New Article: Equitable Health Savings Accounts: Bridging the Left-Right Divide

New Article: Samual Estreicher and Clinton G. Wallace, Equitable Health Savings Accounts: Bridging the Left-Right Divide, 56 Harv. J. Legis. 395 (2019). Abstract below:

This Article offers the first comprehensive legal-policy critique of existing Health Savings Accounts (“HSAs”), arguing that the current approach is redis- tributively regressive, thus exacerbating inequality, and also fails to accomplish stated healthcare goals. We propose an alternative—Equitable Health Savings Accounts—which uses cash grants as a tool to address both of these problems. Equitable HSAs are a market-based social program that calibrates size and delivery of a government subsidy to help the least well-off and to facilitate participation in healthcare markets. Equitable HSAs can serve as a model for using cash grants to bridge the gap between Republican social policy proposals that generally carry a market libertarian flavor and Democratic proposals that are focused on redistribution and social safety nets. Contrary to conventional politi- cal wisdom and academic commentary on the tradeoff between equity and efficiency, these goals need not be mutually exclusive. Rather, as our Equitable HSA proposal demonstrates, cash grants can strengthen market forces, allowing policymakers to harness the benefits of markets to achieve policy goals while engaging in redistribution.

News Coverage: Scenes from an Economic Collapse

News Coverage: Scenes From an Economic Collapse, N.Y. Times Mag., May 27, 2020.

New Article: The Law of the Middle Class: Consumer Finance in the Law School Curriculum

New Article: Adam J. Levitin, The Law of the Middle Class: Consumer Finance in the Law School Curriculum, 31 Loy. Consumer L. Rev. 393 (2019). Abstract Below:

America is defined by its broad middle class, but the middle class is virtually absent from the law school curriculum. Law school courses deal with general concerns (contracts, torts, property, and taxes), the concerns of the rich (trusts and estates), and occasionally the law of the poor, but there are no courses dedicated to the financial concerns of the middle class.

This Essay argues that the defining feature of the American middle class is its reliance on credit to finance its essential purchases: a home, a car, and an education. The law of the middle class is the law of consumer finance. Courses covering the markets and regulation of consumer financial products are not, however, to be found in standard law school course offerings.

It is time for this to change. The creation of the Consumer Financial Protection Bureau has centralized and rationalized the institutional structure of consumer financial regulation such that it is now possible to organize a coherent stand-alone course in consumer finance. This Essay argues that consumer finance regulation—the law of the middle class—should become a standard part of the upper-level law school curriculum and presents a vision of what such a course would look like.

Juliet Brodie et al., Poverty Law, Policy, and Practice (2nd edition) available for the fall semester

For those who have taught from the Brodie et al. Poverty Law textbook or who want to teach from it, some good news. The electronic version will be available for fall 2020 adoption. The hardcopy will not be published in time but if you are teaching poverty law in the fall and interested in adopting the 2nd edition of this textbook, please email erosser@wcl.american.edu so I can put you in touch with the publisher, etc. There are lots of updates in this edition and we would of course be happy to talk with anyone considering this book about those changes/updates. Thanks

-Juliet Brodie, Clare Pastore, Ezra Rosser, and Jeff Selbin.

News Coverage: An ‘Avalanche of Evictions’ Could Be Bearing Down on America’s Renters

News Coverage: Sarah Mervosh, An ‘Avalanche of Evictions’ Could Be Bearing Down on America’s Renters, N.Y. Times, May 27, 2020 [discussing end of states’ temporary hold on evictions due to COVID and the looming displacement of low income renters].

Updated ClassCrits CFP / Conference Information

The details are below:

CALL FOR PAPERS & PARTICIPATION ClassCrits XIII: Unlocking Equality: Revisiting the Intersection of Race and Class

Co-Sponsored by ClassCrits, Inc. & Thurgood Marshall School of Law

November 6-7, 2020

Keynote Speaker: Chokwe Antar Lumumba, Mayor of Jackson, Mississippi

The Civil Rights Era of the mid 20th century brought about reforms designed to establish formal legal equality for African Americans and other people of color.  Thanks to what some have called the Second Reconstruction, it is no longer lawful to forcibly segregate children by race in public schools or to discriminate privately on the basis of race in public accommodations, housing, or employment.  However, these reforms have not produced substantive equality for people of color, and in particular for the African American, Latinx and Native American communities.  The wealth and income of these communities are far below that of whites, their poverty and unemployment rates are far above the national average, and they are far underrepresented among college graduates and in professions requiring higher education.  There is still widespread de facto racial and ethnic segregation in schools and residential living patterns.  And people of color are often harassed and brutalized by police and private citizens when engaged in normal human activities.  Even as tentative bipartisan consensus to roll back mass incarceration emerges, the current president has political support for a militarized and racialized anti-immigrant campaign that puts children in cages and bars immigrants and refugees from entering the United States if they hail from so-called “shithole countries.”

For several decades, scholarship in Critical Race Theory and LatCrit Theory has examined the role of ongoing racial discrimination in perpetuating these injustices.  Part of the explanation is the persistence of outright bigotry on the part of many whites.  Despite laws prohibiting it, much private discrimination still occurs, as shown by the thousands of successful complaints of housing and employment bias annually filed with enforcement agencies.  And public officials continue to promote and engage in bigotry for political advantage, as with the Trump Administration’s support of white supremacists and its demonization and mistreatment of immigrants.  Implicit bias is a second factor underlying ongoing racial discrimination.  As research in cognitive psychology has demonstrated, awareness of racial stereotypes negatively affects the perceptions of and behavior toward people of color even among those who claim and may believe themselves to be colorblind.  Finally, structural and institutional racism perpetuate the ongoing discrimination.  Inequalities within and interactions among housing markets, the educational system, labor markets, and the carceral state magnify the effects of conscious and unconscious bias, producing “locked-in inequality.”

A slightly different account is found in the literature on “racial capitalism.”  Inspired by scholars in the Black radical tradition such as W.E.B. DuBois, Cedric Robinson, and Sylvia Wynter, historians and theorists of capitalism have begun to trace the relationship between global capitalism and white supremacy.  From the dispossession of indigenous people in the “New World” to the establishment of Atlantic slavery, through the construction of empires of cotton, sugar, bananas, and other commodities that pulled colonized and racialized peoples around the globe into new supply chains designed to serve the European metropoles, the cheap land and labor produced by white supremacy has been central to the emergence of capitalism.  Indeed, new historical research suggests that capitalist tools and mechanisms—from accounting and management practices to mortgages, the corporate form, and private property itself—are the products of a mindset that has distributed the privileges of “humanity” unequally.  This account refuses the conventional question of “Is it race or class?” and suggests that the two are intimately intertwined.

This backdrop poses several questions.  Is it possible to overcome white supremacy with the existing tools of American law?  Can white supremacy and capitalism be disentangled?  Is it possible, given what DuBois called the “wages of whiteness,” to build a more egalitarian society with minimal wealth and income disparities, high quality education and guaranteed employment for all, and comparable opportunities to seek fulfillment in life?  Despite the enormous power of the moneyed elite, is it possible and what would it take to transform our society from one based on competition, profit, and individual satisfaction to one whose core values are working cooperatively, meeting people’s needs, and fairly sharing what society collectively produces among all its members?              

We invite panel proposals and paper presentations that speak to this year’s theme of Unlocking Equality: Revisiting the Intersection of Race and Class as well as to general ClassCrits themes. See below for details.

In addition, we extend a special invitation to junior scholars (i.e., graduate students, aspiring faculty members, or faculty member with less than two years of experience in a full time position) to submit proposals for works in progress (WIPs). A senior scholar as well as other scholars will comment upon each work in progress in a small, supportive working session. Due to the increasing popularity of our WIPs program, we may need to limit capacity.  We anticipate selecting WIP papers on a first-come, first-served basis. Scholars submitting WIPs who are not selected to workshop their paper will have the opportunity to participate on a regular conference panel.

We invite panel proposals that speak to this year’s theme as well the general ClassCrits themes, including:

  • The legal and cultural project of constructing inequalities of all kinds as natural, normal, and necessary.
  • The relationships among economic, racial, and gender inequality.
  • The development of new methods (including the interdisciplinary study and development of such methods) with which to analyze and criticize economics and law (beyond traditional “law and economics”).
  • The relationship between material systems and institutions and cultural systems and institutions.
  • The concept and reality of class within the international legal community, within international development studies and welfare strategies, and within a “flattening” world of globalized economics and geopolitical relations.

Proposal Submission Procedure and Deadline

Please submit your proposal by email to classcrits@classcrits.org by August 15, 2020 with the following details:

Individual paper proposals should include a title and short abstract, along with the presenter’s name, contact information, institutional affiliation (if any), and a short speaker bio (1-3 sentences). Individual papers (other than works-in-progress submissions, see below) will be grouped by the conference organizers into panels.

Works-in-progress submissions for junior or emerging scholars seeking individualized presentations and comments) should be clearly identified as “Work-in-Progress” and should similarly include a title, short abstract, name and contact information, and a 1-3 sentence bio identifying their current status as a student or new or aspiring faculty member (see details on previous page).

Panel proposals may use a variety of formats, including traditional paper presentations, roundtables, and audience discussions. Please indicate the format of the proposed panel, and include a proposed panel title, a short description of the overall topic, and a list of confirmed panelists, with contact information.  For panels comprised of individual presentations, please include titles and short summaries of each presentation and a short bio (1-3 sentences) for each panelist or panel organizer.

Logistics & Fees

The venue for the gathering is the Thurgood Marshall School of Law in Houston, TX. The conference will begin with continental breakfast on Friday November 6, 2020, and continue through the afternoon of Saturday November 7, 2020. Arrangements are being made for conference hotels. 

For updates, check www.classcrits.org, where you can also sign up as a ClassCrits member to be on our contact list and to post a profile that will build our network and showcase your work.  Associate membership is free; full membership dues are $25 for 2020 (includes ClassCrits, Inc. voting rights and 2020 conference discount).

The registration fee is $215.00 for accepted presenters who are full-time faculty members; ClassCrits members get a discounted registration fee of $200.   Registration is free for students and activists. Participants who do not fit into these categories, and/or who for individual reasons cannot afford the registration fee, should contact us at classcrits@classcrits.org. Workshop attendees are responsible for their own travel and lodging expenses.

Who we are

Twelve years ago, a group of scholar-activists organized a series of conversations about law and economic class.  Building on “outsider” jurisprudence that has moved inequalities of race, gender, and sexuality from the margins to the center of law, the group proposed a jurisprudence of economic inequality. To foreground economic justice, the group sought to critique mainstream law and economics and to focus on the lives of poor and working-class people.

Rejecting the neoliberal ideology of scarcity, and reclaiming the possibilities presented by the commons and by collective action, ClassCrits was born.  Our name “ClassCrits” reflects our ties to critical legal analysis and our goal of addressing economic class in the multiple intersecting forms of subordination. We confront the roots of economic inequality in divisions such as race and gender and in legal and economic systems destructive to the well-being of humanity and the planet.

  • ClassCrits Conference Planning Committee
  • Antonia Eliason, University of Mississippi School of Law
  • Tiffany Graham, University of South Dakota School of Law
  • Victoria Haneman, Creighton University School of Law
  • Angela Harris, U.C. Davis School of Law & U.C. Davis Center for Poverty Research
  • Danielle Kie Hart, Southwestern Law School
  • Lucy Jewel, University of Tennessee College of Law
  • Thomas Kleven, Thurgood Marshall School of Law
  • Martha McCluskey, University at Buffalo School of Law
  • Athena Mutua, University at Buffalo School of Law
  • Carla Spivak, Oklahoma City University School of Law
  • René Reich-Graefe, Western New England University School of Law
  • Lua Kamal Yuille, University of Kansas School of Law
  • ClassCrits, Inc. Board of Directors
  • Victoria Haneman, Creighton University School of Law
  • Angela Harris, U.C. Davis School of Law & U.C. Davis Center for Poverty Research
  • Danielle Kie Hart, Southwestern Law School
  • Lucy Jewel, University of Tennessee College of Law
  • Thomas Kleven, Thurgood Marshall School of Law
  • Martha McCluskey, University at Buffalo School of Law
  • Athena Mutua, University at Buffalo School of Law
  • René Reich-Graefe, Western New England University School of Law
  • Lua Kamal Yuille, University of Kansas School of Law

New Article: The Public Interest in the Private Law of the Poor

New Article: Anne Fleming, The Public Interest in the Private Law of the Poor, 14 Harv. L. & Pol’y Rev. 159 (2019). Abstract below:

This Article begins to explore the uncharted connections between private law and poverty law, revealing a striking pattern that is only visible when these two bodies of law are viewed in the same frame. Many poverty law scholars have focused on the rules that regulate government assistance to the poor. They have left largely left unexamined the private law of the poor — meaning, laws that govern the private economic relationships of those living in poverty or in danger of falling into destitution. At the same time, the study of private law is flourishing among scholars who seek to understand the law’s vision of justice in relations between private individuals. But these scholars often seek that vision within the law’s doctrinal structures, which betray little overt concern with poverty.

Revealing the connections between the two fields, this Article shows how concerns about public spending on poor relief have shaped debates over the private law of the poor for over a century. It traces the recurrence of one rationale for regulation, the prevention of “pauperism,” that explicitly linked private law rules with poverty alleviation. Proponents of the anti-pauperism argument claimed that private law, if properly structured, could help prevent dependence on poor relief and thereby reduce the burden on the public fist of caring for poor households. Thus, they imagined the private law of the poor as one component of a larger system of rules designed to keep families self-supporting and off the poor relief rolls.

Drawing on original research across a range of source materials, this Article traces the history of the anti-pauperism argument and offers several explanations for its enduring appeal. It then describes the implications of this history for law and economics scholars, for present-day fights against economic inequality and in favor of regulatory reform, and for breaking down the silos between private law and poverty law.

New Blog Post: The Crisis is Exposing the Harm Structural Attacks on Anti-Poverty Programs Have Done

New Blog Post: David A. Super, The Crisis is Exposing the Harm Structural Attacks on Anti-Poverty Programs Have Done, Balkinization, May 23, 2020.

New Article: EITC for All: A Universal Basic Income Compromise Proposal

New Article: Benjamin Leff, EITC for All: A Universal Basic Income Compromise Proposal, 26 Wash. & Lee J. Civ. Rts. & Soc. Just. 85 (2019). Abstract below:

Much has been written about a concept called universal basic income (UBI). With a UBI, the government gives every person a certain amount of money each year, or even each month. The UBI has broad appeal with thinkers on both the right and the left, but the appeal is partially because different thinkers have different visions of what the current state of affairs is with respect to government welfare policies and different theories about why these existing policies are inadequate or damaging. Reforming existing programs, rather than making a radical break with the past, could satisfy at least some of the interests that motivate support for a UBI. The purpose of this Article is to explore the possibility of modifying the Earned Income Tax Credit (EITC), the largest and arguably most popular U.S. anti-poverty government transfer program, in order to capture at least some of the benefits associated with the UBI. This Article explores four problematic aspects of the EITC, each of which could be modified to make it function more like a UBI. These four aspects are: (1) the EITC creates disincentives to work for the so-called “nearly poor” because the credit phases out at moderately low income levels; (2) the EITC is fundamentally dependent on family structure, which is potentially unfair, invasive, and affects incentives to marry, divorce, and cohabitate; (3) receipt of the EITC benefit is temporally mismatched with recipient need, expensive for recipients to collect, and difficult for the IRS to administer because the EITC is integrated with the tax system; and, finally, (4) the EITC is too small to fully function as a hedge against underemployment and poverty. Modifying the EITC would make it more like a UBI and would make it more effective at achieving the goal of supporting financially struggling workers and their families while minimizing perverse incentives.

Op-ed: America Will Struggle After Coronavirus. These Charts Show Why.

Op-ed: David Leonhardt and Yaryna Serkez, America Will Struggle After Coronavirus. These Charts Show Why., N.Y. Times, April 10, 2020 [This is dated but the charts could be good for class so I decided to post anyway.]