New Issue: Journal of Affordable Housing & Community Development Law

New Issue: Journal of Affordable Housing & Community Development Law Volume 32, Number 1 (2023).

Allyson E. Gold, Addressing Housing Instability and Medical Debt: A Community-Based Approach to ARPA.

Gregory M. Zlotnick, Facing Emergencies with Equity: Adopting ARPA’s. Emergency Rental Assitance Eligibility and Documentation Standards for Undocumented Individuals as a Model for Hosing Stability.

Sam Gilman, Ending Evictions: The Lived Case for Replacing the Violence of Eviction with the Humanity of a Safety Net.

Trevor Samios, Lessons Learned by a Landlord from a Housing Stability Program.

Nathan Cummings and Anika Singh Lemar, Anticipating the Impact of the White House’s Bluepring for a Renter Bill of Rights.

Call for Papers: Work and Poverty

The Georgetown Journal on Poverty Law and Policy is pleased to announce its 2023-24 symposium topic. In late February or early March 2024, the Journal will host a variety of discussions focused on the intersections between work and poverty.

GJPLP is soliciting articles and notes for our Symposium Issue as well as speakers to present their written work during our Spring Symposium. GJPLP is interested in reviewing articles, notes, and presentation proposals discussing the intersection of work and poverty including economic justice in labor, labor organizing, access to justice for lower-wage workers, and work requirements for public benefits.

The deadline to submit articles and notes is October 14, 2023 but submissions will be reviewed on a rolling basis. GJPLP prefers that articles do not exceed 30,000 words and notes do not exceed 15,000 words and that all submissions are formatted in Bluebook style. Articles and notes should include an abstract and CV for all authors. Please submit any materials via Scholastica or email at lawjplp@georgetown.edu.

New Article: The Abolition of Food Oppression

Etienne C. Toussaint, The Abolition of Good Oppression, 111 Geo. L. J. 5 (2023). Abstract Below.

Public health experts trace the heightened risk of mortality from COVID-19 among historically marginalized populations to their high rates of diabetes, asthma, and hypertension, among other diet-related comorbidities. However, food justice activists call attention to structural oppression in global food systems, perhaps best illuminated by the prevalence of unhealthy fast-food restaurants (and the lack of healthy alternatives) in low- income Black and Hispanic/Latinx neighborhoods nationwide. In response, local governments have begun to prioritize local food production to reduce food insecurity. Yet, even well-intentioned food justice initiatives, such as urban farming programs, can perpetuate structural inequities by glorifying entrepreneurialism or privatization as effective solutions to poverty. Further still, when lawmakers propose targeted relief programs for food insecure communities, such as the Biden Administration’s federal debt relief program for socially disadvantaged farmers, they are routinely challenged on constitutional grounds for preferencing non-White racial and ethnic groups. Thus, food insecurity in the urban ghettos and rural towns of America persists.

To defeat this impasse, this Article advocates an abolition constitutionalist framing of food insecurity in the United States. Specifically, it argues that framing the problem of food insecurity in historically marginalized communities as a badge of the antebellum system of chattel slavery invokes the legislative potential of the Thirteenth Amendment’s Enforcement Clause. Although the Supreme Court has empowered Congress to pass laws necessary for abolishing all badges and incidents of slavery, there remains a lack of clarity on the scope of material conditions or forms of discrimination that constitute such lingering harms, leading some lower courts to limit the Amendment’s enforcement to literal slavery or involuntary servitude.

Accordingly, this Article proposes a dignity based normative framework to assess the nature of injuries or material conditions that are proximately traceable to the political economic system of American slavery. Using the problem of food insecurity as a guiding explanatory thread, this framework reveals how modern badges of slavery can inflict: (i) equality-based; (ii) liberty-based; and (iii) integrity-based dignitary harms. These dignitary harms, individually and collectively, can perpetuate the types of oppression levied by chattel slavery; in this instance, the exploitative, marginalizing, and violent harms of food oppression. Whether modern-day food oppression is animated by state action (or inaction) or by private actors, it not only hinders public health and degrades democracy, but most importantly, it also violates the spirit and letter of the Thirteenth Amendment.

New Article: Lawyers Aren’t Rent

Juliet M. Brodie & Larisa G. Bowman, Lawyers Aren’t Rent, 75 Stan. L. Rev. (July 2023). Abstract Below.

Most low-income tenants facing eviction do not need a lawyer. They need rent money. Recent policy emphasis on right to counsel obscures the real injustice at play in our eviction courts: the monetization of residential housing, the protection of property and profit at the expense of the poor, and the exploitation of the human need for shelter as a mechanism to line the pockets of the real estate industry. Three-quarters of eviction cases are based on nonpayment of rent. If we want to reduce evictions, tenant lawyers are not the best tool. Rental assistance could resolve, or even help avoid the filing of, most eviction cases. Unprecedented government investment during the COVID-19 pandemic proved this concept, with millions of on-the-brink tenancies saved by $46 billion in public relief funds. The housing justice movement needs to insist that this lesson be learned, and advocate for enduring, meaningful rental assistance (better understood as “landlord subsidies”), if only as a stopgap while we solve the larger crisis of rental affordability in the U.S. If nonpayment cases were diverted to rental assistance programs and non-attorney advocates were available to facilitate the flow of the money, lawyers could devote their energy to the subset of evictions where legal training really makes a difference—those with factual disputes or novel questions of law. Unless and until we recognize a right to affordable housing in this country, what tenants really need is access to rent money, not access to a lawyer.

News Article: From a one-way flight to sleeping in a parking lot: Diary of a California dream gone sour

News Article: Connor Sheets, “From a one-way flight to sleeping in a parking lot: Diary of a California dream gone sour”, Los Angeles Times July 23, 2023.

New Article (Forthcoming): Immigrant Workers’ Voices as Catalysts for Reform in the Long-Term Care Industry

Shefali Milczarek-Desai & Tara Sklar, Immigrant Workers’ Vices as Catalysts for Reform in the Long-Term Care Industry, Ariz. State L. J. (2023). Abstract Below.

The COVID-19 pandemic exposed a long-term care crisis that has been brewing for decades. It also offered lessons for much-needed reform to the long-term care industry. One such lesson is that both older Americans and their caregivers experience unnecessary suffering and death due to entrenched industry practices that marginalize long-term care aides, a worker population that is increasingly made up of immigrant and migrant (“im/migrant”) women. Even though im/migrant women constitute at least one-third of the long-term care workforce, their perspectives are largely absent from the legal and public health literature and national conversations around long-term care reform. Indeed, to date, no systematic and comprehensive attempt has been made to collect and publish the lived experiences of im/migrant women who work as long-term care aides in the U.S. This Article is the first to use empirical data, collected by the authors through qualitative interviews of im/migrant aides in Arizona, to explore and analyze the failures of state and federal laws and policies, including Arizona’s paid sick leave law, to protect long-term care aides and the vulnerable, older, adult population that relies on their caregiving.

The Article describes the use of critical race and health law theories to inform the study’s design and details the study’s methodology and findings. Through the voices of im/migrant women aides, the Article demonstrates that this subset of frontline, essential workers consistently experience violations of state and federal employment and labor laws and face significant barriers to accessing their workers’ rights, including paid sick time and protection from employer retaliation. The study’s findings show that im/migrant aides work in conditions that are unsafe not only for them but also for their patients. Together, these failures contribute to poor quality of care, chronic labor shortages, and increased potential for harm in future public health emergencies. The Article draws on im/migrant women’s voices to make recommendations for changes to laws and policies in Arizona and nationwide to help these workers and a rapidly growing, aging, American population. This research fills a critical gap in the literature regarding the shortcomings of workplace laws and healthcare policies in long-term care settings. It comes at a moment when the country’s long-term care system must be changed or face a crisis of epic proportions that will leave older adults and their loved ones with few, if any, options.

New Article (Forthcoming): Affirmatively Furthering Health Equity

Mary Crossley, Affirmatively Furthering Health Equity, Brooklyn L. Rev. (2023). Abstract Below.

Pervasive health disparities in the United States undermine both public health and social cohesion. Because of the enormity of the health care sector, government action, standing alone, is limited in its power to remedy health disparities. This Article proposes a novel approach to distributing responsibility for promoting health equity broadly among public and private actors in the health care sector. Specifically, it recommends that the Department of Health and Human Services issue guidance articulating an obligation on the part of all recipients of federal health care funding to act affirmatively to advance health equity. The Fair Housing Act’s requirement that recipients of federal housing funds take steps to affirmatively further fair housing, an obligation justified by the history of government support for racial residential segregation, inspires this proposal. Perhaps less well known is the government’s role in producing and tolerating de facto segregated health care facilities and racial health disparities. Anti-discrimination laws, including Title VI of the Civil Rights Act, §1557 of the Affordable Care Act, and §504 of the Rehabilitation Act, provide statutory underpinnings for an affirmatively furthering health equity (AFHE) obligation. Moreover, existing legal and regulatory frameworks relating to hospital tax exemption, community-based supports for disabled people, and administration of Medicare and Medicaid suggest models for implementing an AFHE obligation. Receipt of federal funding by hundreds of thousands of health sector actors should come with some responsibility for working to ameliorate health inequities.

News Article: For Many, Lawyer is a Luxury Out of Reach

James Lartey, For Many, a Lawyer Is a Luxury Out of Reach: Sixty years after a landmark Supreme Court ruling, the promise of legal representation for everyone is largely unrealized, The Marshall Project July 7, 2023.

New Article: The Bitter Ironies of Williams V. Walker-Thomas Furniture Co. In the First Year Law School Curriculum

Duncan Kennedy, The Bitter Ironies of Williams V. Walker-Thomas Furniture Co. In the First Year Law School Curriculum, 71 Buffalo L. Rev. 2 (2023). Abstract Below:

This article severely criticizes the way first-year law teachers and casebook writers teach the famous case of Williams vs. Walker-Thomas Furniture Co. The court granted relief to a poor Black woman, living on welfare in a poor neighborhood of the District of Columbia in 1965, who had signed a series of one-sided credit sale contracts for household goods. The case has stood, against the intention of the holding, for the conventional wisdom that the regulation of terms in consumer contracts hurts the people it is supposed to help (Part I and II). The second part of the article presents in strictly conventional neo-classical welfare economic terms the better, although still only marginally accepted, position that the consequences are variable depending on the configuration of the market in question (Part III). The third part collects the surprisingly large amount of data available about the market and the specific transaction in Williams. It shows that given the exploitative character of the seller/lender’s sales practices, it is overwhelmingly likely that banning the clause in question benefited Ms. Williams at the expense of Walker-Thomas (Part IV and V). The conclusion argues for the relevance of the analysis to today’s analogous consumer credit abuses.

New Article: Unbundling Property in Welfare

New Article: Yael Cohen-Rimer & Shai Stern, Unbundling Property in Welfare, Oxford Journal of Legal Studies, 2023;, gqad012, https://doi.org/10.1093/ojls/gqad012.  Abstract below:

In most Western jurisdictions, welfare law utilises means testing to determine whether individuals are eligible for welfare allowances, often using property ownership as one of the eligibility criteria. Crucially, the prevailing conception of property ownership is premised on the notion that property rights are applied equally to all owners in matters relating to the control and management of that property. When this assumption proves not to reflect reality, it can have devastating consequences for those most in need of the support ostensibly provided by welfare law. The present qualitative empirical study examines two cases in which such adverse consequences are felt: in the two largest minority communities in Israel—the Palestinians and the Ultraorthodox Jews (Charedi). The findings show that property ownership in these communities is realised hierarchically, along patriarchal lines, and that family members occupy and manage property in accordance with community customs and traditional norms, often far removed from state laws. Beyond theoretical debates or ethnographic observations, the discrepancies between the state’s ideas of ownership and those recognised by members of the Palestinian and Charedi communities in Israel often result in the denial of financial aid to those who need it most. This article will identify such differences in conception and will describe how they provide an additional explanation for the high levels of poverty in minority communities. Finally, it will examine two private law doctrines that can be used as inspiration to better interpret welfare law and make it more nuanced and culturally sensitive, especially when it encounters people in poverty and marginalised groups.