New Article: Zachary Liscow, Reducing Inequality on the Cheap: When Legal Rule Design Should Incorporate Equity as Well as Efficiency, 123 Yale L.J. 2478 (2014). Abstract below:
This Note develops a framework for understanding when policymakers should use equity-informed legal rules—rather than taxes—to redistribute. First, policymakers should choose the most efficient way to reduce income inequality, which may involve allocating legal entitlements to the poor, depending upon several factors described in the Note. Second, sometimes legal rules ought to account for non-income characteristics based upon which the tax system would be poorly equipped to redistribute.
New Article: Namita Wahi, The Tension between Property Rights and Social and Economic Rights: A Case Study of India, Social and Economic Rights in Theory and Practice (Helena Alviar et al. eds., Routledge, 2014 Forthcoming). Abstract below:
In this paper, I explore the perceived tension in constitutional and human rights discourse between the right to property, regarded as a classic civil and political right, and socioeconomic rights such as the rights to food, housing, and health, through a review of Indian constitutional law. This tension arises because the enforcement of property rights, through judicial review, imposes severe restrictions on the fulfilment of socioeconomic needs of the poor. Moreover, social redistribution programmes, including land reform, that seek to improve access to resources amongst the beneficiaries necessarily involve alteration of existing property arrangements, which might be seen as violating justiciable constitutional property rights.
India is a unique case study for evaluating this tension because at the time of its adoption in 1950, the Indian Constitution constitutionalised both civil and political rights like the right to property and social and economic rights, but only made the former justiciable. However, according to the conventional political and scholarly narrative, judicial enforcement of the right to property during the period 1950-1978 resulted in the invalidation of many socioeconomic reforms. This led Parliament to amend the Constitution several times in order to nullify the effect of the judicial decisions and culminated in the Forty Fourth constitutional amendment in 1978, which changed the character of the property right from a justiciable to a non-justiciable right. In contrast, post 1978; the Court through its pronouncements on the “right to life” made non-justiciable socioeconomic rights, like the rights to food, livelihood, health and housing, justiciable.
Based on my review of the Indian experience, I conclude that broad generalizations about the differences and conflicts between property rights and socioeconomic rights are overstated and tend to come apart in the light of historical experience. Ultimately, it is the practices of individual judiciaries in particular periods of time and in particular social, political and economic contexts, both nationally and internationally, that influence the grant of concrete relief and enforcement of such relief in particular cases.
New Article: Kristen Barnes, ‘Pennies on the Dollar': Reallocating Risk and Deficiency Judgment Liability, forthcoming S.C. L. Rev. 2014. Abstract below:
Many homeowners are unaware that they face the prospect of crushing personal financial liability if they default on their mortgage loans. While owners may appreciate that they can lose their homes to the lender if they fail to make payments in accordance with their loan terms, many do not fully comprehend that the exposure they have under such circumstances does not end with relinquishing the financed property. In what are known as recourse states, if the lender forecloses and the foreclosure sale does not yield an amount sufficient to cover the borrower’s outstanding debt balance, the lender may file for a deficiency judgment against the borrower to make-up the difference. Whereas in the past, in many jurisdictions, lenders have resorted to this remedy, sparingly, there are signs that this lax approach is being abandoned. First and second mortgagees and private insurance companies are increasingly opting to aggressively pursue foreclosed homeowners for fear of leaving money on the table. To make matters worse, even in those situations where lenders determine that it is not economical for them to follow-up on collecting the debt from mortgagors where a deficiency exists, they are selling the deficiency judgment or the claim to debt collectors for pennies on the dollar. Looking at a representative sample of mortgage laws and practices in California, Illinois, and Florida, this paper argues for the prohibition of deficiency judgments in the residential mortgage loan context. The article also offers a proposal for anti-deficiency legislation. Homebuyers and lenders are not equal players in the mortgage loan transaction. The disadvantages of homeowners are particularly apparent in times of severe economic crisis, like the current great recession. Excising the option of deficiency judgments from the loan negotiation will help to address the glaring inequities between parties.
NOTE: this is a bit self-serving because it is a response to my earlier article, but Tim Mulvaney’s article is good and should interest property/poverty folks.
New Article: Timothy M. Mulvaney, Progressive Property Moving Forward, Cal. L. Rev. Cir. (forthcoming 2014). Abstract below:
In his thought-provoking recent article, “The Ambition and Transformative Potential of Progressive Property,” Ezra Rosser contends that, in the course of laying the foundations of a theory grounded in property’s social nature, scholars who participated in the renowned 2009 Cornell symposium on progressive property have “glossed over” property law’s continuing conquest of American Indian lands and the inheritance of privileges that stem from property-based discrimination against African Americans. I fully share Rosser’s concerns regarding past and continuing racialized acquisition and distribution, if not always his characterization of the select progressive works he critiques. Where I focus in this essay, though, is on the fact that, in the course of articulating his claim that these select progressive works have failed to attend sufficiently to matters of acquisition and distribution, Rosser wavers on whether a system of private property has the very capacity to play even a small part in fostering meaningful progressive change.
After setting forth my understanding of Rosser’s contribution in the first part of the essay, I use the remaining pages to express slightly more confidence than does Rosser in property’s potential to serve a role in furthering a progressive society. If property is to serve in this role, however, I suggest that it seems important to redesign and reinterpret it in accord with three themes — transparency about property rules’ value-dependence, humility about the reach of human knowledge and the mutability of our normative positions, and a concern for the socioeconomic identities of those affected by resource disputes — themes that underlie a broader set of writings than Rosser considers within the contours of “progressive property scholarship” and on which I offer some very preliminary impressions.
New Article: Noah Zatz & Eileen Boris, Seeing Work, Envisioning Citizenship, 18 Employee Rights and Employment Policy Journal 95 (2014). Abstract below:
This short symposium essay surveys the relationships between identifying workers and identifying social citizens. We analyze worker status along dimensions of livelihood, production, discipline, and status. Each of these illuminates but also troubles the conventional conflation of work and employment. That trouble arises in part because an activity’s legibility as work often draws on racialized and gendered understandings of that activity and those who perform it, as in the case of domestic work. Understanding the constructed and contested nature of work both explicates and complicates the appeal of more inclusive accounts of work as a strategy of social inclusion.
New Article: Nantiya Ruan & Nancy Reichman, Hours Equity is the New Pay Equity, 59 Villanova L. Rev. 35 (2014). Abstract from SSRN below:
At the dawning of the fifty-year anniversary of the Equal Pay Act of 1963, and as the same anniversary of Title VII of the Civil Rights Act of 1964 draws near, it is time to change the way we think about pay equity. Workplace fairness between women and men should no longer be framed merely by total disparities in pay, but also by disparities in hours given to women seeking as much work as their male counterparts. Doing so recognizes the realities of many female workers in today’s workplace and addresses the shortfalls thus far absent from the civil rights conversation about pay equity.
Today’s workforce is filled with female contingent workers who are at the mercy of their supervisors as to the number of hours they work. The number of part-time workers has steadily increased over the last decade, with involuntary part-time workers (those forced to downgrade from full-time to part-time because of economic conditions or the employer’s needs) numbering 8.2 million and the total number of part-time workers exceeding 27 million. Two-thirds of part-time workers are women, and as the Congressional Joint Economic Committee has recognized, the gender pay gap is partly driven by the earning penalty for part-time work, which pays less per hour than the same or equivalent work done by full-timers.
One under-examined factor in this pay inequity is the power of scheduling that employer supervisors have over their part-time work force. From the outside, supervisors seemingly make capricious decisions on whom to schedule, when, and for how many hours. When individual supervisors make these unilateral decisions without regard to employment standards or criteria, they appear to do so with little oversight and guidance, which can lead to discriminatory bias based on gender. This gender bias can be motivated (consciously or unconsciously) by societal stereotypes casting women as less than “ideal workers” with weak commitment to the workplace because of outside caregiving responsibilities.
From a doctrinal standpoint, however, the current statutory regimes seem ill suited to address these disparities. The Fair Labor Standards Act (FLSA) of 1938 merely mandates minimum and overtime wages, the Equal Pay Act of 1963 does not cover hours equity, and Title VII of the Civil Rights Act of 1964’s anti-discrimination mandate rarely (if ever) reaches the issue of scheduling and is therefore sorely underdeveloped. Moreover, due to recent Supreme Court decisions dramatically restricting employment discrimination class actions, bringing aggregate litigation for low-wage workers will be an uphill battle, one attorneys are likely loathe to take on for relatively low damages.
This Article makes the case for changing the way we think about pay equity. Because our workforce is filled with part-time workers, advocates for low-wage workers should focus not only on pay inequities and living wages, but also on hours equity. Hours equity would provide much-needed stability to scheduling that would allow female part-time workers to have a reliable schedule with guaranteed hours so that they make an expected amount of pay.
Two New Practice Guides prepared as part of a Berkeley law clinic program:
New Article: Anne Fleming, The Rise and Fall of Unconscionability as the ‘Law of the Poor’, 102 Georgetown L.J. 1383 (2014) . Abstract below:
What happened to unconscionability? Here’s one version of the story: The doctrine of unconscionability experienced a brief resurgence in the mid-1960s at the hands of naive, left-liberal, activist judges, who used it to rewrite private consumer contracts according to their own sense of justice. These folks meant well, no doubt, much like present-day consumer protection crusaders who seek to ensure the “fairness” of financial products and services. But courts’ refusal to enforce terms they deemed “unconscionable” served only to increase the cost of doing business with low-income households. Judges ended up hurting the very people they were trying to help. In the face of incisive criticism, judicial enthusiasm for the doctrine of unconscionability quickly faded. A new consensus emerged in favor of legislation requiring better disclosure of consumer contract terms ex ante, rather than ex post judicial review.
This Article presents a different narrative, one that is informed by extensive research in previously untapped archival sources. In this story, the wise legislature does not overrule the misguided courts. On the contrary, it reveals that lawmakers laid the groundwork for the judicial revival of unconscionability, and then rewrote statutory rules to codify the ensuing court decisions. In the District of Columbia, home to the famous Williams v. Walker-Thomas Furniture Co. litigation, the legislature revived unconscionability through the enactment of the Uniform Commercial Code (U.C.C.), which reintroduced the once-archaic doctrine into the legal vernacular. Just as the U.C.C. drafters intended, unconscionability review allowed courts to do openly what they had been doing covertly for years — refuse to enforce harsh, one-sided bargains as written. In 1965, the D.C. Circuit seized the opportunity unconscionability offered to prevent the loss of a poor woman’s furniture. But the Williams litigation also did something more. It drew public attention to the controversy before the court and alerted D.C. lawmakers to a recurring problem in need of a legislative fix. In response, local leaders set to work drafting consumer credit reform legislation. Lawmakers eventually adopted a firm set of rules to govern “installment” sales contracts in the District of Columbia, including a ban on the objectionable contract term at issue in Williams.
In this narrative, judges and legislators did not advance competing regulatory visions. They agreed on the need for substantive limits on installment sales to poor borrowers. Moreover, contrary to what some scholars might predict, litigation did not divert scarce resources down a dead-end path. Rather, it catalyzed the process of legislative change, raising public consciousness of problems in the low-income marketplace and fueling the drive for substantive reforms on the local level.
New Article: Kerry A. Ryan, EITC as Income (In)Stability?, 15 Fla. Tax Rev. 583 (2014). Abstract below:
Congress enacted the Earned Income Tax Credit (EITC), inter alia, to entice poor single mothers to work (or work more) as a means of lifting themselves out of poverty. Its design as a wage subsidy that phases out at higher earnings levels is intended to accomplish this goal. A strong labor market is crucial to the success of work-based benefit programs, such as the EITC. The EITC can motivate female household heads to work (or work more), but they cannot act on that motivation if no jobs or additional working hours exist. This Article demonstrates that during economic downturns, the EITC wage subsidy contributes to, rather than prevents, poverty in single-mother families. Lost EITC benefits exacerbate recession-induced earnings losses, a phenomenon this Article refers to as income destabilization. In contrast, the EITC stabilizes the incomes of its wealthier beneficiaries as increased credit amounts offset underlying salary declines. While this pattern of income (de)stabilization is an unintended byproduct of the design of the EITC as a targeted wage subsidy, its negative impact on the economic welfare of female-headed households is problematic, given that these same families are the historically targeted program beneficiaries. This Article offers a narrowly tailored proposal that alters the structure of the EITC during recessionary periods in order to prevent EITC-induced income destabilization.
New Article: Lisa R. Pruitt & Marta R. Vanegas, Urbanormativity, Judicial Blind Spots and Abortion Law, Berkeley J. Gender L. & J., forthcoming 2015. Abstract below:
State laws regulating abortion have proliferated dramatically in recent years. Twenty-two states adopted 70 different restrictions in 2013 alone. Between 2011 and 2013, state legislatures passed 205 abortion restrictions, exceeding the 189 enacted during the entire prior decade. The U.S. Court of Appeals for the Fifth Circuit recently upheld as constitutional several such restrictions, parts of Texas H.B. 2 (2013), in Planned Parenthood of Texas v. Abbott. That court is currently considering the constitutionality of a similar Mississippi law. These and other recent cases raise issues likely to be heard soon by the U.S. Supreme Court. Among the regulations at stake in Texas H.B. 2 was a requirement that doctors performing abortions have admitting privileges at a hospital within 30 miles of the abortion clinic. The Texas law also limits the use of medication-induced abortions.
Rarely acknowledged in academic literature or media coverage of these laws and constitutional litigation arising from them is the fact that the greatest impact of these regulations — like that of many other state abortion laws enacted since the U.S. Supreme Court’s 1992 decision in Planned Parenthood v. Casey — is on those who live farthest from major metropolitan areas, where abortion providers tend to be located. Indeed, these laws exact the greatest toll on women who are both rural and poor. We argue that, contrary to the Fifth Circuit’s decision in Abbott, these laws place undue burdens on the abortion rights of a significant number of women and that they should be declared unconstitutional.
In addition to these doctrinal arguments, we draw on three complementary critical frames — legal geography, the concept of privilege, and rural studies concept of urbanormativity — to articulate new ways of thinking about the recent spate of so-called incremental abortion regulations and federal courts’ adjudication of the constitutionality of these laws. First, legal geography provides a frame for theorizing the relationship between the abortion regulations and rurality, revealing how law’s impact is variegated and variable, dictating different outcomes from place to place because of spatial differences. Second, we deploy the concept of privilege in arguing that many federal judges are spatially privileged but blind to that privilege. In our increasingly metro-centric nation, where rural populations are dwindling and marginalized literally and symbolically, most federal appellate judges appear to have little experience with or understanding of typical socio-spatial features of rurality: transport challenges, a dearth of services, lack of anonymity, and frequently extreme socioeconomic disadvantage. Yet those same spatially privileged judges are applying the undue burden standard to laws that require women to travel hundreds of miles, sometimes on multiple occasions, to access abortion services. Those judges are also typically upholding laws that burden women’s access to medication-induced abortions, which have the potential to ameliorate rural women’s spatial burdens. This spatial privilege and judges’ obliviousness to it are most evident among U.S. Courts of Appeal judges and Supreme Court justices construing the “undue burden” standard, as evinced most recently in Abbott but also on display in Casey v. Planned Parenthood and in many U.S. Courts of Appeals decisions in Casey’s wake. The spatial privilege phenomenon is closely linked to the third frame: critical rural studies’ concept of urbanormativity. By treating urban life as a benchmark for what is normal and, in Abbott, dismissing as constitutionally insignificant some ten percent of Texas women who live more than 100 miles from an abortion provider, federal appellate judges are increasingly articulating an urbanormative jurisprudence.