Category Archives: Articles

New Article: “Undoing Race? Reconciling Multiracial Identity with Equal Protection”

New Article: Lauren Sudeall Lucas, Undoing Race? Reconciling Multiracial Identity with Equal Protection, 102 Calif. L. Rev. 1243 (2014).  Abstract below:

The number of multiracial individuals in America, many of whom define their racial identity in different ways, has grown dramatically in recent years and continues to increase. From this demographic shift a movement seeking unique racial status for multiracial individuals has emerged. The multiracial movement is distinguishable from other race-based movements in that it is primarily driven by identity rather than the quest for political, social, or economic equality. It is not clear how equal protection doctrine, which is concerned primarily with state-created racial classifications, will or should accommodate multiracialism. Nor is it clear how to best reconcile the recognition of individual identity with the continuing need to address group-based racial discrimination and subordination. In this Essay, I explore the potential impact of multiracialism — and multiracial identity in particular — on the future of racial classifications under equal protection doctrine.

As a framework for its analysis, the Essay invokes two theories used to interpret the meaning of equal protection: antisubordination and anticlassification. Viewed solely through the lens of multiracial identity, the common normative understanding of these two approaches contorts. While antisubordination is often perceived as more beneficial for groups battling entrenched racial hierarchy, it may facilitate unique harms for multiracial individuals seeking to carve out a racial identity distinct from traditionally defined racial categories. And although anticlassification is often viewed by progressives as detrimental to the pursuit of true racial equality, it may lend more support to policies of racial self-identification and the recognition of a unique multiracial identity. A looming danger, therefore, is that anticlassification advocates wishing to dismantle frameworks rooted in traditional notions of race may exploit multiracialism to “undo” race and to undermine the use of racial classifications altogether.

In response to that possibility, this Essay argues that although law and identity inevitably inform and impact one another, they also serve distinct purposes that should not be improperly conflated in the context of multiracialism. The construction of identity is ultimately a very personal endeavor, and although legal recognition may be one aspect of identity, in the area of race, the law has a more powerful function to play in preventing racial subordination. Where possible, the law should accommodate multiracial individuals who wish to define their own racial identity, but as long as it remains more aspirational than realistic, the individual’s perception of race should not be used or manipulated to undermine the use of racial classifications to counter societal race discrimination.

New Article: “Health Law as Social Justice”

New Article: Lindsay F. Wiley, Health Law as Social Justice, 24 Cornell J.L. & Pub. Pol’y 47 (2014).  Abstract below:

Health law is in the midst of a dramatic transformation. From a relatively narrow discipline focused on regulating relationships among individual patients, health care providers, and third-party payers, it is expanding into a far broader field with a burgeoning commitment to access to health care and assurance of healthy living conditions as matters of social justice. Through a series of incremental reform efforts stretching back decades before the Affordable Care Act and encompassing public health law as well as the law of health care financing and delivery, reducing health disparities has become a central focus of American health law and policy. This Article labels, describes, and furthers a nascent “health justice” movement by examining what it means to view health law as an instrument of social justice. Drawing on the experiences of the reproductive justice, environmental justice, and food justice movements, and on the writings of political philosophers and ethicists on health justice, I propose that health justice offers an alternative to the market competition and patient rights paradigms that currently dominate health law scholarship, advocacy, and reform. I then examine the role of law in reducing health disparities through the health justice lens. I argue that the nascent health justice framework suggests three commitments for the use of law to reduce health disparities. First, to a broader inquiry that views access to health care as one among many social determinants of health deserving of public attention and resources. Second, to probing inquiry into the effects of class, racial, and other forms of social and cultural bias on the design and implementation of measures to reduce health disparities. And third, to collective action grounded in community engagement and participatory parity. In exploring these commitments, I highlight tensions within the social justice framework and between the social justice framework and the nascent health justice movement. These tensions illustrate, rather than undermine, the power of viewing health law as social justice. They raise important questions that should prompt more fruitful and rigorous thinking within health law activism and scholarship and with regard to the relationships between law and social justice more broadly.

New Article: “Transformations in Health Law Practice: The Intersections of Changes in Healthcare and Legal Workplaces”

New Article: Louise G. Trubek, Barbara J. Zabawa & Paula Galowitz, Transformations in Health Law Practice: The Intersections of Changes in Healthcare and Legal Workplaces, forthcoming Indiana Law Review 2014.  Abstract below:

The passage and implementation of the Affordable Care Act is propelling transformations in health care. The transformations include integration of clinics and hospitals, value based care, patient centeredness, transparency, computerized business models and universal coverage. These shifts are influencing the practice of health law, a vibrant specialty field considered a “hot” area for new lawyers. The paper examines how the transformations in health care are intersecting with ongoing trends in law practice: increase in in-house positions, collaboration between medical and legal professionals, and the continued search for increased access to legal representation for ordinary people. Three health law workplace sites are discussed: in house offices, corporate law firms and medical legal partnerships. The analysis shows that these practices are adapting to the health care context by locating new clients, increased collaboration with clients and medical providers, developing business strategies and linking with other legal service providers. The lawyers are reconstructing professional identities as they create these practices, using their expertise and working as collaborators. Organizations of similar practitioners support the development of these identities. The paper discusses the three arenas where lawyers can learn the necessary competencies for these transformations in health law: law schools, inter-professional education and communities of practice.

New Article: “Embracing Disruption: How Technological Change in the Delivery of Legal Services Can Improve Access to Justice”

New Article: Raymond H. Brescia, Walter Alan McCarthy, Kellan Burton Potts, Cassandra Rivais & Ashley M McDonald, Embracing Disruption: How Technological Change in the  Delivery of Legal Services Can Improve Access to Justice, 78 Albany L. Rev. __ (2014).  Abstract below:

The legal profession is in the midst of a disruption: a monumental, transformative shift in shape and focus that will change the practice of law forever. Some lament this phenomenon. Some worry that it signals the end of Big Law, and that it will have ripple effects throughout the legal industry. Many assess the impact of these disruptions on the delivery of services to wealthier clients and corporations, who, in many instances, are the only ones able to afford lawyers in the U.S. legal market in the first place.

Clayton Christensen has coined the term the “Innovator’s Dilemma” for the phenomenon of business disruption, through which high-end producers of goods and services are “disrupted” by those entering the market on the lower end. Those disruptors are first ignored by incumbents and then those entrants find ways to serve a larger and larger segment of the market, eventually displacing the incumbents. If this theory is to be believed, true change in the market for the provision of legal services will not come from those serving wealthier clients, where many today look for the impacts of disruptive techniques and technologies. Instead, true disruption is likely to come from those serving the “lower end” of the market: the solo practitioners, legal services lawyers, and “low bono” providers of legal services. It is innovation in these corners of the market where pathbreaking disruption will take place, mostly out of necessity. What’s more, it is the low end of the market that is actually quite robust: i.e., there is a desperate need for legal services, just an inability to pay for them.

Disruption of the legal services industry has the potential for bringing real benefits to low- and moderate-income consumers of legal services. What this Article attempts to do is identify ways that disruption can occur in the provision of legal services to improve access to justice, particularly for low- and moderate-income individuals and families. While many recent entrants into the market for legal services risk running afoul of charges of unauthorized practice of law, those who are providing free services through the internet appear to be acting in compliance with lawyer rules of professional responsibility. This Article will review both the for-profit and non-profit models of technology-enabled legal assistance and assess the extent to which each may comply, or not comply, with unauthorized practice of law requirements. It will then review current efforts of non-profits to deliver technology-enabled services, and describe one initiative in detail that involved the creation of a web-based application to assist homeowners facing foreclosure in New York State.

Given the need in low- and moderate-income communities for affordable legal services, perhaps disruption in this market has its benefits: at a minimum, it offers a way to improve access to justice for communities and individuals underserved by the present—and expensive—modes of delivering legal services in the United States. This article explores those benefits, but also highlights some of the concerns that arise when technology is used to improve access to justice.

New Article: “Housing Changing Households: Regulatory Challenges for Micro-Units and Accessory Dwelling Units”

New Article: John Infranca, Housing Changing Households: Regulatory Challenges for Micro-Units and Accessory Dwelling Units, 25 Stan.L.& Pol’y Rev. 53 (2014).  Abstract below:

Available housing units frequently fail to match the needs of a city’s evolving household forms. In response to unmet demand and illegal units, some jurisdictions have altered regulations to permit the development of different types of housing, including both accessory dwelling units (ADUs) and micro-units. Developers in a variety of jurisdictions, however, have shown interest in both unit types. This Article provides the first comprehensive study of regulatory challenges to both ADUs and micro-units in a geographically diverse range of jurisdictions, focusing on micro-unit and ADU development in New York, Washington, D.C., Austin, Denver, and Seattle. The Article discusses how changing household composition is resulting in a mismatch between housing needs and existing housing supply, and it reviews the claimed benefits and potential criticisms of micro-units and ADUs. Finally, the Article evaluates whether demand for these units is a passing fad or signals a more substantial shift in housing and planning patterns.

New Article: “Brackets: A Historical Perspective”

1040New Article: Tracey M. Roberts, Brackets: A Historical Perspective, 108 Nw. L. Rev. 925 (2014).  Abstract below:

This Article surveys the history of the U.S. income tax system from 1913 to the present, examining changes in the structure of the graduated rates system over the past 100 years, using inflation-adjusted dollars. By connecting these changes to key events in the history of the  United States, the Article contextualizes modifications Congress has made to the income tax over time as well as the current debate surrounding several proposals for reform. First, the Article demonstrates that the rate structure has become more flat (with lower rates and fewer brackets than in the past), compressed (with less graduation, steeper jumps between brackets, and less penetration of the rate schedule into the income strata), and complex (with the proliferation of tax expenditures) over time. Second, the Article reveals that the structures that would result from two of the tax reform proposals being discussed in the popular media resemble historical rates and brackets. Because these proposals for tax reform have analogs in earlier versions of the income tax, the Article argues that analysis of economic data from prior periods may help inform tax policy and identifies an agenda for future research.

New Article: “Riding the Wave: Uplifting Labor Organizations Through Immigration Reform”

New Article: Jayesh Rathod, Riding the Wave: Uplifting Labor Organizations Through Immigration Reform, 4 UC Irvine L. Rev. 625 (2014).  Abstract below:

In recent years, labor unions in the United States have embraced the immigrants’ rights movement, cognizant that the very future of organized labor depends on its ability to attract immigrant workers and integrate them into union ranks. At the same time, the immigrants’ rights movement has been lauded for its successful organizing models, often drawing upon the vitality and ingenuity of immigrant-based worker centers, which themselves have emerged as alternatives to traditional labor unions. And while the labor and immigrants’ rights movements have engaged in some fruitful collaborations, their mutual support has failed to radically reshape the trajectory of either cause.

In this Article, I argue that the ongoing legislative debates around immigration reform provide a unique opportunity to reimagine and revitalize traditional organized labor and to strengthen newer, immigrant-centered worker organizations. In my view, this can be accomplished by positioning unions and worker organizations as key actors in immigration processes (for both temporary and permanent immigration) and in any likely legalization initiative. Their specific roles might include sponsoring or indirectly supporting certain visa applications, facilitating the portability of employment-related visas from one employer to another, offering training opportunities to meet immigration requirements, assisting with legalization applications, leading immigrant integration initiatives, and more.

Apart from the instrumental objective of attracting immigrants to the ranks of unions and worker organizations, this set of proposals will position these institutions as sites where the virtues of leadership, democratic participation, and civic engagement can be forged in new Americans. Indeed, these virtues coincide with the founding values of most U.S. labor unions; to the extent some unions have strayed from these values, the proposals provide an external imperative to reorient and rebrand unions as core civil society institutions. Moreover, immigrant worker centers have already become known for their focus on leadership development, democratic decision making, and civic education, and are therefore uniquely positioned to play this role. This convergence of utilitarian and transcendent objectives, in the current sociopolitical moment, justifies a special position for unions and worker organizations in the U.S. immigration system.

New Article: “Gideon is my Co-Pilot: The Promise of Civil Right to Counsel Pilot Programs”

New Article: Clare Pastore, Gideon is my Co-Pilot: The Promise of Civil Right to Counsel Pilot Programs, 17 U.D.C. L. Rev. 75 (2014).

Article Review: “By All Means Possible” – Jotwell

Article Review: Toni Williams, “By All Means Possible,” Jotwell, Oct. 6, 2014 (reviewing Thomas Mitchell, Growing Inequality and Racial Economic Gaps56 How. L. J. 849(2013)).

NOTE: it is great to see that Jotwell has expanded its coverage such that there is more space for coverage of poverty related articles.

Symposium Issue Published: “50 Years After the “War on Poverty”: Evaluating Past Enactments & Innovative Approaches for Addressing Poverty in the 21st Century”

Symposium Issue Published by the Boston College Journal of Law and Social Justice: “50 Years After the “War on Poverty”: Evaluating Past Enactments & Innovative Approaches for Addressing Poverty in the 21st Century”:

Vol. XXXIV No. 2

50 Years After the “War on Poverty”: Evaluating Past Enactments & Innovative Approaches for Addressing Poverty in the 21st Century

Introduction by Emily F. Suski

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Deadbeat Dads & Welfare Queens: How Metaphor Shapes Poverty Law

by Ann Cammett

Abstract: Since the 1960s, racialized metaphors describing dysfunctional parents have been deployed by conservative policymakers to shape the way that the public views anti-poverty programs. The merging of race and welfare has eroded support for a robust social safety net, despite growing poverty and economic inequality throughout the land. This Article begins by describing the […]

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50 Years After the “War on Poverty”: Evaluating the Justice Gap in the Post-Disaster Context

by Davida Finger

Abstract: The Legal Services Corporation (“LSC”), formed as part of President Lyndon B. Johnson’s War on Poverty, was one of many initiatives aimed at providing low-income individuals with equal access to justice. Today, the increasing number of people living in poverty, coupled with decreased funding for legal services, has resulted in a significant justice gap […]

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Left Behind with No “IDEA”: Children with Disabilities Without Means

by Alex J. Hurder

Abstract: This Article examines the changes to the Individuals with Disabilities Education Act (“IDEA”), which were intended to reconcile the Act with the No Child Left Behind Act of 2001, and the effect those changes have had on the education of children with disabilities. The Article highlights the important role that parents were given in […]

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Heal the Suffering Children: Fifty Years After the Declaration of War on Poverty

by Francine J. Lipman & Dawn Davis

Abstract: Fifty years ago, President Lyndon B. Johnson declared the War on Poverty. Since then, the federal tax code has been a fundamental tool in providing financial assistance to poor working families. Even today, however, thirty-two million children live in families that cannot support basic living expenses, and sixteen million of those live in extreme […]

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From the “War on Poverty” to Pro Bono: Access to Justice Remains Elusive for Too Many, Including Our Veterans

by Patricia E. Roberts

Abstract: Fifty years ago, President Lyndon B. Johnson launched the War on Poverty. The Legal Services Program of 1965, along with the Legal Services Corporation formed in 1974, considerably increased civil legal aid to America’s poor. Yet today, there is only one legal aid attorney for every 6,415 people living in poverty. Veterans, comprising 4.6% […]

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