New Article: Francine J. Lipman, Tax Audits, Economics, and Racism, Oxford Research Economics and Finance (2022 Forthcoming). Abstract:
The Internal Revenue Service (IRS) is the federal agency charged with tax revenue collection. In fiscal year 2020, the IRS collected $3.5 trillion in taxes, which represented about 96 percent of aggregate annual federal funding (IRS, 2020). In its mission statement the IRS states that its primary role is to enforce tax laws. The IRS’ website announces that it is responsible “to help the large majority of compliant taxpayers with the tax law, while ensuring that the minority who are unwilling to comply pay their fair share,” among similar duties. Nevertheless, the IRS’ most recent official estimate of the “tax gap” or the amount of net taxes owed by taxpayers who did not “pay their fair share” even after IRS enforcement efforts was $1.143 trillion for the three-year period 2011-2013 or $381 billion average annually. This amount is more than all the income taxes paid by 90 percent of all taxpayers (Rossotti & Forman, 2020). Assuming constant compliance rates, the Treasury has estimated that the tax gap in 2019 was $584 billion, $7 billion over the decade, or 15 percent of annual tax liabilities (IRS, 2019). Economists have estimated that the tax gap was at least $630 billion in 2020 (Sarin & Summers, 2019).
Despite these titanic uncollected tax obligations and the IRS’ patent failure to accomplish its charge and stated goal every year, Congress has significantly cut the IRS budget since 2010. Budget cuts have occurred even though Congress has been requiring broader and deeper IRS engagement in tax reform, health care, and economic stimulus payments. The IRS has responded to these budget cuts and additional work with meaningful decreases in its enforcement activities even with increasing annual tax gaps. Most notably, the audit rates of corporations and high-income individuals have dropped precipitously. Audits on millionaires have plummeted 71 percent (Center on Budget and Policy Priorities, 2021) and on large corporations they have dropped 51 percent (Huang, 2020). As a result, voluntary compliance rates likely have not stayed constant, but more likely have declined.
Past IRS Commissioners and notable economists have found that the IRS’ reported estimate of the tax gap significantly understates sophisticated tax evasion among wealthy taxpayers and large corporations (Guyton et al., 2021; Debacker et al., 2020; Alstadsaeter et al., 2019; Johns & Slemrod, 2010). IRS Commissioner Charles Rettig in testimony before Congress estimated that the tax gap could be as high as $1 trillion a year or almost 30 percent of gross revenues (Davidson, 2021). Unless systemic changes are made, Americans can expect to lose 3 percent of gross domestic product or $7.5 trillion in tax liabilities due and payable under current tax law over the next decade (Rossotti et al., 2020; Sarin, 2021).
The IRS, economists, scholars, and policy experts generally agree on an effective remedy. The tax gap could be reduced by increased funding for targeted IRS enforcement that would more than pay for itself severalfold (U.S. Department of the Treasury, 2021; Holtzblatt, 2021, Huang, 2020). Despite this obvious and lucrative remedy, Congress has done the opposite while certain representatives simultaneously complain about increasing federal deficits. Why has Congress defunded the IRS when the annual tax gap has soared? Why has the IRS decreased audits of the highest income taxpayers and largest corporations when economists have estimated they are responsible for more than 70 percent of the tax gap? This article will attempt to provide a critical tax framework with which to analyze this enigma.
New Article: Rachel F. Moran, The Pocketbook Next Time: From Civil Rights To Market Power In The Latinx Community, 73 Am. L. Rev. 579 (2022). Abstract below:
The United States is undergoing a demographic transformation. Nearly one in five Americans already is Latinx, and the United States Census Bureau projects that by 2060, nearly one in three will be. Latinx will substantially outnumber every other historically underrepresented racial and ethnic minority group, and non-Hispanic whites no longer will be a majority. Those changes have unsettled traditional approaches to full inclusion.
Civil rights activists have suffered numerous setbacks, and the burgeoning Latinx population is searching for other paths to belonging. Some leaders have turned to growing Latinx market power to demand recognition and equal opportunity. These efforts rely heavily on aggregate contributions that Latinx make to the labor force, consumption of goods and services, and entrepreneurship. Advocates use these statistics to show that Latinx are vital to continued prosperity for all Americans.
Aggregate statistics do not grapple with the internal heterogeneity of the Latinx population, particularly along lines of class and immigration status. Nor do the numbers address the ways in which the law itself constrains market participation. Earlier movements to promote economic empowerment are instructive. Marcus Garvey’s Universal Negro Improvement Association (UNIA), though not a Latinx movement, mobilized working-class Black Americans to advance race pride and an enterprising spirit. That initiative foundered in the face of two implacable forces: opposition from middle-class Black leaders committed to a civil rights agenda and a capitalist system that made little room for entrepreneurship by poor people. Cesar Chavez’s labor organizing for the United Farm Workers (UFW) is the most famous mobilization to advance Latinx economic interests, and his movement continues to influence activists to this day. The UFW’s rise and fall reveal how disputes over the treatment of the undocumented and legal battles over union tactics divided the membership and drained precious resources.
These lessons of history reveal the limits of both market aggregation and traditional civil rights strategies in addressing contemporary Latinx labor force participation, political consumerism, and entrepreneurship. Aggregation conceals distinct challenges that Latinx face depending on whether they are working-class or middle-class, undocumented or legally present. For working- class and undocumented Latinx, the most essential reforms depart from a civil rights framework, requiring structural investments in human capital and comprehensive immigration reform. For middle-class and legally present Latinx, civil rights can be a useful tool in fighting discrimination on the job and in lending markets. However, new approaches will be needed to address exclusionary social networks, which create barriers to advancement at work and limit access to capital. To leverage growing numbers, Latinx therefore must forge innovative strategies that recognize the intricate interdependency of the civic square and the marketplace.
New Article: Tressie McMillan, America Turned the Greatest Vehicle of Social Mobility Into a Debt Machine, N.Y. Times (May 21, 2022). Excerpt below:
If it weren’t for all of the Black women students milling about, Bennett College in Greensboro, N.C., would be the picture of Hollywood’s idea of a small liberal arts college. The red-brick architecture anchors a manicured quad. Wide footpaths crisscross the small but tidy commons.
And then a brick wall announces a boundary not quite breached by the surrounding area’s racial segregation and economic precarity. But it is a half wall, one on which you can sit and stare outside the bubble toward the reality from which students arrive. As metaphors go, it is a strong one: Black colleges like Bennett cannot afford to build a wall so high that the world does not intrude.
New Article: Erica Braudy and Kim Hawkins, Power and Possibility in the Era of Right to Counsel, Robust Rent Laws & COVID-19, 28 Geo. J. Poverty L. & Pol’y 117 (2021). Abstract below:
New York City (NYC) finds itself in an unprecedented housing crisis as the coronavirus (COVID-19) pandemic reveals with devastating force that safe, sustainable and affordable housing is both a human right and a public health necessity. The profound humanitarian and economic devastation of COVID-19 puts millions of New Yorkers at risk of eviction—especially those within Black and Latinx communities. In addition, the pandemic hit just as the legal landscape for tenants was transformed through landmark legislation ensuring the Right to Counsel in eviction proceedings and sweeping reforms of New York’s rent laws. The unparalleled COVID-19 pandemic, the influx of hundreds of new tenant attorneys resulting from the Right to Counsel, and the robust rent law reforms fundamentally alter the role and powerful potential of housing advocacy and the very function of NYC’s Housing Court. These three forces provide an opportunity for housing attorneys representing low-income tenants to imagine new and creative ways to provide housing security and build tenant power.
This Article canvasses the fundamental shifts in the NYC housing landscape and the movement to expand tenants’ rights. It urges lawmakers to take bold action to avoid an eviction pandemic and shield tenants from homelessness and crushing debt. Next, it lays a blueprint for housing attorneys, both experienced and novice, to aggressively use the new tenant-friendly rent laws, creatively maximize underused tools, and leverage their collective strength to re-envision housing as a human right. The combination of the Right to Counsel, which has filled the ranks with passionate tenant attorneys, an empowered and progressive state legislature, and a vibrant tenants’ movement has created a powerful force to demand comprehensive and far-reaching housing and racial justice for all New Yorkers and redefine the housing world that lies beyond the virus.
New Article: A. Camille Karabaich, More Than Hungry: How Political Narratives Built & Maintain Hunger in the United States, 27 Wm. & Mary J. Women & L. 541 (2021). Abstract below:
This Note aims to examine the role of the legal system in creating and maintaining hunger in the United States. Through this lens, the Note discusses the shift necessary to support specific legal interventions to end hunger. This Note begins by discussing how hunger was built in the United States through policies regarding land, housing, incarceration, and food, and the narratives that allowed these policies to flourish. These policies created hunger by creating pockets of poverty and disempowerment. Although many individuals and organizations donate their time, money, and energy to support local food banks, soup kitchens, and free school meal programs, these efforts alone are not enough to end hunger. As Andrew Fisher describes, despite the singular focus of anti-hunger initiatives today on food, food plays a minor role in the solution to hunger. Hunger is not a food issue, it is a food justice issue. That is because you cannot solve hunger without solving poverty.
New Article: Barry Friedman, Are Police the Key to Public Safety?: The Case of the Unhoused, 59 Amer. Crim. L. Rev (2022 Forthcoming). Abstract below:
We as a nation have to think deeply about what it means for a community to be safe, and what role the police play (or do not play) in achieving that safety. We’ve conflated, if not entirely confused, two very different things. One is the desire to be safe, and how society can assist with safety, even for the most marginalized or least well-off among us. The other is the role of the police. Contrary to what many seem to think, the police are not a one-size-fits-all provider of public safety.
In this paper, I discuss this issue in the context of one of the most intractable and challenging problems in the United States, that of unhoused individuals living among us. Rather than doing what we are able to help those who are unhoused to safety, we criminalize their conduct. This does not solve the problem—indeed it creates a revolving door of street to jail to street. We reach this result because we fail to utilize cost-benefit analysis around public safety issues and are especially neglectful of social costs. And also because we fail to have a candid conversation about what public safety means, and how to achieve it. The paper suggests alternative approaches to public safety, instead of relying so heavily on the police. One of them is an untried idea of creating an entirely new set of first responder—individuals holistically trained, including in social services, mediation, and much else—to deal effectively with social needs they encounter on the streets.
New Article: Mekonnen Firew Ayano, Tenants Without Rights: Situating the Experiences of New Immigrants in the U.S. Low-Income Housing Market, 28 Geo. Poverty J. Poverty L. & Pol’y 159 (2021). Abstract below:
Immigrants who recently arrived in the United States generally are not able to exclusively possess rental properties in the formal market because they lack a steady source of income and credit history. Instead, they rent shared bedrooms, basements, attics, garages, and illegally converted units that violate housing codes and regulations. Their situations highlight the disconnect between tenant rights law and the deleterious conditions of informal residential tenancies. Tenant rights law confers a variety of rights and remedies to a residential tenant if the renter has exclusive possession of the premises. If the renter lacks exclusive possession, courts typically characterize the occupancy as a license, treating the renter as a transient occupant with contractual rights and remedies. Situating the experiences of new immigrants within the low-income housing affordability crisis, this Article proposes that courts should steer away from considering tenant status and its associated rights and remedies as a function of exclusive control of the premises. Instead, they should enforce informal tenants’ legitimate interests, impose duties on those who rent out substandard units, and award damages when the rent paid is disproportionately high relative to the condition of the premises.
New Article: Martha M. Ertman, Reparations for Racial Wealth Disparity as Remedy for Social Contract Breach, Law and Contemporary Problems, Forthcoming. Abstract below:
Acute crises such as the COVID-19 pandemic and the 2008 financial meltdown exposed and exacerbated chronic racial wealth disparities. Those disparities accumulated over time as government and private actions—often involving contracts—systemically benefitted White Americans and institutions at the expense of African-Americans. This essay focuses on a private law mechanism—loan contracts—as one important contributor to systemic racial wealth disparities, labels particular lending contracts and related government action as breaches of the social contract, and proposes a restitution-based form of reparations as a remedy for that breach.
New Article: Lia Epperson, Are We Still Not Saved? Race, Democracy, and Educational Inequality, 100 Ore. L. Rev. 89 (2021). Abstract below:
Thirty-four years ago, in his seminal book, “And We Are Not Saved: The Elusive Quest for Racial Justice,” Derrick Bell provided a critical view of American history and constitutional jurisprudence to illustrate the challenges the United States faces in reaching true equality. In his enlightened observations about the structure of our republic, Bell refers to “the American contradiction.” To see true progress toward meaningful equality, he contends, we must reckon with the challenging truth of our history—that we are a nation founded on this “constitutional contradiction”… In his work, Professor Bell argued that this American contradiction, “shrouded by myth,” serves as a perpetual impediment to addressing historic and persistent forms of racial injustice. This, he says, is “the root reason for the inability of black people to gain legitimacy.” This reality of racial inequality is part of our culture and common history. It is the contradiction embedded in the ideology that formed our republic.
New Symposium: The Law of Parents and Parenting Symposium, 90 Fordham L. Rev. (2022). Contained Articles listed below: