New Article: Rashmi Dyal-Chand, Sharing the Cathedral, 46 Conn. L. Rev. 647 (2013). Abstract below.
Sharing is an indispensable part of American property law, often mediating the harsh implications of ownership rights. Yet sharing is also a hidden component of this legal structure. In both theory and doctrinal manifestations, sharing is overshadowed by the iconic property right of exclusion. This Article argues that property law suffers a critical loss from its under-recognition of sharing because it fails to use sharing to correct distributional failures in a world of increasingly scarce resources. Sharing could be the basis for developing a rich range of outcomes in common property disputes. Instead, as described by Calabresi and Melamed in their famed article on remedies, outcomes are tagged to exclusion in the form of blanket property rules and “keep out” signs. As a result, sharing currently functions merely to create very narrow exceptions to broad rights of ownership. To correct this failure, this Article presents a model for sharing as a preferred outcome in property disputes. Sharing as an outcome is a powerful means of addressing property inequalities, limiting harmful externalities, preserving efficiency, and harnessing the extraordinary potential of outcomes in property law.
New Book: America’s Growing Inequality: The Impact of Poverty and Race (Chester Hartman, ed., Lexington Books, 2014). Overview below:
The book is a compilation of the best and still-most-relevant articles published in Poverty & Race, the bimonthly of The Poverty & Race Research Action Council from 2006 to the present. Authors are some of the leading figures in a range of activities around these themes. It is the fourth such book PRRAC has published over the years, each with a high-visibility foreword writer: Rep. John Lewis, Rep. Jesse Jackson, Jr. Bill Bradley, Julian Bond in previous books, Rep. Luis Gutierrez of Chicago for this book. The chapters are organized into four sections: Race & Poverty: The Structural Underpinnings; Deconstructing Poverty and Racial Inequities; Re(emerging) Issues; Civil Rights History.
Table of Contents after the jump…
New Article: Michelle Wilde Anderson, The New Minimal Cities, 123 Yale L.J. 1118 (2014). Abstract below:
Between 2007 and 2013, twenty-eight urban municipalities declared bankruptcy or entered a state receivership to manage fiscal insolvency. To cut costs and divert revenues to debt payments, these cities have taken dramatic austerity measures—an unwitting experiment with a shrinking public sector in cities hollowed by household poverty and physical deterioration. Eventually, these cuts raise a question that looms as large for insolvency law as it does on city streets: Is there a point where the city should no longer cut public services and sell public assets, even in the face of unmet obligations to creditors? If so, what is that point?
This Article looks closely at our insolvent cities—their residents, their physical and social conditions, their debts, their governments. It explores, as a descriptive matter, local adaptations to fiscal crisis. It surfaces, as a legal matter, the latent question that mayors, governors, state and local legislatures, bankruptcy judges, and state-appointed receivers must decide: What share of city revenues can a city preserve for its current residents? Unlike creditors, who have contracts and legal judgments to quantify a city’s obligations to them, residents have no monetized claim to draw on city revenues. Insolvency law itself provides no guidance on this challenging issue—it simply assumes some level of ongoing spending to preserve “health and welfare,” a concept that raises more questions than it answers. This Article explores residents’ interests, mapping out heuristics for decisionmakers and the public to use in thinking about essential public spending in the context of cities at risk of default on debt.
New Article: Jennifer Bird-Pollan, Unseating Privilege: Rawls, Equality of Opportunity, and Wealth Transfer Taxation, 59 Wayne L. Rev. __ (forthcoming 2014). Abstract below:
This Article is the second in a series that examines the estate tax from a particular philosophical position in order to demonstrate the relevance and importance of the wealth transfer taxes to that position. In this Article, I explore Rawlsian equality of opportunity, a philosophical position that is at the heart of much American thought. Equality of opportunity requires not only ensuring that sufficient opportunities are available to the least well-off members of society but also that opportunities are not available to other members merely because of their wealth or other arbitrary advantages. Therefore, an income tax alone, even one with high rates on the wealthy, would be insufficient to achieve these goals. While revenue raised via the income tax should be used to provide additional opportunities to low-income members of society, wealth transfer taxes provide the additional safeguard of preventing the heirs of wealthy individuals from inheriting wealth that would provide them with additional, unwarranted and unjust, opportunities. Given the importance of the wealth transfer taxes, this Article also examines the question of what form of tax is most consistent with Rawls’ position, ultimately determining that an inheritance or accessions tax best fits the role.
Call-for-Papers, AALS Poverty Law Section: “Working But Poor: Understanding and Confronting the Working Poor Phenomenon”
The AALS Section on Poverty Law will sponsor a session at the 2015 AALS Annual Meeting. The title of the program is Working But Poor: Understanding and Confronting the Working Poor Phenomenon. In collaboration with the Loyola Journal of Public Interest Law, the Section seeks papers for publication and presentation. The deadline for submissions is August 8, 2014. See this link for additional information: AALS Poverty Section Call for Papers 2015 Program.
Report: Marc Mauer & Virginia McCalmont, A Lifetime of Punishment: The Impact of the Felony Drug Ban on Welfare Benefits (Sentencing Project, Revised version 2014).
Modeled on President Richard Nixon’s GAI proposal, Congress today passed a guaranteed basic income law. The Freedom Of Ordinary Life Act provides a negative income tax support similar to the EITC but without the work requirement and with benefit levels that correspond to that required to meet basic needs. It is expected that a Heritage supported challenge to the Act will be unsuccessful in the face of a mostly supportive federal bench. The Act actually was inspired by the rising inequality and the need to address that inequality through non-market forces, for as President Kennedy stated “If a free society cannot help the many who are poor, it cannot save the few who are rich.”