Category Archives: Articles

New Article: “Social Justice and Capitalism: An Assessment of the Teachings of Pope Francis from a Law and Macroeconomics Perspective”

New Article: Steven A. Ramirez, Social Justice and Capitalism: An Assessment of the Teachings of Pope Francis from a Law and Macroeconomics Perspective, 40 SEATTLE U. L. REV. 1229 (2017). Abstract below:

The first part of this Article will synthesize the key teachings of Pope Francis from his most important statements on economic structures and social justice and situate these teachings within contemporary economic realities and traditional social justice teachings. Part II of this Article will demonstrate that the Pope’s teachings on social justice fundamentally reflect the best learning from economists on how to sustain economic growth. Part III of this Article will show that nations that undertake policies to pursue the fundamental tenets of the Pope’s teachings (such as minimizing childhood poverty) also perform the best in achieving high human development outcomes for the mass of their citizens. This Article will therefore conclude that the recent teachings of Pope Francis (and the Catholic Church) on the topics of social justice and the environment are fully consistent with the most robust systems of capitalism in the world today as well as with traditional economic thinking, going as far back as Adam Smith. Therefore, legal policymakers (including all branches and agencies of the government) should work to impound the core elements of these teachings to the maximum extent possible to create the most robust and sustainable capitalism possible.

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New Article: “Atlas Nods: The Libertarian Case for a Basic Income”

Fleischer, Miranda Perry and Hemel, Daniel Jacob, Atlas Nods: The Libertarian Case for a Basic Income (October 21, 2017). Wisconsin Law Review, Forthcoming; San Diego Legal Studies Paper No. 17-306. [Abstract below]

Proposals for a universal basic income are generating interest across the globe, with pilot experiments underway or in the works in California, Canada, Finland, Italy, Kenya, and Uganda. Surprisingly, many of the most outspoken supporters of a universal basic income have been self-described libertarians — even though libertarians are generally considered to be antagonistic toward redistribution and a universal basic income is, at its core, a program of income redistribution. What explains such strong libertarian support for a policy that seems so contrary to libertarian ideals?

This Article seeks to answer that question. We first show that a basic safety net is not only consistent with, but likely required by, several strands of libertarian thought. We then explain why libertarians committed to limited redistribution and limited government might support a system of unconditional cash transfers paid periodically. Delivering benefits in cash, rather than in-kind, furthers autonomy by recognizing that all citizens — even poor ones — are the best judges of their needs. Decoupling such transfers from a work requirement acknowledges that the state lacks the ability to distinguish between work-capable and work-incapable individuals. Providing payments periodically, rather than through a once-in-a-lifetime lump sum grant, ensures that all individuals can receive a minimum level of support over lifespans of variable lengths, while also allowing individuals to adjust payment flows through financial market transactions.

Although our main objective is to assess the fit between libertarian theory and a universal basic income, we also address various design choices inherent in any basic income scheme: who should receive it?; how large should it be?; which programs might it replace?; and should it phase out as market income rises? Lastly, we consider the relationship between a basic income and the political economy of redistribution. We find that the case for a basic income as a libertarian “second-best” is surprisingly shaky: libertarians who oppose all redistribution but grudgingly accept a basic income as the least-worst form of redistribution should reconsider both aspects of their position. We conclude by drawing out lessons from our analysis for non-libertarians, regardless of whether they are supportive or skeptical of basic income arguments.

New Article: “Surrogate Lawyering: Legal Guidance, Sans Lawyers”

Tremblay, Paul R., Surrogate Lawyering: Legal Guidance, Sans LawyersSurrogate Lawyering: Legal Guidance, Sans Lawyers, Georgetown Journal of Legal Ethics (2017). [Abstract below]

Innovative thinkers within the access-to-justice (ATJ) movement have been experimenting with creative ideas for delivering meaningful legal guidance in an efficient way to clients struggling with civil legal needs. These efforts respond to the long-standing crisis in the delivery of legal services to disadvantaged persons, and the overwhelming need for legal advice in areas such as debt collection, housing, family, and immigration. One such imaginative proposal is what this Article calls “surrogate lawyering.” This innovation envisions public interest law firms using some scarce lawyer time to train and advise community-based organization (CBO) staff members to respond, in real time and in context, to the legal problems their constituents encounter. Crafted well, and complemented by technological aids being developed by ATJ entrepreneurs, surrogate lawyering could effect a substantial improvement in the lives of the clients in need.

This Article assesses the ethical implications of the surrogate lawyering venture. It concludes that the lawyers who advise the CBO staffers would not inadvertently trigger an attorney-client relationship with the constituents/clients who benefit from the staffer’s guidance. Nor would those lawyers have agency-driven commitments to the constituent/clients. The public interest law firm likely would, though, have attorney-client duties to the CBO, and would need to account for that reality in its operations. The Article does conclude, though, that the surrogacy model generates a significant concern involving the unauthorized practice of law (UPL), and the lawyers’ assistance with that activity.

The Article proceeds to critique the UPL concerns, demonstrating that neither the constituent/clients nor the legal profession would be likely to suffer any appreciable harm by permitting surrogate lawyering ventures to operate. The Article closes with suggestions for some adjustments to the usual UPL constraints that would permit surrogate lawyering strategies while minimizing any risks associated with that means of delivering legal advice.

New Article: “Dangerous Warrants”

Sekhon, Nirej, Dangerous Warrants, Washington Law Review, Vol. 93, (2018) [Abstract below]

The Supreme Court has cast judicial warrants as the Fourth Amendment gold standard for regulating police discretion. It has embraced a “warrant preference” on the premise that requiring police to obtain advance judicial approval for searches and seizures encourages accurate identification of evidence and suspects while minimizing interference with constitutional rights. The Court and commentators have overlooked the fact that most outstanding warrants do none of these things. Most outstanding warrants are what this article terms “non-compliance warrants”: summarily issued arrest warrants for failures to comply with a court or police order. State and local courts are profligate in issuing such warrants for minor offenses. For example, the Department of Justice found that the municipal court in Ferguson, Missouri issued one warrant for every two of its residents. When issued as wantonly as this, warrants are dangerous because they generate police discretion rather than restrain it. Nonetheless, the Supreme Court has, most recently in Utah v. Strieff, treated non-compliance warrants as if no different from the traditional warrants that gave rise to the Fourth Amendment warrant preference.

This article argues that non-compliance warrants pose unique dangers, constitutional and otherwise. Non-compliance warrants create powerful incentives for the police to conduct unconstitutional stops, particularly in poor and minority neighborhoods. Their enforcement also generates race and class feedback loops. Outstanding warrants beget arrests and arrests beget more warrants. Over time, this dynamic amplifies race and class disparities in criminal justice. The article concludes by prescribing a Fourth Amendment remedy to deter unconstitutional warrant checks. More importantly, the article identifies steps state and local courts might take to stem the continued proliferation of non-compliance warrants.

New Jotwell Review: “Discovering (Tax) Rights that the Poor Have Post-Welfare Reform” (reviewing Susannah Camic Tahk, The New Welfare Rights, BROOKLYN L. REV. (2017)

New Jotwell Review: Ezra Rosser, “Discovering (Tax) Rights that the Poor Have Post-Welfare Reform” Jotwell (Nov. 16, 2017) (reviewing Susannah Camic Tahk, The New Welfare Rights, BROOKLYN L. REV. (2017))

New Article: “Seizing Family Homes from the Innocent: Can the Eighth Amendment Protect Minorities and the Poor from Excessive Punishment in Civil Forfeiture?”

Rulli, Louis, Seizing Family Homes from the Innocent: Can the Eighth Amendment Protect Minorities and the Poor from Excessive Punishment in Civil Forfeiture? (2017). University of Pennsylvania Journal of Constitutional Law, Vol. 19, p. 1483, 2017; U of Penn Law School, Public Law Research Paper No. 17-48. [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: “Homelessness and the Impossibility to Obey the Law”

Skolnik, Terry, Homelessness and the Impossibility to Obey the Law,  43 Fordham Urban Law Journal 741 (2016). [Abstract below]

Building on Jeremy Waldron’s work, this article argues that it can be impossible for homeless people to obey the law in certain contexts. This occurs where there are insufficient public resources to allow homeless people to comply with the law, or the homeless lack the capacity or opportunity to obey quality of life rules. This article explores the moral objections to enforcing quality of life rules in such circumstances, how courts view homeless people’s impossibility to obey the law, as well as policy and litigation strategies applicable in such cases.

Tangential post [apologies in advance]: my brief review of Christopher Serkin, Penn Central Take Two, 92 NOTRE DAME L. REV. 913 (2016)

Jotwell finally published Nicole Stelle Garnett’s excellent review of Christopher Serkin’s recent article, Penn Central Take Two, 92 NOTRE DAME L. REV. 913 (2016). But I hope I will be forgiven for abusing my role as editor of this blog to post my own celebratory review of Serkin’s article here, even though it really will only perhaps interest property scholars. I wrote it for Jotwell but then found out that Nicole Stelle Garnett had already “claimed” Serkin’s article so I held off publishing this until I could link to her review.

Weakening Regulatory Chains: TDRs and Takings Claims by Ezra Rosser

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New Article: “Delaware’s Constitutional Mirror Test: Our Moral Obligation to Make the Promise of Equality Real”

Strine, Leo E., Delaware’s Constitutional Mirror Test: Our Moral Obligation to Make the Promise of Equality Real (September 22, 2017). U of Penn Law School, Public Law Research Paper No. 17-43. [Abstract below]

This lecture, delivered as the 2017 James R. Soles Lecture on the Constitution and Citizenship at the University of Delaware, addresses whether Delaware has lived up to the constitutional principles of equality. Delaware, although a part of the Union, was a slave state, and after the Civil War, a Jim Crow state. It was slow to embrace the ruling in Brown v. Board of Education, although Delaware Chancellor Collins J. Seitz had ruled for the black plaintiffs in Belton v. Delaware and ordered their admission to the formerly all-white schools. Ultimately, a metropolitan desegregation remedy was put in place by the federal courts in the late 1970s, after state officials dragged their feet and failed to implement an effective plan for desegregation.

The Court’s remedy effectively desegregated the New Castle County schools and prevented the creation of schools with high concentrations of poverty. In the 1990s, the State sought and obtained freedom from court supervision, arguing that it had gone beyond the court’s mandate in desegregating schools and could be trusted to ensure the rights of all children. Now, it is 2017. What has happened?

Delaware’s major city, Wilmington, remains divided among four school districts with a majority suburban voting base, created by the State to implement the court-ordered desegregation plan, but these school districts no longer seek to create racial balance in their schools. Wilmington now has elementary schools that are overwhelmingly high-minority and high-poverty. Middle schools of the same kind exist, and persistent economic and educational gaps between white and black children exist. During this period of resegregation, crime has grown in northern New Castle County to the point where Wilmington has a murder rate among the highest in the nation. Drop-out rates and youth crime rates among black kids far exceed those among white kids.

Yet, no extra resources have been given to the schools that face the greatest challenges and, in fact, in terms of the most important resource — teachers — the staff in urban schools have less experience than the staff in suburban schools with high income and low minority populations.

In this lecture, Chief Justice Strine asks whether Delawareans, having said we could protect the rights of our black children, are prepared to face the constitutional mirror test, and to recognize that kids who have less, need more — especially kids and families who have been victimized by hundreds of years of discrimination.

Rather than just identify the problem, Chief Justice Strine outlines a potential reform plan that would reorganize the New Castle County schools so that Wilmington was part of one well-resourced and geographically compact Northern New Castle County school district. This would allow for the selection of a high quality educational leader who could put in place a coherent plan to address the needs of poor children.

The Chief Justice also suggests the following: a 220-day school year; a full day, including an early arrival option with breakfast, after-school homework time, nutritious snacks, and activities; and a requirement that students grade seven and up engage in an after-school activity year round.

Because this plan is focused on poverty, it addresses racial inequality in a race-neutral way—nearly 60% of black families in Delaware are at or below 200% of the federal poverty level, as compared to 26% of white families. The plan also addresses the needs of all twenty-first century families as the extended school year would reduce the need for expensive summer camps and tutors; the extended school day and added extracurricular activities would reduce before and after-care costs for working parents; and the addition of nutritious meals during the school day would reduce the burden on impoverished families.

Further, the plan can be scaled up and implemented across the state, cutting redundancies and inefficient overhead costs throughout Delaware school districts and providing a coherent district-wide approach to classroom instruction.

In terms of how it can be financed, Chief Justice Strine points out that Delawareans pay far lower tax rates than they did when the state was more prosperous. He notes that failing to invest in education will continue to cost Delawareans in terms of crime, lost jobs, and hopelessness, finally asking, “[H]ow can we afford not to if we really care about our constitutional commitment to equality?”

New Article: “Seizing Family Homes from the Innocent: Can the Eighth Amendment Protect Minorities and the Poor from Excessive Punishment in Civil Forfeiture?”

Louis S. Rulli, Seizing Family Homes from the Innocent: Can the Eighth Amendment Protect Minorities and the Poor from Excessive Punishment in Civil Forfeiture?, 19:5 Univ. Pen. L. Rev. 1112, (2017).

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 ham (if any) to the community caused by the offending conduct; and (5) the consequences of forfeiture of the property owner.