From the Clinical Law Prof Blog: “But How Do I Teach…?: Poverty”

From the Clinical Law Prof Blog: Carrie Hagan, “But How Do I Teach…?: Poverty,” April. 22, 2014.

50 Years Into the War on Poverty, Hardship Hits Back – NYTimes.com

50 Years Into the War on Poverty, Hardship Hits Back – NYTimes.com.

New Article: “Reviving the Excessive Fines Clause”

New Article: Beth A. Colgan, Reviving the Excessive Fines Clause, 102 Calif. L. Rev. 277 (2014).  Abstract below:

Millions of American adults and children struggle with debt stemming from economic sanctions issued by the criminal and juvenile courts. For those unable to pay, the consequences — including incarceration, exclusion from public benefits, and persistent poverty — can be draconian and perpetual. The Supreme Court has nevertheless concluded that many of these concerns lie outside the scope of the Eighth Amendment’s Excessive Fines Clause. In interpreting the Clause, the Court relied upon a limited set of historical sources to restrict “fines” to sanctions that are punitive in nature and paid exclusively to the government, and to define “excessive” as referring to — either exclusively or primarily — the proportionality between the crime’s gravity and the amount of the fine.

This Article takes the Court at its word by assuming history is constitutionally relevant, but it challenges the Court’s limited use of history by providing the first detailed analysis of colonial and early American statutory and court records regarding fines. This robust historical analysis belies the Court’s use of history to announce historical “truths” to limit the scope of the Clause, by showing significant evidence that contradicts those limitations. The Article uses the historical record to identify questions regarding the Clause’s meaning, to assess the quality of the historical evidence suggesting an answer to such questions, and then to consider that evidence — according to its value — within a debate that incorporates contemporary understandings of just punishment. Under the resulting interpretation, the historical evidence articulated in this Article would support an understanding of a “fine” as a deprivation of anything of economic value in response to a public offense. “Excessive,” in turn, would be assessed through a broad understanding of proportionality that takes account of both offense and offender characteristics, as well as the effect of the fine on the individual. The proposed interpretation more faithfully reflects the history and its limitations, and broadens the Clause’s scope to provide greater individual protections.

Living Apart: How the Government Betrayed a Landmark Civil Rights Law – ProPublica

Living Apart: How the Government Betrayed a Landmark Civil Rights Law – ProPublica. [Includes a good graphic.]

News Article: The 1% wants to ban sleeping in cars – because it hurts their ‘quality of life’ | Gary Blasi | Comment is free | theguardian.com

The 1% wants to ban sleeping in cars – because it hurts their ‘quality of life’ | Gary Blasi | Comment is free | theguardian.com.  [Though it is published by the Guardian, the examples are from the U.S.]

Statement by Robert Greenstein, President, on Chairman Ryan’s Budget Plan — Center on Budget and Policy Priorities

Statement by Robert Greenstein, President, on Chairman Ryan’s Budget Plan — Center on Budget and Policy Priorities.

-A good student of mine sent this to me and it seems worth sharing.

Paul Ryan, Culture and Poverty – NYTimes.com

Paul Ryan, Culture and Poverty – NYTimes.com.  -This is a bit dated now, but I didn’t see it when it came out so I decided to post it.

New Article: “The Blacks Who “Got Their Forty Acres”: A Theory of Black West Indian Migrant Asset Acquisition”

New Article: Eleanor Marie Lawrence Brown, The Blacks Who “Got Their Forty Acres”: A Theory of Black West Indian Migrant Asset Acquisition, 89 NYU L. Rev. 27 (2014).  Abstract below:

The impediments to property acquisition and market success among African Americans are a significant area of inquiry in legal scholarship. The prevailing narrative on the historical relationship between Blacks and property is overwhelmingly focused on loss. However, in the political science, economics, and sociology literatures there is a countervailing narrative of successful property acquisition and retention among what might be termed a “market dominant” subset of migrant Blacks. The most successful subset of Black property owners in the United States today are descendants of Black migrants who were enslaved outside the United States. These free Black migrants, overwhelmingly British subjects originating from the West Indies, are largely invisible in the legal scholarship. Questions have arisen in other disciplines about what differentiated this subset of Black people. Why was their experience of property ownership so different?

Debates in the sociology, political economy, and political science literature have often focused on what Francis Fukuyama has controversially termed “cultural questions,” namely, the view that early West Indian migrants—like Korean or Japanese migrants—possessed a particular set of cultural traits that were distinctly well suited to asset acquisition. This Article focuses on a far more prosaic rationale, contending that the success of West Indian migrants may be rooted in the early grant of what I term “de facto property and contract rights” to West Indian slaves, which allowed their freedmen descendants to become the largest independent Black peasantry in the Americas. Between 1880 and 1924, U.S. immigration officials may have inadvertently selected for propertied migrant “types” when admitting immigrants. Through their own historical exposure to property and contract rights frameworks in the West Indies, as well as internal communal networks which supported informal banking schemes, these Blacks were particularly well placed to take advantage of opportunities for home and business ownership upon arrival in the United States.

The broader point is that there is a glaring omission amidst the “cultural” controversy: What about law? I use the term “law” in this context as it is used by many proponents of new institutional economics, as a proxy for an institutional frame- work that supports property acquisition, regardless of whether this framework is formal (state-supported) or customary. Moreover, the law and economics scholar- ship has focused extensively on institutional frameworks that allow certain religious and ethnic groups to dominate particular sectors, such as Orthodox Jews in the diamond industry or Koreans in the grocery sector. The insights of this literature allow us to interrogate whether Black West Indians had early access to institutions that facilitated contracting and property ownership and if so, whether this institutional history might contribute to their long-term asset acquisition patterns. The question necessarily arises: Why would we think of Black migrants any differently from the way we think of other ethnic and religious minorities who have been successful asset acquirers?

New Article: “Transcending Equality Versus Adequacy”

New Article: Joshua E. Weishart, Transcending Equality Versus Adequacy, 66 Stan. L. Rev. 477 (2014).  Abstract below:

A debate about whether all children are entitled to an “equal” or an “adequate” education has been waged at the forefront of school finance policy for decades. In an era of budget deficits and harsh cuts in public education, I submit that it is time to move on.

Equality of educational opportunity has been thought to require equal spending per pupil or spending adjusted to the needs of differently situated children. Adequacy has been understood to require a level of spending sufficient to satisfy some absolute, rather than relative, educational threshold. In practice, however, many courts interpreting their states’ constitutional obligations have fused the equality and adequacy theories. Certain federal laws express principles of both doctrines. And gradually, more advocates and scholars have come to endorse hybrid equality-adequacy approaches. Still, the debate persists over seemingly intractable conceptual precepts and their political and legal ramifications.

Tracking the philosophical origins and evolution of equality and adequacy as legal doctrines, I explain the significance of their points of convergence and argue that the few points of divergence are untenable in practice. Equality of educational opportunity should not be interpreted as pursuing equal chances for educational achievement for all children, because that ideal is infeasible. Nor should educational adequacy be interpreted as completely indifferent to objectionable inequalities that can be feasibly curtailed. Properly conceived, equality and adequacy are not merely congruent but reciprocal. That is, children are owed an education that is adequately equal and equally adequate.

The Pros and Cons of Gentrification – Room for Debate – NYTimes.com

The Pros and Cons of Gentrification – Room for Debate – NYTimes.com.