Category Archives: Articles

New Article: “Can Poverty in America Be Compared to Conditions in the World’s Poorest Countries?”

New Article: H. Luke Shaefer, Pinghui Wu & Kathryn Edin, Can Poverty in America Be Compared to Conditions in the World’s Poorest Countries?, July 2016. Abstract below:

Some contend that the American poor are affluent by international standards, and recent survey evidence finds that Americans have deeply divided views about the conditions faced by the poor in this country. To what extent can poverty in the United States be compared to conditions in the world’s poorest nations? Few analysts have examined this question beyond “instrumental”measures of poverty such as income and consumption that only indirectly capture well­being (Sen, 1999). The current paper uses available evidence to examine this question based on four direct indicators of wellbeing: 1) life expectancy; 2) infant mortality; 3) risk of homicide, and 4) risk of incarceration. By these metrics, well­being is highly stratified in the U.S. Among Americans at the bottom of the economic ladder, quality of life looks similar to what is experienced in countries with pe r­capita economic output that is a small fraction of that in the U.S.

New Article: “Equitably Housing (Almost) Half a Nation of Renters”

New Article: Andrea J. Boyack, Equitably Housing (Almost) Half a Nation of Renters (forthcoming Buffalo L. Rev. 2016).  Abstract below:

America’s population of renters is growing faster than the supply of available rental units. Rental vacancies are reaching new lows, and rental rates are reaching new highs. Millions of former homeowners have lost their homes in foreclosure and, due to today’s much tighter mortgage underwriting realities, will not realistically re-enter the ranks of owner-occupants. For a number of reasons – variety of incomes, different stages in life, and a range of personal preferences and lifestyles – homeownership is not for everyone. And yet federal government housing policy has consistently prioritized homeownership over renter-specific issues, such as affordability and rental supply and distribution. State and local housing assistance programs are shockingly insufficient to meet ballooning needs. Reallocation of focus and funds at the federal level, however, could help grow the supply of rental housing and provide renters at all income levels a realistic chance of occupying quality and affordable rental housing, even in a “high opportunity” neighborhood.

The government must first reorient its myopic housing policy focus away from an over-emphasis on building homeownership. It must free up government funds for use in support of affordable rental housing. In addition, government funds and agency efforts should be carefully allocated to increase the availability of housing assistance and government gap funding of affordable housing as well as to encourage private investment in the supply of affordable rental housing.

New Article: “Separate and Unequal: The Dimensions and Consequences of Safety Net Decentralization in the U.S. 1994 – 2014”

New Article: Sarah K. Bruch, Separate and Unequal: The Dimensions and Consequences of Safety Net Decentralization in the U.S. 1994 – 2014, IRP Discussion Paper No. 1432-16 (Aug. 2016) [Includes a good bibliography].

-Thanks to Susan Bennett for the heads up!

New Article/Book Review: “The Political Economy of ‘Constitutional Political Economy'”

New Article: Jeremy Kessler, The Political Economy of ‘Constitutional Political Economy’, forthcoming Texas L. Rev. Abstract below:

Joseph Fishkin and William Forbath’s book-in-progress, The Anti-Oligarchy Constitution, offers a radical alternative to the constitutional histories that emerged in the 1990s to defend the New Deal synthesis. Fishkin and Forbath’s new constitutional history promises to recast the New Deal as a contingent and incomplete resolution of a centuries-long struggle to achieve the political-economic conditions that the Constitution requires — “requires” in the double sense of “demands” and “depends upon.” This struggle is still ongoing and even accelerating, Fishkin and Forbath report, yet it has become increasingly “one-sided.” First, the post-WWII economic boom dissipated, taking with it much of the middle class that the New Deal and Great Society legal orders had hoped to create. Then, conservative lawyers and politicians stepped up their attacks on the New Deal and Great Society’s remaining achievements, trumpeting a constitutional political economy in which private property free of overweening public management is the pillar of constitutional democracy. Confronted by these dire conditions, legal liberals have forgotten how to fight back, rendered mute by the New Deal synthesis itself, which ironically and erroneously implied that political economy was no longer a matter of constitutional concern. Hoping to even the odds, Fishkin and Forbath offer liberals a grammar of egalitarian constitutional political economy — “the constitution of opportunity” — that was once spoken fluently and effectively by those Americans who argued that the Constitution prohibited oligarchic concentrations of wealth and mandated the political and judicial construction of a broad, inclusive middle class.

By placing the discourse of political economy back at the center of constitutional debate, Fishkin and Forbath have — by any fair measure — done more than enough. Yet scholarly innovators tend to find the ranks of their critics swelled by those who have benefited most from their labor. This Essay is no exception to the oedipal rule. It argues that Fishkin and Forbath could go further still in integrating political economy and constitutional history. At times, their detailed analysis of the discourse of “constitutional political economy” comes at the expense of a more fully materialist account of the political-economic conditions and effects of that discourse. Such a discursive emphasis, in turn, risks an overly optimistic assessment of the past virtues and present utility of “the constitution of opportunity,” the egalitarian dialect of constitutional political economy that Fishkin and Forbath commend to legal liberals today.

New Article: “Serfdom Without Overlords: Lawyers and the Fight Against Class Inequality”

New Article: Eli Wald, Serfdom Without Overlords: Lawyers and the Fight Against Class Inequality, 54 U. Louisville L. Rev. 269 (2016).  Abstract below:

Lawyers are not very engaged in the public discourse about class inequality in America, reflecting a belief that class inequality is primarily an economic and political problem rather than a legal one. Because lawyers are not commonly perceived to be a cause of the class problem, some believe that lawyers should not be part of the solution. This article challenges the legal profession’s passive stance on class inequality, arguing that all lawyers have an important role to play in the fight against inequality.

The article first identifies a class challenge for lawyers, the rise of an increasingly segregated and stratified legal profession, based on attorneys’ socioeconomic status, showing that the well-documented and growing opportunity gap among our kids will result in a growing opportunity gap among our lawyers. It then disproves an enticing retort dismissing the growing opportunity gaps among our kids and lawyers as somebody else’s problems, asserting that lawyers in their (neglected) role as public citizens have a special duty to address inequalities affecting our kids, and that lawyers as officers of the legal system must combat inequality within the profession.

The rest of the article explores the means by which law schools, law firms, lawyers and the organized bar can and should help fight class inequality. Its main claim is that all lawyers must take part in a capital campaign designed to narrow our kids’ and lawyers’ opportunity gaps, a campaign involving no expenditure of economic capital. Rather, American lawyers, the affluent as well as the less prosperous, possess ample social and cultural capital — connections, relationships, and ties, as well as knowledge, information, and experience — which are the very assets that explain the opportunity gaps.

Law schools amplify lawyers’ opportunity gap by using admission, teaching and grading policies that privilege the affluent at the expense of the less fortunate, and can become part of the solution by replacing these criteria with policies that give everybody an equal opportunity to be admitted and excel based on merit considerations. Law firms systematically, if implicitly, trade in and rely on their lawyers’ social, cultural, and identity capital to make hiring and promotion decisions. They can become part of the solution by transparently acknowledging the role of social, cultural, and identity capital in their practices and providing all lawyers equal opportunities to acquire the requisite capital needed for success within their ranks. Lawyers, in turn, must lend their social and cultural capital assets to help build the capital endowments of the underprivileged. Finally, the organized bar must act as an intermediary connecting lawyers with disadvantaged kids and lawyers, and support the roles of lawyers as public citizens and officers of the legal system. In sum, the legal profession can and should play a meaningful role in narrowing the opportunity gap afflicting our kids and our lawyers.

New Article: “Discrimination in Evictions: Empirical Evidence and Legal Challenges”

New Article: Deena Greenberg, Carl Gershenson & Matthew Desmond, Discrimination in Evictions: Empirical Evidence and Legal Challenges, 116 Harv. C.R.-C.L. L. Rev. 115 (2016).  Abstract below:

Tens of thousands of housing discrimination complaints are filed each year. Although there has been extensive study of discrimination in the rental market, discrimination in evictions has been largely overlooked. This is because determining whether discrimination exists in evictions presents several challenges. Not only do landlords typically have a non-discriminatory reason for evictions (e.g., nonpayment), but they also wield tremendous discretion over eviction decisions—discretion that can be informed by conscious or unconscious bias against a protected group. Detecting discrimination in evictions, moreover, poses a number of challenges that conventional methods of assessing housing discrimination are ill-suited to address. This Article is among the first to empirically investigate racial and ethnic discrimination in eviction decisions. It does so by drawing on the Milwaukee Area Renters Study, a novel observational study of 1,086 rental households. Statistical analyses reveal that among tenants at risk of eviction, Hispanic tenants in predominantly white neighborhoods were roughly twice as likely to be evicted as those in predominantly non-white neighborhoods. Hispanic tenants were also more likely to get evicted when they had a non-Hispanic landlord. This Article discusses possible explanations for these findings and evaluates legal and policy solutions for addressing discrimination in the eviction process.

New Article: “Residual Value Capture in Subsidized Housing”

New Article: Brandon M. Weiss, Residual Value Capture in Subsidized Housing, 10 Harv. L. & Pol’y Rev. 521 (2016).  Abstract below:

This Article argues that our primary federal subsidized housing production program, the Low-Income Housing Tax Credit (LIHTC), will result in the unnecessary forfeit of billions of dollars of government investment and the potential displacement of tens of thousands of households beginning in 2020 when LIHTC property use restrictions start to expire. The LIHTC example is presented as a case study of an inherent dynamic of public-private partnerships—namely, the potential capture by for-profit providers of “residual value.” For purposes of this Article, this is value generated by a public-private transaction that is unnecessary to incentivize a private provider to deliver the contracted for good or service.

Drawing on corporate organizational theory, which has highlighted the role that nonprofits play in solving certain contract failures and generating positive externalities, the Article argues that, in certain contexts, partnering with nonprofit providers can be an effective approach to increasing the share of residual value that flows to public purposes. The LIHTC program is one such context, given that a nonprofit preference results in a three-sector approach whereby the federal government provides tax credits to nonprofit developers that must attract private investor equity. This framework leverages institutional strengths, including the access to capital of government, the relative fidelity to public purposes of nonprofits, and the market-based underwriting and oversight of for-profit investors.

New Article: “Structural Subjugation: Theorizing Racialized Sexual Harassment in Housing”

New Article: Kate Sablosky Elengold, Structural Subjugation: Theorizing Racialized Sexual Harassment in Housing, 27 Yale J. L. & Feminism 227 (2016).  Abstract below:

This Article identifies and analyzes the structural forces that permit and ignore racialized sexual harassment in housing. Although scholarship on sexual harassment in housing is sparse, the existing research and resulting body of law generally advances a narrative focused on the female tenants’ economic vulnerability and violation of the sanctity of her home. The narrative advanced in scholarship and advocacy, along with the resulting jurisprudence, presents an archetype of a deviant male landlord abusing his authority to take advantage of women sexually who, because of their economic circumstances, have no alternatives. This Article terms it the “dirty old man” narrative. Drawing attention to the racialized sexual harassment that lies beneath the stock story for many African American female tenants, this Article dismantles that narrative. The purpose of the scholarship is two-fold. The first is to expose, for the first time, the undercurrent of racialized sexual victimization that is absent from the “dirty old man” narrative. To do that, this project methodically examines court filings in sexual harassment cases brought by the Attorney General under the federal Fair Housing Act and analyzes the entire body of federal and state court opinions assessing residential sexual harassment claims. The second objective is to identify the structural factors — cultural acceptance of the “Black Jezebel” myth, legal rights, access, and generational economic and racial hierarchies — that operate together to perpetuate racialized sexual harassment in rental housing, an analysis that draws on social science research, along with critical race, critical feminist, and intersectionality theories. This Article contends that those structural forces are the same factors that have operated to permit and hide the sexual subjugation of Black women in the private sphere throughout history — during slavery, as domestic workers, and in the present-day failure to prosecute sexual assault against Black women. Ultimately, it argues that the prevailing “dirty old man” narrative risks silencing both the individual stories of racialized sexual harassment at home and the larger conversation about the structural forces permitting and ignoring the abuse.

New Article: “Reconciling the Premium Tax Credit: Painful Complications for Lower and Middle-Income Taxpayers”

New Article: Francine J. Lipman & James E. Williamson, Reconciling the Premium Tax Credit: Painful Complications for Lower and Middle-Income Taxpayers, 69 SMU L. Rev. __ (forthcoming 2016).  Abstract below:

The Patient Protection and Affordable Care Act (ACA) makes available to certain middle and lower-income individuals a refundable tax credit, the Premium Tax Credit (PTC), designed to help them pay the premiums on their qualified health care plans. To achieve Congress’s goal of making health insurance affordable, the PTC is most often provided directly to an individual’s insurance provider each month in advance of actually claiming the PTC on the individual’s year-end annual tax return. Of the almost twelve million individuals who have enrolled in health insurance through the federal and state health exchanges in 2015, 85% of these individuals receive the advanced PTC (APTC). In the federal health exchange, the APTC averaged $268, covering 72% of the $374 average monthly premium, resulting in $105 net monthly payments per individual or $1,260 annually.

The amount of the APTC is based upon an estimate of an individual’s household income to be earned for that tax year in which she is entitled to claim the credit. However, the allowable PTC that any individual may receive is based upon the individual’s actual “household income” for that tax year. An individual’s household income is in turn dependent upon her “modified adjusted gross income” from the tax return upon which she is claiming the credit. Therefore, the amount of the PTC an individual is entitled to for any given year cannot be determined until the individual has completed her federal income tax return for that year. For example, the amount of an individual’s PTC for 2014, the first year the credit was available, is determined by the income as shown on an individual’s 2014 federal income tax return, which is not prepared until early 2015.

In most cases, the estimated APTC used to subsidize health insurance premiums during the tax year will differ from the actual PTC as finally determined when the individual files her annual income tax return. Through the end of October 2015, taxpayers filed 143 million 2014 income tax returns, including 3.5 million 2014 income tax returns of the 4.8 million expected tax returns with 2014 PTC. These tax returns reported $11.3 billion of the $15.5 billion 2014 APTC. If the actual PTC is less than the APTC, taxpayers will have to pay the difference when they file their tax return, which would increase the amount of tax owed or decrease the amount to be refunded. Approximately 51% of the 2014 returns, or 1.8 million returns filed, reported APTC in excess of the actual PTC by an average of $860 for the year. About 61% of these taxpayers still reported a refund. If the actual PTC is greater than the APTC, the difference will be refunded or applied against other taxes that the taxpayer might owe. Approximately, 40% of the 2014 returns filed, or 1.3 million returns, reported PTC in excess of any APTC by an average amount of $600.

While the PTC is a fully refundable tax credit and can be paid directly to insurance providers in advance, it can also be applied like more traditional income tax credits. Most tax credits are claimed on an individual’s year-end income tax return, serving as a reimbursement of expenses paid by the taxpayer months, or even more than a year, before the credit is received. Similarly, qualifying individuals have the option of paying their monthly health insurance premiums in full without any subsidy and waiting until they file their federal income tax return to claim any PTC. This approach is consistent with most other refundable and nonrefundable federal income tax credits including the child tax credit, dependent-care credit, adoption expense credit, lifetime learning credit, HOPE scholarship and American Opportunity tax credits, and earned income tax credit. If the taxpayer owes no other taxes, the government will refund the PTC in full. If the taxpayer owes other taxes, the PTC will offset any tax liability due, and the taxpayer will receive a refund of any balance in excess of the tax liability.

This Article will explain the details of the PTC focusing on the unusual and complicated reconciliation process for individuals receiving the APTC. Given the recent implementation of the PTC and the first reconciliation experience for taxpayers in 2015, there is a dearth of scholarship on this topic. Despite the enactment of the ACA in 2010, academics have neither presented nor analyzed the detailed complexity of this unusual prepaid refundable tax credit for middle and lower-income taxpayers. This Article will fill this void by describing the many details of PTC using a variety of examples to expose the significant complexities inherent in this critical health care subsidy. This deconstruction of the PTC and its requisite reconciliation will serve as a platform for subsequent scholarship that will serve to enhance the PTC to better achieve Congress’s goal of providing access to affordable health care for all Americans.

New Article: “What Gideon Did”

New Article: Sara Mayeux, What Gideon Did, 116 Colum. L. Rev. 15 (2016).  Abstract below:

Many accounts of Gideon v. Wainwright’s legacy focus on what Gideon did not do—its doctrinal and practical limits. For constitu­tional theorists, Gideon imposed a preexisting national consensus upon a few “outlier” states, and therefore did not represent a dramatic doctrinal shift. For criminal procedure scholars, advocates, and jour­nalists, Gideon has failed, in practice, to guarantee meaningful legal help for poor people charged with crimes.

Drawing on original historical research, this Article instead chronicles what Gideon did—the doctrinal and institutional changes it inspired between 1963 and the early 1970s. Gideon shifted the legal profession’s policy consensus on indigent defense away from a charity model toward a public model. By 1973, this new consensus had transformed criminal practice nationwide through the establishment of hundreds of public defender offices and the expansion of lawyers’ presence in low-level criminal proceedings. This Article describes these changes primarily through the example of Massachusetts, while contex­tualizing that example with national comparisons.

The broad outlines of these post-Gideon changes are familiar to legal scholars. But situating these changes in a longer historical context and tracing them in detail from the perspective of lawyers on the ground in the 1960s yields two insights that help to explain the seemingly permanent post-Gideon crisis in indigent defense. First, the post-Gideon transformation was indeed limited in its practical effects, but its limits derived not only from politics but also from history—and from the legal profession itself. Lawyers themselves, long before Gideon, framed indigent defense as low-status, low-pay, less-than-fully-professional legal work. That framing survived even as private charities became post-Gideon public defenders. Second, the post-Gideon transformation was also limited—or, perhaps, destined to be perceived as limited—by tensions inherent in the attempt to provide large-scale legal assistance through government bureaucracies. Characteristics now identified as symptoms of crisis—such as politically determined fund­ing, ever-expanding caseloads, and triage advocacy—first appeared as innovations that lawyers perceived Gideon to require. As public defenders proliferated, so too did complaints that they were under­funded and overworked, and that they encouraged guilty pleas over trials.

The origins of the indigent defense crisis lie not only in Gideon’s neglect but also, paradoxically, in Gideon’s transformative influence. This history lends some support to recent scholarly expressions of skepticism about Gideon, but it also provides some reasons for optimism: If the indigent defense crisis derives not only from intransi­gent political indifference but also from contingent choices made by lawyers, then lawyers may retain more power than they realize to mitigate the crisis.