New Article: Gabriela Steier, Womenomics for Nursing Growth: Making the Case for Work Time Flexibility and Mother-Friendlier Workplaces, 21 Buffalo Journal of Gender, Law & Social Policy 111 (2013). Abstract below:
Gender bias at work often coerces breastfeeding working mothers to choose between their baby or their job. The forced choice between private and work life irreconcilably separates motherhood from a woman’s career, giving rise to the Mommy Wage Gap and the Maternal Wall. Consequently, the separation of work and family life has negative impacts on both the mother and her child. These negative impacts also bear on public health and the economy on a large scale. The more unaccommodating workplaces are, the stricter the separation between work and family life and the more permanent the choice a working mother has to make. Such unaccommodating workplaces thus force breastfeeding working mothers to either wean their children too early or to opt-out. Thus, increasing work-time flexibility for working parents, and especially breastfeeding mothers, would allow working mothers to breastfeed their children for the recommended period of at least six months after birth. The current federal labor laws, the Family and Medical Leave Act (FMLA) and the Patient Protection and Affordable Care Act (PPACA), are insufficient in protecting breastfeeding-working mothers from the gender bias and aggravated work-life conflict. If more working mothers were able to breastfeed their babies for the recommended six months, the government could save public health care costs and use these savings for reinvestments to fuel economic recovery. By allowing working breastfeeding mothers to bring the private and public spheres closer together, and to thereby attain greater work-life life, businesses and companies will be empowered to increase efficiency, productivity, and eventually profitability. This paper evaluates some strategies to increase profitability by providing greater work-time flexibility.
New Article: Mark N. Aaronson, Representing the Poor: Legal Advocacy and Welfare Reform During Reagan’s Gubernatorial Years, 64 Hastings Law Journal 933 (2013). Abstract below:
The empirical focus of this book-length work is the contentious political and legal battle over California welfare reform in the early 1970s. It is an extended, multifaceted case study of a kind not much found in the literature on social cause lawyering. The narrative highlights the forceful presence of Ronald Reagan and the pivotal role in representing the welfare poor carried out by Ralph Santiago Abascal, a government-funded legal aid attorney. To counter Reagan’s welfare policy ambitions, Abascal with other legal services lawyers, and in joint cause with recipient-led welfare rights organizations, relied on court litigation not in isolation but as part of an overall strategy that also involved legislative and administrative actions. Within the context of American pluralism and constitutionalism and from an analytical perspective, this study examines the professional and institutional character of group legal representation for the poor as a strategy for political empowerment and social change. While grounded in political and legal history, the study’s conceptual approaches primarily draw on ideas from political science and political theory about representation and from writings in legal ethics and legal education on professional role responsibilities. The principal thematic points are: (1) Social cause lawyering is a systemic necessity for the democratic and equitable functioning of our governing institutions; (2) the client constraints on the role of lawyers for groups or causes have more to do conceptually with understandings about the nature of representation than the applicability of ethical or procedural rules; and (3) the political consequences of such legal advocacy are variable and potentially contradictory.
New Article: Scott L. Cummings, Empirical Studies of Law and Social Change: What Is the Field? What Are the Questions?, 2013 Wisc. L. Rev. 171. Abstract below:
The rise of empiricism within legal scholarship has had a profound influence on studies of lawyers, the legal profession, legal education, and legal mobilization. The overarching emphasis on the empirical study of behavior reflects and reproduces a broader trend across disparate legal fields: turning away from theories of law that rest upon implicit assumptions about rule compliance or stylized models of rational action and toward descriptive and normative accounts based on the real decision-making processes of real people. Hence, a defining feature of the contemporary scholarly landscape is that the fundamental question of jurisprudence—how law relates to society—is now being asked by a generation of scholars equipped with empiricism and steeped in interdisciplinarity.
This trend—what some have termed the new legal realism—is not so much a disjuncture as a revival and repositioning of prior strands of sociolegal work, some of which—deemed outside the legal mainstream at the time of their production—have now achieved a place of honor in the canon of empirical legal studies. Nonetheless, despite the ascendance of empiricism, its current iteration may represent less the culmination of the law and society movement than its mainstream assimilation. While the current version of law and social science embraces the craft of empirical study, it is often divorced from the normative commitments that drove first-wave law and society scholars to examine the law “in action” as a way to make law’s application align with a vision of a just society animated by left-progressive political goals.
Note: this article was published as one of a series of related articles, some of which I have posted to the blog already in their SSRN form, that came out of a colloquium on measuring outcomes in access to justice work.
New Article: Tamar R. Birckhead, Closing the Widening Net: The Rights of Juveniles at Intake, 46 Texas Tech Law Review (2013). Abstract below:
Should juveniles have more, fewer, the same or different procedural rights than are accorded to adults? This question, posed by Professor Arnold Loewy for a panel at the 2013 Texas Tech Law Review Symposium on Juveniles and Criminal Law, requires us to examine our goals for the juvenile court system. My primary goal, having practiced in both adult criminal and juvenile delinquency forums for over twenty years, is to ensure that the reach of juvenile court is no wider than necessary, as research indicates that when children are processed through the juvenile court system and adjudicated delinquent, the impact is not benign. Potential negative consequences of juvenile delinquency adjudications are felt in such areas as housing, employment, immigration and education as well as enhanced penalties for future offenses. Further, longitudinal studies show that children exposed to juvenile court reoffend at higher rates and are stigmatized by even the most minimal contact with the juvenile court system.
This Article, the second in a series on the disproportionate representation of low-income children in the U.S. juvenile justice system, examines the intake process, which operates as one of the primary gateways to juvenile court. The Introduction describes a typical case, highlighting the shortcomings of the current process and the risks — short- and long-term — that they pose to juveniles. Part II presents the nuts and bolts of the intake stage, including details regarding who conducts the screening, its purpose, and the assessment criteria applied. Part III discusses the procedural rights of juveniles at intake according to the U.S. Supreme Court, state courts and legislatures. Part IV analyzes what can — and often does — go wrong with the intake process, resulting in a wider net being cast around minorities and low-income children and families. Part V offers proposals for reform, including providing counsel to children prior to intake; mandatory advising of children and their parents by the juvenile probation officer conducting the intake interview; and introducing an objective rubric for the evaluation of delinquency complaints by juvenile probation officers.
New Article: William W. Bratton & Michael L. Wachter, Shareholders and Social Welfare, 36 Seattle U. L. Rev. 489 (2013). Abstract below:
This Article addresses the questions of whether and how shareholders matter for social welfare, finding that different and contrasting answers have prevailed during different periods of recent history. Observers in the mid-twentieth century believed that the socioeconomic characteristics of real-world shareholders were highly pertinent to social welfare inquiries. But those observers went on to conclude that there followed no justification for catering to shareholder interest, for shareholders occupied elite social strata. The answer changed during the twentieth century’s closing decades, when observers came to accord the shareholder interest a key structural role in the enhancement of economic efficiency even as they also deemed irrelevant the characteristics of the human holders of shares. Under this view, the shareholder interest, as the residual claim on corporate wealth, is directly aligned with society’s interest in maximizing corporate—and therefore societal—wealth, and so the shareholder interest qualifies for political solicitude. In recent years, the quest for political solicitude has made the jump from theory to practice: a “shareholder class” is said to have risen in our political economy as an offshoot of the growth of stock ownership among the middle class. Thus, real-world shareholders again are seen to bear on social welfare.
(Possibly New) Working Paper: Branko Milanovic, “Global Income Inequality by the Numbers: In History and Now” (2012/2013). Note: the author is the Lead Economist of the World Bank’s Research Department.
The Stanford Center on Poverty and Inequality has announced a new working paper series that is available on the Center’s website here. The first three articles in the series from the website are below:
New Article: Ascanio Piomelli, Sensibilities for Social Justice Lawyers, 10 Hastings Race & Poverty Law Journal 177 (2013). Abstract below:
This essay suggests six mindsets or sensibilities that I consider crucial for 21st Century social justice lawyers of all ages: (1) We are not starting from scratch; we are building on the ideas and efforts of our predecessors and contemporaries. (2) It helps to be clear about our fundamental aims: what we mean by and count as social justice and social change. (3) We are at our best when we connect our efforts with others. (4) It is vital to cultivate our ability to see from multiple perspectives. (5) We are wise to pay close attention to class, race, and gender and to consciously combat all aspects of our cultural encapsulation. (6) Fostering social change is hard, fulfilling work.
New Article: Nestor Davidson, New Formalism in the Aftermath of the Housing Crisis, 93 B.U. L. Rev. 389 (2013). Abstract below:
The housing crisis has left in its wake an ongoing legal crisis. After housing markets began to collapse across the country in 2007, foreclosures and housing-related bankruptcies surged significantly and have barely begun to abate more than six years later. As the legal system has confronted this aftermath, courts have increasingly accepted claims by borrowers that lenders and other entities involved in securitizing mortgages failed to follow requirements related to perfecting and transferring their security interests. These cases – which focus variously on issues such as standing, real party in interest, chains of assignment, the negotiability of mortgage notes, and the like – signal renewed formality in nearly every aspect of the resolution of mortgage distress. This new formalism in the aftermath of the housing crisis represents something of an ironic turn in the jurisprudence. From the earliest history of the mortgage, lenders have had a tendency to invoke the clear, sharp edges of law, while borrowers in distress have often resorted to equity for forbearance. The post-crisis caselaw thus upends the historical valence of lender-side formalism and borrower-side flexibility.
Building on this insight, this Article makes a normative and a theoretical claim. Normatively, while scholars have largely embraced the new formalism for the accountability it augurs, this consensus ignores the trend’s potential negative consequences. Lenders have greater resources than consumers to manage the technical aspects of mortgage distress litigation over the long run, and focusing on formal requirements may distract from responding to deeper substantive and structural questions that still remain largely unaddressed more than a half decade into the crisis. Equally telling, from a theoretical perspective, the new formalism sheds light on the perennial tension between law’s supposed certainty and equity’s flexibility. The emerging jurisprudence underscores the contingency of property and thus reinforces – again, ironically – pluralist conceptions of property even in the crucible of hard-edged formalism.
Editor’s Note: though some of the paper is more for property folks than pure poverty profs, it does a good job of summarizing borrower-side post-crisis litigation strategies used to defend against foreclosure.