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 Book: Clare Huntington, Failure to Flourish: How Law Undermines Family Relationships (2014). Description below:
Exploring the connection between families and inequality, Failure to Flourish: How Law Undermines Family Relationships argues that the legal regulation of families stands fundamentally at odds with the needs of families. Strong, stable, positive relationships are essential for both individuals and society to flourish, but from transportation policy to the criminal justice system, and from divorce rules to the child welfare system, the legal system makes it harder for parents to provide children with these kinds of relationships, exacerbating the growing inequality in America.
Failure to Flourish contends that we must re-orient the legal system to help families avoid crises and, when conflicts arise, intervene in a manner that heals relationships. To understand how wrong our family law system has gone and what we need to repair it, Failure to Flourish takes us from ancient Greece to cutting-edge psychological research, and from the chaotic corridors of local family courts to a quiet revolution under way in how services are provided to families in need. Incorporating the latest insights of positive psychology and social science research, the book sets forth a new, more emotionally intelligent vision for a legal system that not only resolves conflict but actively encourages the healthy relationships that are at the core of a stable society.
The articles are here:
Sara Rankin, A Homeless Bill of Rights (Revolution), working paper 2014. Abstract below:
This Article examines an emerging movement so far unexplored by legal scholarship: the proposal, and in some states, the enactment of a Homeless Bill of Rights. This Article presents these new laws as a lens to re-examine storied debates over positive and social welfare rights. Homeless bills of rights also present a compelling opportunity to re-examine rights-based theories in the context of social movement scholarship. Specifically, could these laws be understood as part of a new “rights revolution”? What conditions might influence the impact of these new laws on the individual rights of the homeless or the domiciled? On American rights culture and consciousness?
The Article surveys current efforts to advance homeless bills of rights across eight states and the U.S. territory of Puerto Rico and evaluates these case studies from a social movement perspective. Ultimately, the Article predicts that these new laws are more likely to have an incremental social and normative impact than an immediate legal impact. Even so, homeless bills of rights are a critical, if slight, step to advance the rights of one of the most vulnerable segments of contemporary society. Perhaps as significantly, these new laws present an opportunity for domiciled Americans to confront our collective, deeply-rooted biases against the homeless.
Sara Rankin, Invidious Deliberation: The Problem of Congressional Bias in Federal Hate Crime Legislation, Rutgers L. Rev. forthcoming. Abstract below:
The intersection of power and prejudice can control the shape of statutory law, and yet a dearth of legal scholarship investigates it. Invidious Deliberation addresses that deficit. It tackles the problem of prejudice in Congressional deliberations at a particularly critical point: when Congress decides which groups to protect under federal hate crime legislation. The Article contends that Congress’s own bias may exclude the most vulnerable groups from hate crime protection.
To illustrate the point, this Article systematically reviews over two decades of Congressional decisions with respect to expansions of the Hate Crime Statistics Act, a “gateway” for groups seeking protection under federal hate crime legislation. The review concludes that Congress exhibited greater resistance to constructing animus against gays, lesbians, and the homeless as morally or legally wrong, especially in comparison to the other covered groups. Invidious Deliberation argues this Congressional resistance is not attributable to an equitable, principled deliberation process; instead, it is an expression of “unrecognized” bias against unpopular groups. To mitigate the impact of Congressional bias, this Article proposes that Congress explicitly and consistently use a set of principled criteria — such as suspect classification factors — to assess candidate groups.
New Article: Wendy A. Bach, The Hyperregulatory State: Women, Race, Poverty and Support, 25 Yale J. Law & Feminism __ (2014). Abstract below:
Vulnerability and dependency theory offers a rich and promising vision for those who seek to conceptualize and build a more responsive state. In theorizing a road to a supportive state, however, what would it mean to take up the challenge of intersectionality? What would it mean to center the analysis around key aspects of the relationship between legal institutions and the poor, disproportionately women and families of color who have no choice but to avail themselves of what remains of a shredded social safety net? The Hyperregulatory State argues that, for women who have no choice but to avail themselves of the safety net (think welfare or public housing) and who by their sheer geographic exposure to the mechanisms of government systems (think over-policing of poor communities of color, public hospitals and inner city public schools) find themselves subject to government intrusion (think child welfare agencies and the criminalization of poverty) the state does not merely fail to respond to their needs. In fact, crucial interactions between poor women and the state are characterized by a phenomena here termed regulatory intersectionality, defined as the means by which state systems (in the examples herein, social welfare, child welfare and criminal justice systems) interlock to share information and heighten the adverse consequences of unlawful, deviant, or noncompliant conduct. At every juncture these punitive mechanisms are, in effect, targeted by race, class, gender and place to subordinate poor African American women, families and communities. The state is, in this sense, hyperregulatory. This article describes in detail the specific phenomena of regulatory intersectionality and contextualizes it within a larger schema of hyperregulation. Paying careful attention to regulatory intersectionality and hyperregulation would revise the theories of vulnerability and the responsive state in two crucial and related ways. First, it serves as a practical warning. If the current social safety net is so profoundly characterized by mechanisms that interlock to impose escalating punishment, the road to a supportive state that does not function in this way is likely to be long and complicated. Second, in attempting to realize the vision of the supportive or responsive state, a crucial first step is restructuring and building support systems to enhance rather than undermine the autonomy of poor women, poor families and poor communities. If we fail to center and prioritize those realities and those tasks, then this particular and crucial part of political and legal theory is again in danger of leaving behind those who are, by virtue of race, gender, class, and place, among the most vulnerable.
Boston University Law Review published an issue on the topic “The End of Men” and quite a few of the articles relate to poverty law. For example:
The End of Men or the Rebirth of Class?
June Carbone & Naomi Cahn
Daniel L. Hatcher
TANF and the End (Maybe?) of Poor Men
Khiara M. Bridges
(and others, all at the first link)
New Book: Kathryn Edin & Timothy J. Nelson, Doing the Best I Can: Fatherhood in the Inner City (2013). Amazon link here. Overview below:
Across the political spectrum, unwed fatherhood is denounced as one of the leading social problems of today. Doing the Best I Can is a strikingly rich, paradigm-shifting look at fatherhood among inner-city men often dismissed as “deadbeat dads.” Kathryn Edin and Timothy J. Nelson examine how couples in challenging straits come together and get pregnant so quickly—without planning. The authors chronicle the high hopes for forging lasting family bonds that pregnancy inspires, and pinpoint the fatal flaws that often lead to the relationship’s demise. They offer keen insight into a radical redefinition of family life where the father-child bond is central and parental ties are peripheral.
Drawing on years of fieldwork, Doing the Best I Can shows how mammoth economic and cultural changes have transformed the meaning of fatherhood among the urban poor. Intimate interviews with more than 100 fathers make real the significant obstacles faced by low-income men at every step in the familial process: from the difficulties of romantic relationships, to decision-making dilemmas at conception, to the often celebratory moment of birth, and finally to the hardships that accompany the early years of the child’s life, and beyond.
New Book: Judith Levine, Ain’t No Trust: How Bosses, Boyfriends, and Bureaucrats Fail Low-Income Mothers and Why It Matters (2013). Overview below:
Ain’t No Trust explores issues of trust and distrust among low-income women in the U.S.—at work, around childcare, in their relationships, and with caseworkers—and presents richly detailed evidence from in-depth interviews about our welfare system and why it’s failing the very people it is designed to help.
By comparing low-income mothers’ experiences before and after welfare reform, Judith A. Levine probes women’s struggles to gain or keep jobs while they simultaneously care for their children, often as single mothers. By offering a new way to understand how structural factors impact the daily experiences of poor women, Ain’t No Trust highlights the pervasiveness of distrust in their lives, uncovering its hidden sources and documenting its most corrosive and paralyzing effects. Levine’s critique and conclusions hold powerful implications for scholars and policymakers alike.
Call-for-Papers & Conference: Emory Law School is hosting “The Feminism and Legal Theory Project at 30: Transformation of the Family and the Recognition and Regulation of Intimate Lives” on Dec. 6-7, 2013 and the call-for-papers deadline is Sept. 12, 2013.