Category Archives: Articles

New Article: The New Housing Segregation: The Jim Crow Effects of Crime-Free Housing Ordinances

New Article: Deborah N. Archer, The New Housing Segregation: The Jim Crow Effects of Crime-Free Housing Ordinances, forthcoming Mich. L. Rev. Abstract below:

America is profoundly segregated along racial lines. We attend separate schools, live in separate neighborhoods, attend different churches, and shop at different stores. This rigid racial segregation results in social, economic, and resource inequality, with White communities of opportunity on the one hand, and many communities of color without access to quality schools, jobs, transportation, or health care on the other. Many people view this as an unfortunate fact of life, or as a relic of legal systems long-since overturned, and beyond the reach of current legal process. But this is not true. On the contrary, the law continues to play a profound role in creating and legitimizing patterns of racial segregation all across America. Crime-free housing ordinances are one of the most salient examples of the role law plays in producing and sustaining racial segregation today. They are, in this respect, a critical mechanism for effectuating the new housing segregation.

Crime-free housing ordinances are local laws that either encourage or require private landlords to evict or exclude tenants who have had varying levels of contact with the criminal legal system. Though formally race neutral, these laws facilitate racial segregation in a number of significant ways. This is the first law review article to explain precisely how they do so. The Article contends that crime-free housing ordinances enable racial segregation by importing the racial biases, racial logics, and racial disparities of the criminal legal system into private housing markets. While scholars have examined the important role local laws played in effectuating racial inequality, they have not paid attention to crime-free housing ordinances. In addition to foregrounding how crime-free housing ordinances reinforce and perpetuate racially segregated communities, this Article proposes an intervention: a “segregative effects” claim, an underutilized cause of action under the Fair Housing Act of 1968, to challenge this segregative impact. While this intervention would not end the pervasive nature of housing segregation across the United States, it could eliminate at least one of the causes of this persistent problem: a body of law whose formal race neutrality has obscured its racially segregative effects.

New Article: Rationing Justice in the 21st Century: Technocracy and Technology in the Access to Justice Movement

New Article: Rebecca Kunkel, Rationing Justice in the 21st Century: Technocracy and Technology in the Access to Justice Movement, 18 U. Md. L.J. Race Relig. Gender & Class 366 (2019).

New Article: Situational Irony? How Implementing a Medicaid Block Grant Will Exacerbate Everything It Purports to Fix

New Article: Brent Miller, Situational Irony? How Implementing a Medicaid Block Grant Will Exacerbate Everything It Purports to Fix, 2018 BYU L. Rev. 729 (2019).

New Article: Class in the Classroom: Poverty, Policies, and Practices Impeding Education

New Article: Christine Chambers Goodman, Class in the Classroom: Poverty, Policies, and Practices Impeding Education, 27 Journal of Gender, Social Policy and the Law 95 (2019). Abstract below:

Part I of this Article begins with social science evidence to justify the combination approach of “equally adequate” education. It describes the data on the impact of SES on brain development. Part I also addresses the impacts of one’s physical environment, including the levels of poverty, crime, educational opportunity, housing, upward mobility, and stress in neighborhoods on educational outcomes. It then considers some potential counterarguments and poses questions that can guide social scientists in further research. Part II describes the constitutional protections for education and the state court litigation around those issues, concurring with the conclusion of others who believe that the key point of the constitutional right is to provide an education sufficient to participate in democratic processes of the nation. This section addresses the constitutional arguments around education and adequacy versus equality, recent cases putting forth these arguments, and their status. Part III briefly addresses the federal legislation, namely the No Child Left Behind Act (NCLB), which has subsequently been revised and renamed the Every Student Succeeds Act (ESSA). To the extent data is available, this Article will examine how ESSA is working (relative to NCLB), as well as whether it is making progress for students in states who promote either equal or adequate education. Thus far, there is little data about application because the states only recently submitted their plans, and so this part focuses on the ESSA’s goals and shortfalls, and then looks at the plans put into place by several states. Part III will then highlight the adequacy and equality litigation currently and recently pending in selected states. The Article concludes with several proposals for future consideration by courts, policymakers, and legislatures.

New Article: Unfamiliar Justice: Indigent Criminal Defendants’ Experiences With Civil Legal Needs

New Article: Lauren Sudeall & Ruth Richardson, Unfamiliar Justice: Indigent Criminal Defendants’ Experiences With Civil Legal Needs, 52 UC Davis Law Review 2105 (2019). Abstract below:

Our legal system — and much of the research conducted on that system — often separates people and issues into civil and criminal silos. However, those two worlds intersect and influence one another in important ways. The qualitative empirical study that forms the basis of this Article bridges the civil-criminal divide by exploring the life circumstances and events of public defender clients to determine how they experience and respond to civil legal problems.

To date, studies addressing civil legal needs more generally have not focused on those individuals enmeshed with the criminal justice system, even though that group offers a rich source of valuable information. Researchers interested in civil aspects of criminal defense have focused primarily on the collateral consequences of conviction and the effectiveness of holistic defense programs. This exploratory study is the first of its kind — focused on civil legal problems unrelated to clients’ criminal cases, but instead those that arise in the course of their everyday lives.

The study reveals that for public defender clients, civil justice is unfamiliar territory. While not strangers to the legal system or to lawyers, the clients we interviewed had very little experience with — or awareness of — available civil legal resources. In addition, they face a number of cognitive, procedural, and structural obstacles that make it difficult to navigate the legal system, including a lack of access to information and tools that enable them to use the civil legal system to address relevant needs. Yet, their life circumstances and the situations they encounter suggest many opportunities for possible civil legal intervention, whether through an attorney or other self-help mechanism.

By providing a better understanding of how indigent criminal defendants understand, experience, and respond to civil legal problems, the barriers that prevent them from addressing those needs, and opportunities for intervention, this Article forces the access-to-justice conversation out of its siloed confines. In doing so, it aims to engage civil and criminal scholars, practitioners, and policymakers in a discussion of how to make the civil justice system more accessible to all.

New Article: Reforming Unemployment Insurance in the Age of Non-Standard Work

New Article: Jeremy Pilaar, Reforming Unemployment Insurance in the Age of Non-Standard Work, 13 Harv. L. & Pol’y Rev. 327 (2018). Abstract below:

Unemployment Insurance (UI) is one the nation’s most effective anti-poverty and economic stabilization measures. Unfortunately, the number of workers receiving benefits has substantially declined in recent decades. This Note probes one likely cause of this phenomenon that scholars have mostly ignored: the rise of non-standard employment, including part-time, temporary, contract, on-call, and independent contract work. Like many New Deal programs, UI was designed to aid individuals with long-term, full-time jobs. It is therefore poorly adapted to a non-standard workforce characterized by low wages, uncertain schedules, and short-lived assignments. Indeed, the analysis shows that UI’s monetary eligibility criteria, non-monetary eligibility requirements, outreach mechanisms, and exclusions all disadvantage non-standard workers. The Note proposes reforms in each of these areas to combat this imbalance.

New Article: Bathrooms as a Homeless Rights Issue

New Article: Ron Hochbaum, Bathrooms as a Homeless Rights Issue, SSRN Mar. 2019. Abstract below:

Bathrooms are a bellwether of equality. Segregated bathrooms were at the center of the Civil Rights movement. Accessible bathrooms were at the heart of the Disability Rights movement. Now, gender-neutral bathrooms or bathrooms assigned by gender, rather than sex, are at the heart of the Transgender Rights movement.

This article is the first to examine the right to access bathrooms as it relates to the homeless community. The article explores the current paradox where cities, counties, and states provide few, if any, public bathrooms for the homeless community and the public at large, while criminalizing public urination and defecation.

To better understand this paradox, the article contains two original multi-jurisdictional surveys. The first reviews the prohibitions on public urination and defecation in the 10 municipalities with the most homeless individuals. The second explores the Freedom of Information Act and Public Record Act responses of those municipalities to requests for information regarding the public bathrooms they operate and potential barriers to use for homeless individuals (e.g. closing in the evenings or particular seasons, charging a fee for entry, being located in buildings requiring identification for entry, etc.).

The article contextualizes the paradox in relation to human dignity, public health, and the historical use of bathroom access as an exercise of power. It contends that the current scheme denies homeless individuals a basic sense of dignity, while undermining the health and safety justification for prohibitions on public urination and defecation by failing to operate public restrooms. The article further argues that government actors use bathrooms to marginalize the homeless community in the same way that they have used them to marginalize women, people of color, individuals with disabilities, and transgender individuals. In exploring this use of power, the article argues that prohibitions on public urination and defecation are part of a larger trend of criminalizing homelessness and the evolution of segregation.

Finally, the article evaluates potential solutions to the paradox. The solutions reviewed include increasing the availability and accessibility of public restrooms, leveraging private industry, and reforming or challenging the law. The article concludes that any long-term solution to the problem requires an examination of the paradox through the lens of the homeless community.

New Article: School Vouchers, Special Education, and The Supreme Court

New Article: Aaron Tang, School Vouchers, Special Education, and The Supreme Court, 167 U. Pa. L. Rev. 337 (2019). Abstract below:

Among all of the contentious debates in education policy, perhaps none is as divisive as the one over private school vouchers. Even as more than 400,000 American students currently use some form of publicly funded voucher to attend a private school—with the number growing each year—one recent survey found that just thirty‐seven percent of Americans support the practice while forty‐nine percent oppose it. This divergence of opinion, unsurprisingly, corresponds largely with political affiliation, with Republicans more likely to support vouchers than Democrats.

In this Article, I argue that a path towards consensus on the voucher debate may be discernible in an unlikely place: an arcane pocket of Supreme Court case law regarding special education. In a series of cases, the Supreme Court has offered a vision of private school choice with plausible appeal to conservatives and liberals alike—a fact evidenced by the overwhelming consensus among the Justices themselves. In each of these cases, the Court has permitted parents of students with disabilities to remove their children from public school and enroll them in a private school at the government’s expense so long as a simple condition is met: the public school must have failed to provide the child with an appropriate education and the private school must succeed in its place. The Supreme Court’s approach to private school choice in the special education context, in other words, treats it as a simple question of empirics. We should support school choice when it helps kids, but not when it does not.

Applying this view to the school voucher debate more broadly would call into doubt many of the popular values‐based arguments advanced on both the left and right, leaving just one sound reason to oppose (or support) vouchers: the argument that they are bad (or good) for students. That argument, of course, is fundamentally contingent; it turns on what the research evidence tells us. And that evidence is hardly as iron‐clad in either direction as the left or right might wish. That, in turn, suggests that liberals and conservatives alike should reconsider their positions on school vouchers in some important ways.

New Article: Medicaid for All?: State-Level Single-Payer Health Care

New Article: Lindsay F. Wiley, Medicaid for All?: State-Level Single-Payer Health Care, 79 Ohio State Law Journal 843 (2018). Abstract below:

If single-payer health care is ever to become a reality in the United States, it will very likely be pioneered by a state government, much like Canada’s single-payer system was first adopted in the provinces. Canada’s system operates more like U.S. Medicaid — financed nationally but administered largely by the provinces — than U.S. Medicare. This article describes three basic strategies progressive U.S. state governments are exploring for achieving universal access to high-quality health care and better health outcomes for their residents. First, maximizing eligibility for the existing Medicaid program using matching federal funds. Second, taking up the mantle of Obamacare by adopting state-level replacements for provisions that federal lawmakers repeal, subsidizing and regulating the price of private insurance, and making more affordable coverage available for purchase on state-run health insurance exchanges. Third, I focus particularly on the efforts of states to succeed where federal reformers have failed by adopting a state-level public option or single-payer health care system. Although state-level public-option and single-payer health plans face significant obstacles, they are more feasible than federal reforms. Moreover, I argue, state-level single-payer health care may be preferable from a health justice perspective because it holds greater promise for integrating health care, public health, and social safety net program goals to achieve better health for all. State lawmakers must proceed cautiously, however, particularly with respect to ensuring that people entitled to traditional Medicaid benefits, which offer special coverage for special populations, continue to receive them. Additionally, state lawmakers should carefully assess the role that privatized public coverage currently plays in their health systems and what role, if any, it should play in public-option or single-payer reforms.

New Article: Returns to Community Lending

New Article: Indraneel Chakraborty, et. al, Returns to Community Lending, available at SSRN:  Abstract below:

For forty years, at a large scale, the Community Reinvestment Act (CRA) has encouraged U.S. banks to lend to lower income neighborhoods. We estimate costs and benefits of providing incentives to privately-owned banks to reduce poverty. Regarding costs, to comply with CRA, rather than lend more overall, banks perfectly substitute away from small business lending to other income groups. Regarding benefits, 0.5% of the population is lifted out of poverty per year through the CRA small-business lending channel. The incidence of the act is on smaller banks who lend more and face higher loan losses. Large banks show no effects.