Category Archives: Articles

New Article: “Tracing the School-to-Prison Pipeline from Zero-Tolerance Policies to Juvenile Justice Dispositions”

New Article: Aaron J. Curtis, Tracing the School-to-Prison Pipeline from Zero-Tolerance Policies to Juvenile Justice Dispositions, 102 Geo. L.J. 1251 (2014).  Abstract below:

In recent years, schools have attempted to combat school violence and other behavioral problems by instituting harsh disciplinary policies and referring students to law enforcement. Civil rights advocates argue that these practices push students, especially students of color, “out of school and into the juvenile and criminal justice systems.” The process has come to be known as the school-to-prison pipeline.

Throughout the literature discussing this phenomenon, authors often reference juvenile justice systems in passing, but few studies have given in-depth attention to the specific practices within juvenile courts that perpetuate the school-to-prison pipeline. Accordingly, this Note takes a closer look at the connection between harsh disciplinary practices in schools and the dispositional processes that occur in juvenile justice systems. Part I examines zero-tolerance policies that push students out of schools in the first place. Part II explores the ways that students then enter juvenile courts. Part III discusses the guidelines and other factors that shape judges’ dispositional decisions, particularly when they handle minor crimes and violations of zero-tolerance policies. Finally, Part IV describes alternatives to punitive sanctions for juvenile offenders. Overall, this Note concludes that zero-tolerance policies and punitive juvenile justice dispositions fail to remedy the problems that they are meant to resolve.

New Article: “Titles of Nobility: Poverty, Immigration, and Property in a Free and Democratic Society”

New Article: Joseph W. Singer, Titles of Nobility:  Poverty, Immigration, and Property in a Free  and Democratic Society, 1 J. L. Property & Soc’y 1 (2014).  This article is based on a keynote Singer gave at the 2013 AALS Conference on Poverty, Immigration, and Property.  It was a very good speech.  =)

New Article: “Developing Capabilities, Not Entrepreneurs: A New Theory for Community Economic Development”

New Article: Rashmi Dyal-Chand & James V. Rowan, Developing Capabilities, Not Entrepreneurs: A New Theory for Community Economic Development, 42 Hofstra L. Rev. 839 (2014).  Abstract below:

This Article presents a contemporary and compelling American context in which entrepreneurship is not a good solution. Despite the enormous potential that entrepreneurship seems to hold for community economic development, it has thus far failed as a framework for widespread and reliable local economic development and poverty alleviation. The reasons for this failure are grounded both in theory and empirical data. This Article takes up the theoretical question. It examines why entrepreneurship theory is a weak foundation for the work of community economic development practitioners. Arguing that the important work of these practitioners is best understood and measured using a theory grounded in poverty alleviation, this Article offers a modified version of the capabilities approach first developed by Nobel Prize-winning economist Amartya Sen. By relying on a theory that broadly conceptualizes poverty and social exclusion, community economic development practitioners can better evaluate the work that they are already doing. More importantly, the theory proposed here can and should guide practitioners to make straightforward changes with the potential for quite positive gains.

New Article: “Federalism and Municipal Innovation: Lessons from the Fight Against Vacant Properties”

New Article: Benton C. Martin, Federalism and Municipal Innovation: Lessons from the Fight Against Vacant Properties, 46 The Urban Lawyer 361 (2014).  Abstract below:

Cities possess a far greater ability to be trailblazers on a national scale than local officials may imagine. Realizing this, city advocates continue to call for renewed recognition by state and federal officials of the benefits of creative local problem-solving. The goal is admirable but warrants caution. The key to successful local initiatives lies not in woolgathering about cooperation with other levels of government but in identifying potential conflicts and using hard work and political savvy to build constituencies and head off objections. To demonstrate that point, this Article examines the legal status of local governments and recent efforts to regulate vacant property through land banking and registration ordinances.

New Article: “Reducing Inequality on the Cheap: When Legal Rule Design Should Incorporate Equity as Well as Efficiency”

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: “The Tension between Property Rights and Social and Economic Rights: A Case Study of India”

New Article: Namita Wahi, The Tension between Property Rights and Social and Economic Rights: A Case Study of IndiaSocial 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: “‘Pennies on the Dollar': Reallocating Risk and Deficiency Judgment Liability”

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.


New Article: “Progressive Property Moving Forward”

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: “Seeing Work, Envisioning Citizenship”

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: “Hours Equity is the New Pay Equity”

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.