New Article: Food Deserts, Racism, and Antitrust Law

New Article: Christopher R. Leslie, Food Deserts, Racism, and Antitrust Law, 110(6) Cal. L. Rev. 1717 (2022). Abstract below:

Millions of Americans live in food deserts, a term that describes urban neighborhoods and rural regions where residents do not have access to healthy, affordable food. Food deserts are neither natural nor inevitable. Many food deserts result from the deliberate choices of supermarkets to maximize their profits by shifting resources to suburban consumers while affirmatively blocking other grocery stores from operating in food deserts. This Article examines the history, business logic, and illegality of these corporate decisions.

In many ways, food deserts are a tale of two covenants: racial covenants and anticompetitive covenants. During the era of white flight, racial covenants and their lingering effects prevented Black families from moving to the suburbs. Supermarkets followed white families out to the new communities. Not content to simply expand into new locations in the suburbs, many supermarket chains abandoned their inner-city stores. When they sold these locations, many supermarkets imposed scorched-earth covenants in their deeds of sale that forbade any future owner from operating or allowing a supermarket at that location. These anticompetitive covenants prevented any other grocery store from serving the families left behind. This one-two punch of hemming nonwhite families into certain neighborhoods and then preventing supermarkets from existing in these same neighborhoods devastated the physical health of racial minorities and the economic health of their communities. 

This Article explains why food deserts are an antitrust problem. Many food deserts were caused, in part, by anticompetitive covenants and other market failures. Despite this, courts fail to appreciate the antitrust significance of food deserts because judges define markets too broadly based on the attributes of an “average” consumer: wealth and mobility. Consequently, the residents of food deserts are effectively denied the protection of antitrust law.

Courts should treat food deserts as relevant geographic markets for antitrust purposes. Doing so is consistent with antitrust principles and would enable valid antitrust claims to proceed and to invalidate the anticompetitive covenants that create and perpetuate food deserts. Antitrust officials can also leverage the power that they possess during the merger review process to negotiate enforceable promises by supermarket chains to waive enforcement of their restrictive covenants. Applied correctly, antitrust law is a valuable weapon in a larger arsenal of policy prescriptions to remedy the problem of hunger and poor nutrition in America’s food deserts.

New Article: COVID, Climate Change, and Transformative Social Justice: A Critical Legal Research Exploration

New Article: Nicholas F. Stump, COVID, Climate Change, and Transformative Social Justice: A Critical Legal Research Exploration, 47 Wm. & Mary Env’t L. & Pol’y Rev. 147 (2022). Abstract below:

This Article explores intertwined contemporary crises via the Critical Legal Research framework (“CLR”), as initially developed by the critical legal scholars Richard Delgado and Jean Stefancic. CLR as conceived of in this Article entails a truly radical approach to the legal research and analysis regime. While the traditional research regime—as taught in law schools and utilized in practice—functions to homogenize research outcomes towards hegemonic ends, a critically “reconstructed” approach to legal and broader socio-legal research permits more transformative futures. Specifically, CLR as deployed within such modes as radical cause lawyering can help engender genuine systemic “re-formations” of the ecological political economy beyond mere law “reform.”

Next, this Article applies the CLR framework to three intertwined crises: climate change and the broader ecological crisis (i.e., termed the “Capitalocene” by critical commentators); the COVID-19 global pandemic and accompanying social catastrophe; and the racial state violence and intersecting oppressions along lines of class, gender, LGBTQ+ status, immigrant status, etc. that catalyzed the mass Black Lives Matter uprising. This illustrative CLR application demonstrates that such crises ultimately emanate from the unjust and ecologically unsustainable white patriarchal capitalist paradigm—and that, correspondingly, CLR-influenced radical cause lawyering modes could help drive transformative futures beyond this paradigm in its entirety.

New Podcast: Eh Sayers — Why Haven’t We Ended Poverty Yet? [S3 E2]

New Podscast: Tegan Bridge (Host), Burton Gustajtis, Evelyn Forget, & Kevin Milligan (Guests), Why Haven’t We Ended Poverty Yet?, Eh Sayers, (Oct. 17, 2022). Overview below:

It used to be that Statistics Canada didn’t measure poverty. Not exactly. Poverty is complex, and there wasn’t a single definition that everyone agreed on. So while StatCan did measure low income and other income inequality indicators, it didn’t measure poverty per se. That is, until 2018, when the government chose to use the Market Basket Measure, or MBM, as Canada’s Official Poverty Line. That means that the government now uses the MBM to track its poverty reduction targets.

But something strange happened during the pandemic: in 2020 the poverty rate fell. And it fell quite a bit. In fact, the poverty rate dropped in one year almost as much as it had in the four preceding years.

But why? What happened? Will the poverty rate continue to fall? And what happens if it hits zero? How would health outcomes change? Education outcomes? People’s general happiness and well-being?

Has there ever been a time and place in Canada where the poverty rate was zero? The closest may be the Mincome Experiment of the 1970s in Manitoba. Many Canadians have never heard of this guaranteed income experiment, but it offers a glimpse at what eliminating poverty might look like.

To learn more we spoke with Burton Gustajtis, an economist from Statistics Canada, Evelyn Forget, a Professor of Economics and Community Health Sciences at the University of Manitoba and Kevin Milligan, a Professor of Economics in the Vancouver School of Economics at the University of British Columbia.

New Article: The Public Defender Movement in the Age of Mass Incarceration: Georgia’s Experience

New Article: Robert L. Tsai, The Public Defender Movement in the Age of Mass Incarceration: Georgia’s Experience, 1 J. of Am. Const. His. 85 (Winter 2023). Abstract below:

Focusing on the efforts of the Southern Center for Human Rights, this article offers a grassroots history of the creation of the first statewide public defender in the State of Georgia in 2003. Whereas federal court litigation to improve indigent defense failed to achieve lasting reform, a shift in tactics toward “rebellious localism,” characterized by state court lawsuits against county and city officials, succeeded in prodding lawmakers to create a new framework for delivering legal services to indigent defendants. This model of legal change was effective in documenting structural flaws and creating momentum for reform. Yet other conditions—such as front-end criminal law policies and funding decisions—continued to shape the actual quality of representation received by poor people.

New Article: “Work Until You Die” Is Not a Retirement Plan

New Article: Rebecca Cokley, “Work Until You Die” Is Not a Retirement Plan, The Nation (March 10, 2023). Excerpt below:

The disability community is reeling this week over the passing of Judith Heumann. Judy, a polio survivor, spent most of her 75 years advocating for the rights of people with disabilities, in school, in employment, in foreign policy, in the United States and globally. She served in both the Clinton and Obama administrations, and pioneered roles at the World Bank and the Ford Foundation. But the reality is that Judy, like so many disabled people, had to work until her death to maintain the quality of life that she needed to stay in the community and avoid being forced against her will into an institution or nursing home.

As Rebecca Vallas at the Disability and Economic Justice Collaborative says, “Disability is a cause and consequence of poverty.” Rules and regulations regarding Social Security, the Fair Labor Standards Act, the Workforce Investment Act, and Medicaid govern every decision people with disabilities can make about their economic status, from what college to attend to whether to marry.

New Article: A mile-long line for free food offers a warning as covid benefits end

New Article: Tim Craig, A mile-long line for free food offers a warning as covid benefits end, Washington Post, (March 4, 2023). Excerpt below:

As he claimed the first spot in a mile-long line for free food in the Appalachian foothills, Danny Blair vividly recalled receiving the letter announcing that his pandemic-era benefit to help buy groceries was about to be slashed.

Kentucky lawmakers had voted to end the state’s health emergency last spring, by default cutting food stamp benefits created to help vulnerable Americans like Blair weather the worst of covid-19. Instead of $200 a month, he would get just $30.

He crumpled up the letter and threw it on the floor of his camper.

New Article: Weaponizing Code Enforcement

New Article: Jennifer Aronsohn, Weaponizing Code Enforcement, 108(1) Cornell L. Rev. 16 (2023). Abstract below:

Zoning has captured the nation’s attention in recent years: community activism has led cities and states to revisit their zoning codes as a means to increase access to affordable housing. The primary focus has been on single family zoning and its exclusionary effect in reinforcing segregation. However, within some municipalities’ zoning code is a less recognized regulatory device, rental registration requirements, that further controls the demographics of the jurisdiction by excluding renters that the municipality deems undesirable.
This Essay will describe how landlord or rental registration ordinances, coupled with selective heightened enforcement of building codes and frequent law enforcement checks, can be a Fair Housing Act violation. It will also explain how the current disparate impact claim framework makes it difficult to prove a claim against a local government—a municipality can justify its practices as designed to improve the quality of life for renters and a resident cannot point to a less discriminatory means to do so.

New Article: Homeless Residency Restrictions

New Article: Ben A. McJunkin, Homeless Residency Restrictions, 125 W.V. L. Rev. 407 (2023). Abstract below:

Last year, the West Virginia House of Delegates introduced a radical proposal for responding to homelessness within the state: privately enforceable residency restrictions. As introduced, the restrictions prohibited homeless individuals from sheltering themselves, from being sheltered by others, or from receiving food or care within 1,500 feet of a school or childcare center. This prohibition was to operate statewide, transforming an issue that historically has been considered hyper-local into a subject of state concern. Moreover, the proposed bill established a private right of action for enforcement, legislating around the possibility of recalcitrant municipal governments declining to abide by the residency restrictions. The structure of the West Virginia bill is unique in the context of responding to homelessness, a burgeoning national crisis. In this respect, the bill illustrates how future debates about homelessness policy may be shifting away from the traditional thinking that homelessness is a local issue best addressed by local governmental actors. However, the defining features of the West Virginia bill are not themselves novel. Instead, the bill may best be seen as an extension of three emergent trends in state governance to a novel subject matter. This Essay thus explores three frontiers of homelessness law and policy that are implicated by the West Virginia bill. First, it draws upon lessons learned from sex offender residency restrictions to demonstrate the bill’s potential for unintended, and undesirable, consequences in communities with sizable homeless populations. Second, it situates the use of state power to regulate a traditionally local concern amidst a recent trend in aggressive state–local preemption to question the wisdom and propriety of statewide responses to homelessness. Third, it compares the deployment of private enforcement mechanisms to similar legislation in other contexts—including Texas’s fetal heartbeat bill—to highlight the pernicious and antidemocratic possibilities of marshaling private disdain for homeless residents. Throughout, the Essay explores how these features of the West Virginia bill expose the shifting thinking about the phenomenon of homelessness more broadly

New Article: Public Education Is Vital for Democracy. But It’s Not the Solution to Poverty or Inequality.

New Post: Jennifer C. Berkshire, Public Education Is Vital for Democracy. But It’s Not the Solution to Poverty or Inequality., Jacobin, (March 25, 2023). Excerpt below:

The bipartisan obsession with schooling as an investment in “human capital” in the US since the 1970s has fostered a highly unequal society. We need wide-ranging redistribution to tackle inequality — and to defend public education against right-wing backlash.

I love the poorly educated,” Donald Trump told supporters in Nevada after they helped him notch a decisive win in the state’s 2016 Republican caucuses. The line was typical: dashed off, casually cruel, instantly divisive. And it instantly distinguished Trump from his competitors in both parties. He wasn’t promising his supporters a brighter future, but only if they got more education or retrained for a better job. There was no talk here of “access,” “opportunity,” or “human capital.” Instead, Trump was trashing yet another political norm: the bipartisan consensus, stretching back a half century, that the solution to economic inequality is more and better education.

In his important and timely new book, The Education Myth: How Human Capital Trumped Social Democracy, Jon Shelton chronicles the evolution of that belief, long elevated to the status of common sense. It’s the story of how political elites fell in love with an idea, abandoning a redistributive agenda in favor of education. The result, argues Shelton, has been ever-widening economic inequality and a stark political divide.

New Article: The Negative Right to Shelter

New Article: Ben A. McJunkin, The Negative Right to Shelter, 111(1) Cal. L. Rev. 127 (2023). Abstract below:

For over forty years, scholars and advocates have responded to the criminalization of homelessness by calling for a “right to shelter.” As traditionally conceived, the right to shelter is a positive right—an enforceable entitlement to have the government provide or fund a temporary shelter bed for every homeless individual. However, traditional right-to-shelter efforts have failed. Despite the continuing prominence of right-to-shelter rhetoric, only four U.S. jurisdictions have embraced such a right. Moreover, the shelter systems in these jurisdictions are troublingly inadequate, mired in administrative bureaucracy and cabined by strict eligibility limits. The right-to-shelter movement has even proven pernicious. Centering a positive right to shelter in the discourse surrounding homelessness has rendered the weaknesses in shelter offerings invisible, and courts increasingly reify temporary emergency shelters as a justification for criminalizing unsheltered homelessness

This Article proposes an alternative conception of the right to shelter as a negative right. It outlines a framework for recognizing a fundamental, constitutional right to shelter oneself without government interference. Self-sheltering activities, in this sense, would include everything from the simple use of blankets or bedding to the erection of temporary encampments in public spaces. It situates this new right within the traditions of constitutional due process jurisprudence premised on respecting human dignity. As the Article details, human dignity in the constitutional sense is understood both as ensuring a specific capacity for self-determination, particularly with respect to bodily autonomy and interpersonal relationships, and as protecting against group-based subordination of disfavored classes. These interests are inescapably implicated by the decision to self-shelter while homeless. Recognizing a negative right to shelter is therefore an essential step to protect the dignity of homeless individuals while dismantling the plethora of criminal laws that currently plague them.