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.
New Article: Rashmi Dyal-Chand, Pragmatism and Postcolonialism: Protecting Non-Owners in Property Law, 63 Am. Univ. L. Rev. __ (forthcoming 2014). Abstract below:
Property law has a particular problem with non-owners. Although property law has a very clear understanding of the rights of “owners,” it has only a vague understanding of the rights of “non-owners.” The problem is significant, because modern property law is so often called upon to balance the rights and needs of owners and non-owners. With so vague an understanding of one set of rights, property law cannot adequately perform this function. The New Jersey case of State v. Shack exemplifies this problem, because it purports to be a case about protecting non-owners. By examining both the case and the texts upon which the Court relied in deciding the case, this Article argues that the New Jersey Supreme Court could not understand, and therefore could not adequately protect, the non-owners in the case. Instead, in its effort to evince a set of rights powerful enough to overcome the property owner’s rights, the Court eliminated the voices of the migrant workers it claimed to protect.
This Article draws upon postcolonialist theory both in examining the problem and in prescribing a solution. In its prescription, the Article proposes a pragmatic form of postcolonialist inquiry as a theoretical foundation for protecting non-owners in property law. Relying on the less iconic case of Hilder v. St. Peter, the Article proposes three devices within the common law tradition that are well suited to the task of representing and protecting non-owners. As Hilder demonstrates, by the pragmatic use of storytelling, the personalization of claims, and the precise matching of remedies to harm and need, legal decision-makers can more fully consider and protect the rights and needs of non-owners.
New Article: Catherine R. Albiston & Laura Beth Nielsen, Funding the Cause: How Public Interest Law Organizations Fund Their Activities and Why It Matters for Social Change, 39 L. & Soc. Inquiry 62 (2014). Abstract below:
Most of the work of public interest law organizations does not make money. How do these organizations survive, given the economic realities of law practice? Drawing on survey data from a national random sample of public interest law firms, we investigate how funding models vary across public interest organizations and how funding sources affect these organizations’ activities. We find funding structures have, over time, shifted away from foundation support toward government grants. Compared to other organizations, however, conservative organizations draw significantly less of their budget from federal and state grants, and significantly more of their budget from private contributions. Conservative organizations are significantly less likely than other organizations to rely on funding that prohibits engaging in class actions, receiving attorney’s fees, or lobbying. Respondents reported that funding restrictions hamper their ability to negotiate favorable settlements, bring about systemic change, and represent vulnerable client communities. We close with a comparative institutional analysis of different funding models.
-Thanks to Parag Rajendra Khandhar for the heads up and for finding the link!
Available here and on the Yale L.J. website. The symposium includes a great number of articles of interest, but to highlight one: David A. Super, Protecting Civil Rights in the Shadows, 123 Yale. L.J. 2806 (2014). Abstract below:
Beyond grand constitutional moments such as the New Deal and the civil rights era, the American people also remove other, less prominent issues from majoritarian politics. This process of petit popular constitutionalism resolves numerous important issues of government structure and is crucial for vulnerable groups seeking to implement and expand gains they made during grand constitutional moments.
In our two-party system, this gives groups three options. They may join one party’s core constituency, attempt to position themselves as a swing constituency, or seek to establish their concerns as moral imperatives outside of partisan debate with the leadership of a few mainstream politicians of each party. Exerting influence as a core constituency or swing group requires coherence, communication, and group identity that many sets of vulnerable people lack. The alternative petit constitutional route typically requires paring back a group’s objectives to essential aims that can win wide acceptance as moral imperatives across the political spectrum.
Since the 1960s, policy for means-tested public benefit programs has been torn between a partisan “welfare rights” track and a petit constitutional “anti-poverty” theme. The 1996 welfare law represented the final defeat of welfare rights in partisan politics. This leaves low-income people dependent on petit constitutionalism, following the same path that death penalty abolitionists and others took after being disowned by one or the other political party.
New Article: Lucy A. Williams, The Right to Housing in South Africa: An Evolving Jurisprudence, 45 Colum. Hum. Rts. L. Rev. 816 (2014). Abstract below:
This Article focuses on recent South African constitutional and statutory jurisprudence regarding the right to housing, and attempts to analyze both its transformative possibilities and its doctrinal limitations. The South African Constitutional Court’s housing rights jurisprudence is more developed than that regarding any other social and economic right contained in the South African Constitution, with eviction cases having been a particular focus of the Constitutional Court. I address three aspects of major recent South African cases relating to the right to housing: the concept of judicially required “meaningful engagement” between government entities and individuals threatened with eviction, the prohibition of unfair practices by landlords and tenants under the Rental Housing Act 50 of 1999, and developments in the concept of just and equitable eviction under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Housing Act 19 of 1998. In each context, I first describe the important ways in which this jurisprudence has benefited the poor and then present a critical perspective identifying both issues of concern and what might be called “unintended consequences.” I conclude by arguing that while the universality and moral force of human rights discourse assists in giving meaning and content to housing rights by exposing the social construction of poverty and by shifting the focus from individual fault and dependency to society’s responsibility, human rights discourse alone provides limited analytical assistance in addressing the difficult economic and institutional questions that must be faced in order to make housing rights a reality.