Category Archives: Articles

New Article: College Student Homelessness: A Hidden Epidemic

New Article: Chad Klitzman, College Student Homelessness: A Hidden Epidemic, 51 Colum. J.L. & Soc. Prob. 587 (2018). Abstract below:

This Note examines a surprising obstacle for an increasing number of college students: homelessness. After first offering an overview of legislation in the education field dealing specifically with the education of those experiencing homelessness, this Note then offers insights into how and why people experiencing homelessness tackle both the world of higher education and their respective institutions’ capacities to service their needs both in and out of the classroom. This exploration occurs largely through interview testimony conducted by the author. Many institutions lack the resources needed to service all of a students’ needs (food, clothing, etc.). After exploring the malleability of the higher education and social services systems, this Note argues that certain policy changes — legislation, community work, and change at the institutional level — would be beneficial in combatting this growing homelessness epidemic.

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New Article: Shareholder Primacy and Worker Prosperity: A Broken Link

New Article: Lenore Palladino, Shareholder Primacy and Worker Prosperity: A Broken Link, 66 Kansas L. Rev. 1011 (2018).

New Article: Putting Distribution First

New Article: Robert C. Hockett, Putting Distribution First, 18 Theoretical Inquiries in Law 159 (2017). Abstract below:

It is common for normative legal theorists, economists and other policy analysts to conduct and communicate their work mainly in maximizing terms. They take the maximization of welfare, for example, or of wealth or utility, to be primary objectives of legislation and public policy. Few if any of these theorists seem to notice, however, that any time we speak explicitly of maximizing one thing, we speak implicitly of distributing other things and of equalizing yet other things. Fewer still seem to recognize that we effectively define ourselves by reference to that which we distribute and equalize. For it is in virtue of that which we distribute and equalize that our policy formulations treat us as politically “counting” or “mattering” for purposes of social aggregation and maximization. To attend systematically to this form of inter-translatability, with a view in particular to that which maximization formulations latently prescribe that we distribute and equalize, might be called “putting distribution first.” It is explicitly to recognize the fact that all law and policy are implicitly as equalizing and citizen-defining as they are aggregative and maximizing, and to trace the many salient consequences that stem from this fact. It is likewise to recognize that all law and policy treat us as equals in some respects and as non-equals in other respects. Putting distribution first by attending explicitly to these “respects” yields greater transparency about how well or poorly our laws and policies manage to identify, count, and treat us as equals in the right respects.

This Article works to lay out with care how to put distribution first in normative legal and policy analysis. The payoffs include both a workable method by which to test proposed maximization norms systematically for their normative propriety, and an attractive distributive ethic that can serve as a workable normative touchstone for legal and policy analysis. Indeed, the Article concludes, much — though not yet quite all — of our law can illuminatingly be interpreted as giving inchoate expression to just such an ethic.

New Article: U.S. Refundable Credits: The Taxing Realities of Being Poor

New Article: Leslie Book, U.S. Refundable Credits: The Taxing Realities of Being Poor, 4 Journal of Tax Admin 71 (2018). Abstract below:

This paper looks at the American experience in using tax law to deliver benefits to low and moderate-wage workers. First examining two recent cases in which individuals improperly claimed the earned income tax credit, this paper explores some of the challenges to both taxpayers and tax administrators associated with using the tax system to deliver benefits that are dependent on levels of attachment to children and the presence of earned income. The paper then explores two approaches to improve compliance. One approach is a proposal in a recent Heritage Foundation policy briefing recommending that only parents with legal custody of their children should be entitled to receive the earned income tax credit. The state of California initially excluded self-employment income from its definition of earned income in its state earned income tax credit. Both measures fail to reflect characteristics of the lives of the working poor, including a growing reliance on multi-generational living arrangements and shared care of children, a surge in nontraditional employment associated with the gig economy, and a reliance on third parties such as return preparers and tax software providers. Despite the problems with the proposals, they reflect genuine compliance concerns. This paper concludes with recommendations to address those compliance concerns that will likely serve the goal of improving integrity, while also ensuring the law and administration of the law reflects the lives of lower-income Americans who increasingly rely on the tax system to meet basic needs and support their families. As the American tax system is increasingly a key component of the safety net, this paper is especially timely and can assist policymakers who wish to balance improvements in program integrity with a respect for taxpayer rights and achievement of other program goals.

New Article: Unmothering Black Women: Formula Feeding as an Incident of Slavery

New Article: Andrea Freeman, Unmothering Black Women: Formula Feeding as an Incident of Slavery, 69 Hastings L.J. 1545 (2018). Abstract below:

Laws and policies that impede Black mothers’ ability to breastfeed their children began in slavery and persist as an incident of that institution today. They originated in the practice of removing enslaved new mothers from their infants to work or to serve as wet nurses for slave owners’ children. The stereotype of the bad Black mother justified this separation. This trope also underlies racial disparities in breastfeeding rates in the present. The mythical Mammy loved the White children under her care but callously neglected her own. Today, the Welfare Queen reproduces for the sole purpose of gaming the system. Collective belief in the existence of the bad Black mother leads to low or no investment in resources for Black mothers who want to breastfeed, and to laws and policies that inhibit their opportunities to do so. Black infants and mothers suffer from related health conditions, including infant mortality, at disproportionately and unacceptably high rates. Structural reforms grounded in constitutional principles are necessary to reverse this manifestation of food oppression.

New Article: Sanctuary Cities and the Trump Administration: The Practical Limits of Federal Power

New Article: Joshua W. Dansby, Sanctuary Cities and the Trump Administration: The Practical Limits of Federal Power, 20 The Scholar: St. Mary’s Law Review on Race and Social Justice 317 (2018). Abstract below:

On January 25, 2017, President Donald J. Trump signed an executive order with the supposed purpose of enhancing public safety of the interior of the United States. Part of the Administration’s plan includes threatening “sanctuary jurisdictions,” also known as “sanctuary cities,” with the loss of federal funds for failing to comply with federal law, specifically 8 U.S.C. § 1373.

There are several problems with this plan: (1) there is no solid definition for what makes a city a “sanctuary;” (2) if we accept the Administration’s allusion that a sanctuary jurisdiction is one that “willfully” refuses to comply with 8 U.S.C. § 1373, practically no city constitutes a sanctuary jurisdiction; (3) 8 U.S.C. § 1373, absent specific spending clause obligations, threatens to run afoul of federalism principles as laid out in the Supreme Court case Printz v. United States; (4) the order vests discretionary authority in the Secretary of Homeland Security (Secretary) to designate a jurisdiction as a sanctuary; and (5) the stripping of federal funds from “sanctuary jurisdictions” flirts with the prohibition against federal government coercion via threats of defunding as described in National Federation of Independent Business v. Sebelius.

The Administration’s current plan, represented in Executive Order No. 13768, is a vague, unsophisticated, and an unconstitutional attempt to require states and local law enforcement to assist the federal government with enforcing immigration law. Examining the background of federal power with regards to immigration, the author will examine the Administration’s Executive Order in the context of limitations on federal power, as well as determine ways the federal government can receive local law enforcement’s aid without violating any constitutional principles.

New Article:The State Giveth and Taketh Away: Race, Class, and Urban Hospital Closings

New Article: Shaun Ossei-Owusu, The State Giveth and Taketh Away: Race, Class, and Urban Hospital Closings, 92 Chi-Kent L. Rev. 1037 (2018). Abstract below:

This essay uses concepts from Bernadette Atuahene’s book We Want What’s Ours: Learning from South Africa’s Land Restitution Program to examine the trend of urban hospital closings. It does so by focusing specifically on the history of Martin Luther King, Jr. Community Hospital, a charitable hospital in South Los Angeles, California that emerged after the Watts riots in 1965. The essay illustrates how Professor Atuahene’s framework can generate unique questions about the closing of urban hospitals, and public bureaucracies more generally. The essay also demonstrates how Martin Luther King, Jr. Community Hospital’s trajectory hones some of Atuahene’s concepts in ways that can enhance the ways scholars write and think about the loss of property, the loss community institutions, and ways to remedy such losses.

New Article: The New Class Blindness

New Article: Cary Franklin, The New Class Blindness, Yale L. J. (2018). Abstract below:

There is a widespread perception that class receives no special protection under
the Fourteenth Amendment. That perception arose forty years ago, when the Supreme Court shifted to the right, rejected the idea that the Constitution protects positive rights, and declined to recognize class as a suspect classification under the Equal Protection Clause. But those consequential developments have obscured an important, ongoing form of class-related constitutional protection: one that resides not in equal protection but in fundamental rights doctrine. This Article shows that a nontrivial number of fundamental rights came to be recognized as such—particularly during the Warren Court era—because they are essential not only to individual liberty but also to the equal citizenship of people without financial resources. Today, there are still doctrinal mechanisms in fundamental rights law that require courts to consider class when adjudicating the constitutionality of rights-burdening state action.

To illustrate this phenomenon, this Article focuses on reproductive rights, a major area of fundamental rights law whose connection to class is poorly understood. The Court’s opinions in Griswold v. Connecticut and Roe v. Wade were not framed in terms of class, but class-related concerns informed the Court’s decision to recognize birth control and abortion as fundamental rights. In the contexts of voting and criminal procedure too, the Court identified certain rights as fundamental in part because the state was denying them to financially disadvantaged people. In all of these areas, the Court developed fundamental rights doctrines that limited the extent to which the state could block such people from exercising their rights.

Today, these long-standing class-sensitive doctrines are under threat. An increasing number of conservative judges—including a number of Supreme Court Justices—have begun to argue that class-related concerns have no place under the Fourteenth Amendment. In support of this new class-blind approach, these judges cite Burger Court precedents rejecting positive rights claims and declining to treat the poor as a protected class under the Equal Protection Clause. But the Burger Court never held that courts are prohibited from considering class when interpreting the Fourteenth Amendment. Indeed, it preserved many of the class-sensitive mechanisms its predecessor had developed to protect fundamental rights. Thus far, the Court has rejected attempts to
eradicate these remaining forms of class-related protection from the law. But the composition of the federal judiciary is now in flux, and it is not clear that resistance to the new class blindness will endure. What is clear is that the emergent notion that class-based considerations have no place anywhere under the Fourteenth Amendment is a product not of the Burger Court era, but of our own.

New Article: Social Media and Worker Organizing Under U.S. Law

New Article: Brishen Rogers, Social Media and Worker Organizing Under U.S. Law, Oct. 19, 2018, Int’l J. Comp. Lab. L. & Ind. Rel., Forthcoming.

New Article: Loving Lessons: White Supremacy, Loving v. Virginia, and Disproportionality in the Child Welfare System

New article: Leah A. Hill, Loving Lessons: White Supremacy, Loving v. Virginia, and Disproportionality in the Child Welfare System, 86 Fordham L. Rev. 2727 (2018). Abstract below:

Part I of this Article introduces a brief discussion of the history of antimiscegenation laws and, specifically, their prevalence in the Commonwealth of Virginia during the 1950s. Next, Part II sets forth a short commentary about the Lovings’ triumph over antimiscegenation. Part III then details the Lovings’ judicial hurdles against the state, which argued that its antimiscegenation laws were enacted, in part, to prevent child abuse and thus served legitimate state interests. Part IV argues that the remnants of the white supremacist ideology at the center of Loving appear in our modern child welfare system, which has long been plagued by disproportionate representation of black children and families. Finally, Part V builds on this discussion and contends that the prevalence of racial disproportionality in the current child welfare system is the product of front-end implicit bias, a view supported by extensive research on decision-making and behavioral conduct. It argues that current child welfare management and investigatory practices allow implicit bias to sneak in at the front end of such practices, thereby providing gateways to disproportionality.