New Article: How Should Inheritance Law Remediate Inequality?

New Article: Felix Chang, How Should Inheritance Law Remediate Inequality?, Wash. L. Rev. Vol. 97 (2022). Abstract below:

This Essay argues that trusts and estates (“T&E”) should prioritize intergenerational economic mobility—the ability of children to move beyond the economic station of their parents—above all other goals. The field’s traditional emphasis on testamentary freedom fosters the stickiness of inequality. For wealthy settlors, dynasty trusts sequester assets from the nation’s system of taxation and stream of commerce. For low-income decedents, intestacy splinters property rights and inhibits their transfer, especially to nontraditional heirs.

Holistically, this Essay argues that T&E should promote mean regression of the wealth distribution curve over time. This can be accomplished by loosening spending in ultrawealthy households and spurring savings and investment in low-income households.

T&E scholars are tackling inequality with greater urgency than ever before; yet basic questions remain. The Essay contributes to these conversations by articulating a comprehensive framework for progressive inheritance law that redresses long-term inequality.

New Article: “Housing the Decarcerated”

New Article: Norrinda Hayat, Housing the Decarcerated, forthcoming California Law Review, Vol. 110, 2022. Abstract below:

The coronavirus pandemic exposed an issue at the intersection of the public health, carceral and housing crises – the lack of housing for the recently decarcerated. Early in the pandemic calls came to release incarcerated persons and cease arrests in light of the risks posed by failing to be able to socially distance while incarcerated. At the same time, the pandemic forced a national conversation about the sheer number of unhoused persons in our country. The pandemic created an emergent argument for both broad scale decarceration and publicly funded housing. The practical process of securing housing for the recently decarcerated, however, is fraught because of what is described in this article as the “culture of exclusion” that has long pervaded subsidized housing policy, enabled by a patchwork of federal laws, including the Anti-Drug Abuse Act (ADA) of 1988 and the Supreme Court case, HUD v. Rucker. The culture of exclusion is arbitrated by local housing authorities and works on three levels – eligibility, enforcement and set asides. As a result, formerly incarcerated persons are often rejected outright during the application process. In addition, persons who live in subsidized housing and are alleged to be engaged in or associated with anyone who is alleged to have participated in criminal conduct can be evicted making subsidized housing itself a pipeline into the prison industrial complex. This Article seeks to motivate a pathway towards housing the decarcerated by ending the culture of exclusion. In Part I, the article briefly updates the status of the prison abolition and right to housing movements. Part II builds on the idea that stable housing for formerly incarcerated persons is essential to the prison abolition movement’s success by reviewing summary results from pilot programs in New York, Washington and Michigan. Part III suggests that “one strike” policies, have created a broader “culture of exclusion,” which the Supreme Court validated in Rucker, further burdening the process of reentry for the recently decarcerated. Finally, Part IV, prescribes policy changes that are essential to housing the decarcerated even beyond repealing the ADA and overturning Rucker, including transcending the narrative of innocence, directing PHA discretion to admit not deny and utilizing civil rights laws to equalize voucher holders.

New Article: “Investigating Access to Justice, the Rural Lawyer Shortage, and Implications for Civil and Criminal Legal Systems”

New Article: Lisa R. Pruitt & Andrew Davies, Investigating Access to Justice, the Rural Lawyer Shortage, and Implications for Civil and Criminal Legal Systems, Research Methods for Rural Criminologists (2022 Forthcoming). Abstract below:

Access to justice (A2J) is associated with a number of metrics aimed at assessing the extent to which people enjoy equal access to courts, including pre-trial means for resolving disputes. While the concept is typically associated with civil justice systems, many factors associated with that context overlap with criminal justice system concerns. Central among these and of growing significance in the rural context is a worsening attorney shortage. When lawyers are not readily available, A2J is undermined, and costs to litigants and courts rise.

Many quantitative factors measured in relation to A2J are unidimensional and have limited ability to reveal the full complexity of impediments to accessing legal processes. Simple metrics include attorney counts and caseload data. In both the civil and criminal contexts, the more revealing studies deploy mixed methods; in studying indigent defense, interviews with key stakeholders have proved particularly effective. Surveys of litigants, attorneys, and judges have proved highly informative, too, especially in rural settings without infrastructure for tracking data. Ethnographic research remains rare in both criminal and civil contexts. Meanwhile, law scholars often frame their work more explicitly in terms of constitutional and other legal issues, e.g., attorney ethics, implicated by access.

This chapter, written for an anthology on Research Methods for Rural Criminologists, begins with a broad introduction to A2J. Next, it turns a geographic lens on the A2J landscape, highlighting spatial and place-specific issues as a prelude to discussing rural deficits, including the lawyer shortage. The chapter concludes by discussing rural criminal justice, with a focus on indigent defense. Tribal courts are beyond the scope of this chapter.

New Article: We the People Must Pull America Back from the Abyss of Economic Injustice

Francine J. Lipman, We the People Must Pull America Back from the Abyss of Economic Injustice, ABA (last visited Apr. 27, 2021). Except below:

Americans have long suffered decades of increasing income and wealth disparity resulting from failed economic policies and systemic racial discrimination. The COVID-19 pandemic has further exposed and exacerbated the depth and breadth of these gaps. The juxtaposition of 67 million Americans losing their jobs, 27 million adults and their kids suffering food insecurity, and 14 million households behind on their rent with 651 billionaires adding $1 trillion in net worth to their already bloated balance sheets is immoral. The percentage of food-insecure families with children is approaching 20 percent of the U.S. population, and these numbers are  almost double for families of color. Because of institutional racism, Black Americans have been hospitalized and died from COVID-19 at five times the rate of white Americans. Indigenous and Latinx individuals also suffer disproportionately from COVID-19 hospitalizations and deaths. Put simply, we the people have reached a critical crossroads, and we must take action to change the course of our country.

New Article: “Lawyers as Social Engineers: How Lawyers Should Use Their Social Capital to Achieve Economic Justice”

New Article: Dana Thompson, Lawyers as Social Engineers: How Lawyers Should Use Their Social Capital to Achieve Economic Justice,  26 Mich. J. Race & L. 1 (2021).

New Article: Contract Law & Racial Inequality: A Primer

Danielle Kie Hart, Contract Law & Racial Inequality A Primer, (S.W.L. Sch. Research Paper No. 21-05, 2021). Abstract below:

America was founded on institutionally recognized and supported racial oppression, namely, slavery and conquest. The fact that the inequality spawned by this oppression continues to exist today should therefore surprise absolutely no one. That said, the extent of the racialized social and economic inequality that pervades American society today is being exposed in horrifying and glaring detail, as a result of the Covid-19 pandemic. But the devastation is not being felt equally–people of color are dying at greater rates and suffering the economic consequences of the pandemic much more than white people. And, of course, Wall Street and American billionaires are doing really well. The Haves come out ahead. We’ve all seen and heard this before. But two important details are obscured and therefore overlooked in this widely accepted observation, namely, the role that contracts and contract law play in facilitating this reality and the profound and often devastating social consequences that contracts and contract law help produce in this process. This Essay attempts to redress this oversight. The Essay first provides a brief step by step analysis of contract law in action, the practical effect of which is to ensure that contracting parties who start with more end up with more. The first part thus shows how contracts and contract law help to create and perpetuate inequality in American society. The Essay then explains why contracts and contract law’s role in producing economic and social inequality is largely ignored. The short answer is because, depending on who the adversely affected contracting party is, a contract is usually understood as a private transaction between private parties asserting their private rights. To understand how you get everyone to buy into the fiction that contracts are usually private is to understand ideology and how it is reproduced in the field of contract law. Perhaps counterintuitively, the Essay traces part of contract law’s evolution story to Emancipation of the slaves and the Reconstruction that followed it. The final part of the Essay briefly revisits the housing market crash that precipitated the Great Recession of 2007-2009 to illustrate the devastating consequences that contracts and contract law help produce and the skewed response to those consequences that are engendered, at least in part, because we cling to the fiction that contracts and contract law have nothing to do with inequality. Unless we do something differently, like acknowledging that the day-to-day practice of contracts and contract law help create and perpetuate inequality in American society, then it seems very likely that the Haves will continue to come out ahead. But the Have Nots will end up being evicted from their homes and remain on the hook to their landlords for the back-rent.

New Article: Humanizing the Tax System: What National Taxpayer Advocate Nina E. Olson Did for America’s Kids and their Families

Francine J. Lipman, Humanizing the Tax System: What National Taxpayer Advocate Nina E. Olson Did For America’s Kids and their Families, 18 Pittsburg Tax Rev. 1932 (2020). Abstract below:

At their core, taxpayer rights are human rights. They are about our inherent
humanity.—Nina E. Olson

The federal income tax system does not exist for statutes, regulations, codes, enforcement, assessments, collection, redistribution, procedures, publications, liens, levies, refunds, liabilities, litigation, compliance, or even revenue. At its core, the federal income tax system exists for people. People like you, me, and all our loved ones including spouses, partners, parents, kids, brothers, sisters, nieces, nephews, grandparents, grandkids, friends, and neighbors. The people who eat at our tables and sleep under our roofs. The tax system is about current and future generations who live and work in America, and even those who don’t but have the coveted prize of U.S. citizenship. It is about our shared vision of ensuring the well-being of all people, young, old, Black, Brown, White, Asian, Native, multiracial, religious, atheist, agnostic, male, female, transgender, straight, queer, or nonconforming. It is about ensuring that the people of and in America have what they need to survive and thrive, especially those who are vulnerable for any reason or no reason at all. Tax systems, like other government institutions, should be designed and administered to make life better for everyone. Because “we the people” are America, the beautiful, the federal tax system serves us. This is the truth that Nina E. Olson laid bare during her eighteen years of service as the longest-serving National Taxpayer Advocate (NTA).

Nina Olson flipped the traditional script that Americans are beholden to tax systems; rather, she insisted that the tax system must serve people, treating them with dignity and respect. NTA Olson not only led the Taxpayer Advocate Service (TAS) to serve and protect individual taxpayers, but developed systems to shape recommendations and implement procedures to serve the greater good of humanity. 

This essay will use Olson’s exceptional advocacy reshaping the Earned Income Tax Credit (EITC) to describe how empowering taxpayer rights has helped to lift millions of children and their families out of poverty. These efforts are especially critical because the EITC lifts more children out of poverty each year than any other government program. As a result, Ms. Olson’s eighteen years of advocacy have helped to enrich countless lives—a generation of children and, in many cases, their parents, grandparents, aunts, uncles, and a second generation of the children’s children, have been spared from the abyss of poverty. Nina Olson has changed each of their worlds for the better and, in turn, all of ours.

New Article: If Past is Prologue, Then the Future is Bleak: Contracts, COVID-19 and the Change Circumstances Doctrines

Danielle Kie Hart, If Past is Prologue, Then the Future is Bleak: Contracts, COVID-19 and the Changed Circumstances Doctrine, (S.W.L. Sch. Research Paper No. 21-01, 2021). Abstract below:

At the heart of most of the systemic problems currently confronting individuals and businesses as a result of the COVID-19 pandemic is quite literally a contract. Housing. Insurance. Food. Health Care. Child Care. Employment. Manufacturing. Construction. Supply Chains. You name it. Contracts are implicated everywhere. So, make no mistake, how contract law addresses these ostensibly private contracts will have profound social consequences. If the past really is prologue, then the future is indeed bleak. The empirical study conducted for this Article establishes what the conventional wisdom has claimed for the last 70 years. More specifically, the empirical study here shows that the common law’s changed circumstances doctrines [“CCDs”] (i.e., impossibility, impracticability of performance and frustration of purpose) will generally not excuse a party from performing his contract, regardless of the changed circumstance being alleged. Contrary to all of the CCD literature that addresses this issue, this Article makes the unconventional argument that the CCDs should be more broadly available, meaning they should be more successful in excusing contract performance when triggered by catastrophic circumstances. And, unlike the rest of the field which focuses on the CCDs themselves, this Article argues that to effectively address the allocation of unforeseen risks, in general, and catastrophic risks like a pandemic, in particular, we must reframe the legal approach to contract formation. If contract formation is reframed to more accurately reflect contracting in the real world, and given that the solution to the changed circumstances problem preferred by courts and commentators is an explicit risk allocation term in the parties’ contract, then the solution proposed in this Article to the risk allocation problem literally suggests itself. A risk allocation clause should be mandated in most contracts as part of contract formation. The type of risk allocation and loss clause and the way the clause would work would depend on whether the contract is co-drafted or adhesive. The inclusion of a risk and loss allocation clause would facilitate transactions and encourage contracting in general by ensuring that contracts remain efficient and predictable. The main difference between the risk and loss allocation clause proposed here and existing contract law, of course, is who ends up bearing all of the risk and loss occasioned by the catastrophic changed circumstance. To be clear, if nothing changes and our approach to contract formation remains the same as it is right now, then all of the risk and all of the attendant loss will generally be left to lie where it falls, namely, on the party trying to get out of the contract because of the changed circumstances; and this will be result regardless of the legal theory used to justify (or demonize) the CCDs or any changes made to the doctrines themselves. But, If we finally acknowledge the public aspects of contracts and contract law, namely, that they do in fact produce social consequences that extend beyond the individual contract and contracting parties, then contracts and contract law may well be part of the solutions to some of the most pressing problems currently confronting American society now and into the future. 

New Article: The Gender of Gideon

Katherine A. Sabbeth & Jessica Steinberg, The Gender of Gideon, 69 UCLA L. Rev. (forthcoming 2022). Abstract below:

This Article makes a simple claim that has been overlooked for decades and yet has enormous theoretical and practical significance: the constitutional guarantee of counsel adopted by the Supreme Court in Gideon v. Wainwright accrues largely to the benefit of men. In this Article, we present original data analysis, which demonstrates that millions of women face compulsory and highly punitive encounters with the justice system but do so largely in the civil courts, where no right to counsel attaches. The demographic picture that emerges is one in which the right to counsel skews heavily against women’s interests. As this Article shows, the gendered allocation of the right to counsel has individual and systemic consequences that play an underappreciated role in perpetuating gender inequality. 

We revisit well-known doctrine, and, in contrast to all prior literature, we place gender at the center of the Court’s jurisprudence on the right to counsel. Liberty principles have been paramount in the Court’s opinions, but the liberty interests of women have been devalued. In Lassiter v. Department of Social Services, the Court refused to recognize the termination of a Black mother’s relationship with her child as deserving the right to counsel. Prior scholars have shown that the Gideon Court aimed to protect Black men from abuses of state power, but protecting Black women from such abuse is nowhere in the Court’s jurisprudence. 

Since Lassiter, the Court has refused to recognize a constitutional guarantee of representation for civil defendants with fundamental interests at stake, and the largest categories of these cases—family law, eviction, and debt collection—all disproportionately affect Black women. As we show, the gendered deprivation of a right to counsel relegates women to a secondary legal status and impinges on the functioning of American democracy. Drawing on the example of housing deprivation, a highly visible collateral effect of the pandemic, we illustrate how lawyerless defendants are now the norm in the civil justice system, with women most severely impacted by this crisis. First, their individual rights are routinely trampled. Powerful governmental and private adversaries of these women have captured the civil courts, with the result that judges regularly fail to enforce even well-established law. Second, without lawyers, appeals are scarce, and the law fails to evolve in areas of particular importance to women’s lives. Third, women’s ability to act in the world, protected by the rule of law, has been disproportionately compromised, resulting in women’s entrenched subordination. Finally, without lawyers to serve as watchdogs in the civil courts, constitutional doctrine has rendered women’s most important legal problems invisible. This has undermined opportunities to identify the system’s shortcomings and agitate for reform.

New Article: Judges in Lawyerless Courts

Anna E. Carpenter et al., Judges in Lawyerless Courts, 110 Goe. L.J. (forthcoming 2022). Abstract below:

The typical American civil trial court is lawyerless. In response to the challenge of pro se litigation, scholars, advocates, judges, and courts have embraced a key solution: reforming the judge’s traditional role. The prevailing vision calls on trial judges to set aside traditional judicial passivity, simplify court procedures, and offer a range of assistance and accommodation to people without counsel.

Despite widespread support for judicial role reform, we know little of whether and how judges are implementing pro se assistance recommendations. Our lack of knowledge stands in stark contrast to the responsibility civil trial judges bear – and the power they wield – in dispensing justice for millions of unrepresented people each year. While today’s civil procedure scholarship focuses on documenting and analyzing growing judicial discretion in complex litigation, a much larger sphere of unexamined and largely unchecked judicial discretion has been hiding in plain sight in state civil trial courts.

This Article’s theoretically-driven multijurisdictional study of judicial behavior in lawyerless courts contributes to literatures in civil procedure, judicial behavior, and access to justice. It examines three state civil courts in jurisdictions that rank at the top, middle, and bottom of the Justice Index (a ranking of state and national access to justice efforts). Despite major jurisdictional differences and contrary to conventional wisdom, judges’ behavior is surprisingly homogenous in the data. Rather than offering simplification and accommodation to pro se litigants as reforms suggest, judges maintained courts’ complexity and exercised strict control over evidence presentation. The Article theorizes that this unexpected finding reflects a core structural reality – civil courts were not designed for unrepresented people. And judicial behavior is shaped by three factors that result from civil justice system design: ethical ambiguity and traditional assumptions about a judge’s role, docket pressure, and pre-hearing case development provided to only one party.

In theory, judicial assistance to pro se litigants is a low-cost, practical solution to the problem of lawyerless courts. In practice, the vision for judicial role reform may overpromise what individual judges can do and underestimate implementation challenges. This study suggests that the legal and structural scaffolding to support judicial assistance to pro se litigants is woefully insufficient. The Article concludes the vision for judicial role reform will not be realized without formal legal requirements, consistent feedback about implementation, and a reduction in existing docket pressures.