New Book: Social and Economic Rights in Theory and Practice: Critical Inquiries (Helena Alviar García, Karl Klare & Lucy A. Williams eds. 2014). From the publisher:
Since World War II, a growing number of jurisdictions in both the developing and industrialized worlds have adopted progressive constitutions that guarantee social and economic rights (SER) in addition to political and civil rights. Parallel developments have occurred at transnational level with the adoption of treaties that commit signatory states to respect and fulfil SER for their peoples.
This book is a product of the International Social and Economic Rights Project (iSERP), a global consortium of judges, lawyers, human rights advocates, and legal academics who critically examine the effectiveness of SER law in promoting real change in people’s lives. The book addresses a range of practical, political, and legal questions under these headings, with acute sensitivity to the racial, cultural, and gender implications of SER and the path-breaking SER jurisprudence now emerging in the “Global South”.
The book brings together internationally renowned experts in the field of social and economic rights to discuss a range of rights controversies from both theoretical and practical perspectives. Contributors of the book consider specific issues in the litigation and adjudication of SER cases from the differing standpoints of activists, lawyers, and adjudicators in order to identify and address the specific challenges facing the SER community.
This book will be of great use and interest to students and scholars of comparative constitutional law, human rights, public international law, development studies, and democratic political theory.
New Article: Timothy M. Mulvaney, Progressive Property Moving Forward, 5 Calif. L. Rev. Cir. 349 (2014). Abstract below:
In response to Ezra Rosser’s article, The Ambition and Transformative Potential of Progressive Property, 101 Calif. L. Rev. 107 (2013), Timothy Mulvaney expresses more confidence than does Rosser in property’s potential to serve a role in furthering a progressive society. If property is to serve in this role, however, Mulvaney suggests it is important to redesign and reinterpret property in accordance with three themes-transparency about property rules’ value-dependence,humility about the reach of human knowledge and the mutability of our normative positions, and a concern for the socioeconomic identities of those affected by resource disputes-that underlie a broader set of writings than Rosser considers within the contours of “progressive property scholarship” and on which he offers some very preliminary impressions.
-Editor’s Note: Not only do I think Tim Mulvaney’s article is very fair in the critiques it gives of my article, but it addresses an issue that is very important and that I continue to wrestle with (my next article focuses on it); namely, is property a good place to look for answers to poverty and inequality. So a big thanks to Tim for this response article!
New Article: Pamela Cardullo Ortiz, How a Civil Right to Counsel Can Help Dismantle Concentrated Poverty in America’s Inner Cities, 25 Stan.L.& Pol’y Rev. 163 (2014). Abstract below:
This Article addresses the challenge of concentrated poverty and suggests that the creation of a civil right to counsel can be a powerful opportunity to enhance low-income inner-city neighborhoods, to empower those who live there, and to create new opportunities, new choices, and socio-economic mobility in our cities. It will explore several strategies that have been proposed for improving neighborhood conditions and promoting mobility and discuss the potential legal strategies that might be employed by poor residents in advancing these strategies.
New Article: Tomiko Brown-Nagin, The Civil Rights Canon: Above and Below, 123 Yale L.J. 2574 (2014). Abstract below:
This essay builds on the constitutional history of the civil rights movement from below to complement and complicate the canon identified in We the People: The Civil Rights Revolution. Like Professor Ackerman’s work, this essay embraces the concept of popular sovereignty: it is a powerful resource for social movements seeking constitutional change. However, this essay expands the “who” and the “what” of the civil rights era’s constitutional vision beyond the public figures and antidiscrimination statutes to which We the People attaches great significance. Ackerman’s civil rights canon emanates from officialdom—Lyndon Johnson, Hubert Humphrey, and Everett Dirksen—and a single representative of the civil rights movement, Rev. Dr. Martin Luther King, Jr. Antidiscrimination statutes—the Civil Rights Act (CRA), Voting Rights Act (VRA), and Fair Housing Act (FHA)—comprise the canon. This essay argues that A. Philip Randolph, Bayard Rustin, Ella Baker, and the new abolitionists of the Student Nonviolent Coordinating Committee (SNCC)—representatives of the grassroots and proponents of an economic vision of equality—also were architects of a civil-rights-era canon.
These avant-garde figures, often critics of the Democratic Party, pushed Dr. King and federal officials to pursue economic citizenship as a component of a new constitutional vision of equality. In the Equal Opportunity Act (EOA), the heart of the War on Poverty, this element of the movement partly realized some of its economic goals. These activists contributed to change during the civil rights era in the absence of formal power in legislatures and courts, and pressed states and local people to implement (or ratify) locally relevant elements of the national civil rights agenda. Because this activism was tethered to local communities and local concerns, these activists personify popular sovereignty in its truest meaning.
The exclusion of such mobilized and organized citizens as agents of political influence—as elemental to the “we” in “We the People”— reveals two conceptual limitations in We the People’s canonization project. First, it denies voice, agenda-setting power, and historical significance to the same classes of persons denied full citizenship and left outside of the corridors of power when the drafting and ratification of the Constitution originally took place. Second, We the People’s imperfect version of history results in an inaccurate description of civil rights constitutionalism. It conceives “higher lawmaking” as the byproduct of power brokers who leverage institutional power and achieve consensus about the meaning of equality through assent by electoral majorities. A more descriptively accurate and normatively desirable account of civil rights constitutionalism would concede historical and ongoing contest over the meaning of equality.
New Article: Nathalie Martin & Max Weinstein, Addressing the Foreclosure Crisis Through Law School Clinics, 20 Geo. J. Poverty Law & Pol’y 531 (2013). Abstract below:
Since the 2008 financial crisis, unprecedented numbers of homes have been lost to foreclosure in the United States, all while public funds for free or reduced fee legal representation in some communities have all but disappeared. This means that most homeowners in foreclosure are unable to find lawyers to represent them. At the same time, clinical legal education, especially in subjects related to business and commercial law, is on the rise. This convergence offers a unique opportunity for law school clinics to give students valuable training in both litigation and financial law and also help fill the deep need for legal representation by homeowners in foreclosure. Each of us has experience representing homeowners in foreclosure, Max at Harvard Law School in the Predatory Lending and Consumer Protection Clinic, and Nathalie in the University of New Mexico School of Law’s Business and Tax Clinic.
In this Article, we discuss our experiences and offer advice and insights for clinics considering taking cases of this kind. Part I provides a very brief overview of the conditions that led to the financial crisis, a description of the extent of the problem, and a few ways clinical law programs can help. Part II discusses the practical and philosophical reasons why law school clinics play such a pivotal role in stemming the effects of the crisis on homeowners, through examples of cases litigated in Max’s clinic. Part Ill attempts to give readers a few of the basic tools they need to add this practice to their clinics for the benefit of individual homeowners and their communities.
New Article: John Mangin, The New Exclusionary Zoning, 25 Stan.L.& Pol’y Rev. 91 (2014). Abstract below:
If low-income families can’t afford the suburbs and the cities, where should they go? For the first time in American history, it makes sense to talk about whole regions of the country “gentrifying”—whole metropolitan areas whose high housing costs have rendered them inhospitable to low-income families, who, along with solidly middle class families, also feeling the crunch, have been paying higher housing costs or migrating to low-housing cost (and low-wage) areas like Texas, Arizona, or North Carolina. Underlying both of these phenomena—high housing costs in the suburbs and high housing costs in the cities—is a relatively straightforward problem of supply and demand. A city’s ability to remain affordable depends most crucially on its ability to expand housing supply in the face of increased demand. Among the people who care most about high housing costs there is a lack of understanding of the main causes and the policy approaches that can address them. The central message of this Article is that the housing advocacy community—from the shoe-leather organizer to the academic theoretician—needs to abandon its reflexively anti-development sentiments and embrace an agenda that accepts and advocates for increased housing development of all types as a way to blunt rising housing costs in the country’s most expensive markets.
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: 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.