**Update: See the Wisconsin Journal of Law, Gender, and Society’s special issue in memory of Jane Larson**
Putting Doctrine, Theory, Empirical Research, and Legal Practice Together
At a moment when the legal academy in the U.S. is under intense scrutiny for spending time on scholarship that is purported to have little relevance to real-world problems, it seems appropriate to look at contrary examples. One such contrary example is a research (and, as it turns out, teaching) program conducted by a team of researchers that included law professor Jane Larson. The project as she describes it began with high theory — debates over the role of law and over whether the free market or regulation yielded better results for all, including the poor as well as the rich. It ended up on the ground, examining a real-world example, and implementing legal changes to test the theory. In a 1995 article in the Georgetown Law Journal, Larson explained the problem:
“In recent decades, the debate over land use regulation has been reinvigorated. Other progressive-era expansions of market regulation have been accepted (perhaps grudgingly) as necessary to a complex and pluralistic society, but the very idea of land use regulation continues to be challenged on both legal and public policy grounds….
Libertarians resist government control of land use as unwarranted intrusion into the realm of private property. Market advocates resist land use regulation (as they resist other forms of economic regulation), claiming that it interferes with the optimal allocation of a scarce resource–physical space for human habitation in densely settled places. Critics from the left have joined the chorus, coining the term ‘exclusionary zoning’ to describe the ways in which land use regulatory powers, when placed in the hands of parochial local governments, have worked to segregate communities along racial and economic lines, further worsening housing problems for the poor.The most recent free market attack on land use regulation cites the lack of affordable housing for lower-income people as evidence of the need for more ‘efficient’ allocation of land resources. Free market proponents offer the huge and unmet demand for affordable housing for low- and moderate-income households as evidence of the pernicious consequences of too much regulation, rather than as an indication of a market failure that justifies government intervention. Further, zoning opponents long have argued that land use regulation inhibits the development of affordable housing…. The Dickensian slum, symbol to an earlier generation of the moral poverty of a society that tolerated such physical deprivation, has now been reinterpreted as the symbol of the liberated (if limited) purchasing power of the most deprived….”Larson pointed to colonias settlements on the U.S.-Mexico border as an example of an unregulated housing market: “In the unincorporated areas of the Texas counties that border Mexico, there are no zoning laws. And, in contrast to Houston, until recently there were no subdivision and infrastructure requirements nor government provision of basic public services. To this day, there are no building or housing codes, no growth controls, and no planning mechanisms. As market advocates would predict, land and housing in these counties are extraordinarily inexpensive. Housing and environmental conditions, however, are deplorable.”The article proceeded to give “a detailed empirical description of conditions and life within the unregulated land use markets of the Texas border, [where] more than a third of a million people live …. In sharp contrast to unzoned but regulated Houston, the unregulated colonias lack the ‘basics’ that residents of other jurisdictions take for granted: safe drinking water, sewers for carrying away human waste, and housing with minimally adequate wiring, plumbing, and construction. Elsewhere in the world, the health and safety risks and severe environmental degradation endemic to such shantytown settlements are well known. Main Street America, however, has not typically contemplated such Third World problems. Defenders of markets and regulation alike claim that their preferred policy approach best promotes decent and affordable housing for the poor. The colonias, products of a regime that allocates land uses according to a market rather than a regulatory logic, thus offer an opportunity to compare ‘liveability’ outcomes under these competing approaches.”
Jane Larson, Free Markets Deep in the Heart of Texas, 84 Geo.L.Rev. 179-183 (1995) The article ended with a set of practical proposals based in empirical research and legal theory. As Larson subsequently explained, the empirical research persuaded her that neither heavy regulation nor a completely free market would serve the people of the colonias:
“Those genuinely wanting to alleviate conditions and those who just wanted those places and the people in them gone pressed for more regulation. I, along with vigorous activists from the colonias, argued that if there was no longer state commitment to affordable housing or adequate income support, letting people do self-help housing was the only defensible policy. [My position] only makes sense in light of years of qualitative research and a consistent presence over many years in the settlements I study. It reflects the complete shift in my perspective based on empirical research.Like many complex social realities, the legal response is also complicated and has many downsides. Resisting conventional regulation is an approach that currently tolerates living conditions for some that the rest of society has deemed below human standards. But, by reaching into international human rights law with the guidance of colleagues, I have proposed instead a policy of ‘progressive realization’ — gradually escalating standards with incentives such as micro-credit programs to allow families to reach minimal levels of housing quality incrementally.”2005 Wisc. L. Rev. 335, 348 (2005) Larson thus settles on a set of solutions that draw from both left- and right-wing theorists, after assessing them against the reality on the ground in the colonias. The next step was implementation of a land titling program, based in part on economic and legal theory. Partnering with a community NGO, Larson worked in an interdisciplinary team whose leader, Peter M. Ward is Professor of Public Affairs and Sociology at the University of Texas at Austin; other team members included Flavio de Souza, Associate Professor at the Federal University of Pernambuco, Brazil and Cecilia Giusti, Assistant Professor at Texas A & M University. Larson describes the titling process:
“Over five years, CRG [an NGO named ‘Community Resource Group’] issued 2500 deeds to houses occupied by 8000 to 10,000 people. They also replatted the subdivisions in order to create clear lot lines and legal descriptions. Some of these subdivisions had literally been laid out on the back of the developer’s envelope. Here, being a land-use lawyer proved quite useful on a day-to-day basis, as I helped to oversee the legal work required to meet title requirements. Interdisciplinary work by no means excludes strictly doctrinal analysis.”
2005 Wisc.L.Rev. 335, 349. Finally, Larson worked with a team to assess what the impact of the titling program had been. A major strand of economic and legal theory would have predicted a rise in the value of colonias land following titling. Two years after titling, this prediction was not borne out (although more time may be necessary to reach a full judgment). However, the researchers located some unexpected benefits of titling:“What we found that we had not thought to investigate, but which came up spontaneously in many face-to-face settings, was a greater sense of political entitlement….Where once I had posited that regulation would bring the colonias into the polity and its social contract, it turns out that secure property ownership and status as taxpayers has done so.The methods used in this interconnected set of research projects were legal, sociolegal, and economic; both qualitative and quantitative; and interdisciplinary even within the field of law as I gained insights from legal colleagues who work in areas wholly unrelated to land or housing.” 2005 Wisc.L.Rev. 335, 349.
A final publication from this project spells out these last findings in more detail, explaining that: “The survey offered a number of insights about these processes, but as we anticipated a priori, it proved less effective in revealing the underlying meanings attributable to lot ownership, which only began to emerge more clearly through the focus group sessions. These meetings sought to elicit the perception of participants about three key aspects of land ownership: (1) legal issues including inheritance, ownership, and marriage; (2) the financial implications of receiving formal title where attitudes toward accessing credit and making home improvements were concerned; and (3) the meanings of title in terms of household and family relationships, community cohesiveness, community organizing, and political empowerment. This latter idea–empowerment–was not something that we had anticipated or considered beforehand, so it was not the subject of questions within the household survey. To the extent that empowerment emerged as a salient issue, it did so only through the focus group discussions and analysis. Like unstructured interviewing, focus groups provide an opportunity to explore issues in a loosely structured and more free-wheeling discussion format, letting residents’ ‘voices’ be heard in their own words and allowing the group dynamic and facilitator(s) to pace the discussion….If nothing else, regularization appeared to enhance residents’ self-esteem and sense of social legitimacy. For example, many commented that they now felt that they could hold up their heads when dealing and interacting with government officials, with banks, or with other formal institutions…. Title appears to be important insofar as it enhances psychological security and reduces fears about the possibility of losing one’s home. All focus group participants agreed that they felt more secure financially and economically once they had clean title.” Ward, Peter, Flavio de Souza, Cecilia Giusti, and Jane E. Larson, El Titulo en la Mano: The Impact of Titling Programs on Low-Income Housing in Texas Colonias, 36 Law & Soc. Inq. 1 (2011).These projects set a standard for New Legal Realist research — from the final, clear-eyed assessment of the shortcomings of titling by itself as a means to economic improvement, through the multi-method garnering of information on other important (but unanticipated) impacts of titling. From initial legal theorizing through lengthy, labor-intensive fieldwork and then implementation of legal changes, these projects required both lawyers’ skills and demanding social scientific work. The result was an intervention aimed at helping communities in need, in collaboration with the people affected; it brought legal theory to the ground as it generated better information about the law in action, in the lives of non-elite people — at last not just viewed from afar or above.