Category Archives: Articles

New Article: “States’ Rights, Welfare Rights, and the ‘Indian Problem': Negotiating Citizenship and Sovereignty, 1935-1954″

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: “Housing Resource Bundles: Distributive Justice and Federal Low-Income Housing Policy”

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: “The Great Society and the Constitution of Opportunity”

New Article: Joseph Fishkin & William E. Forbath, The Great Society and the Constitution of Opportunity, 62 Drake L. Rev. 1017 (2014).

New Article: “Roadblocks to Access to Justice: Reforming Ethical Rules to Meet the Special Needs of Low-Income Clients”

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: “Two Americas in Healthcare: Federalism and Wars over Poverty from the New Deal-Great Society to Obamacare”

New Article: Tomiko Brown-Nagin, Two Americas in Healthcare: Federalism and Wars over Poverty from the New Deal-Great Society to Obamacare, 62 Drake L. Rev. 981 (2014).

New Article: “Measuring Political Power: Suspect Class Determinations and the Poor”

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.

New Article: “Exploding Wealth Inequalities: Does Tax Policy Promote Social Justice or Social Injustice?”

New Article: Phyllis C. Taite, Exploding Wealth Inequalities: Does Tax Policy Promote Social Justice or Social Injustice?, 36 W. New Eng. L. Rev. 201 (2014).  Abstract below:

This essay discusses how tax policies work in concert to contribute to the wealth and income inequality that disadvantage the poor and middle class in favor of the wealthy. While there is current and past discourse on wealth and income inequality, and impact of the same, as well as discussions of multiple causes of wealth and income inequality, there is little discussion on how various tax policies work together as a common force to perpetuate income and economic inequality. This Essay briefly discussed how certain tax policies work in concert to systematically shift wealth to the wealthiest taxpayers. This social arrangement is counter to what many would perceive as social justice. Social justice requires that those who are of greater means and receive greater benefits of tax policy should be responsible for a greater weight of the tax burdens. This Essay furthered discussed proposed limitations that should be placed on certain tax subsidies and defined benefits and burdens that should attach for the benefits received from these tax subsidies.

New Article: “For Goodness’ Sake: A Two-Part Proposal for Remedying the U.S. Charity/Justice Imbalance”

New Article: Fran Quigley, For Goodness’ Sake: A Two-Part Proposal for Remedying the U.S. Charity/Justice Imbalance, SSRN 2015.  Abstract below:

The U.S. approach to addressing economic and social needs strongly favors individual and corporate charity over the establishment and enforcement of economic and social rights. This charity/justice imbalance has a severely negative impact on the nation’s poor, who despite the overall U.S. wealth struggle with inadequate access to healthcare, housing, and nutrition. This article suggests a two-part approach for remedying the charity/justice imbalance in the U.S.: First, the U.S. should eliminate the charitable tax deduction, a policy creation that does not effectively address economic and social needs, forces an inequitable poverty relief and tax burden on the middle class, and lulls the nation into a false sense of complacency about its poverty crisis. Second, the U.S. should replace the deduction with ratification of the International Covenant on Economic, Social and Cultural Rights. This two-part process would reverse the U.S. legacy of avoiding enforceable commitments to economic and social rights. Charity would take a step back; justice a step forward.

New Article: “Why Working But Poor? A Capital Explanation and Solution”

New Article: Robert Ashford, Why Working But Poor? A Capital Explanation and Solution, SSRN 2015.  Abstract below:

This paper responds to two of the questions posed by the 2014 AALS Poverty Law Section’s Call for Papers: (1) “What other solutions can and should be employed [to reduce poverty]?” and (2) “What can legal scholars, lawyers, law schools, legal clinics, and law students do to reduce poverty?”

The answer to the first question is to democratize “capital acquisition with the earnings of capital” based on the principles of “binary economics.” This democratization requires extending to poor and middle-class people competitive access to the same government-supported institutions of corporate finance, banking, insurance, reinsurance and favorable tax and monetary policies that are presently available primarily to people and businesses to acquire capital with the future earnings of capital substantially in proportion to their existing wealth. With this democratization, participation in capital acquisition by the vast majority of poor and middle class people would no longer be limited as a practical matter to their meager or even negative net worth.

This democratization would transform the existing system of corporate finance (that presently functions primarily to concentrate capital ownership) into an ownership-broadening system of corporate finance. It would require no taxes, redistribution, borrowing, or government command. Corporations would be free to continue to meet their capital requirements as before, but they would have an additional, ownership-broadening, potentially more profitable, market means to do so. This additional means could be voluntarily employed to: 1. reduce poverty, welfare dependence, and fear of poverty by substantially enhancing the earning capacity of poor and middle class people (by supplementing their labor income and any transfer payments they may receive increasingly with capital income); 2. reduce tax rates, taxes, and the need for government expenditures; 3. enhance the earning capacity of the participating companies, their shareholders, their employees, and their customers; 4. reduce unemployment, raise wages, and enhance working conditions; 5. enhance the value of equity investments and retirement plans and reduce the risk of borrowing; 6. promote more sustainable, environmentally friendly growth, and 7. (if implemented globally) enhance the creditworthiness of national governments and their ability to raise revenue.

The answer to the second question is for law legal scholars, lawyers, law students, and individuals with responsibility for the curriculum of law schools and activities of legal clinics (1) first to learn and to teach (a) the underlying principles of binary economics, (b) how this democratization with the earnings of capital, based on its understanding, can be practically implemented and (c) how this democratization is a necessary part of any systemic solution to poverty and (2) then to advocate, work for, and facilitate its implementation.

New Article: ““Continually Reminded of Their Inferior Position”: Social Dominance, Implicit Bias, Criminality, and Race”

New Article: Darren Lenard Hutchinson, “Continually Reminded of Their Inferior Position”: Social Dominance, Implicit Bias, Criminality, and Race, 46 Wash. U. J.L. & Pol’y 23 (2014).  Abstract below:

This Article contends that implicit bias theory has improved contemporary understanding of the dynamics of individual bias. Implicit bias research has also helped to explain the persistent racial disparities in many areas of public policy, including criminal law and enforcement. Implicit bias theory, however, does not provide the foundation for a comprehensive analysis of racial inequality. Even if implicit racial biases exist pervasively, these biases alone do not explain broad societal tolerance of vast racial inequality. Instead, as social dominance theorists have found, a strong desire among powerful classes to preserve the benefits they receive from stratification leads to collective acceptance of group-based inequality. Because racial inequality within criminal law and enforcement reinforces the vulnerability of persons of color and replicates historical injuries caused by explicitly racist practices, legal theorists whose work analyzes the intersection of criminality and racial subordination could find that social dominance theory allows for a rich discussion of these issues.