Category Archives: Articles

New Report/Article: “Reaching the Rich World’s Poorest Consumers”

New Report: Muhammad Yunus, Frédéric Dalsace, David Menascé & Bénédicte Faivre-Tavignot, Reaching the Rich World’s Poorest Consumers, Harvard Business Review, Mar. 2015.  [Note, the first author is the famous founder of the Grameen Bank and a winner of the Nobel Prize.]

New Article: “What Makes Lawyers Happy?: A DataDriven Prescription to Redefine Professional Success”

New Article: Lawrence S. Krieger with Kennon M. Sheldon, What Makes Lawyers Happy?: A DataDriven Prescription to Redefine Professional Success, 83 G.W. L. Rev. 554 (2015).

And the New York Times coverage article is here (the title shows the punchline of the law review article): Douglas Quenqua, Lawyers With Lowest Pay Report More Happiness, New York Times, May 12, 2015.

New Article: “The Federal Reserve and a Cascade of Failures: Inequality, Cognitive Narrowness and Financial Network Theory”

New Article: Emma Coleman Jordan, The Federal Reserve and a Cascade of Failures: Inequality, Cognitive Narrowness and Financial Network Theory, SSRN May 2015.  Abstract below:

The recent financial crisis hollowed out the core of American middle-class financial stability. In the wake of the financial crisis, household net worth in the U.S. fell by 24%, for a loss of $16 trillion. Moreover, retirement accounts, the largest class of financial assets, took a steep drop in value, as did house prices, and these two classes of assets alone represent approximately 43% of all household wealth. The losses during the principal crisis years, 2007-2009, were devastating, “erasing almost two decades of accumulated prosperity,” in the words of a 2013 report. By the Federal Reserve. Beyond these direct household balance-sheet losses, 1 out of every 4 homeowners were underwater by 2009 with mortgages worth less than the value of their homes. If we add the 3.7 to 5 million foreclosures that forced Americans to move from the economic and emotional stability of family homes, we see a portrait of dramatic financial instability in the wake of the financial collapse. And the Federal Reserve’s commitment to low interest rates, so beloved on Wall Street, has prevented many families from rebuilding their wealth through interest on savings; these “zero-bound” interest rates are an impediment to middle-class recovery from the losses of the crisis.

By contrast, the financial sector, the cause of the crisis, has prospered from adversity, growing to 9% of GDP by 2010 even as it became less efficient. This is one of the highest shares of GDP in the past half century and represents 29% of all profits in America. The financial sector earns profits by pooling funds to bring net savers together with net borrowers in financial contracts, a process known as intermediation. Economist Thomas Philippon of New York University found that the profits from intermediation grew from less than 2% of GDP in 1870 to nearly 6% before the economic crash of 1929. After World War II, financiers gradually increased their share of the economy to 5% by 1980, close to what it had been before the crash. The focused deregulatory agenda of the Reagan administration and Alan Greenspan’s deregulatory passions at the helm of the Fed from 1987 to 2006 swelled the balance sheets of financial firms to the high point of 9% of GDP by 2010.

The return to investors did not match the growth in the financial sector’s share of GDP. So what did investors get for their money? Philippon says it’s impossible to beat the market in part because of high-frequency trading that locks out the ordinary investor through sophisticated high-speed computer transmission of orders with preferential cable and algorithmic access to the trading desks.

New Article: “Is Pro Bono Practice in Legal “Backwaters” Beyond the Scope of the Model Rules?”

New Article: Barbara Graves-Poller, Is Pro Bono Practice in Legal “Backwaters” Beyond the Scope of the Model Rules?, 13 U.N.H. L. Rev. 1 (2015).

New Article: “A Fine Scheme: How Municipal Fines Become Crushing Debt in the Shadow of the New Debtors’ Prison”

New Article: Torie Atkinson, A Fine Scheme: How Municipal Fines Become Crushing Debt in the Shadow of the New Debtors’ Prison, 51 Harv. CR-CL __ (forthcoming 2016).  Abstract below:

As state and local budgets tighten, municipalities have turned to civil fines and penalties to fill empty coffers. Beginning in the 1960s, these fines and fees, often termed legal financial obligations (“LFOs”) or economic sanctions, arose as a way to shift the costs of criminal adjudication to those “using” the system: those charged with criminal activity. Defendants in criminal cases began having to pay restitution, court costs, room and board, and even public defender fees. As time went on, fees spiraled into new areas, such as DNA testing fees, medical examination fees, even jury fees. Today, a weak economy, misplaced faith in the “broken windows” theory of criminology, and lack of regulatory oversight have allowed municipalities to extend this practice into petty criminal violations.

Many areas are now using jail time to coerce poor, mostly minority violators of small infractions into paying up or getting put away. These fines are often for petty misdemeanors or violations, such as truancy fees, driving infractions, public drunkenness or urination, jaywalking, or even bounced checks for government services such as school lunches. Yet these fees are only the beginning, as municipalities tack on additional court fees, payment plan fees, costs, and interest at rates of up to 12%. Small debts spiral into enormous ones, and nonpayment can result in civil contempt: incarceration. To make matters worse, collection of these debts is often outsourced to private debt collectors, who not only use aggressive tactics but can tack on additional collection fees, creating a never-ending cycle of debt and incarceration. This cycle is not only devastating to the poor and poor communities, but it makes no sense, as people wind up jailed at costs far exceeding their original fines. The result is that the rich may walk away, while the poor must pay or stay.

Existing literature has focused on those incarcerated for serious crimes who emerge from prison with enormous debts. However, most poor people face legal debt without having faced prison or parole, but as a routine municipal fine or fee for local ordinance violations. Part I of this Note explores the origins of legal financial obligations, while Part II explains the shift to this system both as a revenue stream and as a “broken windows” tool for social reform. Part III examines the equal protection and due process limitations on economic sanctions — protections being ignored by municipalities all across the country. Part IV illustrates how the current scheme operates outside the bounds of the Constitution, as a shadow system where violators have no right to counsel, are not asked about their financial ability to pay, and are turned over to private collection companies who concern themselves only with the bottom line. These practices have disastrous effects on poor communities, particularly communities of color, and the collateral consequences are discussed in Part V. I address several alternatives to this system and avenues for legal reform, as well as obstacles to such reform, in Part VI.

New Article: “Copyright and Inequality”

New Article: Lea Shaver, Copyright and Inequality, 92 Wash U. L. Rev. 117 (2015).  Abstract below:

The standard theory of copyright law imagines a marketplace efficiently serving up new works to an undifferentiated world of consumers. Yet the reality is that all consumers are not equal. Class and culture combine to explain who wins, and who loses, from copyright protection. Along the dimension of class, the inequality insight reminds us just because new works are created does not mean that most people can afford them, and calls for new attention to problems of affordability. Copyright protection inflates the price of books, with implications for distributive justice, democratic culture, and economic efficiency. Along the dimension of culture, the inequality insight points out that it is not enough for copyright theory to speak generally of new works; it matters crucially what languages those works are being created in. Copyright protection is likely to be an ineffective incentive system for the production of works in “neglected languages” spoken predominantly by poor people. This Article highlights and explores these relationships between copyright and social inequality, offering a new perspective on what is at stake in debates over copyright reform.

New Article: “Punishing The Poor Through Welfare Reform: Cruel and Unusual?”

New Article: Jennifer E.K. Kendrex, Punishing The Poor Through Welfare Reform: Cruel and Unusual?, 64 Duke L.J. Online 121 (2015).

New Article: “Human Impact Statements”

New Article: Marc Lane Roark, Human Impact Statements, forthcoming Washburn L.J.  Abstract below:

When a city undertakes a development project, low income and homeless persons face risks of expulsion. Public and private developers often target low-income neighborhoods and public lands because those spaces are viewed as economically more attainable or available for development. Moreover, the legal systems preference to treat disputes as individual entitlement claims tends to relegate disputes to broad questions of entitlements rather than unpacking the impacts that property changes have on the vulnerable populations. Whether by gentrification or by enhancement of city infrastructure, developer decisions disrupt what are already unstable living environments by imposing increased costs of relocation. These changes also destabilize community relationships by separating individuals and families from the support networks, local transportation options, and local employment that they have come to rely on. In short, low-income and homeless persons find themselves even more destabilized when public and private development projects force their evacuation from where they live. This article argues that though development may be necessary, it should not be undertaken without more serious evaluation of the human impacts in relation to the space. Such evaluations should include the impact on communities, employment, education, and environment for impacted persons. Importantly, failure to take notice of these impacts continues to promote cycles of poverty that plague American cities.

Drawing on similarities in the environmental context, the article argues that a NEPA-like approach to human housing can offset externalities that homeless persons and those living in low-income housing are forced to internalize through environment changes. Amongst those impacts are the imbalance between the well-funded developer and low income populations; the view that low income properties can be classified as nuisance type properties; and the tendency to only consider the highest best use of property as the rationale for development. The article concludes by offering model legislation that could be implemented to provide a NEPA like assessment to city development.

New Article: ” Social Entrepreneurship and Uncorporations”

New Article: Jesse Finfrock and Eric L. Talley, Social Entrepreneurship and Uncorporations, 2014 U. Ill. L. Rev. 1867 (2014) [Corporate law but perhaps relevant to some readers].  Abstract below:

Larry Ribstein’s pioneering analysis of alternative business forms during the late twentieth century highlighted the contractarian freedom that these forms provided. The rise of the LLC model was of particular interest to Ribstein, who assessed how this model brought greater freedom to those who held duties and obligations within the corporate structure. This Article takes up Ribstein’s mantle by assessing the development the alternative “social enterprise” business forms manifested in benefit corporations (BC) and flexible purpose corporations (FPC). Both forms allow an incorporated entity to articulate and pursue a social benefit alongside the maximization of shareholder returns. Despite its utility, the uptake of the social enterprise corporation, as assessed through a case study of California, appears underwhelming. Yet, by using the arc of the LLC uptake path as a comparative historical benchmark, the authors argue that there is hope that these new social enterprise corporations will see an increasing rate of uptake in the future.

New Article: “Political Powerlessness”

New Article: Nicholas Stephanopoulos, Political Powerlessness, forthcoming NYU L. Rev.  Abstract below:

There is a hole at the heart of equal protection law. According to long-established doctrine, one of the factors that determines whether a group is a suspect class is the group’s political powerlessness. But neither courts nor scholars have reached any kind of agreement as to the meaning of powerlessness. Instead, they have advanced an array of conflicting conceptions: numerical size, access to the franchise, financial resources, descriptive representation, and so on.

My primary goal in this Article, then, is to offer a definition of political powerlessness that makes theoretical sense. The definition I propose is this: A group is relatively powerless if its aggregate policy preferences are less likely to be enacted than those of similarly sized and classified groups. I arrive at this definition in three steps. First, the powerlessness doctrine stems from Carolene Products’s account of “those political processes ordinarily to be relied upon to protect minorities.” Second, “those political processes” refer to pluralism, the idea that society is divided into countless overlapping groups, from whose shifting coalitions public policy emerges. And third, pluralism implies a particular notion of group power — one that (1) is continuous rather than binary; (2) spans all issues; (3) focuses on policy enactment; and (4) controls for group size; and (5) type. These are precisely the elements of my suggested definition.

But I aim not just to theorize but also to operationalize in this Article. In the last few years, datasets have become available on groups’ policy preferences at the federal and state levels. Merging these datasets with information on policy outcomes, I am able to quantify my conception of group power. I find that blacks, women, and the poor are relatively powerless at both governmental levels; while whites, men, and the non-poor wield more influence. These results both support and subvert the current taxonomy of suspect classes.