Category Archives: Articles

New Article: Federalism as a Safeguard of Progressive Taxation

New Article: Daniel Jacob Hemel, Federalism as a Safeguard of Progressive Taxation, (March 30, 2017). 93 New York University Law Review 1 (2018); U of Chicago, Public Law Working Paper No. 633; University of Chicago Coase-Sandor Institute for Law & Economics Research Paper No. 816. Abstract below:

This Article considers the distributional consequences of the Supreme Court’s federalism jurisprudence over the past quarter century, focusing specifically on the anti-commandeering, anti-coercion, and state sovereign immunity doctrines. The first of these doctrines prevents Congress from compelling the states to administer federal programs; the second prevents Congress from achieving the same result through offers that for practical purposes the states cannot refuse; the third prohibits Congress from abrogating state sovereign immunity outside a limited class of cases. These doctrines vest the states with valuable entitlements and allow the states to sell those entitlements back to Congress for a price. In this respect, the doctrines have an intergovernmental distributional effect, shifting wealth from the federal government to the states.

The distributional consequences of the anti-commandeering, anti-coercion, and state sovereign immunity doctrines are not purely intergovernmental, however. The doctrines also have potential implications for the distribution of wealth across individuals and households. By forcing Congress to bear a larger share of the costs of federal programs, and by shifting some of the costs of liability-imposing statutes from the states to Congress, these doctrines allow the states to raise less revenue and compel Congress to raise more. For a number of historical as well as structural reasons, the federal tax system is dramatically more progressive than even the most progressive state tax systems, and so the reallocation of fiscal responsibility resulting from these federalism doctrines causes more revenue raising to occur via the more progressive system. The likely net effect is a shift in wealth from higher-income households (who bear a larger share of the federal tax burden) to lower- and middle-income households (who would have borne a larger share of the burden of state taxes).

This conclusion comes with a number of caveats. The distributional consequences of the Supreme Court’s federalism doctrines may be moderated—or magnified—by differences in federal and state spending priorities. Moreover, the doctrines may affect the size of government as well as the allocation of fiscal responsibility across levels of government (though the net effect on government size is ambiguous). And the doctrines may have distributional consequences that are not only interpersonal, but also intergenerational. What seems clear from the analysis in this Article is that federalism doctrines affect the distribution of income and wealth in subtle and sometimes unexpected ways, and that a comprehensive understanding of wealth inequality in the United States requires careful attention to key features of our fiscal constitution.


New Article: Constructing Citizenship: Exclusion and Inclusion Through the Governance of Basic Necessities

New Article: K. Sabeel Rahman, Constructing Citizenship: Exclusion and Inclusion Through the Governance of Basic Necessities, Columbia L. Rev. Vol. 119, Forthcoming (2018). Abstract below:

While income inequality has become an increasingly central focal point for public policy debate and public law scholarship, systemic inequality and exclusion are produced not just by disparities in income but rather by more hidden and pernicious background rules that systematically disadvantage and subordinate constituencies. This paper focuses on a particularly crucial — and often underappreciated — site for the construction and contestation of systemic inequality and exclusion: the provision of, and terms of access to, basic necessities like water, housing, or healthcare. We can think of these necessities as “public goods” in a broader moral and political sense: these are foundational goods and services that make other forms of social, economic, or political activity possible, and thus carry a greater moral and political importance. This paper argues that the way in which we administer these essential public goods represents one of the major ways in which law and public policy constructs systemic forms of inequality and exclusion. Conversely, the paper also argues that promoting equality and inclusion requires a more inclusionary approach to the administration of these public goods.

In Part I the paper develops the central theoretical argument that the provision of and access to basic necessities constitutes a central vector for structural inequality and exclusion — and more broadly, for the moral ideals of inclusion, equality, and citizenship itself. The importance of these public goods makes communities subordinate and vulnerable to those actors that can exert control over these goods. This normative critique parallels historical efforts to secure greater economic and social citizenship in part by contesting the power of actors that control infrastructure, from the Progressive Era fights over public utilities to civil rights battles over public accommodations. Part II then identifies three specific patterns of structural exclusion produced through the maladministration of these public goods: bureaucratic exclusion, fragmentation, and privatization. These three strategies are more subtle than direct denial of access; they represent a kind of “second-order” exclusion operating through background rules of governance and administration. Part III then imagines what a more inclusionary governance regime built to prevent these more subtle forms of exclusion would look like. Here the paper identifies three particular strategies for inclusionary administration of public goods: expanded enforcement authority; greater governmental accountability; and direct public provision.

Finally, Part IV of the paper links this exploration of structural inequality, exclusion, and public goods to broader debates in public law scholarship. First, this focus on public goods represents an important application and extension of the recently renewed interest in inequality and “constitutional political economy,” suggesting a concrete legal and institutional context in which the normative ideas and historical narratives developed in this literature can have purchase. Second, the focus on public goods also provides greater weight and context to current debates over the “deconstruction” of administrative agencies, particularly in context of economic inequality and racial and gender exclusion.

New Article: Nudge-Proof: Distributive Justice and the Ethics of Nudging

New Article: Jessica L. Roberts, Nudge-Proof: Distributive Justice and the Ethics of Nudging, 116 Mich. L. Rev. 6 (2018). Abstract unavailable.

New Article: The Cost of Justice: The Importance of a Criminal Defendant’s Ability to Pay in the Era of Commonwealth v. Henry

New Article: Cristina Rodrigues, The Cost of Justice: The Importance of a Criminal Defendant’s Ability to Pay in the Era of Commonwealth v. Henry, Northeastern Univ. L. Rev. Vol. 10, No. 1 (2018). Abstract below:

Individuals involved with the criminal courts are exposed to a minefield of fees. In fiscal year 2016, the (state) trial courts of Massachusetts collected over $99 million in fines, fees and court costs. Much of that amount came from the state’s poor residents, poor communities and communities of color, because those groups are dramatically over represented in criminal courts. Individuals who do not make criminal court ordered payments can be jailed. As a public defender in Boston, I see my clients burdened by these fees everyday.

In this article, I detail the way in which these criminal court fees are exacerbating the stark racial and economic inequalities that persist. The statistics are alarming. With great enthusiasm though, I argue that the Supreme Judicial Court’s (SJC) 2016 decision in Commonwealth v. Henry provides powerful legal tools for addressing the unjust imposition and collection of criminal court payments. In Henry, the SJC 1) barred judges from ordering defendants on probation to pay restitution amounts that are beyond their actual ability to pay and 2) barred the very common practice of extending a person’s probation for the sole purpose of collecting more restitution payments. These rules extend beyond what exists in most jurisdictions. In the article, I analyze Henry closely. I then argue that Henry’s rules should be formally extended to all criminal court payments. Doing so could render Henry a watershed case regarding the criminalization of poverty in Massachusetts and beyond. These rules will bring us a bit closer to actualizing the fundamental principle that no individual should be incarcerated for his poverty or treated more harshly by the courts based on his poverty.

New Article: A Mental Health Checkup for Children at the Doctor’s Office: Lessons from the Medical-Legal Partnership Movement to Fulfill Medicaid’s Promise

New Article: Yael Cannon, A Mental Health Checkup for Children at the Doctor’s Office: Lessons from the Medical-Legal Partnership Movement to Fulfill Medicaid’s Promise, Yale Journal of Health Law, Policy, and Ethics, Vol. 17, Iss. 2, Art. 2 (2017). Abstract below:

Traumatic childhood events and the stress they cause can negatively affect health over a lifetime. For children with Medicaid coverage, visits to the doctor’s office present an opportunity to improve this trajectory. Medicaid’s Early Periodic Screening Diagnostic and Treatment (EPSDT) mandate requires that children receive more than a basic physical when they see a doctor for regular “well-child checks.”

New Article: Improving Tax Rules by Means-Testing: Bridging Wealth Inequality and ‘Ability to Pay’

New Article: James M. Puckett, Improving Tax Rules by Means-Testing: Bridging Wealth Inequality and “Ability to Pay”, 70 Okla. L. Rev. 405 (2018). Abstract below:

The federal income tax can and should do more to address wealth disparities and income inequality. The income tax does not directly count wealth, and the realization rule and basis “step-up” at death exclude substantial amounts of income for the wealthy. The Constitution limits Congress’s ability to tax wealth. Despite these serious challenges, this Article considers how to potentially bridge the gap between wealth and the income tax. For example, asset-based phase-outs in the income tax should pass muster without apportionment, although their bite would necessarily be limited. The Article posits that the public would be more receptive to phase-outs than more progressive tax brackets. Relevant to complexity, the existing literature has identified potential mark-to-market solutions to correct the exclusion of unrealized gains. The design of asset-based phase-outs would be prefigured to some extent by whether these proposals gain traction. The income tax, to be sure, cannot by itself solve the problem of wealth inequality. Principles of tax justice, however, arguably require greater attention to wealth in measuring the taxpayer’s “ability to pay.”

New Article: The Biology of Inequality

New Article: Lucy A. Jewell, The Biology of Inequality, 95 Denver L. Rev. 609 (2018). Abstract below:

We have known for quite some time that disadvantaged individuals suffer from poorer health outcomes and lower life spans than the advantaged. The disadvantaged do not perform as well on educational tests than their wealthier peers. In some situations, racial discrimination intersects with poverty to worsen these outcomes for minorities. With the notion that poverty becomes implanted in an individual’s genes and brain, science helps explain how these disparate lifespans and variations in cognitive outcomes come to be. This Article collectively refers to these scientific theories as embodied inequality. Embodied inequality explains why it is so difficult for individuals to escape the effects of socioeconomic disadvantage.

Rhetorically, embodied inequality challenges traditional narratives that assume that individual genes and individual behavioral choices are the primary causal agents for social outcomes. Individual action plays a role, but biologists and brain scientists now understand that the environment, along with one’s genes, pulls many of the strings toward particular social outcomes. While social-policy theorists have long advocated for government intervention to create a more robust social safety net and a more nurturing society, this Article is the first to apply these emerging scientific
theories to these legal and policy issues.

New Article: Sovereign Resilience: Reviving Private Sector Economic Institutions in Indian Country

New Article: Robert J. Miller, Sovereign Resilience: Reviving Private Sector Economic Institutions in Indian Country, forthcoming BYU L. Rev. (SSRN Aug. 2018). Abstract below:

Indian country in the United States is incredibly poor. Indian nations desperately need to develop reservation economic activities. Most tribal governments, however, are primarily focused on developing tribally owned businesses. This article argues for Indian peoples and governments to revive and regenerate their centuries’ old tribal institutions that promoted, supported, and protected private sector economic development and economies. Indian country and Indian peoples need to develop economic enterprises and activities in their homelands to ensure their sustainability by creating living wage jobs and adequate housing. Developing private sector economies, in addition to tribal public sector economies, will help create economic diversification on reservations, new businesses and jobs, protect from economic downturns, slow the “brain drain” that all rural areas suffer, and promote more spending which will help Indian country benefit from the “multiplier effect” as more and more money is spent, and re-spent, on reservations.

New Article: Bringing Proverbs to Policy: Classical Economics, Proverbial Wisdom, and Applications for Welfare Policy

New Article: Paul L. Winfree, Bringing Proverbs to Policy: Classical Economics, Proverbial Wisdom, and Applications for Welfare Policy, June 12, 2018. This is a meaningful contribution to the “how we can improve anti-poverty policy” discourse. Abstract below:

Economists have had tremendous influence in designing antipoverty programs in both Great Britain and America over the last 200 years. However, today’s economic experts have lost some respect for the wisdom of non-experts, or ordinary people, that was held in high regard by their intellectual forerunners. This article argues that the antipoverty programs designed by experts would be improved by the incorporating the wisdom of ordinary people.

Classical economists from Adam Smith (the founder of modern economics) to John Stuart Mill (“the most influential English language philosopher of the nineteenth century” according to the Stanford Encyclopedia of Philosophy) believed that experts should pay close attention to the wisdom of ordinary people that is captured in proverbs, or proverbial wisdom.

According to the Oxford English Dictionary, a proverb is a “short piece of advice” whereas wisdom is “knowledge or experience that develops within a society or period”. We can think of proverbial wisdom as advice that represents practical knowledge. In other words, proverbial wisdom is similar to aggregated anecdotal evidence that has been passed between people across time.

The primary difference between economic experts today and non-experts is that experts see the world through formal models, whereas non-experts use the summation of experiences. A measure of these experiences (for instance, the experience of the median person or even the median voter) are transmittable through proverbial wisdom. The public policies of poor relief since the 1800s have been driven by debates over expert models and not debates between models and proverbial wisdom. Put another way, the rise in the expert has led to the fall of proverbial wisdom.

Proverbs, as the reflection of human experience, could help to avoid injustice by guiding a system of heuristics to help with judging morality. For both Adam Smith and John Stuart Mill, the “Golden Rule” which they attributed to Jesus Christ, was especially meaningful in this regard. However, reliance the proverbs without the application of reason was not only unwise, but equivalent to idolatry.

This article covers the “rise of the welfare expert” and the development of antipoverty policy in both Great Britain and the United States since the 1500s. The article also covers the use of proverbs in classical economics. Finally, the article concludes by making recommendations on how antipoverty might be improved in the United States.

New Article: Installment Land Contracts & Low-Income Homebuyers in Chicago: A Call for Legislative Reform

New Article: Cameron Custard, Installment Land Contracts & Low-Income Homebuyers in Chicago: A Call for Legislative Reform, 67 DePaul L. Rev. (2018). Abstract unavailable.

This work explores the hazards that increasing use of installment land contracts have on low-income residents in particular.