New Article: Michael J. Sullivan, Immigrant Neighbors, Workers, and Caregivers in Our Midst: What We Owe Each Other, 95 Tex. L. Rev. 81 (2016).
New Article: Michael J. Sullivan, Immigrant Neighbors, Workers, and Caregivers in Our Midst: What We Owe Each Other, 95 Tex. L. Rev. 81 (2016).
New Article: David A. Dana & Deborah Tuerkheimer, After Flint: Environmental Justice as Equal Protection, 111 Nw. U. L. Rev. 879 (2017). Abstract below:
This Essay conceptualizes the Flint water crisis as an archetypical case of underenforcement—that is, a denial of the equal protection of laws guaranteed by the U.S. Constitution. Viewed as such, the inadequacy of environmental regulation can be understood as a failure that extends beyond the confines of Flint; a failure that demands a far more expansive duty to protect vulnerable populations.
New Article: Wendy A. Bach, Poor Support/Rich Support: (Re)Viewing the American Social Welfare State, forthcoming Florida Tax Rev. 2017. Abstract below:
Since at least the 1970s a variety of scholars have redefined the U.S. social welfare state to include not only traditional benefit programs (for example Food Stamps and social security) but also a variety of tax benefits that are “hidden” or “submerged” forms of “welfare for the wealthy.” Including these benefits in the overall picture of U.S. social welfare provision reveals a system that is both larger in size than popularly believed and that, in addition to providing some support for the poor, distributes significant benefits regressively, to households with substantial wealth. Although a variety of scholars and policy analysts have described these outcomes, scholars have yet to focus on the ways in which structural inequality is written directly into the means of administration of U.S. social welfare programs. This article is the first to turn to those questions and to systematically demonstrate that those who are economically (and disproportionately racially) disadvantaged are offered a social welfare state that is meager, punitive and tremendously risky for those who receive its benefits. But for those with economic privilege, the story is quite different. Families and individuals with significant economic privilege benefit disproportionately from a whole host of cash and near-cash benefits that are neither meager nor punitive. In fact, in contrast to benefits for the poor, benefits for the rich function as nearly invisible entitlements. As one moves from benefits for the poor towards benefits for the rich the administrative structures shift along this progression, becoming less and less punitive and risky and more and more like invisible entitlements. Although as a formal matter the rich, like the poor, have no right to economic support in the Constitutional sense, American social welfare policy moves the rich remarkably close to a right to economic support, leaving the poor far behind. This article reveals these vast structural inequalities and concludes by calling not only, as others have, for an increase and more progressive distribution of social welfare dollars but also, for the first time, for reforms that would address the structural inequalities at the heart of the U.S. social welfare state and that would render it more successful at supporting the autonomy and resilience of all of its beneficiaries.
New Article: Sarah Golabek-Goldman, Ban the Address: Combating Employment Discrimination Against the Homeless, 126 Yale L.J. 1788 (2017). Abstract below:
This Note presents a study of obstacles to employment faced by homeless job applicants and offers potential solutions. Homeless job applicants confront discrimination when they provide the address of a shelter or do not have an address to provide on applications. Advocates should seek to protect homeless job applicants by encouraging businesses, nonprofits, and government agencies to provide homeless applicants with addresses or P.O. boxes. Most significantly, the proposed “Ban the Address” campaign would discourage employers from inquiring about an applicant’s address or residency history until after granting a provisional offer of employment. Advocacy efforts such as these can serve as a foundation for successful legal claims under new homeless person’s bills of rights, Title VII of the Civil Rights Act, and the Americans with Disabilities Act. This Note explains why requesting residency information might be deemed illegal under both state and federal causes of action. A combination of both legal and nonlegal tactics has the best chance of permitting homeless job applicants to obtain employment and to regain self-sufficiency.
New Article: Steven Sacco, In Defense of the Eligible Undocumented New Yorker’s State Constitutional Right to Public Benefits, 40 N.Y.U. Rev. L. & Soc. Change 181 (2016). Abstract below:
Under current New York State law, undocumented New Yorkers, (those residing in the U.S. without the federal government’s permission), are ineligible for most state-funded means-tested public benefits, such as Medicaid and Safety Net Assistance. Articles XVII and I of the New York State Constitution nonetheless create a state mandate to provide for the eligible “needy” and ensure equal protection under the law, respectively. This article proposes that, under these state constitutional provisions, financially eligible undocumented residents of New York State possess an affirmative right to receive state-funded public benefits. Policy arguments against this entitlement are unfounded and barriers to enforcement of the right of undocumented New Yorkers to access state benefits are born of politics, not of the law.
New(ish) Article: Eleanor Marie Lawrence Brown, An Alternative View of Immigrant Exceptionalism, Particularly As It Relates to Black: A Response to Chua and Rubenfeld, 103 Calif. L. Rev. 989 (2015). Abstract below:
The contrast between Amy Chua and Jed Rubenfeld’s The Triple Package (Chua & Rubenfeld 2.0) and Chua’s previous work, World on Fire (Chua 1.0), is striking. Chua & Rubenfeld 2.0 contends that particular ethnic and religious groups are spectacularly successful in the United States because of a “triple package” of traits that are largely cultural; however, there is nary a word in Chua & Rubenfeld 2.0 about the role that law might play in contributing to wealth acquisition among the subject groups. In contrast, Chua 1.0 clearly acknowledges the role of law through “law-in-culture” when accounting for the wealth of those whom Chua calls “market- dominant minorities.” “Law-in-culture” consists of binding rules, such as default contract terms, that often underlie market relations in perilous “third world” environments. While these rules are not enforceable by the state, they are powerful because those who ignore them risk ostracism by their co-ethnics, with whom they often contract.
Perhaps because Chua & Rubenfeld 2.0 focuses on particular ethnic groups within the United States—a country that epitomizes the protection of property and contract rights—it overlooks the potential role of “law-in-culture” in accounting for wealth acquisition of particular groups. This oversight is significant. Many of the subject ethnic groups had contracting advantages underwritten by “law-in- culture” in their countries of origin.
I am particularly concerned about the absence of a discussion of institutions—whether underwritten by “law” or “law-in-culture”— when Chua & Rubenfeld 2.0 discusses Black people. A case in question is Nigerian Americans. Given their focus on Nigerian American economic success, a comparison to African American economic success (or lack thereof) is foreseeable. The question is inevitable: if Nigerian immigrants do so well in the United States, what does this say about the continuing scholarly emphasis on institutional (as opposed to cultural) impediments to native Black, that is, African American economic success?
Chua & Rubenfeld 2.0 acknowledges institutional impediments to African American success, but they say very little about institutional advantages that Nigerian Americans may have. In fairness to Chua and Rubenfeld, they are likely constrained by the dearth of scholarship on the pre- and post-migration trajectories of Nigerian Americans, who are largely recent migrants. Thus, to explore the potential relevance of institutional factors, I consider the original Black “triple package” group for which much more scholarship is available, West Indians. I contend that institutional background matters. For example, even the earliest turn-of-the-century Black West Indian migrants gained exposure to an institutional context for wealth acquisition through the extension of property and contract rights to slaves and their descendants in the West Indies. This stands in stark contrast to the institutional context that generally existed for African Americans, not only during slavery, but also in the pre-civil rights southern United States.
Thus, despite the historical sociological focus on West Indian American success, I question the notion that West Indian Americans are necessarily a useful comparative sample to African Americans simply because they are Black—particularly given the historical disparity between West Indian Americans and African Americans in accessing institutions for wealth creation. The question then becomes if the same might be true of Nigerian Americans.
New Article: Beth A. Colgan, Lessons from Ferguson on Individual Defense Representation as a Tool of Systemic Reform, 58 Wm. & Mary L. Rev. 1171 (2017). Abstract below:
This Article investigates the relationship between the decisions by lawmakers to use municipal and criminal systems to generate revenue and the lack of access to individual defense representation by using the Ferguson, Missouri, municipal court as a case study. The Article chronicles the myriad constitutional rights that were violated on a systemic basis in Ferguson’s municipal court and how those violations made the city’s reliance on the court for revenue generation possible. The Article also documents how the introduction of individual defense representation, even on a piecemeal basis, played a role in altering Ferguson’s system of governance. Using this case study, the Article examines the way litigating individual cases and seeking the enforcement of constitutional rights can alter the cost-benefit of using courts to generate funds by both increasing system expenses and decreasing revenues. Further, individual case litigation alters the cost-benefit of using courts as revenue generators by forcing officials to take a public position on municipal court practices, thereby informing and changing the public debate on crime policy. The Article posits that while individual defense representation will have the greatest systemic effects in systems like Ferguson’s, where there is a significant dependence on the courts for revenue, a pattern of unconstitutional activity, or the targeting of economically vulnerable communities, individual defense representation should be broadly understood as a tool for systemic reform.
The Article also raises theoretical and normative implications from the Ferguson experience regarding whether constitutional criminal procedural rules or local government controls over procedure serve as a better check against systemic abuses, and regarding the repercussions of a politically and doctrinally myopic focus on access to counsel as a solely constitutional, as opposed to political, matter.
Article: Mary Madden, et al., Privacy, Poverty and Big Data: A Matrix of Vulnerabilities for Poor Americans, Washington L. Rev. (forthcoming 2017).
This Article examines the matrix of vulnerabilities that low-income people face as a result of the collection and aggregation of big data and the application of predictive analytics. On the one hand, big data systems could reverse growing economic inequality by expanding access to opportunities for low-income people. On the other hand, big data could widen economic gaps by making it possible to prey on low-income people or to exclude them from opportunities due to biases that get entrenched in algorithmic decision-making tools. New kinds of “networked privacy” harms, in which users are simultaneously held liable for their own behavior and the actions of those in their networks, may have particularly negative impacts on the poor. This Article reports on original empirical findings from a large, nationally-representative telephone survey with an oversample of low-income American adults and highlights how these patterns make particular groups of low-status internet users uniquely vulnerable to various forms of surveillance and networked privacy-related problems. In particular, a greater reliance on mobile connectivity, combined with lower usage of privacy-enhancing strategies may contribute to various privacy and security-related harms. The article then discusses three scenarios in which big data – including data gathered from social media inputs – is being aggregated to make predictions about individual behavior: employment screening, access to higher education, and predictive policing. Analysis of the legal frameworks surrounding these case studies reveals a lack of legal protections to counter digital discrimination against low-income people. In light of these legal gaps, the Article assesses leading proposals for enhancing digital privacy through the lens of class vulnerability, including comprehensive consumer privacy legislation, digital literacy, notice and choice regimes, and due process approaches. As policymakers consider reforms, the article urges greater attention to impacts on low-income persons and communities.
Suzanne Specker, “Hun, I Want You for Dessert”: Why Eliminating the Sub-Minimum Wage for Restaurant Servers Will Empower Women, 19 U. Pa. J.L. & Soc. Change 335 (2017).
Article: Bethany Y. Li, Now is the Time: Challenging Resegregation and Displacement in the Age of Hypergentrification, 85 Fordham L. Rev. 1189 (2016).
Gentrification is reaching a tipping point of resegregating urban space in global cities like New York and San Francisco, often spurred by seemingly neutral government policies. The displacement resulting from gentrification forces low-income people from their homes into areas of concentrated poverty. Low-income communities consequently lose space, place, social capital, and cultural wealth that residents and small businesses have spent decades building up. This Article argues that communities at this tipping point must integrate litigation strategies directly aimed at stemming the adverse impacts of gentrification. Community organizing is integral to antidisplacement efforts, but litigation—and its injunctive powers—should play a larger role in protecting residents in hypergentrified neighborhoods. Using a rezoning that spurred gentrification in New York City’s Chinatown and Lower East Side as a case study, this Article considers how the Fair Housing Act, state constitutions, and a new vision of property law could counter the negative and often racially discriminatory effects of gentrification on low-income communities.