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Yale Law Journal, vol. 82, pp. 1194-1207 (1973)


It would clarify matters if the dispute between Professor Komesar and myself were placed in a more general context. In writing my essay, I set two major problems for myself. The first arose from the perception that three basic elements of our existing slum housing strategy had previously been treated in isolation from one another. There had been a great deal of writing about housing code administration, housing subsidy efforts and the changing law of landlord and tenant, but there had been little systematic inquiry into the relationships among these three parallel governmental responses. As a consequence, the essay sought to isolate the economic and ethical conditions under which the three programs could interact to generate a significant improvement in the lot of the low-income tenant.1 Finding that a code-subsidy-litigation strategy could, in a large number of theoretical contexts, significantly ameliorate the position of the slum tenant, the essay reached a second basic issue. During the 1960's an impressive number of students of public policy (among whom economists predominated) had argued that ad hoc efforts at redistributing income through the regulation of particular commodity markets should be scrapped and replaced by a negative income tax funded through the progressive income tax system. My analysis of slum housing regulation suggested that some of the advocates of a negative tax had overstated their case. While a negative income tax has an important role to play in a principled effort to aid the poor, I argued that it is not the only technique upon which one may sensibly rely to redistribute income in the name of social justice. In a wide range of situations a redistribution program relying exclusively on a negative tax would be no better than, or inferior to, a more complex effort in which a negative income tax was supplemented by a coherent effort to regulate the slum housing market on behalf of the poor.

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