Category Archives: Articles

New Article: “Measuring Political Power: Suspect Class Determinations and the Poor”

New Article: Bertrall L. Ross II & Su Li, Measuring Political Power: Suspect Class Determinations and the Poor, 104 Calif. L. Rev. __ (forthcoming 2016).  Abstract below:

Which classes are considered suspect under equal protection doctrine? The answer determines whether courts will defer to legislatures and other government actors when they single out a group for special burdens, or intervene to protect that group from such treatment. Laws burdening suspect classes receive the strictest scrutiny possible — and under current doctrine, whether a class is suspect turns largely on whether the court views the group as possessing political power.

But how do courts know when a class lacks political power? A liberal plurality of the Supreme Court initially suggested that political power should be measured according to a group’s descriptive representation in politics. Under that measure, the mostly white, male, wealthy, straight makeup of most of the nation’s decision-making councils would indicate that other groups lack political power. But that measure never received majority support from the Court. Instead, the Court consolidated around a different measure of political power, one that focused on democratic actions favorable to a group. If laws have been enacted protecting the group from discrimination or otherwise advancing the group’s interest, the Court assumes that the group can attract lawmakers’ attention and therefore does not need judicial protection.

In the forty years since the Court introduced this standard, no class has been suspect under it. In fact, it is hard to imagine any class ever meeting the standard of political powerlessness under this measure. Even the most politically marginalized groups (such as the poor, non-citizens, and felons) have benefited from laws favoring their interests. Is favorable democratic action really an accurate measure of political power? Focusing on the poor, we advance the first empirical test of the Supreme Court’s measure of political power. Our findings suggest that legislators’ support for anti-poverty legislation is not motivated by the political power of the poor — implying that favorable democratic action does not always accurately indicate a group’s political power. Given these findings, we argue that the court should rely on a more holistic, and thus more reliable, measure of political power. The measure should include favorable legislative actions, but also indicators of lobbying activity, political responsiveness, voter turnout, and descriptive representation in politics.

New Article: “Exploding Wealth Inequalities: Does Tax Policy Promote Social Justice or Social Injustice?”

New Article: Phyllis C. Taite, Exploding Wealth Inequalities: Does Tax Policy Promote Social Justice or Social Injustice?, 36 W. New Eng. L. Rev. 201 (2014).  Abstract below:

This essay discusses how tax policies work in concert to contribute to the wealth and income inequality that disadvantage the poor and middle class in favor of the wealthy. While there is current and past discourse on wealth and income inequality, and impact of the same, as well as discussions of multiple causes of wealth and income inequality, there is little discussion on how various tax policies work together as a common force to perpetuate income and economic inequality. This Essay briefly discussed how certain tax policies work in concert to systematically shift wealth to the wealthiest taxpayers. This social arrangement is counter to what many would perceive as social justice. Social justice requires that those who are of greater means and receive greater benefits of tax policy should be responsible for a greater weight of the tax burdens. This Essay furthered discussed proposed limitations that should be placed on certain tax subsidies and defined benefits and burdens that should attach for the benefits received from these tax subsidies.

New Article: “For Goodness’ Sake: A Two-Part Proposal for Remedying the U.S. Charity/Justice Imbalance”

New Article: Fran Quigley, For Goodness’ Sake: A Two-Part Proposal for Remedying the U.S. Charity/Justice Imbalance, SSRN 2015.  Abstract below:

The U.S. approach to addressing economic and social needs strongly favors individual and corporate charity over the establishment and enforcement of economic and social rights. This charity/justice imbalance has a severely negative impact on the nation’s poor, who despite the overall U.S. wealth struggle with inadequate access to healthcare, housing, and nutrition. This article suggests a two-part approach for remedying the charity/justice imbalance in the U.S.: First, the U.S. should eliminate the charitable tax deduction, a policy creation that does not effectively address economic and social needs, forces an inequitable poverty relief and tax burden on the middle class, and lulls the nation into a false sense of complacency about its poverty crisis. Second, the U.S. should replace the deduction with ratification of the International Covenant on Economic, Social and Cultural Rights. This two-part process would reverse the U.S. legacy of avoiding enforceable commitments to economic and social rights. Charity would take a step back; justice a step forward.

New Article: “Why Working But Poor? A Capital Explanation and Solution”

New Article: Robert Ashford, Why Working But Poor? A Capital Explanation and Solution, SSRN 2015.  Abstract below:

This paper responds to two of the questions posed by the 2014 AALS Poverty Law Section’s Call for Papers: (1) “What other solutions can and should be employed [to reduce poverty]?” and (2) “What can legal scholars, lawyers, law schools, legal clinics, and law students do to reduce poverty?”

The answer to the first question is to democratize “capital acquisition with the earnings of capital” based on the principles of “binary economics.” This democratization requires extending to poor and middle-class people competitive access to the same government-supported institutions of corporate finance, banking, insurance, reinsurance and favorable tax and monetary policies that are presently available primarily to people and businesses to acquire capital with the future earnings of capital substantially in proportion to their existing wealth. With this democratization, participation in capital acquisition by the vast majority of poor and middle class people would no longer be limited as a practical matter to their meager or even negative net worth.

This democratization would transform the existing system of corporate finance (that presently functions primarily to concentrate capital ownership) into an ownership-broadening system of corporate finance. It would require no taxes, redistribution, borrowing, or government command. Corporations would be free to continue to meet their capital requirements as before, but they would have an additional, ownership-broadening, potentially more profitable, market means to do so. This additional means could be voluntarily employed to: 1. reduce poverty, welfare dependence, and fear of poverty by substantially enhancing the earning capacity of poor and middle class people (by supplementing their labor income and any transfer payments they may receive increasingly with capital income); 2. reduce tax rates, taxes, and the need for government expenditures; 3. enhance the earning capacity of the participating companies, their shareholders, their employees, and their customers; 4. reduce unemployment, raise wages, and enhance working conditions; 5. enhance the value of equity investments and retirement plans and reduce the risk of borrowing; 6. promote more sustainable, environmentally friendly growth, and 7. (if implemented globally) enhance the creditworthiness of national governments and their ability to raise revenue.

The answer to the second question is for law legal scholars, lawyers, law students, and individuals with responsibility for the curriculum of law schools and activities of legal clinics (1) first to learn and to teach (a) the underlying principles of binary economics, (b) how this democratization with the earnings of capital, based on its understanding, can be practically implemented and (c) how this democratization is a necessary part of any systemic solution to poverty and (2) then to advocate, work for, and facilitate its implementation.

New Article: ““Continually Reminded of Their Inferior Position”: Social Dominance, Implicit Bias, Criminality, and Race”

New Article: Darren Lenard Hutchinson, “Continually Reminded of Their Inferior Position”: Social Dominance, Implicit Bias, Criminality, and Race, 46 Wash. U. J.L. & Pol’y 23 (2014).  Abstract below:

This Article contends that implicit bias theory has improved contemporary understanding of the dynamics of individual bias. Implicit bias research has also helped to explain the persistent racial disparities in many areas of public policy, including criminal law and enforcement. Implicit bias theory, however, does not provide the foundation for a comprehensive analysis of racial inequality. Even if implicit racial biases exist pervasively, these biases alone do not explain broad societal tolerance of vast racial inequality. Instead, as social dominance theorists have found, a strong desire among powerful classes to preserve the benefits they receive from stratification leads to collective acceptance of group-based inequality. Because racial inequality within criminal law and enforcement reinforces the vulnerability of persons of color and replicates historical injuries caused by explicitly racist practices, legal theorists whose work analyzes the intersection of criminality and racial subordination could find that social dominance theory allows for a rich discussion of these issues.

New Article: “Demand Side Reform in the Poor People’s Court”

New Article: Jessica K. Steinberg, Demand Side Reform in the Poor People’s Court, 47 Conn. L. Rev. 741 (2015).  Abstract below:

A crisis in civil justice has seized the lowest rungs of state court where the great majority of American justice is meted out. Nineteen million civil cases are filed each year in the so-called “poor people’s court,” and seventy to ninety-eight percent of those matters involve an unrepresented litigant who is typically low-income and often a member of a vulnerable population. This Article challenges the predominant scholarly view in favor of “supply side” remedies for improving access to justice—that is, remedies focused exclusively on supplying counsel to litigants, either through adoption of “civil Gideon,” a universal civil right to counsel, or through the provision of “unbundled,” or limited, legal services—arguing that such an approach is practically and conceptually unworkable. Courts and legislatures have rejected attempts to expand a civil right to counsel and initial data suggests that the delivery of limited legal services produces anemic, if any, improvements in substantive fairness for the unrepresented. This Article sets forth a vision of “demand side” procedural and judicial reform as an alternative, or complementary, theory of civil justice. Demand side reform would charge courts, rather than parties, with the duty to advance cases and develop legally relevant narratives, thereby focusing on institutional change that would strengthen due process for the great majority of litigants in the American justice system. This proposal builds upon the Supreme Court’s recent holding in Turner v. Rogers that “alternative procedural safeguards” must be implemented to ensure due process for civil contemnors, and offers unrepresented litigants a viable mechanism for dispute resolution that—unlike the supply side approach— does not perpetuate court processes requiring party initiative and expertise.

New Article: “Dude, Where’s My Car Title?: The Law, Behavior, and Economics of Title Lending Markets”

New Article: Kathryn Fritzdixon, Jim Hawkins & Paige Marta Skiba, Dude, Where’s My Car Title?: The Law, Behavior, and Economics of Title Lending Markets, 2014 University of Illinois Law Review 1013.  Abstract below:

Millions of credit-constrained borrowers turn to title loans to meet their liquidity needs. Legislatures and regulators have debated how to best regulate these transactions, but surprisingly, we still know very little about the customers who use title loans. This Article reports findings from the first large-scale academic study of title lending customers. We surveyed over 400 title lending customers across three states and obtained information about customers’ demographic and behavioral characteristics.

Based on the results of our survey and guided by insights from behavioral economics, this Article seeks to reframe the title lending debate. Instead of focusing on the risks and consequences of borrowers’ cars being repossessed, as the vast bulk of the literature does, we argue that the primary problem that most borrowers face is underestimating the true cost of taking out a title loan. Borrowers’ survey responses demonstrate that many borrowers are overly optimistic and experience self-control problems that affect their ability to make timely loan payments. We argue that these deviations from the assumptions of classical economics do not warrant an outright ban of title lending, but they do provide room for policy interventions. Policymakers can improve efficiency in title lending markets by requiring lenders to disclose to consumers the likely experiences they will have with their title loans rather than merely requiring lenders to communicate pricing information.

New Article: “The Tax War on Poverty”

New Article: Susannah Camic Tahk, The Tax War on Poverty, 56 Ariz. L. Rev. 791 (2014).  Abstract below:

In recent years, the war on poverty has moved in large part into the tax code. Scholarship has started to note that the tax laws, which once exacerbated the problem of poverty, have become increasingly powerful tools that the federal government uses to fight against it. Yet questions remain about how this new tax war on poverty works, how it is different from the decades of non-tax anti-poverty policy and how it could improve. To answer these questions, this Article looks comprehensively at the provisions that make up the new tax war on poverty. First, this Article examines each major piece of the tax war on poverty. The Article looks at its mechanics of each, its political history and its effectiveness at addressing poverty. Second, this Article analyzes the tax war on poverty as a whole, identifying commonalities across its different provisions and highlighting its distinctive features. Third, this Article proposes ways that the tax war on poverty could be more effective. In particular, this Article examines how tax lawmakers and tax lawyers could approach this task. In so doing, this Article conceptualizes tax law as the new poverty law and proposes a growing role for public-interest tax lawyers.

New Article: “‘Robbing Peter to Pay Paul': Economic and Cultural Explanations for How Lower-Income Families Manage Debt”

New Article: Laura Tach & Sara Sternberg Greene, ‘Robbing Peter to Pay Paul': Economic and Cultural Explanations for How Lower-Income Families Manage Debt, 61 Social Prob. 1 (2014).  Abstract below:

This article builds upon classic economic perspectives of financial behavior by applying the narrative identity perspective of cultural sociology to explain how lower-income families respond to indebtedness. Drawing on in-depth qualitative interviews with 194 lower-income household heads, we show that debt management strategies are influenced by a desire to promote a financially responsible, self-sufficient social identity. Families are reluctant to ask for assistance when faced with economic hardship because it undermines this identity. Because the need to pay on debts is less acute than the need to pay for regular monthly expenses like rent or groceries, debts receive a lower priority in the monthly budget and families typically juggle their debts in private rather than turning to social networks for assistance. In some cases, however, debts take on special meanings and are handled differently. Respondents prioritize debts when they perceive payment as affirming a self-sufficient or upwardly mobile identity, but they reject and ignore debts they view as unfair or unjust. Because the private coping strategies families employ trap them in costly cycles of indebtedness and hinder future mobility prospects, debt management strategies are consequential for long-term financial well-being.

New Article: “Are Court Orders Responsible for the ‘Return to the Central City’? The Consequence of School Finance Litigation”

New Article: Zachary D. Liscow, Are Court Orders Responsible for the ‘Return to the Central City’? The Consequence of School Finance Litigation, SSRN Jan. 2015.  Abstract below:

Central cities’ populations have rebounded over the last few decades, but scholars are unsure why. I propose and offer econometric evidence for a novel hypothesis — legal changes have driven central cities’ resurgence. In particular, state fiscal aid for schools in poor cities, mandated by state courts, has made poor cities more desirable places to live by improving their schools and reducing their taxes.

I test my hypothesis by taking advantage of the natural experiment resulting from the dramatic increase in transfers to some states’ poor cities in response to court-ordered school finance equalization, using Census data on over 20,000 cities and towns. The key threats to accurate measurement are that poor places may have grown differently than rich places in the absence of school finance redistribution, and places in high-redistribution states may have grown differently than places in low-redistribution states. To address these concerns, I use a continuous version of the “difference-in-difference-in-differences” econometric technique. The results show that redistribution had a large effect on urban population growth between 1980 and 2010, explaining about one-third of the “return to the central city.” I then conduct a case study on the local finances of Connecticut, and find that the state transfers for education led to tax reductions, as well as the intended increases in education spending.

Finally, the paper suggests two reasons that state aid to poor places may be not only equitable but also efficient. First, financing schools locally discourages people from living in poor cities by requiring that their residents pay for the costs of providing services to the cities’ poor. The results show that the location choices of many people are affected by this local financing, suggesting that its efficiency costs may be large. Second, the paper shows that school finance redistribution promotes the positive externalities associated with central city living. These arguments could be used in future legislative debates or litigation to support more school finance redistribution.