Category Archives: Articles

New Article: “Food Stamps, Unjust Enrichment and Minimum Wage”

New Article: Candace Kovacic-Fleischer, Food Stamps, Unjust Enrichment and Minimum Wage, Law and Inequality: A Journal of Theory and Practice, Vol. 35 (forthcoming).  Abstract below:

A number of large retail chains with monopsony power, such as Walmart, pay their low level employees so little that these employees are eligible for food stamps and other governmental benefits. In addition to paying low wages, these chains often have hourly restrictions so that their employees are not eligible for overtime pay. At times the chains violate the wage and hour provisions of the Fair Labor Standards Act (FLSA) by making hourly employees work “off the clock,” a practice known as wage theft.

One of the reasons these low wage retailers can pay so little is because their employees can supplement their income with food stamps. Another reason is the minimum wage of $7.25 per hour has not been raised since 2009. Paying anything more seems generous.

Whether to raise the minimum wage is fiercely disputed. This paper suggests the debate focus not only on the effect of the minimum wage on jobs, but also on the unjust enrichment of monopsonistic employers. By applying the law of unjust enrichment (also referred to as restitution), the government should be able to recover from these employers the amount of food stamps their low paid employees receive at taxpayers’ expense. A lawsuit in unjust enrichment should make the public aware that with food stamp payments and other benefits, the government is subsidizing monopsonistic employers.

New Article: “Does Work Law Have a Future if the Labor Market Does Not?”

New Article: Noah Zatz, Does Work Law Have a Future if the Labor Market Does Not?, 91 Chi. Kent L. Rev. (forthcoming 2016).  Abstract below:

This Essay is based on the 37th Annual Kenneth M. Piper Lecture. It offers a new perspective on the much-discussed “future of work.” That discussion typically highlights changes within the labor market that undermine the employment relationship’s role as the bedrock for work regulation. But might something even deeper be afoot, namely the disintegration of “the labor market” itself? Several recent developments challenge the legal construction of employment as occurring wholly inside a distinctive, and distinctively economic, market sphere. The Essay considers Uber and the relationship between work and “sharing,” Hobby Lobby and the relationship between work and religion, the unrest in Ferguson and the relationship between work and criminal justice, and Friedrichs and the relationship between work and politics. Each presents a conservative challenge to labor and employment law by blurring the boundaries between the labor market and other spheres, not by purging the labor market of noneconomic intrusions in the manner of laissez faire. This development presents a conundrum for traditional labor and employment law, which simultaneously defines its object in market terms while aspiring to reshape it by incorporating certain nonmarket values.

New Article: “Market Power and Inequality: The Antitrust Counterrevolution and its Discontents”

New Article: Lina Khan & Sandeep Vaheesan, Market Power and Inequality: The Antitrust Counterrevolution and its Discontents, Harv. L. & Pol’y Rev. (forthcoming).  Abstract below:

One unexplored theme in the debate around economic inequality is the role of monopoly and oligopoly power. Despite the relative lack of attention to this topic, there is sound reason to believe that pervasive market power in the economy has contributed to extreme economic disparity in the United States today. Given the affluence of shareholders and executives compared to consumers in most markets as well as the power dynamics inside large corporations, market power, in general, can be expected to have significant regressive distributional effects. Case studies of anticompetitive practices and uncompetitive market structures in several key industries illustrate how large corporations have come to dominate the U.S. economy. On top of their market power, monopolistic and oligopolistic companies translate their economic power into political influence, often successfully pushing for laws and regulation that further enhance their clout and transfer wealth upwards. Pervasive market power in the economy, which appears to be contributing to economic inequality, is the result of an intellectual and political revolution in the 1980s that dramatically reoriented and narrowed the goals of antitrust law. Importantly, this counterrevolution can be reversed. We present a vision of antitrust that accords with what Congress intended in enacting “this comprehensive charter of economic liberty” and offer specific policy prescriptions.

New Article: “The Influence of Exile”

New Article: Sara K. Rankin, The Influence of Exile, 76 Md. L. Rev. __ (forthcoming 2016).  Abstract below:

Belonging is a fundamental human need. But human instincts are Janus-faced: equally strong is the drive to exclude. This exclusive impulse, which this Article calls “the influence of exile,” reaches beyond interpersonal dynamics when empowered groups use laws and policies to restrict marginalized groups’ access to public space. Jim Crow, Anti-Okie, and Sundown Town laws are among many notorious examples. But the influence of exile perseveres today: it has found a new incarnation in the stigmatization and spatial regulation of visible poverty, as laws that criminalize and eject visibly poor people from public space proliferate across the nation. These laws reify popular attitudes toward visible poverty, harming not only the visibly poor, but also society as a whole. This Article seeks to expose and explain how the influence of exile operates; in doing so, it argues against the use of the criminal justice system as a response to visible poverty. In its place, the Article argues for more effective and efficient responses that take as their starting point an individual right to exist in public space, which for many visibly poor people is tantamount to a right to exist at all.

Editor’s Note: I just finished reading this article and it is interesting not only for its text, but for the rich sources collected in the footnotes that give examples of demonizing and blaming the visible poor. Congrats Sara!

New Article: “Irresponsibly Taxing Irresponsibility: The Individual Tax Penalty Under the Affordable Care Act”

New Article: Francine J. Lipman & James Owens, Irresponsibly Taxing Irresponsibility: The Individual Tax Penalty Under the Affordable Care Act, 23 Geo. J. Poverty L. Pol’y 423 (2016).  Abstract below:

In recent decades, Congress has used the federal income tax system increasingly to administer and deliver social benefits. This transition is consistent with the evolution of the American welfare system into workfare over the last several decades. As more and more social welfare benefits are conditioned upon work, family composition, and means-tested by income levels, the income tax system where this data is already systematically aggregated, authenticated, and processed has become the go-to administrative agency.

Nevertheless, as the National Taxpayer Advocate Nina Olson has noted there are “substantial differences between benefits agencies and enforcement agencies in terms of culture, mindset, and the skills and training of their employees. As the Internal Revenue Service (the “IRS”) prepares to administer large portions of the health care legislation, it will have to shift from being an enforcement agency that primarily says, in effect, ‘you owe us’ to an agency that places much greater emphasis on hiring and training caseworkers to help eligible taxpayers receive benefits and work one-on-one with taxpayers to resolve legitimate disagreements.” Inherent in and integral to the Patient Protection and Affordable Care Act (the “Act”), the health care legislation signed into law by President Obama in 2010, is an individual mandate or a new individual tax penalty, that is, the Shared Responsibility Payment (the “SRP”).

This Article will fill an existing gap in tax scholarship regarding the SRP by providing comprehensive examples of how the SRP operates for taxpayers at various household income levels. Through these examples the authors expose an inherent problem in the design of the SRP that they remedy with a statutory amendment. Part II begins with a brief history of the Act before moving to a discussion of the IRS’ significant obligations under the Act. Part III uses a series of practical examples to detail and describe how the SRP operates. Part III also details (1) what type of health insurance coverage qualifies as “minimum essential coverage” and what coverage does not; (2) the myriad of exemptions from the SRP; and (3) the actual calculation of the SRP. This analysis demonstrates the significant penalty the tax imposes—especially on the lowest income households who are not exempt. These detailed examples evidence that the SRP is notably regressive. 

Congress intended that the SRP be harsh so that most households would obtain qualifying health care coverage in lieu of paying the SRP. For those households that do not qualify for an exemption and do not obtain qualifying coverage, the penalty is as significant as intended. However, the design and structure of the SRP provides a much harsher penalty for lower-income individuals than higher-income individuals. Specifically, because of the inherent floor and ceiling in the complex design of the SRP, it disproportionately taxes lower-income families at a higher rate as compared to higher-income families. Part IV presents a reconstructed SRP that resolves this issue by eliminating the floor and ceiling. This remedy not only replaces the regressive structure with a modestly progressive structure, but also meaningfully simplifies the SRP. Part V concludes by reflecting on how the authors’ redesign of the SRP better achieves Congress’ goal of affordable comprehensive health care for all.

Worth Reading: “The life and times of Strider Wolf”

Worth Reading: Written by Sarah Schweitzer, Photos by Jessica Rinaldi, The life and times of Strider Wolf, Boston Globe, Nov. 2015.  Editor’s Note: the photos won a Pulitzer and the story is worth reading.

New Article: “Post-Disaster Housing Through the Lens of Litigation: The Katrina Housing Justice Docket”

New Article: Davida Finger, Post-Disaster Housing Through the Lens of Litigation: The Katrina Housing Justice Docket, 61 Loyola L. Rev. 591 (2015).

New Article: “Why Don’t Americans Save More Money?”

New Article: “Why Don’t Americans Save More Money?”- The Atlantic

New Article: “Capitalism, Global Trade, And The Reduction In Poverty And Inequality”

New Article: “Capitalism, Global Trade, And The Reduction In Poverty And Inequality

New Article: “The Case For A New WPA”

New Article: “The Case For A New WPA” – The Atlantic