Lecturer on Law
Areas of Interest
Nicole Summers, Setting the Standard for Proximate Cause in the Wake of Bank of America Corp. v. City of Miami, 97 N.C. L. Rev. (forthcoming 2019).
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The Supreme Court’s recent opinion in Bank of America Corp. v. City of Miami has created fresh uncertainty around the interpretation of the Fair Housing Act. The Supreme Court held for the first time that there is a proximate cause requirement under the Fair Housing Act, but expressly declined to decide the standard for meeting that requirement. This Article responds to that open question. It contextualizes Bank of America Corp. within the Court’s growing body of statutory proximate cause doctrine, and takes the case as a jumping off point to address the broader question of how to determine the meaning of proximate cause in all statutory claims. The Article argues that the Supreme Court and lower courts must adopt a uniform analytical framework for the determination of proximate cause in statutory claims. The Article demonstrates that the Supreme Court’s failure to do so thus far has produced deep doctrinal incoherence, culminating in the Court’s inability to articulate a standard for proximate cause under the Fair Housing Act in Bank of America Corp. The Article proposes that courts uniformly apply the “scope of liability” framework as set forth in the recent Restatement (Third) of Torts. It contends that the scope of liability framework properly anchors proximate cause in the statutory scheme, ensures doctrinal determinacy, and prevents improper judicial legislation. The Article then applies this framework to arrive at the proper standard for proximate cause under the Fair Housing Act. Through extensive legislative history analysis, the Article concludes that the standard for proximate cause under the Fair Housing Act is satisfied where the harm caused by unlawful discrimination results from direct effects on the housing market and falls within one of the three core areas of congressional concern underlying the Act’s enactment.
Comment on Proposed Standards and Procedures of the Office of Court Interpreter Services from Nicole Summers to Kim Wright, Executive Office of the Massachusetts Trial Court (Dec. 14, 2018) (on file with the Legal Services Center).
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Vicki Been, Deborah Rand, Nicole Summers & Jessica Yager, Implementing New York City’s Universal Access to Counsel Program: Lessons for Other Jurisdictions (NYU Furman Ctr. Pol'y Brief, Dec. 12, 2018).
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Gianapolo Biaocchi & Nicole Summers, Controversies, Authority, and the Limits of Participation: Chicago’s 49th Ward, 40 Pol. & Legal Anthropological Rev. 311 (2017).
This article analyzes an innovative, and relatively successful, experience in Chicago: its participatory budgeting (PB) process. Treating it as process‐in‐the‐making, we are attentive to moments of uncertainty and controversy over the first year of its development. As a process of direct democracy, PB is profoundly ambiguous: it is, in principle, open to all, but it has no way to adjudicate between different ways of knowing and making claims by technical experts, democratically elected office holders, and newly established neighborhood leaders. Because it is a bottom‐up process that in principle does not privilege certain groups, it generates ambiguity over who gets to speak for and on behalf of the whole. In Chicago, each of these ambiguities generated controversies, which generated political talk that implied utopian alternatives that were then settled in ways that closed off these alternatives, in the end reinforcing the power of experts and revaluing the role of established community leaders against newcomers. We contend that the critical literature on participation should be more attentive to moments of conflict, ambiguity, and closure when the outlines of participatory processes are collectively produced.
Nicole Summers, Fannie Mae and Freddie Mac’s Subversion of State Consumer Protection Law Under the Guise of HERA: Post-Foreclosure Litigation in Massachusetts, 20 U. Pa. J.L. & Soc. Change 273 (2017).
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In 2008, Congress passed the Housing and Economic Recovery Act (HERA) to rescue Fannie Mae and Freddie Mac from financial collapse. HERA created the Federal Housing Finance Agency (FHFA) and authorized it to act as both regulator and conservator of Fannie Mae and Freddie Mac. The statute grants broad immunities to FHFA when it is acting as conservator—from judicial review and from the imposition of penalties, among others. Fannie Mae and Freddie Mac are now invoking these immunities in their own right, and claiming that they should apply to themselves as well in their roles as owners of occupied residential properties. This Article explores this recent development in the context of two areas of litigation in Massachusetts: whether the Non-Profit Buyback Law, M.G.L. c. 244, § 35C, applies to properties owned by Fannie Mae and Freddie Mac, and whether Fannie Mae and Freddie Mac are liable for multiple damages for unfair and deceptive practices under M.G.L. c. 93A. The Article argues that courts have erroneously interpreted HERA by immunizing Fannie Mae and Freddie Mac from liability in both of these contexts. It further argues that this precedent lays a foundation for Fannie Mae and Freddie Mac to flout state consumer protection law throughout the nation. This result is contrary to the express statutory mission of Fannie Mae and Freddie Mac to promote low- and middle-income housing.
Gianpaolo Baiocchi, Ernesto Ganuza, & Nicole Summers, A Government Closer to the People: Chicago, Illinois, in Popular Democracy: The Paradox of Participation 103 (Gianpaolo Baiocchi & Ernesto Ganuza eds., 2016).
Ernesto Ganuza, Gianpaolo Baiocchi & Nicole Summers, Conflicts and Paradoxes in the Rhetoric of Participation, 12 J. Civ. Soc’y 328 (2016).
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The expansion of participation processes and techniques around the world in recent years takes place under the rhetoric of citizen empowerment. This rhetoric has been questioned by many scholars, who often point out the weak impact of such practices and the new games of domination to which participation is submitted. This article examines this dilemma from the expansion of participatory budgeting in the global North. We propose a study of assembly processes involving the local public administration in the cities of Chicago and Córdoba. This process reveals conflicts and paradoxes that often remain hidden in the research, but nevertheless show struggles to appropriate and define the meaning of participation.
Nicole Summers, Colombia’s Victims’ Law: Transitional Justice Amidst Violent Conflict?, 25 Harv. Hum. Rts. J. 219 (2012).