Blog Post: How Nonprofit Hospitals Deny Financial Assistance to Patients

Blog Post: Luke Messac, How Nonprofit Hospitals Deny Financial Assistance to Patients, LPE Blog, 4/2/2024.

New Book: Escaping the Housing Trap: The Strong Towns Response to the Housing Crisis

New Book: Charles Marohn & Daniel Herriges, Escaping the Housing Trap: The Strong Towns Response to the Housing Crisis (2024). Overview below:

Housing is an investment. Investment prices must go up. Housing is shelter. When the price of shelter goes up, people experience distress.

This is the housing trap. It’s time to escape. In Escaping the Housing Trap: The Strong Towns Solution to the Housing Crisis, renowned urbanists Charles (Chuck) Marohn and Daniel Herriges introduce a first-of-its-kind discussion of the tension between housing as a financial product and housing as shelter. This is the key insight that’s been missing from the Housing Crisis Conversation; and the insight that can help cities fight back against the crisis from the bottom-up.

This book offers a serious, yet accessible, history of housing policy in the United States and explains how it led us to this point in time: where we face a market that is rigged against people who, only a few decades ago, could have been homeowners or stable, long-term rentals.

Only local change, on a neighborhood or city-wide scale, can begin to restore balance to the housing market.

New Article: “Let Us All Agree to Die a Little”: TWAIL’s Unfulfilled Promise

New Article: Naz Khatoon Modirzadeh, “Let Us All Agree to Die a Little”: TWAIL’s Unfulfilled Promise, 65 Harv. Int’l L.J. 79 (2023). Abstract below:

Third World Approaches to International Law (“TWAIL”) has aspirations to transform the tools and institutions of international law—which have served for centuries to construct, enact, and extend Western exploitation and domination—into tools and institutions for Global South empowerment, agency, and freedom. Characterizing itself as an intellectual and political movement, TWAIL promises to pave a path forward through a combination of scholarship and politics to achieve radical change. In this Article, I argue that TWAIL’s promise is unfulfilled—and that, if TWAIL’s current trajectory continues, its promise is likely to be unfulfillable. I first sketch TWAIL’s origin and key successes, including bringing awareness to the colonial roots and neo-imperial present of international law. Yet I contend that TWAIL’s diverse critical insights have not led to cohesive conceptual, doctrinal, or political positions, which would serve as tools to empower Global South-based actors. I propose that this is, at least partly, due to TWAIL’s ambivalence toward the Third World state, its absence of a theory of legitimate political violence in international law, its failure to identify a methodology of representing the ‘voices’ of the Global South, and the growing influence of an academic ethos I call ‘critique-as-wellness.’ For those motivated by TWAIL’s ambitions, I suggest three possible directions to take: the construction of a grassroots-centered campaign in the service of Global South peoples; the formation of a movement focused on empowering Global South states; or a coalition originating from the Global North aimed at reshaping Western attitudes and actions toward the Global South.

New Book: Demand the Impossible: One Lawyer’s Pursuit of Equal Justice for All

New Book: Robert Tsai, Demand the Impossible: One Lawyer’s Pursuit of Equal Justice for All (2024). Overview below:

How four Supreme Court cases in recent years—all argued and won by one indomitable lawyer—are central to the pursuit of equal justice in America.

Stephen Bright emerged on the scene as a cause lawyer in the early decades of mass incarceration, when inflammatory politics and harsh changes to criminal justice policy were crashing down on the most vulnerable members of society. He dedicated his career to unleashing social change by representing clients that society had long ago discarded, and advocated for all to receive a fair trial.

In Demand the Impossible, Robert L. Tsai traces Bright’s remarkable career to explore the legal ideas that were central to his relentless pursuit of equal justice. For nearly forty years, Bright led the Southern Center for Human Rights, a nonprofit that provided legal aid to incarcerated people and worked to improve conditions within the justice system. He argued four capital cases before the US Supreme Court—and won each one, despite facing an increasingly hostile bench. With each victory, he brought to light how the law itself had become corrupted by the country’s thirst for severe punishment, exposing prosecutorial misconduct, continuing racial inequality, inadequate safeguards for people with intellectual disabilities, and the shameful quality of legal representation for the poor.

Organized around these four major Supreme Court cases, each narrated in vivid and dramatic detail, Tsai’s essential account explores the racism built into the criminal justice system and the incredible advancements one lawyer and his committed allies made for equal rights. An electrifying work of legal history, Demand the Impossible reveals how change can be won in even the most challenging times and how seemingly small victories can go on to have outsized effects.

New Article: Fostering First-Generation Student Success in Law School

New Article: Lisa R. Pruitt & Nirav Bhardwaj, Fostering First-Generation Student Success in Law School, 75 Alabama Law Review 741 (2024). Abstract below:

This Article was written for the Alabama Law Review’s 2022-2023 symposium, “Our History, Our Future,” which marked the 150th anniversary of the University of Alabama Law School and the 50th anniversary of the institution’s first Black graduates. Authors for this symposium issue were invited to explore who is being excluded from legal education. We use this opportunity to address how law schools can better support first-generation (“first-gen”) students, typically defined as those for whom neither parent has a bachelor’s degree.

What we call the first-gen project is especially salient given the Supreme Court’s 2023 ruling in Students for Fair Admissions vs. Harvard, which held unconstitutional the use of race as a basis for affirmative action in higher education admissions. The first-gen category provides an alternative basis for assisting many students of color, as well as socioeconomically disadvantaged white students. Indeed, we see first-gen programs as opportunities to foster viewpoint diversity, while also bridging the growing cultural and ideological divides polarizing our nation. The opportunities stem from the fact that first-gen programs bring together ethnically and racially diverse students on the basis of their shared class status. The programs may thus foster cross racial coalition building as first-gen students see what they have in common.

This Article surveys first-gen programming in U.S. law schools, the broad goal of which is to retain students and help them to thrive, thereby increasing their educational and career achievement. We link this goal to extensive research on the growing challenge of upward mobility. In addition, we synthesize research by dozens of scholars from a range of disciplines who have studied first-gen students, and we do so with a view to identifying interventions that help students succeed. We also summarize what quantitative data collected by the Law School Survey of Student Engagement (LSSSE) and the National Association of Law Placement (NALP) reveal about the first-gen student population in U.S. law schools.

Lastly, we offer insights from a seminar Pruitt teaches at UC Davis. The course, created for first-gen students, draws on both scholarly literature and memoir to explore the first-gen experience. The seminar provides a space for students to surface and tell their own first-gen stories, drawing on those narratives as sources of empowerment. We reveal some of the challenges, pitfalls, and successes of this curricular offering in the context of an institution highly focused on race and racial disadvantage. We also discuss other curricular offerings that could foster a sense of belonging—and success—for first-gen law students.

Blog Post: What is the Relationship Between Homelessness and the Law?

Blog Post: Christopher Essert, What is the Relationship Between Homelessness and the Law?, LPE Blog, 3/25/2024.

News Coverage: The Perilous Existence of a Hamptons Day Laborer

News Coverage: Ginia Bellafante, The Perilous Existence of a Hamptons Day Laborer, N.Y. Times, Apr. 7, 2024.

New Article: Constitutional Clash: Labor, Capital, and Democracy

New Article: Kate Andrias, Constitutional Clash: Labor, Capital, and Democracy, Northwestern University Law Review, Vol. 118, No. 4, 2024. Abstract below:

In the last few years, workers have engaged in organizing and strike activity at levels not seen in decades; state and local legislators have enacted innovative workplace and social welfare legislation; and the National Labor Relations Board has advanced ambitious new interpretations of its governing statute. Viewed collectively, these efforts—“labor’s” efforts for short—seek not only to redefine the contours of labor law. They also present an incipient challenge to our constitutional order. If realized, labor’s vision would extend democratic values, including freedom of speech and association, into the putatively private domain of the workplace. It would also support the Constitution’s promise of free labor; guarantee social and economic rights to workers; expand who qualifies as an equal member of the demos; and forge a more democratic governance structure, with less power for the judiciary and more democratic control over the political economy. The potential threat has not escaped the notice of capital. Business is responding with reinvigorated arguments about the First Amendment, the Takings Clause, due process, equal protection, nondelegation, and the Dormant Commerce Clause, as well as appeals to common law concepts of managerial control and property rights.

By examining labor’s efforts and business’s response, this Article shows that contemporary fights about labor are also inherently fights about constitutional law—about the rights to which citizens and residents are entitled, about governmental powers and structure, and ultimately about how we constitute ourselves as a nation. The Article also offers lessons for how to engage in nonjuriscentric constitutionalism; highlights the importance of advancing an affirmative constitutional agenda; and, from the range of labor’s efforts, outlines a coherent substantive alternative to both business’s constitution and the post-New Deal constitutional compromise that has, in many ways, failed to guarantee a democratic and egalitarian political economy.

New Article: Law for the Rich

New Article: Alex Raskolnikov, Law for the Rich, Minnesota Law Review, Vol. 109, 2024. Abstract below:

With top incomes and wealth reaching historic highs, scholars and politicians have proposed new taxes and novel legal rules aimed at reversing the emergence of the new Gilded Age. Yet while new taxes target the rich directly by imposing greater burdens only on those with incomes or wealth above multi-million-dollar thresholds, none of the proposed legal reforms do anything of the sort. There appears to be no interest in changing property law, corporate law, antitrust law, or labor law, among others, to have special, more burdensome rules applicable only to the rich. This Essay asks: Why not? Why shy away from a separate law for the rich if one supports both progressive taxation and distributionally-informed legal rules in general?

This puzzle, it turns out, is surprisingly difficult to solve. Neither political philosophy nor economic analysis nor practical design considerations offer a plausible answer. Looking for clues outside of legal theory suggests that a separate law for the rich would be widely viewed as unfair because it imposes burdens that are obvious, highly concentrated, and possibly contrary to one of the fundamental elements of law itself. Redistribution through legal rules, it turns out, is limited in a way that redistribution through the tax law is not. So the answer to the emergence of the new Gilded Age is the same today as it was when the original Gilded Age arrived over a century ago—higher taxes.

New Article: Redefining Public Benefits

New Article: Naomi Cahn & June Carbone, Redefining Public Benefits, Rutgers University Law Review, Forthcoming. Abstract below:

This Article considers the interaction between marriage, households, and public welfare-type benefits. In light of constant cultural and media attention to “the two-parent privilege,” the article argues that the very purpose of public benefits in the modern era is up for redefinition.

The information age, much like the industrial revolution before it, has remade the preconditions for entry into the middle class and contributed to new middle-class family strategies geared to the changing labor market realities. This new era, which has increased income instability and employment insecurity, has increased economic inequality and eroded what were once secure pathways into middle-class status. This changing economy requires rethinking the purpose of public benefits and. a reexamination of the fairness and utility of tying benefits to employment or marriage. This requires reconceiving the State role from one that fills in the gaps left by private jobs’ creation and relationships to one that extends access to the preconditions for middle-class status.

This Article makes three contributions. First, it shows that marriage takes on a very different meaning in the new economy. Second, the article challenges recent exhortations to marry as a way to improve children’s futures, ensure economic stability, and increase overall happiness. Finally, the Article asks how, in the context of a post-industrial economy with constantly shifting employment needs, to assist in making the preconditions universal instead of asking how to fill in the gaps of, or supplement, a private system that no longer reliably provides lifelong employment for a large part of the population. In this venture, marriage becomes largely irrelevant to benefit design.
Part I surveys the design of the public benefits associated with relationship status as a precondition for middle-class status. Part II analyzes who actually receives the different types of marriage-based benefits. While, as Windsor pointed out, a number of federal statutes use marital status as a category, that status is not always a benefit, particularly for people who do not have a job. Part III explores why marriage remains resonant—and for whom. Finally, Part IV sketches out what a redesign of the public system might look like, analyzing how relationship status might be irrelevant to the availability of benefits.