Category Archives: Articles

New Article: “Discrimination in Evictions: Empirical Evidence and Legal Challenges”

New Article: Deena Greenberg, Carl Gershenson & Matthew Desmond, Discrimination in Evictions: Empirical Evidence and Legal Challenges, 116 Harv. C.R.-C.L. L. Rev. 115 (2016).  Abstract below:

Tens of thousands of housing discrimination complaints are filed each year. Although there has been extensive study of discrimination in the rental market, discrimination in evictions has been largely overlooked. This is because determining whether discrimination exists in evictions presents several challenges. Not only do landlords typically have a non-discriminatory reason for evictions (e.g., nonpayment), but they also wield tremendous discretion over eviction decisions—discretion that can be informed by conscious or unconscious bias against a protected group. Detecting discrimination in evictions, moreover, poses a number of challenges that conventional methods of assessing housing discrimination are ill-suited to address. This Article is among the first to empirically investigate racial and ethnic discrimination in eviction decisions. It does so by drawing on the Milwaukee Area Renters Study, a novel observational study of 1,086 rental households. Statistical analyses reveal that among tenants at risk of eviction, Hispanic tenants in predominantly white neighborhoods were roughly twice as likely to be evicted as those in predominantly non-white neighborhoods. Hispanic tenants were also more likely to get evicted when they had a non-Hispanic landlord. This Article discusses possible explanations for these findings and evaluates legal and policy solutions for addressing discrimination in the eviction process.

New Article: “Residual Value Capture in Subsidized Housing”

New Article: Brandon M. Weiss, Residual Value Capture in Subsidized Housing, 10 Harv. L. & Pol’y Rev. 521 (2016).  Abstract below:

This Article argues that our primary federal subsidized housing production program, the Low-Income Housing Tax Credit (LIHTC), will result in the unnecessary forfeit of billions of dollars of government investment and the potential displacement of tens of thousands of households beginning in 2020 when LIHTC property use restrictions start to expire. The LIHTC example is presented as a case study of an inherent dynamic of public-private partnerships—namely, the potential capture by for-profit providers of “residual value.” For purposes of this Article, this is value generated by a public-private transaction that is unnecessary to incentivize a private provider to deliver the contracted for good or service.

Drawing on corporate organizational theory, which has highlighted the role that nonprofits play in solving certain contract failures and generating positive externalities, the Article argues that, in certain contexts, partnering with nonprofit providers can be an effective approach to increasing the share of residual value that flows to public purposes. The LIHTC program is one such context, given that a nonprofit preference results in a three-sector approach whereby the federal government provides tax credits to nonprofit developers that must attract private investor equity. This framework leverages institutional strengths, including the access to capital of government, the relative fidelity to public purposes of nonprofits, and the market-based underwriting and oversight of for-profit investors.

New Article: “Structural Subjugation: Theorizing Racialized Sexual Harassment in Housing”

New Article: Kate Sablosky Elengold, Structural Subjugation: Theorizing Racialized Sexual Harassment in Housing, 27 Yale J. L. & Feminism 227 (2016).  Abstract below:

This Article identifies and analyzes the structural forces that permit and ignore racialized sexual harassment in housing. Although scholarship on sexual harassment in housing is sparse, the existing research and resulting body of law generally advances a narrative focused on the female tenants’ economic vulnerability and violation of the sanctity of her home. The narrative advanced in scholarship and advocacy, along with the resulting jurisprudence, presents an archetype of a deviant male landlord abusing his authority to take advantage of women sexually who, because of their economic circumstances, have no alternatives. This Article terms it the “dirty old man” narrative. Drawing attention to the racialized sexual harassment that lies beneath the stock story for many African American female tenants, this Article dismantles that narrative. The purpose of the scholarship is two-fold. The first is to expose, for the first time, the undercurrent of racialized sexual victimization that is absent from the “dirty old man” narrative. To do that, this project methodically examines court filings in sexual harassment cases brought by the Attorney General under the federal Fair Housing Act and analyzes the entire body of federal and state court opinions assessing residential sexual harassment claims. The second objective is to identify the structural factors — cultural acceptance of the “Black Jezebel” myth, legal rights, access, and generational economic and racial hierarchies — that operate together to perpetuate racialized sexual harassment in rental housing, an analysis that draws on social science research, along with critical race, critical feminist, and intersectionality theories. This Article contends that those structural forces are the same factors that have operated to permit and hide the sexual subjugation of Black women in the private sphere throughout history — during slavery, as domestic workers, and in the present-day failure to prosecute sexual assault against Black women. Ultimately, it argues that the prevailing “dirty old man” narrative risks silencing both the individual stories of racialized sexual harassment at home and the larger conversation about the structural forces permitting and ignoring the abuse.

New Article: “Reconciling the Premium Tax Credit: Painful Complications for Lower and Middle-Income Taxpayers”

New Article: Francine J. Lipman & James E. Williamson, Reconciling the Premium Tax Credit: Painful Complications for Lower and Middle-Income Taxpayers, 69 SMU L. Rev. __ (forthcoming 2016).  Abstract below:

The Patient Protection and Affordable Care Act (ACA) makes available to certain middle and lower-income individuals a refundable tax credit, the Premium Tax Credit (PTC), designed to help them pay the premiums on their qualified health care plans. To achieve Congress’s goal of making health insurance affordable, the PTC is most often provided directly to an individual’s insurance provider each month in advance of actually claiming the PTC on the individual’s year-end annual tax return. Of the almost twelve million individuals who have enrolled in health insurance through the federal and state health exchanges in 2015, 85% of these individuals receive the advanced PTC (APTC). In the federal health exchange, the APTC averaged $268, covering 72% of the $374 average monthly premium, resulting in $105 net monthly payments per individual or $1,260 annually.

The amount of the APTC is based upon an estimate of an individual’s household income to be earned for that tax year in which she is entitled to claim the credit. However, the allowable PTC that any individual may receive is based upon the individual’s actual “household income” for that tax year. An individual’s household income is in turn dependent upon her “modified adjusted gross income” from the tax return upon which she is claiming the credit. Therefore, the amount of the PTC an individual is entitled to for any given year cannot be determined until the individual has completed her federal income tax return for that year. For example, the amount of an individual’s PTC for 2014, the first year the credit was available, is determined by the income as shown on an individual’s 2014 federal income tax return, which is not prepared until early 2015.

In most cases, the estimated APTC used to subsidize health insurance premiums during the tax year will differ from the actual PTC as finally determined when the individual files her annual income tax return. Through the end of October 2015, taxpayers filed 143 million 2014 income tax returns, including 3.5 million 2014 income tax returns of the 4.8 million expected tax returns with 2014 PTC. These tax returns reported $11.3 billion of the $15.5 billion 2014 APTC. If the actual PTC is less than the APTC, taxpayers will have to pay the difference when they file their tax return, which would increase the amount of tax owed or decrease the amount to be refunded. Approximately 51% of the 2014 returns, or 1.8 million returns filed, reported APTC in excess of the actual PTC by an average of $860 for the year. About 61% of these taxpayers still reported a refund. If the actual PTC is greater than the APTC, the difference will be refunded or applied against other taxes that the taxpayer might owe. Approximately, 40% of the 2014 returns filed, or 1.3 million returns, reported PTC in excess of any APTC by an average amount of $600.

While the PTC is a fully refundable tax credit and can be paid directly to insurance providers in advance, it can also be applied like more traditional income tax credits. Most tax credits are claimed on an individual’s year-end income tax return, serving as a reimbursement of expenses paid by the taxpayer months, or even more than a year, before the credit is received. Similarly, qualifying individuals have the option of paying their monthly health insurance premiums in full without any subsidy and waiting until they file their federal income tax return to claim any PTC. This approach is consistent with most other refundable and nonrefundable federal income tax credits including the child tax credit, dependent-care credit, adoption expense credit, lifetime learning credit, HOPE scholarship and American Opportunity tax credits, and earned income tax credit. If the taxpayer owes no other taxes, the government will refund the PTC in full. If the taxpayer owes other taxes, the PTC will offset any tax liability due, and the taxpayer will receive a refund of any balance in excess of the tax liability.

This Article will explain the details of the PTC focusing on the unusual and complicated reconciliation process for individuals receiving the APTC. Given the recent implementation of the PTC and the first reconciliation experience for taxpayers in 2015, there is a dearth of scholarship on this topic. Despite the enactment of the ACA in 2010, academics have neither presented nor analyzed the detailed complexity of this unusual prepaid refundable tax credit for middle and lower-income taxpayers. This Article will fill this void by describing the many details of PTC using a variety of examples to expose the significant complexities inherent in this critical health care subsidy. This deconstruction of the PTC and its requisite reconciliation will serve as a platform for subsequent scholarship that will serve to enhance the PTC to better achieve Congress’s goal of providing access to affordable health care for all Americans.

New Article: “What Gideon Did”

New Article: Sara Mayeux, What Gideon Did, 116 Colum. L. Rev. 15 (2016).  Abstract below:

Many accounts of Gideon v. Wainwright’s legacy focus on what Gideon did not do—its doctrinal and practical limits. For constitu­tional theorists, Gideon imposed a preexisting national consensus upon a few “outlier” states, and therefore did not represent a dramatic doctrinal shift. For criminal procedure scholars, advocates, and jour­nalists, Gideon has failed, in practice, to guarantee meaningful legal help for poor people charged with crimes.

Drawing on original historical research, this Article instead chronicles what Gideon did—the doctrinal and institutional changes it inspired between 1963 and the early 1970s. Gideon shifted the legal profession’s policy consensus on indigent defense away from a charity model toward a public model. By 1973, this new consensus had transformed criminal practice nationwide through the establishment of hundreds of public defender offices and the expansion of lawyers’ presence in low-level criminal proceedings. This Article describes these changes primarily through the example of Massachusetts, while contex­tualizing that example with national comparisons.

The broad outlines of these post-Gideon changes are familiar to legal scholars. But situating these changes in a longer historical context and tracing them in detail from the perspective of lawyers on the ground in the 1960s yields two insights that help to explain the seemingly permanent post-Gideon crisis in indigent defense. First, the post-Gideon transformation was indeed limited in its practical effects, but its limits derived not only from politics but also from history—and from the legal profession itself. Lawyers themselves, long before Gideon, framed indigent defense as low-status, low-pay, less-than-fully-professional legal work. That framing survived even as private charities became post-Gideon public defenders. Second, the post-Gideon transformation was also limited—or, perhaps, destined to be perceived as limited—by tensions inherent in the attempt to provide large-scale legal assistance through government bureaucracies. Characteristics now identified as symptoms of crisis—such as politically determined fund­ing, ever-expanding caseloads, and triage advocacy—first appeared as innovations that lawyers perceived Gideon to require. As public defenders proliferated, so too did complaints that they were under­funded and overworked, and that they encouraged guilty pleas over trials.

The origins of the indigent defense crisis lie not only in Gideon’s neglect but also, paradoxically, in Gideon’s transformative influence. This history lends some support to recent scholarly expressions of skepticism about Gideon, but it also provides some reasons for optimism: If the indigent defense crisis derives not only from intransi­gent political indifference but also from contingent choices made by lawyers, then lawyers may retain more power than they realize to mitigate the crisis.

New Article: “Health Care and the Myth of Self-Reliance”

New Article: Nichole Huberfeld & Jessica L. Roberts, Health Care and the Myth of Self-Reliance, 57 B.C. L. Rev. 1 (2016).  Abstract below:

King v. Burwell asked the Supreme Court to decide if, in providing assistance to purchase insurance “through an Exchange established by the State,” Congress meant to subsidize policies bought on the federally run exchange. With its ruling, the Court saved the Patient Protection and Affordable Care Act’s (“ACA”) low-income subsidy. But King is only part of a longer, more complex story about health care access for the poor. In a move toward universal coverage, two pillars of the ACA facilitate health insurance coverage for low-income Americans, one private and one public: (1) the subsidy and (2) Medicaid expansion. Although both have been subject to high-profile Supreme Court cases, the Court upheld one but gutted the other. This Article hypothesizes that the preference for private “hidden” government assistance over public “visible” government assistance stems from the American myth of self-reliance. Yet this analysis reveals that the line between hidden and visible benefits breaks down on both theoretical and empirical levels. Drawing from vulnerability theory and demographic data, this Article demonstrates that all Americans lead subsidized lives and could move from the private to the public system. It concludes that a single government program for the poor would be more economically and administratively efficient.

New Article: “Complexity’s Shadow: American Indian Property, Sovereignty, and the Future”

DSC_0035New Article: Jessica A. Shoemaker, Complexity’s Shadow: American Indian Property, Sovereignty, and the Future, forthcoming Mich. L. Rev. Abstract below:

This article offers a new perspective on the challenges of the modern American Indian land tenure system. While some property theorists have renewed focus on isolated aspects of Indian land tenure, including the historic inequities of colonial takings of Indian lands, this article argues that the complexity of today’s federally imposed reservation property system does much the same colonizing work that historic Indian land policies — from allotment to removal to termination — did overtly. But now these inequities are largely shadowed by the daunting complexity of the whole over-arching structure. 

This article introduces a new taxonomy of complexity in American Indian land tenure and explores particularly how the recent trend of hyper-categorizing property and sovereignty interests into ever-more granular and interacting jurisdictional variables has exacerbated development and self-governance challenges in Indian Country. The entirety of this structural complexity serves no adequate purpose for Indian landowners or Indian nations and instead creates perverse incentives to grow the federal oversight role. Complexity begets more complexity, and this has created a self-perpetuating and inefficient cycle of federal control. However, stepping back and reviewing Indian land tenure as a system — a whole complex, dynamic, and ultimately adaptable system — actually introduces new and potentially fruitful management techniques borrowed from social and ecological sciences. Top-down Indian land reforms have consistently intensified complexity’s costs. This article explores how emphasizing grassroots experimentation and local flexibility instead can create critical space for reservation-by-reservation property system transformations into the future.

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.