Category Archives: Articles

New Article: “Interest Convergence as Transaction?”

New Article: Patience A. Crowder, Interest Convergence as Transaction?, 75 U. Pitt. L. Rev. 693 (2014).

New Article: “Special Treatment Everywhere, Special Treatment Nowhere”

New Article: Noah D. Zatz, Special Treatment Everywhere, Special Treatment Nowhere, 95 B.U. L. Rev. 1155 (2015).

New Article: “Identity as Proxy”

New Article: Lauren Sudeall Lucas, Identity as Proxy, 115 Colum. L. Rev. __ (forthcoming 2015).  Abstract below:

As presently constructed, equal protection doctrine is an identity-based jurisprudence, meaning that the level of scrutiny applied to an alleged act of discrimination turns on the identity category at issue. In that sense, equal protection relies on identity as a proxy, standing in to signify the types of discrimination we find most troubling.

Equal protection’s current use of identity as proxy leads to a number of problems, including difficulties in defining the category at issue; the tendency to privilege a dominant identity narrative; failure to distinguish among the experiences of subgroups within larger identity categories; and psychological and emotional harm that can result from being forced to identify in a particular way to lay claim to legal protection. Moreover, because the Court’s identity-as-proxy jurisprudence relies on superficial notions of identity to fulfill a substantive commitment to equality, it is more susceptible to co-option or manipulation by majority groups.

This Essay aims to engage readers in a thought experiment, to envision what equal protection doctrine might look like if it were structured to reflect the values identity is intended to serve without explicitly invoking identity categories as a way to delineate permissible and impermissible forms of discrimination. More specifically, it aims to shift from an identity-based jurisprudence that views race and gender as a collection of individual traits to a value-based jurisprudence that views race and gender as the product of structural forces that create and maintain subordination. Under the latter framework, the primary concern is not to eliminate differential treatment, but instead to destabilize status hierarchies and effectively counter subordination. Therefore, rather than asking whether the challenged government action is based on race or gender, one might ask whether it has the effect of perpetuating or exacerbating a history of discrimination or obstructs access to the political process. Unlike the current model, which focuses on defining categories and determining who falls within or outside those categories, the model suggested herein aims to eliminate identity as an intermediary filter and instead apply substantive rationales for heightened scrutiny directly to claims of discrimination.

The clearest impact of such a model would be in the context of affirmative action, where a majority plaintiff could no longer simply claim discrimination on the basis of race. Yet, the potential of a value-based model extends to other contexts as well — for example, challenges to voter identification laws, in which political exclusion would displace discriminatory intent and disparate impact as the relevant measure for analysis, and the treatment of pregnant women, in which discrimination on the basis of pregnancy would no longer have to align with gender to receive heightened scrutiny.

This shift has several advantages: it allows the law to make important distinctions between groups and within groups; it alleviates the need for comparative treatment and solutions that favor taking from all over giving to some; it is less likely to generate identity-based harms; it is fact-driven rather than identity-driven and thus better suited to the judicial function; and it serves an important rhetorical function by changing the nature of rights discourse.

Symposium Issue on Economic Justice Published by CUNY Law Review

Symposium Issue on Economic Justice Published by CUNY Law Review.  Unfortunately the version I found online is a single issue, but from the table of contents it looks like a good issue.

New Article: “The Banality of Racial Inequality”

New Article: Richard R.W. Brooks, The Banality of Racial Inequality, 124 Yale L.J. 2202 (2015).  [Reviewing Daria Roithmayr, Reproducing Racism: How Everyday Choices Lock in White Advantage (2014).]

New Article: “Legal Aid 1900 to 1930: What Happened to Law Reform?”

New Article: Mark Spiegal, Legal Aid 1900 to 1930: What Happened to Law Reform?, forthcoming Depaul J. for Social Justice.  SSRN 2015.  Abstract below:

This article offers a counter narrative to the conventional description of legal aid in the United States. By offering this counter narrative it focuses us on certain enduring difficulties that any legal aid or legal services program has to face if it wants to engage in reform efforts: problems of funding and problems of the social and historical context. Conventional wisdom has it that legal aid until the 1960s was largely devoted to individual cases and that it was not until the advent of federally-funded legal services that law reform and social change became part of the delivery of legal services to the poor. Contrary to this conventional wisdom, there is another story. As this article demonstrates, there was an aspiration toward using the legal system aggressively to achieve social justice during the period 1900 to roughly 1920. This changed during the 1920s.

In presenting this counter-narrative, this article first looks at legal aid during the period 1900-1920 to support the thesis that during this period legal aid aspired toward using the legal system to achieve social justice. It then looks at that next decade, the 1920s, and describes how legal aid became the kind of organization that conventional wisdom describes: a legal aid organization devoted almost solely to individual cases with a large focus on domestic relations practice and abandoning any attempt to use law to achieve social justice. More importantly, this article explores why this change to a more traditional type of legal aid occurred. The most interesting theories blame Reginald Heber Smith and the American Bar Association. Smith is blamed because of his alleged emphasis on access to justice in a landmark study of legal aid called “Justice and the Poor” published in 1919. The ABA is blamed because of the alleged “takeover” of legal aid by the conservative bar in the 1920’s, enabled by the ABA’s establishment of a standing committee on legal aid. These theories, however, are too reductionist and overlook two more important explanations for this retreat from law reform: the need for funding and the social and historical context. These explanations are significant not only because they shed light on a neglected part of our past, but because they connect that past to issues that persist until today.

-Thanks to the NEJL Right On Blog.

Symposium Issue Published: “Education: The New Civil Right”

Symposium Issue Published by Arkansas Law Review: “Education: The New Civil Right” (2015), with the articles published taken from the law review’s website below:

Symposium Introduction

Symposium: Prologue by Pamela J. Meanes, Esq.; Tracie R. Porter; and Everett Bellamy

Symposium: Foreward by Tracie R. Porter and Victoria C. Duke

Symposium Essays

New Symposium Articles: “The Law of Medicare and Medicaid at Fifty”

New Symposium Articles: “The Law of Medicare and Medicaid at Fifty,” Yale J. Health Pol’y, L. & Ethics (2015).  As can be seen from the list below, several are of course poverty related articles [But note, you may have to get these through other services like Lexis, Westlaw, or Hein]:

INTRODUCTION

  • 1 Symposium Issue Introduction: The Law of Medicare and Medicaid at Fifty Abbe R. Gluck

KEYNOTE SPEECHES

  • 21 Obamacare, Medicare, and Baseball’s Greatest Pitchers Jonathan Cohn
  • 27 Opening Remarks Ezekiel Emanuel

ARTICLES & ESSAYS

  • 37 Medicare Advantage, Accountable Care Organizations, and Traditional Medicare: Synchronization or Collision?
    Thomas L. Greaney
  • 57 The Reverberating Risk of Long-Term Care
    Allison K. Hoffman
  • 67 The Universality of Medicaid at Fifty
    Nicole Huberfeld
  • 89 Multiple Medicaid Missions: Targeting, Universalism, or Both?
    John V. Jacobi
  • 111 The Accidental Administrative Law of the Medicare Program
    Eleanor D. Kinney
  • 141 Medicare at 50: Why Medicare-for-all Did Not Take Place
    Theodore R. Marmor & Kip Sullivan
  • 185 Medicaid at 50: No Longer Limited to the “Deserving” Poor?
    David Orentlicher
  • 197 Clash of the Titans: Medicaid Meets Private Health Insurance
    Sara Rosenbaum
  • 213 Out of the Black Box and Into the Light: Using Section 1115 Medicaid Waivers to Implement the Affordable Care Act’s Medicaid Expansion
    Sidney D. Watson

New Article: “Acting White? Or Acting Affluent? A Book Review of Carbado & Gulati’s Acting White? Rethinking Race in ‘Post-Racial’ America”

New Article: Lisa R. Pruitt, Acting White? Or Acting Affluent? A Book Review of Carbado & Gulati’s Acting White? Rethinking Race in ‘Post-Racial’ America, 18 Journal of Gender, Race and Justice 159 (2015).  Abstract below:

Acting White? Rethinking Race in “Post-Racial” America (2013) is the latest installment in Devon Carbado and Mitu Gulati’s decade-plus collaboration regarding issues of race and employment. This review lauds the book’s comprehensive treatment of the double bind that racial minorities — especially blacks — experience within principally white institutions. In this volume, the authors expand on their prior employment-centered work to consider, for example, Barack and Michelle Obama’s presence on the national political stage, racial identity and performance in the context of higher education admissions, and racial profiling by law enforcement. With a focus on intra-racial diversity, Carbado and Gulati begin to gesture to the intersection of class (more precisely, the struggle for upward class migration) with blackness in the high-brow settings that are the employment staple for Acting White?‘s analysis.

What Carbado and Gulati overlook, however, is intra-racial diversity among whites. While the authors give a nod to aspects of identity such as gender and sexuality, acknowledging that, like race, these may render individuals “Outsiders,” they otherwise treat whiteness as monolithic, as simply the foil for black identity work. In so doing, Carbado and Gulati overlook the struggle for assimilation that poor and working class whites — aspiring, striving class migrants — experience when they seek to integrate these same “white institutions.” The point is that all employees are expected to assimilate to institutional norms that, in elite professional settings, are as much about class (affluence) as about race (whiteness). I thus suggest that the book might have been titled, Acting Affluent?, although that alternative would have been misleading, too, because the identity work expected in these upscale milieu implicates both race and class. Ultimately, neither the title Carbado and Gulati chose nor the one I suggest is very precise because affluent black identity and affluent white identity are unlikely to be identical. While Acting White? grapples with some very complex and potent intersections of race and class, it looks right past many other such intersections, including that of white skin privilege with class disadvantage.

New Article: “”Free the Land”: A Call for Local Governments to Address Climate-Induced Food Insecurity in Environmental Justice Communities”

CornNew Article: Liza Guerra Garcia, “Free the Land”: A Call for Local Governments to Address Climate-Induced Food Insecurity in Environmental Justice Communities, 41 Wm. Mitchell L. Rev. 572 (2015).