New Article: Nicole McConlogue, The Road to Autonomy, WVU College of Law Research Paper, (Forthcoming), Oklahoma Law Review, (Forthcoming). Abstract below:
Scholars, activists, and advocates have long identified the “transportation gap” as a significant factor contributing to race- and class-based economic and other disparities. Carlessness correlates closely with race and poverty; meanwhile, widespread disinvestment in public transit results in low-income Black and Brown people suffering a disproportionate lack of access to opportunity and choice in almost every conceivable area of life.
The conversation focusing on correcting the transportation gap has most often proposed that state and local governments solve this problem in one of three ways: 1) by renewing their investment in public transit; 2) by increasing access to shared transit; and 3) by making adaptations to the built environment. This Article will demonstrate that these proposals are all inadequate. Despite their many benefits, none of these solutions provide an equivalent substitute for private car ownership for individuals who need or want it. Thus any solution privileging public approaches to the exclusion of private options is doomed at the outset and will never completely suffice to close the gap.
The thinking that inspires the major public-approach proposals is in line with the current understanding of the constitutional right to travel, which judges and legal scholars contemplate as a negative right blocking undue interference with interstate travel. A right to intrastate travel is not universally recognized, and where it is acknowledged, is also consistently framed as a negative right.
This Article argues that instead, advocates and lawmakers must design solutions that incorporate a positive right to autonomous mobility which allows individuals input and choice in the modes of transportation best suited to them. The low-income, Black, and Brown people stranded in the transportation gap are not well served by top-down, one-size-fits-all solutions. Moreover, the public-approach proposals typically ignore private car ownership as a possible option, or outright discourage it in order to stem the tide of the environmental and infrastructural problems associated with the popularity of driving. This imposes individual burdens to solve societal problems; it yokes the most vulnerable to eliminate problems created by the most powerful.
Instead, we must affirm a positive right to autonomous mobility: to trust individuals to know their own needs, and to meet them, even if those needs include private vehicle ownership. Only when we recognize this right and expand our thinking to include private options can we design creative and principled solutions that have a chance of closing the transportation gap.
The Georgetown University Health Justice Alliance (HJA) Law Clinic is seeking a clinical teaching fellow to teach and supervise law students through a medical-legal partnership between Georgetown University’s Law and Medical Centers. In collaboration with medical students and healthcare providers, the HJA Law Clinic provides poverty law advocacy in housing, public benefits, special education, and family law cases to remove legal barriers to health and well-being facing low-income children and families in Washington, D.C. and to promote health equity. The fellowship is ideal for a legal services attorney interested in transition into legal academia, developing teaching and supervisory skills, and mentoring law students interested in racial, economic, and social justice. The fellowship runs from summer 2023-summer 2025, and applications should be submitted no later than January 5, 2023. The posting and application information can be found at:
New Article: Peter Conti-Brown and Brian D. Feinstein, Banking on a Curve: How to Restore the Community Reinvestment Act, Harvard Business Law Review, (Forthcoming). Abstract below:
The federal government’s primary financial-regulatory tool for combating wealth inequality is broken. Intended to push banks towards deeper engagement with lower-income and minority communities, the Community Reinvestment Act (CRA) of 1977 has failed to meaningfully reduce the prevalence of “banking deserts” across lower-income communities or to reduce the racial wealth gap. As regulators circulate a proposed overhaul and the prospect of generational reform appears within reach, there is a danger that the CRA’s current moment in the sun will pass without the law being substantially improved.
This Article argues that the roots of the CRA’s problems are supervisory: bank examiners have severely skewed CRA examination scores to presume success in community lending. The Article documents, for the first time, the extreme grade inflation in examinations, with 96 percent of banks receiving one of the top two ratings. Given the persistence of underinvestment in lower-income and minority communities, that result beggars belief.
As a corrective, banks should be graded on a curve, with a certain percentage of institutions slotted in most grade categories—including, importantly, the categories that prevents banks from pursuing new business opportunities. This reform—which, to maximize its effectiveness, should be enacted in tandem with a collection of other measures designed to discourage regulatory arbitrage—would enable the CRA to fulfill its promise: to expand access to credit, spur investment in overlooked areas, and combat racial inequities through the financial system.
New Article: Noah M. Kazis, Can Affordable Housing Be a Safety Lessons from a Pandemic , 132 Yale L. J. 412 (2022). Abstract below:
The COVID-19 pandemic posed an unprecedented challenge to housing stability, with mass unemployment and societal disruption leaving millions of tenants struggling to make rent. Aggressive public intervention avoided the worst outcomes, but the effort to protect renters exposed the mismatch of existing affordable-housing programs to moments of short-term crisis, whether personal or nationwide. These programs are not designed to serve as safety nets or to act nimbly during market upheavals; they are primarily targeted to serve people facing chronically low incomes over the long term. Nor can the new emergency programs created midpandemic straightforwardly be made permanent. But while affordable-housing programs are not currently a safety net—and indeed, cannot easily serve this function—the pandemic also offers valuable insights into what building that housing safety net would take.
New Article: Rachel D. Godsil and Sarah E. Waldeck, The New Tipping Point: Disruptive Politics and Habituating Equality, 70 Emory L, J, 1507 (2021). Abstract below:
This Essay argues that the events of 2020 opened a window of political opportunity to implement policies aimed at dismantling structural injustice and systemic racism. Building on the work of philosopher Charles Mills and political scientist Clarissa Rile Hayward, we argue that the Black Lives Matter Movement constituted the “disruptive politics” necessary to shift dispositions of many in the United States toward racial equity by interrupting the white “epistemologies of ignorance.” Moreover, because policies that correct structural injustice are beneficial for people across race, even those whose hearts and minds remained closed may embrace legislative policies that function to dismantle systemic racism. As people become habituated to structures that facilitate equality and the policies that underlie them, the United States will finally begin to tip toward equality and a society of belonging.
New Article: Emily A. Benfer, U.S. Eviction Policy is Harming Children: The Case for Sustainable Eviction Prevention to Promote Health Equity, Petrie-Flom Center: Bill of Health, (Nov. 2, 2022). Excerpt below:
Without a nationwide commitment to sustainable eviction prevention, the United States will fail the rising number of renter households at risk of eviction. Worse still, the country will set millions of children on the path of long-term scarring and health inequity.
A staggering 14.8% of all children and 28.9% of children in families living below the poverty line experience an eviction by the time they are 15. For children, eviction functions as a major life event that has damaging effects long after they are forced to leave their home. It negatively affects emotional and physical well-being; increases the likelihood of emotional trauma, lead poisoning, and food insecurity; leads to academic decline and delays; and could increase all-cause mortality risk.
In a recent study, researchers found that for young children, eviction was associated with significantly greater odds of fair or poor health, developmental risk, and hospital admission from the emergency department. Newborn infants whose mothers are evicted during their pregnancy are more likely to have low birth weight, preterm birth, neonatal intensive care unit stays, and extended hospitalization. In this way, eviction has negative effects across the life course.
The evidence is clear: child health and housing security are deeply intertwined.
New Article: Eric A. Posner, How Inequality Undermines Institutions, The IFS Deaton Review (2021). Abstract below:
This paper, a comment on an essay by Satz and White that appeared in the IFS Deaton Review (Sept. 2021), argues that redistribution of wealth for the purpose of advancing equality (rather than improving the worst off) can be provided an institutional defense against the “leveling down” charge that a commitment to equality implies that it is appropriate to reduce the wealth of the rich even when it cannot be transferred to the poor. The argument is that major institutions of society–the market and agency regulation–assume a degree of economic equality, and tend to be undermined when extreme inequality prevails.
New Article: Russell G. Pearce, Sarah Medina Camiscoli, Christina John, Aundray Jermaine Archer, Aron Pines, Maryam Salmanova, and Vira Tarnavska, Subversive Legal Education: Reformist Steps toward Abolitionist Visions, 90 Fordham L. Rev. 2089 (2022). Abstract below:
Exclusivity in legal education divides traditional scholars, students, and impacted communities most disproportionately harmed by the legal education system. While traditional legal scholars tend to embrace traditional legal education, organic jurists—those who are historically excluded from legal education and those who educate themselves and their communities about their legal rights and realities—often reject the inaccessibility of legal education and its power.
This Essay joins a team of community legal writers to imagine a set of principles for subversive legal education. Together, we—formerly incarcerated pro se litigants, paralegals for intergenerational movement lawyering initiatives, first-generation law students and lawyers, persons with years of formal legal expertise, and people who have gained expertise outside of law schools bring together critical insight about the impact of legal education’s exclusivity and the means by which we have worked to expand access necessary for our survival. The Essay explores the frameworks of movement law, Black feminism, and abolition as impacted people look to reclaim experiences and create tools for subversive legal education that teaches that the law belongs to the people and how they themselves can make and change the law.
In Part I, we explore reformist strategies that address the pervasive racism in legal education and the bar admission system while leaving the institutional framework intact. In Part II, we share four case studies of transformative legal tools; these tools work to subvert legal education from a machine that excludes, extracts, and exploits our communities into a mechanism that educates and liberates our communities. In Part III, these case studies illuminate principles that prioritizes access, transparency, and collective design with impacted scholars and communities. This is a first step toward abolition—a radical reimagination of legal education that makes legal knowledge a right, that democratizes legal power, and that recognizes that the production of legal knowledge, teaching, and scholarship must include those whom the law impacts, consistent with the disability rights activism mantra ‘Nothing About Us Without Us’. For us, abolishing the existing structures perpetuating exclusive enclaves in legal education can assist in other abolitionist struggles, such as abolition of the prison industrial complex; these struggles are tied, not siloed from one another.
New Article: Gwendolyn Roberts Majette, Striving for the Mountaintop – The Elimination of Health Disparities in a Time of Retrenchment (1968 – 2018), 12 Geo. J. L. & Mod. Crit. Race Persp. 145 (2022). Abstract below:
Health disparities in the United States are real. People of color are the adverse beneficiaries of these facts—lower life expectancy, higher rates of morbidity and mortality, and poorer health outcomes in general. This Article analyzes the laws and policies that improve and create barriers to improving people of color’s health since the death of Reverend Martin Luther King, Jr. in 1968. The Article builds upon my earlier scholarship and con- siders the effectiveness of the “PPACA Framework to Eliminate Health Disparities” since the Patient Protection and Affordable Care Act (PPACA) was enacted in 2010.
The Article also explores the impact of constitutional challenges to the PPACA, President Trump’s executive orders, and other regulatory changes on the continued reduc- tion of health care disparities. It analyzes legal retrenchment from the PPACA through Professor Derrick Bell’s critical race theory scholarship, in particular his theory of interest convergence. Following the works of Dr. King and Prof. Bell, it proposes a “Mountaintop Solution” to eliminate health disparities for people of color in the United States.
The Mountaintop Solution recognizes the importance of health and human rights norms to protect the rights of marginalized groups. Normatively, the Article argues that the United States should act justly and comply with its treaty obligations under the International Convention on the Elimination of All Forms of Racial Discrimination and the first United States National Action Plan for Responsible Business Conduct. The Article also argues that businesses in the U.S. health care industry should adhere to the United Nations Framework and Guiding Principles for Business and Human Rights in their response to the promulgation of laws designed to undermine the effectiveness of the PPACA. Specifically, the health care industry should engage in health promoting activities that create conditions that will ensure that people of color have the highest level of physical and mental health.
New Article: Emily R.D. Murphy, Brains Without Money: Poverty as Disabling, 54(3) Conn. L. Rev. 699 (2022). Abstract below:
The United States has long treated poverty and disability as separate legal and social categories, a division grounded in widespread assumptions about the “deserving” and “undeserving” poor. In the case of disability, individuals generally are not thought to be morally responsible for their disadvantage, whereas in the case of poverty, individuals are assumed to be at fault for their disadvantage and are therefore less deserving of aid.
This Article argues that recent advances in brain and behavioral science undermine the factual basis for those assumptions. Poverty inhibits brain development during childhood and, later in life, adversely affects cognitive capacities that are key to decision-making and long-term planning. The science of scarcity is complex and ongoing, but its most basic finding is quickly approaching consensus: poverty’s effects in the brain can be disabling. This Article argues that understanding poverty as disabling has potentially significant implications for policy and doctrine. Viewing poverty as disabling would provide support for poverty programs with less sludge and more money: proposals such as universal basic income, negative income tax, child grants, and greatly simplified benefits determinations. It also reanimates insertion of social welfare concerns into the dominant civil rights framework for disability policy, and it could resolve longstanding tensions between disjointed federal disability laws. In addition, brain and behavioral science may support litigation strategies to compel accessibility to existing systems and potentially help promote a new public understanding of the causes of poverty.
The Article concludes by considering the potential (and significant) downsides of using the lens of science in service of policy: backlash, misunderstanding, and the fragility of relying on nascent science to support fundamentally normative policy goals. One necessary mitigation strategy involves the careful translation of science, including its limitations and residual uncertainties, into legal scholarship, an approach this Article attempts to both articulate and model.