New Article: Darren Hutchinson, Undignified: The Supreme Court, Racial Justice, and Dignity Claims, 69 Fla. L. Rev. 1 (2017). Abstract below:
The Supreme Court has interpreted the Equal Protection Clause as a formal equality mandate. In response, legal scholars have advocated alternative conceptions of equality, such as antisubordination theory, that interpret equal protection in more substantive terms. Antisubordination theory would consider the social context in which race-based policies emerge and recognize material distinctions between policies intended to oppress racial minorities and those designed to ameliorate past and current racism. Antisubordination theory would also closely scrutinize facially neutral state action that systemically disadvantages vulnerable social groups. The Court has largely ignored these reform proposals. Modern Supreme Court rulings, however, have invoked the concept of dignity in order to redress discrimination against disadvantaged classes. Other opinions make appeals to dignity in order to protect or recognize fundamental rights or liberties for marginalized groups. These rulings—together with progressive uses of dignity in foreign constitutional law and in human rights and humanitarian law—have led some scholars to promote dignity-based litigation as an alternative to the Court’s formal equality doctrine. Advocates of racial justice, however, should approach these arguments with extreme skepticism. Current doctrine relies upon dignity to invalidate race-based remedies and civil rights statutes. The Court, however, does not recognize the stigmatizing nature of de facto discrimination. Equal protection doctrine extends greater protection to privileged classes than to disadvantaged groups. Judicial ideology, rather than lack of a persuasive theory of equality, explains these results.
New Article: Anuj K. Shah et al., Money in the Mental Lives of the Poor, Social Cognition: Vol. 36, Special Issue: The Status of Status: Vistas from Social Cognition, pp. 4-19 (2018). Abstract below:
Recent research has studied how resource scarcity draws attention and creates cognitive load. As a result, scarcity improves some dimensions of cognitive function, while worsening others. Still, there remains a fundamental question: how does scarcity influence the content of cognition? In this article, we find that poor individuals (i.e., those facing monetary scarcity) see many everyday experiences through a different lens. Specifically, thoughts about cost and money are triggered by mundane circumstances, they are difficult to suppress, they change mental associations, and they interfere with other experiences. We suggest that the poor see an economic dimension to many everyday experiences that to others may not appear economic at all.
Read More: https://guilfordjournals.com/doi/abs/10.1521/soco.2018.36.1.4?journalCode=soco&
New Article: Louis S. Rulli, Seizing Family Homes from the Innocent: Can the Eighth Amendment Protect Minorities and the Poor from Excessive Punishment in Civil Forfeiture?, 19 U. Pa. J. Const. L. 1111 (2017). Abstract below:
Civil forfeiture laws permit the government to seize and forfeit private property that has allegedly facilitated a crime without ever charging the owner with any criminal offense. The government extracts payment in kind—property—and gives nothing to the owner in return, based upon a legal fiction that the property has done wrong. As such, the government’s taking of property through civil forfeiture is punitive in nature and constrained by the Eighth Amendment’s Excessive Fines Clause, which is intended to curb abusive punishments.
The Supreme Court’s failure to announce a definitive test for determining the constitutional excessiveness of civil forfeiture takings under the Eighth Amendment has led to disagreement among state and federal courts on the proper standard. At the same time, the War on Drugs has resulted in an explosion of civil forfeiture filings against the property of ordinary citizens—many are whom are innocent of any wrongdoing—and therefore there is a profound need for a robust constitutional test that satisfies the Eighth Amendment’s original purposes. This need has grown more urgent because civil forfeiture practices are increasingly plagued by police abuses motivated by self-gain, and recent studies show that civil forfeitures disproportionately affect low-income and minority individuals who are least able to defend their hard-earned property.
This Article documents the aggressive use of civil forfeiture in Pennsylvania and, by way of illustration, presents the plight of elderly, African-American homeowners in Philadelphia who were not charged with any crime and yet faced the loss of their homes because their adult children were arrested for minor drug offenses. In such cases, the Eighth Amendment should play a vital role in preventing excessive punishments. But some courts mistakenly apply a rigid proportionality test, upon prosecutorial urging, that simply compares the market value of the home to the maximum statutory fine for the underlying drug offense. When a home value is shown to be less than the maximum fine, these courts presume the taking to be constitutional. Under such a one-dimensional test, prosecutors routinely win because the cumulative maximum fines for even minor drug offenses almost always exceed the market values of modest, inner-city homes. This cannot be the proper test. Instead, this Article contends that the proper constitutional test for excessiveness must be a searching, fact-intensive inquiry, in which courts are required to balance five essential factors: (1) the relative instrumentality of the property at issue to the predicate offense; (2) the relative culpability of the property owner; (3) the proportionality between the value of the property at issue and the gravity of the predicate offense; (4) the harm (if any) to the community caused by the offending conduct; and (5) the consequences of forfeiture to the property owner.
New Article: Gabriel Metcalf, Sand Castles Before the Tide? Affordable Housing in Expensive Cities, Journal of Economic Perspectives—Volume 32, Number 1—Winter 2018—Pages 59–80. Abstract below:
This article focuses on cities with unprecedented economic success and a seemingly permanent crisis of affordable housing. In the expensive cities, policymakers expend great amounts of energy trying to bring down housing costs with subsidies for affordable housing and sometimes with rent control. But these efforts are undermined by planning decisions that make housing for most people vastly more expensive than it has to be by restricting the supply of new units even in the face of growing demand. I begin by describing current housing policy in the expensive metro areas of the United States. I then show how this combination of policies affecting housing, despite internal contradictions, makes sense from the perspective of the political coalitions that can form in a setting of fragmented local jurisdictions, local control over land use policies, and homeowner control over local government. Finally, I propose some more effective approaches to housing policy. My view is that the effects of the formal affordable housing policies of expensive cities are quite small in their impact when compared to the size of the problem—like sand castles before the tide. I will argue that we can do more, potentially much more, to create subsidized affordable housing in high-cost American cities. But more fundamentally, we will need to rethink the broader set of exclusionary land use policies that are the primary reason that housing in these cities has become so expensive. We cannot solve the problem unless we fix the housing market itself.
New Article: Emily Cauble, Itemized Deductions in a High Standard Deduction World, Stan. L. Rev. Online, Jan. 2018. Abstract below:
New tax legislation enacted in December 2017 exacerbates the extent to which various itemized deductions, such as the charitable contribution deduction and the home mortgage interest deduction, disproportionately benefit high income individuals. This essay develops this critique and concludes by suggesting paths for reform that should be considered by a future Congress.
New Article: Zachary D. Liscow & William A Woolston, Does Legal Status Affect Educational Attainment in Immigrant Families?, SSRN Dec. 2017. Abstract below:
Of the estimated 11.1 million undocumented immigrants in the U.S., 1.1 million are children. Due to differential treatment in the labor market, teenage undocumented immigrants face low returns to schooling. To measure the effect of legal status on the educational choices of Hispanic teenagers, we compare siblings who differ in their legal status due to their birth country. We find that teenagers who were born in Mexico are 2.7 percentage points more likely to be out of school than their U.S.-born siblings. Alternative explanations, such as differences in prenatal or childhood environment, appear largely unable to explain this result, suggesting that legal status has a significant impact on schooling decisions. After accounting for these alternative explanations to the extent possible and using proxies for legal status in U.S. Census, our results suggest that being undocumented roughly doubles high school students’ dropout rate relative to their U.S.-born siblings, with substantial wage decreases implied by back-of-the-envelope calculations.
New Article: Danielle Keats Citron, A Poor Mother’s Right to Privacy: A Review, 98 B.U. L. Rev. (2018, Forthcoming). Abstract below:
Collecting personal data is a feature of daily life. Businesses, advertisers, agencies, and law enforcement amass massive reservoirs of our personal data. This state of affairs—what I am calling the “collection imperative”—is justified in the name of efficiency, convenience, and security. The unbridled collection of personal data, meanwhile, leads to abuses. Public and private entities have disproportionate power over individuals and groups whose information they have amassed. Nowhere is that power disparity more evident than for the state’s surveillance of the indigent. Poor mothers, in particular, have vanishingly little privacy. Whether or not poor mothers receive subsidized prenatal care, the existential state of poor mothers is persistent and indiscriminate state surveillance.
Professor Khiara Bridges’s book, The Poverty of Privacy Rights, advances the project of securing privacy for the most vulnerable among us. It shows how the moral construction of poverty animates the state’s surveillance of poor mothers, rather than legitimate concerns about prenatal care. It argues that poor mothers have a constitutional right not to be known if the state’s data collection efforts demean and humiliate them for no good reason. The Poverty of Privacy Rights provides an important lens for rethinking the data collection imperative more generally. It supplies a theory not only on which a constitutional right to information privacy can be built but also on which positive law and norms can develop. Concepts of reciprocity may provide another analytical tool to understand a potential right to be as unknown to government as it is to us.
New Article: David Blankfein-Tabachnick & Kevin A. Kordana, Kaplow and Shavell and the Priority of Income Taxation and Transfer, 69 Hastings L.J. 1 (2017). Abstract below:
This Article rejects a central claim of taxation and private law theory, namely, Kaplow and Shavell’s prominent thesis that egalitarian social goals are most efficiently achieved through income taxation and transfer, as opposed to egalitarian alterations in private law rules. Kaplow and Shavell compare the efficiency of rules of tort to rules of tax and transfer in meeting egalitarian goals, concluding that taxation and transfer is always more efficient than other private law legal rules. We argue that Kaplow and Shavell reach this conclusion only through inattention to the body of private law that informs the very basis of their discussion: underlying property entitlements. This Article contends that Kaplow and Shavell’s comparison of rules of taxation to rules of tort fails to take proper account of the powerful role that (re)assigning underlying property entitlements plays in achieving egalitarian goals, even at the level of formal theory. We conclude that, contrary to Kaplow and Shavell’s prominent claim, as a matter of efficiency, the rules of income taxation and transfer are not always preferable to alterations in the initial assignment of property entitlements in achieving distributive or egalitarian goals.
New Issue of Pathways: The Next Round of Welfare Reform (Stanford Center on Poverty and Inequality, Winter 2018). Contents below:
The inside architects of welfare reform reflect on how the revolution happened, what it achieved, and what remains to be done.
For those who believe that the welfare reform bill was mainly oriented toward promoting work, it might be surprising to learn that the bill begins with this line: “Marriage is the foundation of a successful society.” How did the grand plan to save the family work out?
How are our children doing? Are the doom-and-gloomers right?
The welfare reform bill aimed to reduce dependence on welfare and increase self-sufficiency. A simple question: Did it work?
What is welfare reform’s biggest failure? Find out here.
The welfare reform of 1996 was conceived as an experiment with radical decentralization of policy. How is that experiment faring?
Where should we go from here? We close with three very different diagnoses … and three very different prescriptions.
New Article: Martha F. Davis & Natasha Ryan, Inconvenient Human Rights: Water and Sanitation in Sweden’s Informal Roma Settlements, Health and Human Rights Journal, Vol. 19, No. 2, pp. 61-72 (2017). Abstract below:
Following an increase in Roma migration under the European “freedom of movement” laws, Swedish municipalities initiated more than 80 evictions of informal Roma settlements on the grounds of poor sanitation between 2013 and 2016. These evictions echo policies from earlier in the 20th century, when Roma living in Sweden were often marginalized through the denial of access to water and sanitation facilities. The recent Swedish evictions also follow similar government actions across Europe, where Roma settlements are controlled through the denial of access to water and sanitation. However, access to water and sanitation — central aspects of human health — are universal human rights that must be available to all people present in a jurisdiction, regardless of their legal status. The evictions described here violated Sweden’s obligations under both European and international human rights law. More positive government responses are required, such as providing shelters or camping sites, setting up temporary facilities, and directly engaging with communities to address water and sanitation issues. The authors conclude by providing guidance on how states and municipalities can meet their human rights obligations with respect to water and sanitation for vulnerable Roma individuals and informal settlements in their communities.