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Abstract

Lack of sanguinity for cities was manifest after the Supreme Court’s May 1, 2017, opinion in Bank of America Corporation v. City of Miami. Although Bank of America recognized that cities have Article III standing to sue for economic injuries suffered from predatory lending, the Supreme Court rejected the Eleventh Circuit’s more lenient causation standard, favoring proof of “some direct relation between the injury asserted and the injurious conduct alleged.” Doubtless the result could have been worse for cities suing on the premise that racially discriminatory lending caused municipal blight. The courthouse doors could have closed if the Court had declined to recognize Miami’s standing to bring a lawsuit under the Fair Housing Act. Yet the visceral reaction to the approbated standard is that cities face a daunting task to prove causation. This paper argues that patent law can inform analysis on and demonstrate how cities can prove causation between discriminatory lending practices and the blighted atmospherics of depressed housing. In three parts, the paper provides an overview of the Fair Housing Act, reviews Bank of America, and discusses how patent law can assist in proving whether predatory lending causes a city’s economic harm. Patent law offers experts versed in detecting what attribute drives consumer decisions. Although loss of tax revenue from economic blight is fraught with complexity, economists have the tools in a proper adversarial system to prese nt competing views on what caused a city’s downturn. Upon presentation of admissible evidence, whether the banks or cities prevail should turn on a jury’s decision about whether racially motivated predation proximately caused a city —and indirectly its residents —to suffer financial calamity.

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