New Article: Mark Totten, The Enforcers & the Great Recession, 36 Cardozo L. Rev. 1611 (2015). Abstract below:
No one played a more vital role responding to the worst economic crisis since the Great Depression than a small band of state attorneys general (AGs). Yet this story has never been told nor its implications considered. For more than a decade these AGs brought enforcement actions across the residential mortgage lending industry, reaching the origination, servicing, and securitization processes. From roughly 2000 to 2008, they targeted several of the largest subprime lenders for predatory and discriminatory lending. And they moved in the face of federal inaction — at times, even opposition. With the economic crisis everywhere visible by early 2009, they turned toward abuses in mortgage servicing and securitization. While they often collaborated with their federal counterparts during this time period, these AGs continued to lead and shape the enforcement agenda.
This narrative demonstrates that states are integral to the task of consumer financial protection. Congress was right to empower states in the Dodd-Frank Act of 2010 by scaling back preemption and giving the AGs concurrent enforcement powers. The AGs not only serve as a stopgap when federal regulators fail to act, but they also alter the quality of enforcement in positive ways not replicated by even engaged federal regulators. The marks of AG enforcement include information advantages, agility, a remedial focus, resistance to capture, and entrepreneurialism. Moreover, these events also suggest a new enforcement model in the area of consumer protection that may sometimes prove more efficient than earlier approaches: the multigovernment, multiagency action. And while these observations concern consumer financial protection in the first instance, they also have implications for ongoing conversations about federalism and enforcement.
New Article: Spencer Rand, The Real Marriage Penalty: How Welfare Law Discourages Marriage Despite Public Policy Statements to the Contrary – and What Can Be Done About it, 18 UDC/DCSL L Rev. 93 (2015). Abstract below:
On marriage, people lose welfare benefits abruptly. It is devastating to them, diminishing and in some cases overwhelming any economic benefits of marriage. It makes marriage unattainable and a status for the rich alone. It is also a surprising and unintended outcome of policymakers, who since at least Reconstruction and with much fanfare in the 1996 welfare reform touted marriage for the poor as a self-help measure and poverty cure. It is these same government policy makers, however, who make marriage impossible. Low-income people tend to marry each other. Both incomes need to be brought into the home to raise people out of poverty. When people lose welfare on marrying, the family’s combined income is often lower than if they had stayed separated or chose to live together without marrying. They cannot survive. Unable to marry, they are statistically less likely to remain together as long. They lose out on statistically more long-term relationships, long-term spousal government and employee benefits, and legal protections on the dissolution of their relationships from divorce and estate laws.
This article situates marriage promotion laws among poverty programs in the United States and looks at some of the policy reasons people have argued for the marriage as a poverty cure, such as economic, legal, and social gains, and policy reasons against marriage promotion programs, including those who think such policies are racist and disrespectful. Suggesting that marriage promotion may or may not be wrong but that marriage may be helpful to the poor whether encouraging it is appropriate, it catalogues some of the welfare programs that are much harder for married people to obtain. These include many public assistance programs, like SSI and TANF. It also includes some social insurance programs, like some Social Security and Medicare. It describes how many people are financially better off at least in the short-term by living with their partner outside of wedlock, perhaps forfeiting long-term benefits. Most commonly, the penalties stem from deeming income of spouses to each other right away and from expecting a spouse with relatively limited resources to spend those before either spouse gets help, depleting the resources that keep people out of poverty. The paper suggest delaying attributing income and resources to spouses until the family can develop the pragmatic benefits of marriage, raising the amount of income or resources married couples can have before being penalized, and creating tax credits to make marriage economically beneficial.
Savannah Law Review has just published a symposium issue on “[Re]Integrating Spaces” that is full of great articles. Al Brophy’s article is particularly timely and interesting given the demands students are making across the country regarding the naming of buildings on university campuses. And for those interested in property and dispossession, Kali Murray’s article is great! But the whole issue is loaded with good stuff, so congrats to Savannah Law Review and to Marc Roark.
Volume 2, Number 1 | 1 SAVANNAH L. REV. 1 (2015)
[Re]Integrating Spaces: The Possibilities of Common Law Property
Alfred L. Brophy
The Federal Right to Recover Fugitive Slaves: An Absolute but Self-Defeating Property Right
Jeffrey M. Schmitt
Slavery, Property, and Marshall in the Positivist Legal Tradition
Marc L. Roark
The Road to, and Through, Heart of Atlanta Motel
Alberto B. Lopez
Remedies, Race & Civil Rights in the Old South
Caprice L. Roberts
[Re]Integrating Psychic Space: Law, Ontology, and the Ghosts of Old Savannah
Anthony V. Baker
Rated Progress: Robert F. Kennedy and the Desegregation of the 1951 Ralph J. Bunche Lecture
Andrew McCanse Wright
[Re]Integrating Spaces: The Color of Farming
Angela P. Harris
Dispossession at the Center in Property Law
Using Historic Preservation Laws to Halt the Destruction of “Porch Culture” in the Lower Ninth Ward of New Orleans
Boundary Work in Black Middle-Class Communities
[Re]Integrating Community Space: The Legal and Social Meanings of Reclaiming Abandoned Space in New York’s Lower East Side
Place, Meaning, and the Visual Argument of the Roadside Cross
Unbound: the Harvard Journal of the Legal Left has published an issue full of contributions celebrating and reflecting on the work and career of Duncan Kennedy, who recently retired. My own mini-essay about Duncan is here.
New Article: Andrea Freeman, The 2014 Farm Bill: Farm Subsidies and Food Oppression, 38 Seattle U. L. Rev. 1271 (2015). Abstract below:
The 2014 Farm Bill left intact the allocation of agricultural subsidies established by the Bill’s first incarnation in 1933. This stasis is surprising in light of evolving medical insights into nutrition and shifting national health priorities, indicating that health and nutrition are not driving the Farm Bill. Instead, it appears that large agribusiness has succeeded in capturing the majority of resources allocated to farm support. Although farm subsidies comprise only 14% of the Farm Bill, they are highly controversial because, not only do they determine which agricultural industries are likely to thrive and survive, they guide the nation’s consumption patterns. The health of farmers and individuals are therefore both at stake in each Farm Bill. Further, agribusinesses’ influence over the Farm Bill appears not only to contribute to poor health outcomes in the United States generally, but also to cause disproportionate harm to individuals marginalized by race and class. To deconstruct the racial and socioeconomic harms of subsidized commodities, it is useful to analyze farm subsidies using the lens of food oppression theory. Food oppression theory examines how facially neutral food policy and law can physically debilitate members of marginalized and subordinated groups, creating and perpetuating racial and socioeconomic health disparities. It considers how corporate influence can lead to policy that prioritizes industry over health. Additionally, it explores how racial stereotypes and myths about personal responsibility create apathy toward health disparities, making them appear natural and irremediable, rather than products of structural inequalities that law and policy have created and thus have the potential to dismantle. Employing a food oppression lens, this paper assesses whether new aspects of the 2014 Farm Bill serve to improve health outcomes, both generally and across racial and socioeconomic lines, and offers brief proposals that would represent progress toward mitigating or eliminating both the general and disparate harms of subsidized commodities.
New Article: Emily Benfer, Health Justice: A Framework (and Call to Action) for the Elimination of Health Inequity and Social Injustice, 65 Am. U. L. Rev. __ (2015). Abstract below:
Every aspect of society is dependent upon the health of its members. Health is essential to an individual’s well-being, quality of life, and ability to participate in society. Yet the healthcare industry, even at its optimal level of functioning, cannot improve the health of the population without addressing the underlying causes of poor health. The health of approximately 46.7 million individuals, most of whom are low-income and minority, is threatened by economic, societal, cultural, environmental, and social conditions. Poor health in any population group affects everyone, leading to higher crime rates, economic impacts, decreased residential home values, increased healthcare costs, and other devastating consequences. Despite this fact, efforts to improve health among low-income and minority communities are impeded by inequitable social structures, stereotypes, legal systems, and regulatory schemes that are not designed to take into account the social determinants of health in decision-making models and legal interpretation. As a result, a large segment of the population is continually denied the opportunity to live long, productive lives and to exercise their rights under democratic principles. Health, equity, and justice make up the keystone to a functional, thriving society. Yet these principles are unsatisfied when they do not apply equally to all members of society. In this article, I describe the social roots of poor health and how social injustice, health inequity, and poverty are inextricably linked. For example, I provide an in depth overview of the social determinants of health, including poverty, institutional discrimination and segregation, implicit bias, residential environmental hazards (leading to diseases like lead poisoning and asthma), adverse childhood experiences, and food insecurity. I discuss how the law is a determinant of health due to 1) court systems that do not evaluate individual circumstances, 2) the enactment of laws that perpetuate poor health and 3) the lack of primary prevention laws. Finally, I demonstrate how addressing these issues requires true adherence to principles of equality and making justice and freedom of opportunity accessible to everyone. I recommend the creation of “health justice,” a new jurisprudential and legislative framework for the achievement and delivery of health equity and social justice.
New Article: Alexandra Natapoff, Misdemeanor Criminalization, 68 Vand. L.Rev. 155 (2015).
A Jotwell review of the article by Angela Harris can be found here.
New Article: Courtney G. Joslin, Marital Status Discrimination 2.0, 90 B.U. L. Rev. 805 (2015). Abstract below:
In the 1970s, almost half the states enacted laws prohibiting marital status discrimination in a range of areas. The push to ban this form of discrimination, however, has largely been on hiatus since the early 1980s. This Article, part of a symposium on the 50th Anniversary of the Civil Rights Act of 1964, urges reconsideration of this largely forgotten civil rights category.
Although it has surely lessened over time, bias against those living in nonmarital families continues to be widespread. Close to half of the U.S. population believes that nonmarital cohabitation is bad for society, and nearly three quarters of American adults believe that single parenting is bad for society. But the reality is that a very large and ever-growing slice of the U.S. population lives in these very family forms. The number of nonmarital cohabiting couples has increased more than 1500% since 1960. Today, about 40% of all children are born to unmarried women. The nonmarital families who are the targets of this moral disapproval are disproportionately likely to be nonwhite, lower income, and less educated.
Moreover, in the last half-century, these relationships have moved from ones that were almost universally criminalized to ones that are entitled to at least some level of constitutional protection. In light of these demographic and changes, this Article argues it is time to reinvigorate the movement to prohibit discrimination on this basis.
New Article: Jim Hawkins, Using Advertisements to Diagnose Behavioral Market Failure, Wake Forest L. Rev. forthcoming. SSRN 2015. Abstract below:
In imperfect markets where consumers have malleable preferences and bounded rationality, advertising has the potential to increase demand for products through persuasion and through information that exploits systematic mistakes that consumers make. Scholarship on advertising has criticized it on these grounds, but the legal and economic literature has missed advertising’s enormous potential to reveal consumers’ behavioral biases in specific markets. This Article argues that researchers and policymakers should use advertising to detect and diagnose behavioral market failure.
As a case study of my strategy, I offer the first comprehensive empirical study of advertisements for payday and title loans. These are short-term, small-dollar, high-cost loans, and the majority of consumers using them are lower-income Americans. I report on research I conducted that coded information on advertisements at 189 payday and title lending storefronts and 27 websites. Using the advertisements to diagnose behavioral market failure, I find evidence that firms use advertising to exploit the ways in which payday and title lending customers deviate from the rational actor model. Finally, I offer policy suggestions aimed at fixing this market failure.