Revisiting Geography and Sovereignty in the Digital Age

Fair housing advocates have already brought successful lawsuits challenging the use of property technology (“PropTech”) where it has been found to perpetuate or replicate discriminatory practices in a range of contexts including the use of automated screening tools to evaluate prospective tenants. While substantive interventions in unlawful exclusions and differential treatment via PropTech are laudatory, this Article argues that these steps do not go far enough and moreover, that insufficient attention has been paid to the procedural implications of the federal Fair Housing Act (“FHA”) as a source of ex ante enforcement. The nation’s first fair housing law, the 1866 Act, was ultimately deemed an appropriate exercise of congressional authority to eliminate the “badges and incidents of slavery” in Jones v. Alfred H. Mayer Co. This development, in conjunction with a deep-seated history of exclusionary municipal incorporation as well as other forms of disenfranchisement, indicates that the FHA may offer heightened protection for the participation of marginalized populations in formulating public policies and practices—including the functions of digital technologies—that shape access to housing opportunities in their communities. Rather than focus on PropTech itself, this Article calls for fair housing advocates to center participation parity and principles of self-determination in their reform agendas as a more promising path for developing just cities in the digital age and beyond. To that end, an outline is offered for excavating the procedural justice dimensions in fair housing jurisprudence as a source of political empowerment for protected groups and their allies.