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: 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: 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: 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: Skirting the Law: Medicaid Block Grants and Per-Capita Caps in a Pandemic

New Article: Laura D. Hermer, Skirting the Law: Medicaid Block Grants and Per-Capita Caps in a Pandemic, 14 St. Louis U. J. of Health L. & Pol’y (2021). Abstract below:

To what extent can an administration abridge Medicaid’s entitlement status by administrative fiat? In the final year of the Trump administration, just before the COVID-19 pandemic, the Centers for Medicare and Medicaid Services (CMS) sought to push the outer bounds of this question by announcing the Healthy Adult Opportunity (HAO) initiative. It invited states to submit § 1115 demonstration applications to cover individuals not eligible for Medicaid benefits under the state’ s Medicaid plan—meaning, in many cases, the Affordable Care Act’s (ACA’s) Medicaid expansion population. Spending on those populations would be capped, not by purporting to waive federal law regarding matching payments under Medicaid—which would clearly exceed the government’s authority under § 1115(a)(1)—but rather through application of the demonstration’s budget neutrality limit. “Savings”—or the difference between the cap and actual state expenditures under the demonstration—could be used on a variety of otherwise non-matchable state projects.

This Article traces some of the history of this maneuver, showing that the HAO misguidedly seeks to “return” Medicaid to a program it has not been for decades. It furthermore argues that the Trump administration’s attempt to cap federal expenditures for certain Medicaid populations in exchange for certain state flexibilities is beyond the administration’s legal authority to grant. As this Article shows, the issue turns on how “individuals not eligible for benefits under the state plan” are defined: Are they expansion populations considered to be “receiving medical assistance under a state plan approved under Title XIX,” at least for the duration of the demonstration, and hence entitled to all the protections given to categorical and optional Medicaid populations covered under a state plan, or are they simply “regarded” as such for the purpose of expenditures only, and not protections and privileges under the Medicaid statute? A careful reading of the statute, relevant regulations, and recent caselaw show that, at least in the case of the ACA’s Medicaid expansion population, the HAO initiative’s structure and suggested flexibilities do not comply with the law.

New Article: Alone and Exploited, Migrant Children Work Brutal Jobs Across the U.S.

New Article: Hannah Dreier, Alone and Exploited, Migrant Children Work Brutal Jobs Across the U.S., N.Y. Times, (Feb. 25, 2023). Overview below:

It was almost midnight in Grand Rapids, Mich., but inside the factory everything was bright. A conveyor belt carried bags of Cheerios past a cluster of young workers. One was 15-year-old Carolina Yoc, who came to the United States on her own last year to live with a relative she had never met.

About every 10 seconds, she stuffed a sealed plastic bag of cereal into a passing yellow carton. It could be dangerous work, with fast-moving pulleys and gears that had torn off fingers and ripped open a woman’s scalp.

The factory was full of underage workers like Carolina, who had crossed the Southern border by themselves and were now spending late hours bent over hazardous machinery, in violation of child labor laws. At nearby plants, other children were tending giant ovens to make Chewy and Nature Valley granola bars and packing bags of Lucky Charms and Cheetos — all of them working for the processing giant Hearthside Food Solutions, which would ship these products around the country.

New Article: You’re Now a ‘Manager.’ Forget About Overtime Pay.

New Article: Noam Scheiber, You’re Now a ‘Manager.’ Forget About Overtime Pay., N.Y. Times, (March 6, 2023). Abstract below:

For four years beginning in 2014, Tiffany Palliser worked at Panera Bread in South Florida, making salads and operating the register for shifts that began at 5 a.m. and often ran late into the afternoon.

Ms. Palliser estimates that she worked at least 50 hours a week on average. But she says she did not receive overtime pay.

The reason? Panera officially considered her a manager and paid her an annual salary rather than on an hourly basis. Ms. Palliser said she was often told that “this is what you signed up for” by becoming an assistant manager.

Federal law requires employers to pay time-and-a-half overtime to hourly workers after 40 hours, and to most salaried workers whose salary is below a certain amount, currently about $35,500 a year. Companies need not pay overtime to salaried employees who make above that amount if they are bona fide managers.

New Article: “It Is Here We Are Loved”: Rural Place Attachment in Active Judging and Access to Justice

New Article: Michele Statz, “It Is Here We Are Loved”: Rural Place Attachment in Active Judging and Access to Justice, L & Social Inquiry, (Nov. 2022). Abstract below:

In the United States, rural economic marginalization and corresponding gaps in employment, affordable housing, health care, nutrition, and education put individuals at high risk for legal need. Yet many rural regions are “legal deserts” with few, if any, attorneys, and prevailing access-to-justice initiatives tend to neglect the unique challenges posed by rurality. The efforts of rural tribal and state court judges, though often overlooked in scholarship and policy, offer a compelling response to this inequitable access-to-justice context. Building on emergent work on “active judging,” or when judges step away from a traditional passive role to assist unrepresented parties, this manuscript explores how rural place and place attachments shape diverse judges’ interactions with litigants. It draws on mixed-methodological research across seven tribal and state courts in the upper Midwest to shed light on rural judges’ efforts, how these efforts are regarded by unrepresented parties, and to what extent a shared experience of rurality provides a meaningful form of “access.” In so doing, it offers a novel spatial intervention in scholarship on access to justice and active judging and contributes to more rurally relevant justice practices.

New Article: Poverty Aware Legislation

New Article: Yael Cohen-Rimer, Poverty Aware Legislation, (Feb. 2023). Abstract below:

How might people’s engagement with the legal institutions to which they are subordinated transform both people and institutions? This article provides an example of such a process of engagement between people living in poverty and congressional lawmakers. The case study, taken from the Poor People’s Campaign of 1968, shows how their politicized, yet individual, face-to-face interactions create powerful relationships, momentarily invert the power structure, and reify their citizenship. I move on to claim that such a process should be institutionalized in the legislative process today, and discuss the normative themes it such legal institutional design should incorporate.
Legal scholars tend to neglect the issue of direct engagement with the legislature. If anything, in the context of legislatures, the literature has strongly bought into the idea of pluralism, viewing the political sphere as the arena of indirect engagement. Direct engagement is perceived as belonging exclusively to the realm of administrative law, through notice-and-comment and other avenues of public participation that capture most of the judicial and scholarly attention. But what if this is false? What if direct engagement with legislators holds more promise? Could it be that, if the personal testimonies of people in poverty are heard in the process of crafting the law, the legislation will be better informed and, ultimately, more just?
To address these questions, this article spotlights a matter that has been neglected – arguably, intentionally – in the history of social and civil struggles: the testimonies given before Congress during the 1968 Poor People’s Campaign. It explores the impact of the witnesses’ subjectivity and their appeal to legislators within the dyadic space, which changes the listeners, the speakers themselves, and the institution in which they speak.
In the ashes of hope for racial equality, the master’s tools were moved to dismantle the master’s house, and, for a brief moment, a new structure of power relations could have been imagined. The present article looks back at these events to suggest a hopeful way forward for the future by reframing the place of voice, power, and knowledge in the legislative process.

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, J. of Am. Const. History, (Feb. 15, 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.