Category Archives: Articles

New Article: “Civil Rights Catch 22s”

New Article: Jonathan Feingold, Civil Rights Catch 22s, 43 Cardozo L. Rev. 2 (2022). Abstract below:

Civil rights advocates have long viewed litigation as a vital path to social change. In many ways, it is. But in key respects that remain under-explored in legal scholarship, even successful litigation can hinder remedial projects. This perverse effect stems from civil rights doctrines that incentivize litigants (or their attorneys) to foreground community plight—such as academic underachievement or over-incarceration. Rational plaintiffs, responding in kind, deploy legal narratives that tend to track racial biases and regressive theories of inequality. When they do, even successful lawsuits can harden the structural and behavioral forces that produce and perpetuate racial inequality.

I refer to this dynamic as a “civil rights catch 22.” To concretize this phenomenon and its effects, I explore recent right-to-education lawsuits featuring low-income students of color. The cases reveal how doctrine can drive plaintiffs to portray themselves and their communities through a lens of poverty and illiteracy. Even if strategic from a litigation perspective, the proliferation of such narratives can entrench disparities across educational domains.

For decades, critical race theorists have revealed how the law “constructs” race. This article builds on that canon but shifts the lens to litigation itself. For those committed to meaningful racial reform, better understanding this dynamic is essential—particularly given the emancipatory role that civil rights litigation is understood to fulfill.

New White House Report: “President Biden Announces New Actions to Ease the Burden of Housing Costs”

As President Biden said last week, tackling inflation is his top economic priority. Today, President Biden is releasing a Housing Supply Action Plan to ease the burden of housing costs over time, by boosting the supply of quality housing in every community. His plan includes legislative and administrative actions that will help close America’s housing supply shortfall in 5 years, starting with the creation and preservation of hundreds of thousands of affordable housing units in the next three years. When aligned with other policies to reduce housing costs and ensure affordability, such as rental assistance and downpayment assistance, closing the gap will mean more affordable rents and more attainable homeownership for Americans in every community. This is the most comprehensive all of government effort to close the housing supply shortfall in history.

New Article: “Homeownership While Black: A Pathway to Plunder, Compliments of Uncle Sam”

New Article: Richard Winchester, Homeownership While Black: A Pathway to Plunder, Compliments of Uncle Sam. Abstract below:

Historically, the federal government played no role in regulating housing finance. That changed when New Deal legislation created the Federal Housing Administration to provide insurance on home mortgages. FHA insurance was expected to eliminate the risk that banks ordinarily faced when lending money for a home purchase, thereby encouraging them to make loans to finance the construction of new homes. This federal intervention both lowered the cost of mortgage credit and stimulated housing construction. However, because the FHA did not insure mortgages on homes located in areas where blacks lived, banks stopped offering mortgage loans to blacks, and builders refused to sell homes to black buyers. Facing an undersupply of housing and mortgage credit, black families were exploited by real estate predators who got rich at their expense in a shadow market that emerged to meet their needs. These predators bought homes from whites at a discount and resold them to blacks at a premium under a rent-to-own arrangement called an installment contract. Aside from featuring much higher monthly payments than a mortgage, such a contract required the buyer to forfeit the home and their entire monetary investment if they defaulted. The FHA’s anti-black policies created the conditions for this shadow market to thrive for three decades before Congress outlawed the agency’s discriminatory policies. In the interim, homeownership proved to be a wealth eroding proposition for vast numbers of blacks

New Article: “We Pay to Keep the Old Out of Povery. Why Don’t We Do the Same for the Young?”

New Article: Bryce Covert, We Pay to Keep the Old Out of Poverty. Why Don’t We Do the Same for the Young?, N.Y. Times (May 7, 2022). Excerpt below:

The United States has an incredibly high child poverty rate. Nearly one in seven children lives in a poor family. By comparison, fewer than 10 percent of adults are poor, and under 9 percent of those age 65 and over are. Child poverty also doesn’t fall evenly across demographics: 71 percent of poor children are Black, Hispanic or Native American.

But child poverty is not a problem without a solution. Americans may roll their eyes at being constantly compared unfavorably with Western European countries, but in this case we aren’t just bested by the usual suspects. The United States is a pretty extreme outlier. Out of 40 countries, America ranks 38th, behind not just Finland, Denmark, Germany and France but also Slovenia, Estonia, Russia and Mexico.

New Article: “Comparative Property Law and the Pandemic: Vulnerability Theory and Resilient Property in an Age of Crises”

New Article: Lorna Fox O’Mahony, Mar L. Roark, Comparative Property Law and the Pandemic: Vulnerability Theory and Resilient Property in an Age of Crises, 82 La. L. Rev. 790 (2022). Abstract below:

Political and property crises present vital new questions for property theorists, and analyses of state responses to these crises cast new light on how property systems, and property law, adapt and evolve to meet complex challenges—while remaining institutionally resilient themselves. The novel coronavirus pandemic was an extreme, exceptional, unexpected, significant “shock” event, with financial, economic, social, cultural, and political impacts on a scale not experienced since at least the 1930s. The pandemic posed an unexpected, unpredictable, and urgent threat to human life that demanded immediate action, delivered under intense public scrutiny. The challenges were “wicked”: governments were compelled to act, in conditions of uncertainty and in response to a complex set of high-stakes problems, with imperfect information about the impacts of policy choices or the likely endpoint of the pandemic. 1 In acting swiftly to protect their populations, governments adopted radical strategies to shore up housing and home, to tackle street homelessness, and to protect tenants and mortgagors from the threat of eviction. Perhaps most notably, pandemic policies to protect housing intervened with private property law in ways that were unimaginable before spring 2020. In this Article, we examine the range of ways that governments adapted their approaches to property, housing, and homelessness during the pandemic. We analyze the adaptation of property rules in the pandemic using the new theoretical and methodological framework of “Resilient Property.” We consider the implications of the actions to adjust the laws and policies that govern property, housing, eviction, and homelessness, and reflect on the legacies of these actions for property theories and property law.

New Article: “Expanding Civil Rights to Combat Digital Discrimination on the Basis of Poverty”

New Article: Michele E. Gilman, Expanding Civil Rights to Combat Digital Discrimination on the Basis of Poverty, 75 SMU L. Rev. 1 (2022, Forthcoming). Abstract below:

We live in a datafied society in which a vast network of public and private entities collect and combine our personal data. Algorithms sort these data troves and generate digital profiles that serve as gatekeepers to life’s necessities such as jobs, housing, health care, and education. Several scholars and civil rights organizations have highlighted the potential for algorithmic bias in these artificial intelligence systems, and examples of digital discrimination on the basis of race, gender, and other protected characteristics are ubiquitous. As a result, there are numerous legislative proposals and emerging litigation strategies for countering algorithmic bias. However, these civil rights initiatives leave out one group of Americans who are particularly vulnerable to digital discrimination – people experiencing poverty. Low-income people are suffering in the datafied society, while businesses amass large profits at their expense and governments digitally deny them social safety net benefits. This Article explores the harms poor people suffer from algorithms used in tenant screening, credit scoring, higher education admissions, and online advertising platforms. In light of these harms, this Article argues that existing and new laws prohibiting digital discrimination should include low socio-economic status as a protected characteristic. This legal reform would limit the digital harms low-income people suffer, enhance economic opportunity for millions of Americans, advance the fight for racial justice, and generate the data needed to improve anti-poverty policymaking.

New Article: “Inside the Minority-Led Movement to Create an Inclusive City”

New Article: Brentin Mock, Inside the Minority-Led Movement to Create an Inclusive City, Bloomberg (May 26, 2022). Excerpt below:

After three failed proposals to create new cities in Georgia’s Cobb County, a fourth is touting diversity, affordability and inclusive voting rights. Out of four new cities proposed just west of Atlanta, only one is still in play.

Campaigns to establish the municipalities of Lost Mountain, East Cobb, and Vinings in what are now unincorporated parts of Cobb County, Georgia, all failed their May 24 ballot referendums. Voters living within the proposed boundaries of Mableton, on the southern edge of the county, will vote on cityhood in November. Organizers of that movement, which would create one of metro Atlanta’s most racially and economically diverse cities, say the later voting date will give them more time to educate the electorate on the benefits of incorporation.

New Article: “The Willful neglect of the American Child Welfare and Family Court System”

New Article: Melody McCombs, The Willful Neglect of the American Child Welfare and Family Court System, (2022). Abstract below:

In 2015 a poor, minority mother of six young children was accused of neglect and reported to the Department of Children and Family Services. Her two youngest children, born within fourteen months of each other, were both delivered prematurely and, at the time of the complaint, suffered from significant health issues. Despite no reported concerns from the medical professionals working closely with the mother, the trial court issued an instant order placing all six children in the State’s custody after declaring them ‘in need of care’. The trial court’s decision in this case is not unique to this family, it is the norm for poor minority families in the United States.

This article examines the historical development of child welfare programs, legislation, and practice within the United States family court. Additionally, academic exploration will connect the explicit link between poverty and child maltreatment and what, if anything, the United States legal system does to address what is often considered a significant root cause of child maltreatment.

Analysis will utilize Louisiana in rel K.M., a case which was handled in Louisiana, one of the poorest states in the United States. Louisiana in rel K.M. provides important context for how poor minority families are taken through a biased and ineffective court process which attempts to “remedy” allegations of child maltreatment. The analysis confirms that in many cases, the court system fails to protect children, families, and remove systemic bias and racism against poor, minority families; and suggests possible resolutions to the failures exposed in our family court system.

New Article: “Education Inequality During COVID-19: How Remote Learning Is Widening the Achievement Gap and Spurring the Need for Judicial Intervention”

New Article: Olivia Crow, Education Inequality During COVID-19: How Remote Learning Is Widening the Achievement Gap and Spurring the Need for Judicial Intervention, 63 B.C. L. Rev. 713 (2022). Abstract below:

Remote learning during the COVID-19 pandemic (COVID-19) disrupted nearly every student’s life and will cause immense learning losses. Low-income students and students of color are the most likely to be in online classes, yet the least likely to have necessary resources to succeed in a remote school environment. Studies show that the COVID-19 pandemic has and will continue to worsen the racial and socio-economic achievement gap in education. As a result, two groups of parents in California filed class action lawsuits alleging that the State of California and the Los Angeles Unified School District respectively failed to provide a basic education to students of color in impoverished neighborhoods since the school closures in spring 2020. Following the United States Supreme Court’s seminal ruling in Brown v. Board of Education in 1954, education litigation has slowly progressed under State constitutions towards recognizing an affirmative duty for States to provide a free and equal education. The Supreme Court’s decision in San Antonio Independent School District v. Rodriguez in 1963 solidified that the federal Constitution does not guarantee an equal public education for all citizens. As such, since the federal Constitution does not guarantee the right to public education, but all state constitutions do, the citizens of California and other states must use their state constitution to enforce the constitutional guarantee of a free and equal education. During the Pandemic, California’s remote learning plan has disproportionately affected low-income students of color, while privileging students in wealthier districts. This Note contends that both class action complaints sufficiently allege an equal protection violation, spurring the need for judicial intervention, and providing a model for future litigants in other states. The courts, therefore, should advise the legislature to adopt a plan that accounts for the lost learning time and ensures the most disadvantaged students receive a meaningful education during and post COVID-19.

New Article: “Taxation of Long-term Unemployment in the Digital Economy: Facing the Twenty-First Century Challenges”

New Article: Limor Riza, Taxation of Long-term Unemployment in the Digital Economy: Facing the Twenty-First Century Challenges, 70 Cath. U. L. Rev. 421 (2021). Abstract below:

The article examines the policy of taxing long-term unemployment. We claim that tax systems should not tax the unemployed regardless of whether they reenter the labor market. Unemployment is a socioeconomic problem. The fear of expanding unemployment increases due to COVID-19 that shut down large sectors of the economy for a long period and also due to the digital economy. As early as the 1930s, Keynes expressed his fear of the economic challenges his grandchildren’s generation would face, coining the term “technological unemployment.” Several contemporary economists substantiate this fear by showing that some occupations are bound to disappear. Unemployment insurance is part of social law aimed at granting financial security during unemployment. This article focuses on security benefits paid out of unemployment insurance programs to unemployed who become chronically so. In many countries it is common to tax unemployment benefits, but tax laws do not distinguish between short-and long-term unemployed taxpayers. Given that the future of the occupational security of the unemployed is dubious, taxation should take into consideration the future “dimension” of equity. In order to assess the proper taxation of the long-term unemployed, the article adopts the reciprocity principle, which is reinforced by lifecycle theory. Equity cannot be measured over a single year, but over a longer period, during which we should examine whether the unemployed has become chronically so–one who cannot find a job even after exhausting his rights to unemployment insurance. The article proposes three taxation periods reflecting reciprocal relationships between a taxpayer and society–employment, regular unemployment, and chronic unemployment–and the reciprocity between two adjacent periods is then examined. Since unemployment insurance programs are well rooted in many countries, the article’s recommendations are practically universal.