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: 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.
New Article: Karen M. Tani, Administrative Equal Protection: Federalism, the Fourteenth Amendment, and the Rights of the Poor, forthcoming Cornell L. Rev. 2015. Abstract below:
This Article intervenes in a burgeoning literature on “administrative constitutionalism,” the phenomenon of federal agencies — rather than courts — assuming significant responsibility for elaborating the meaning of the U.S. Constitution. Drawing on original historical research, I document and analyze what I call “administrative equal protection”: interpretations of the Fourteenth Amendment’s Equal Protection Clause in a key federal agency at a time when the Clause’s meaning was fiercely contested. These interpretations are particularly important because of their interplay with cooperative federalism — specifically, with states’ ability to exercise their traditional police power after accepting federal money.
The Article’s argument is based on a story of change over time. In the late 1930s, when federal courts appeared reluctant to vindicate equal protection claims, the federal Social Security Board (later to become part of the Department of Health, Education and Welfare) took a more active role via its administration of federal grants for state-run public welfare programs. Through the 1940s and 1950s, agency lawyers developed and applied a nondeferential rationality model of equal protection to assess state welfare rules. When paired with the agency’s control over generous federal subsidies, this interpretation had tangible consequences: administrators challenged some of the era’s most restrictive state welfare laws and, in the process, spread the notion that poor Americans had constitutional rights, including under the Fourteenth Amendment. In the mid 1960s, as the agency became embroiled in battles over school desegregation, administrators deftly recharacterized their constitutional interpretation as a statutory one. They saw their constitutional arguments take on new life, however, as welfare rights advocates (including former agency personnel) wielded them in court. Both developments are visible in the landmark case King v. Smith (1968). There the Supreme Court affirmed the poor claimants’ victory in the court below, but rejected the lower court’s equal protection holding in favor of one grounded in the agency’s novel statutory interpretation. Administrative equal protection thus continued to operate as a meaningful constraint on state action — and in fact helped remake the administration of American poor relief in the late twentieth century — but remained hidden from view.
In addition to giving content and direction to the study of administrative constitutionalism, this history enriches legal scholarship in three ways: (1) it provides context for the “new federalism” revolution of the last decades of the twentieth century; (2) it opens up new questions about today’s “uncooperative federalism”; and (3) it helps explain the penurious protections that today’s equal protection jurisprudence offers the poor.
New Article: Karen M. Tani, States’ Rights, Welfare Rights, and the ‘Indian Problem': Negotiating Citizenship and Sovereignty, 1935-1954, Law and History Review forthcoming 2015. Abstract below:
Starting in the 1940s, American Indians living on reservations in Arizona and New Mexico used the Social Security Act of 1935 to assert unprecedented claims within the American federal system: as U.S. and state citizens, they claimed federally subsidized state welfare payments, but as members of sovereign nations, they denied states the jurisdiction that historically accompanied such beneficence. This article documents their campaign, and the fierce resistance it provoked, by tracing two legal episodes. In 1948, through savvy use of both agencies and courts, and with aid from former government lawyer Felix Cohen, reservation Indians won welfare benefits and avoided accompanying demands for state jurisdiction; the states, in turn, extracted a price–higher subsidies–from the federal government. Arizona officials re-opened the dispute in 1951, by crafting a new welfare program that excluded reservation Indians and suing the federal government for refusing to support it. The 1954 dismissal of the case was a victory for Indians, but also leant urgency to efforts to terminate their anomalous status. Together these episodes illustrate the disruptive citizenship claims that became possible in the wake of the New Deal and World War Two, as well as the increasingly tense federal-state negotiations that followed.
New Article: John Infranca, Housing Resource Bundles: Distributive Justice and Federal Low-Income Housing Policy, Richmond L. Rev. forthcoming 2015. Abstract below:
Only one in four eligible households receives some form of rental assistance from the federal government. Nonetheless, there is no time limit for the receipt of this assistance; individuals can continue to receive benefits as long as they satisfy eligibility requirements. In addition, individuals who do obtain assistance frequently have higher incomes than those denied it. Beyond simply providing housing, federal rental assistance is enlisted to serve a myriad of additional policy goals — including furthering economic integration and providing access to better neighborhoods — that can exacerbate inequities between those who receive benefits and those denied assistance. These broader objectives often increase the cost of housing assistance and reduce the number of households served.
Given increasingly limited resources and the growing demand for rental assistance, difficult decisions must be made regarding how to satisfy a range of conflicting programmatic goals. Although for at least four decades legal scholars, economists, public policy experts, and politicians have denounced the inequities in existing housing policy, no one has provided a detailed analysis of the specific ways in which this policy departs from norms of distributive justice and of how it might be made more equitable. This Article moves the conversation beyond simply decrying existing inequities and instead carefully analyzes federal housing policy in light of specific theories of distributive justice. Drawing on the philosophical literature, it evaluates the specifics of existing policies, and their distributional impacts, in light of five theories of distributive justice. It then proposes a new structure for federal rental assistance, which would allow recipients to choose among a set of “housing resource bundles.” This approach will not only satisfy the most salient understandings of distributive justice, but will also advance the concerns that underpin other distributive justice theories and allow federal housing policy to more effectively embrace a plurality of programmatic goals.
New Article: Joseph Fishkin & William E. Forbath, The Great Society and the Constitution of Opportunity, 62 Drake L. Rev. 1017 (2014).
New Article: Louis S. Rulli, Roadblocks to Access to Justice: Reforming Ethical Rules to Meet the Special Needs of Low-Income Clients, 17 U. Penn. J.L. & Soc. Change 347 (2014). Abstract below:
The nation’s growing justice gap has left the poor with far too little access to legal representation, even in the most serious of civil matters. With poverty rates approaching their highest levels in the last fifty years, the poor struggle to hold on to their homes, their jobs, and their families, frequently overmatched by superior resources and an abundance of opposing lawyers representing corporations, government, and well-heeled interests. Non-profit lawyers struggle to provide limited assistance to the poor in high volume, community settings, or in courtroom corridors and on telephone hot lines. It is in these non-traditional settings that lawyers should ask whether the Model Rules of Professional Conduct promote or hinder access to justice? Or, stated differently, have the Model Rules kept pace with a rapidly changing legal environment that increasingly departs from the traditional lawyering paradigm upon which our ethical rules are largely based?
Model Rule 6.5, one of the few new ethical rules adopted over the past fifteen years aimed directly at serving the poor, can be seen as proof that certain ethical restrictions on lawyers may be relaxed safely in non-profit settings, without doing any harm to the legal profession or the public. Still, this rule hardly goes far enough. Ethical restrictions on lawyers relating to document assistance, financial assistance to clients, and withdrawal of representation, to name just a few, are grounded on assumptions applicable to a profit-making paradigm. Rather than promoting legitimate interests, these limitations hinder access to justice for the poor. Comprehensive reform of our ethical rules is long overdue. The ABA should form a blue-ribbon commission designed to examine the Model Rules from the perspective of how legal services are increasing delivered to the poor and accessed by low-income communities. The members of a blue-ribbon commission should be drawn heavily from leaders of legal aid and pro bono organizations, along with state court judges, who have deep experience with the delivery of legal services to underserved communities.
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.