban areas, a growing 'generation rent' is finding shelter in expensive and precarious private rental housing. Tenant organisations and legislative initiatives have been pushing to improve housing conditions for renters, yet have been met with strong resistance. Intense policy and academic debates have ensued. This paper delves into the discourses used by dominant actors involved in legislative changes affecting the private rental sector in Catalonia and Spain. Through a critical discourse analysis of the positions of governments, opposition parties and landlord organisations, we identify three main arguments employed to limit or contest 'post-neolib-eral' measures favouring tenants: 'the vulnerable landlord', 'the counterproductive effects' and 'the violation of property rights'. Each of these arguments is placed under theoretical and empirical scrutiny, revealing important weaknesses. By unsettling dominant discourses, we contribute to advancing the terms of the debates and sketch out the coordinates for a counter-discourse informed by critical theory and the interests of renters rather than rentiers.
... Although rents on many units may be moderate, investors factor this into acquisition prices and maintenance and modernization plans. The Berlin Referendum of 2021 that calls on the State of Berlin to renationalize housing may appear to be a large risk for the German R-REITs (Kunze et al., 2022;Kusiak, 2021), but effective nationalization is all but decided and will likely entail substantial R-REIT compensation -unlocking funds that could be directed toward expansion elsewhere. ...
The expansion of Residential Real Estate Investment Trusts (R-REITs) represents an important frontier in the financialization of housing and cities. This paper advances the literature on institutional real estate investment and corporate landlordism by analyzing how and where the 15 largest, publicly-listed R-REITS and REIT-like funds in Germany and the US are growing today. First, we introduce the metaphor of the feeding machine to characterize how key actors like the state, private equity, and exchange-traded funds (ETFs) provide R-REITs with the properties, capital, and imperative to grow. Second, we find four geographical expansion strategies at work: (1) investment beyond mainstream asset classes: from multi-family apartments and single-family rentals to student flats, care homes, and mobile home and recreational vehicle sites, (2) the concentration and consolidation of ownership, through mergers and acquisitions and focused investment in select markets, (3) acquisition across national borders, and (4) institution-led new construction. Despite crucial nuances in individual R-REIT strategies and the housing systems of each country, our comparative analysis reveals shared trajectories and rationalities of expansion. We posit that ETFs and the indexes through which they allocate investment increasingly shape the restless urban landscape of R-REIT growth, pumping liquidity into spatially fixed assets.
... Die Kampagne stellt somit eine Forderung auf, die den Status quo der Eigentumsverhältnisse auf dem Berliner Wohnungsmarkt radikal herausfordert. Sie zeigt dabei aber, dass diese Forderung juristisch möglich ist -was zentral für ihren Erfolg war (Kusiak 2021). Weiterhin hat die Kampagne, um über die Forderung abstimmen zu lassen, den direktdemokratischen Weg eines Volksentscheids gewählt. ...
Der Beitrag interveniert in die Debatte um demokratische Wirtschaftsplanung, die sich bislang vor allem um die Sphäre der betrieblichen Produktion und die Aushandlung gesellschaftlicher Konsumbedürfnisse dreht. Modelle für ein demokratische Planung der Reproduktionssphäre werden hingegen nicht analysiert. Der Beitrag diskutiert das Vergesellschaftungskonzept von Deutsche Wohnen & Co. enteignen, das eine bedarfsgerechte Verteilung von Wohnraum, eine demokratische Planung von Investitionen und eine sozial-ökologische Bewirtschaftung vorschlägt.
Scholarly work in the field of legal geography has grown dramatically in recent decades. While much legal geography scholarship has been influenced by a European-North American perspective, we argue that a distinctive legal geography scholarship also emanates from outside the dominant perspective. Here, we review research from Australia and New Zealand/Aotearoa and label this work as Antipodean legal geography (ALG). We suggest ALG research has made a significant contribution to global legal geography scholarship through an emphasis on environmental law and policy problem solving and through efforts to de-colonialise and expand legal geography’s remit.
Die Gesellschaft ist in eine Phase zugespitzter Infrastrukturkonflikte eingetreten. Die Beiträger*innen erörtern aus politökonomischer und diskursanalytischer Perspektive, was diese Konflikte in den Bereichen Wohnen, Gesundheitsversorgung und saubere Luft kennzeichnet und wie der Staat auf sie reagiert. Im Mittelpunkt steht die Frage, mit welchen Herausforderungen, Perspektiven und Konflikten derzeit bei der Versorgung mit öffentlichen Gütern gerungen wird und welche Rolle schwache Interessen in diesen Aushandlungsprozessen spielen. Es wird deutlich: Die öffentliche Kritik der Unter- und Fehlversorgung adressiert jeweils den Staat, der diese Kritik oft zurückweist, mitunter aber auch auf kommunaler Ebene aufnimmt.
After the initial moments of political protest have passed, urban protest movements and neighbourhood initiatives often face the challenge of establishing a sustainable organizing structure in their neighbourhoods and of creating long-lasting collaborations, including maintaining relations among various participants and heterogeneous political actors in the city. This paper analyses the political practice of Kotti & Co, an urban neighbourhood initiative that has been active in political struggles pertaining to social housing and displacement and working against racism and neoliberal urban politics in the super-diverse city of Berlin. In the larger context of urban protest movements since 2011, the initiative managed to overcome a series of political challenges and to build a long-lasting organizing practice. The authors identify Kotti & Co as a ‘community of struggle’ that was able to foster a lasting movement through three elements of sustainability. The protest first managed to build bridges across and beyond its members’ differences (class, migration background, sexual orientation) by finding a common set of political demands and social practices as well as by establishing collective place-based subjectivities. These place-based subjectivities have contributed to overcoming conventional identity politics by forming a new kind of political identity through the struggle itself.
Among the ‘extra‐economic means’ that facilitate primitive accumulation, or accumulation by dispossession, the law plays a prominent role. But works on neoliberal urban restructuring rarely engage with concrete legal technologies. Analysing judicial property restitution (‘reprivatization’) in Warsaw, this article grasps the machine of accumulation by dispossession at a moment of faltering and exposes the distinctive legal technologies behind its troubleshooting. It makes three contributions to critical urban studies. First, it demonstrates how judicial systems can steal political conflicts that obstruct the cycle of accumulation by dispossession. It thus introduces the notion of ‘judicial robbery’, a non‐legislated expropriation of common property through judicial engineering that simultaneously deprives the public of political agency. Second, it shows that seemingly neutral legal technicalities, usually sheltered from political debate, can become a key locus of urban politics. Third, it examines the agency, scope and spatial patterns of ‘dispossession by restitution’, the term I use for a locally specific form of accumulation by dispossession in Warsaw. Lastly, I raise the question of political struggle against primitive accumulation. Is the judicial robbery reversible? If we can reclaim property, can we also reclaim political conflicts that have been stolen by the law?
Because there is little literature about how law and space may be related, this has led to the notion that these two concepts should be separate from each other. However, there have been some notions that demonstrate how law is concerned with space and geography. Also, this chapter realises that both respects have embraced the notion of hybridity since law may be integrated with history, literature, economics, and other such aspects while geography has already been able to generate certain subdisciplinary fields. This chapter attempts to explain how law and geography may together create a novel discipline since such may be derived from various intellectual blockages such as how law and space are distinguished from what we commonly refer to as 'society'. As the chapter attempts to establish a validity for this field, the text also looks into certain insights that can be attained from thought that may also go beyond the law/space binary.
The paper explores why and how economists entered the courtrooms as expert witnesses in employment discrimination cases in the US. The main sources are published legal decisions. I analyze the courts’ and economists’ discourses on the use of a specific method: multiple regression analysis in relation to litigation history, academic debates, and the institutional settings of expertise within the courts. I first show how the early reception of the method in the late 1970s did not involve systematic rejection from the courts but rather a large amount of skepticism. I then illustrate how economic theory underlying the method was progressively introduced in the “judicial tool kit” and how the debates in the courtrooms relate to the debates in academia in the 1980s. By 1989, practical and ethical questions regarding the institutional settings of experts’ testimony took center stage, reflecting the increasing professionalization of forensic economics.
The book uses a Marxian inspired social ontological framework, and a genealogic method to explore the relationship between labour law, the market, and capitalist social relations. It advances a constitutive conception of the law–market and law–society ‘relationship’ that stresses law’s contradictory roles in the emergence and reproduction of capitalist social relations—and, relatedly, in the emergence, and reproduction, of the (capitalist) market, and explores this role in depth through a genealogical analysis of the social category of the wage. Tracing the evolution of the wage through legal discourse and the shifting repertoire of legal concepts (the ‘wage’, the ‘salary’, ‘remuneration’) through which it has been denoted over time, the book sheds new light on the problems of low pay and under-inclusive employment status, and on the role of the legal system in perpetuating, and potentially constituting, these problems. Spanning from the Norman conquest to the present day, and exploring issues as diverse as the decasualization of the docks; sweated labour; the truck system; tax credits, tips, and minimum wages, the book provides one of the most in-depth and comprehensive analyses of the wage to date, while, at the same time, offering a number of practical suggestions for labour law reform.
Introduction: Diverse Economies as a Performative Ontological ProjectBecoming Different Academic SubjectsThe Ethics of ThinkingNew Academic Practices and PerformancesConclusion
References
Since 2001 investors have purchased rent-regulated housing in New York City with heightened expectation for financial performance, placing pressure on tenants and communities through increasing rents, harassment, eviction, and when financial targets are not met, physical deterioration of buildings. At the heart of this investment strategy is fictitious capital, the extension of credit based on assumptions about future events. This paper shows that beyond assessments about the “truth” or rationality of the expectations underlying fictitious capital, the management of value as a problem is at stake. When the expectations underlying fictitious capital are not realized, a network of actors engage in a set of legal–financial practices to manage the value of rent-regulated multifamily buildings, including banking regulation and its exception, mortgage securitization and special servicing, distressed debt markets, rent stabilization, and foreclosure law. The breakdown of the assumptions of fictitious capital reveals new challenges and opportunities for tenant activism and policy to intervene in preserving rent-regulated housing. The paper focuses on how this financialization of housing not only serves as a moment for the increasing role of financial actors and imperatives, but also how it drives tenant activism and policy to engage legal–financial practices to redefine the tenant–landlord relationship and to tie financial expectations more closely to the material reality of tenants and communities.