Category Archives: COVID-19

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: Power and Possibility in the Era of Right to Counsel, Robust Rent Laws & COVID-19

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: “Bridging the Two Cultures: Toward Transactional Poverty Lawyering”

New Article: Gregory E. Louis, Bridging the Two Cultures: Toward Transactional Poverty Lawyering, 28 Clinical L. Rev. 411 (2022). The article is here: Louis – Bridging the Two Cultures. Abstract below:

As U.S. society emerges from the COVID-19 pandemic that decimated Black and Brown communities and law schools reexamine their curricula after the summer of 2020, a moment of interest convergence has emerged: the need for legal education to matter for Black and Brown livelihoods. This Article proposes a concrete measure for meeting this moment. Informed by CUNY School of Law’s lawyering seminar and building upon scholarship long calling for a paradigm shift toward a transactional understanding of social justice – especially Professor Susan R. Jones’s work – this Article calls upon law schools to leverage their positions and resources toward Black and Brown economic recovery. Specifically, the Article proposes that law schools do so by requiring their students to enroll in a transactional poverty law seminar and clinic instructing students toward assisting socially and economically disadvantaged small businesses with applications for capitalization and finance. With such a course, law schools can become centers of what Professor Jones terms “action research,” assisting the flow of assets to populations historically locked out of capital, most recently with the pandemic economic stimulus programs. It also would serve to enlighten privileged law students on the stark exclusions within the U.S. market economy and initiate socially and economically disadvantaged law students into transactional practice. Through advancing mutual benefit about this principle of double discovery, the course would serve to bridge the gap between the two Americas as well as the silos of litigation and transactional lawyering.

New Article: Context, Purpose, and Coordination in Taxation

New Article: Blaine G. Saito, Context, Purpose, and Coordination in Taxation, 55 Conn. L. Rev. (forthcoming 2023). Abstract below:

A great deal of scholarship focuses on whether we should place social safety net and redistribution programs within the tax sphere and under the responsibility of the IRS. But much of this literature misses a key point. These programs are here, and they are unlikely to leave the tax sphere. But little is said about how to approach administering them.

This article suggests a new framework to administering these programs by the IRS called contextualized purpose. The idea is that these tax programs exist in a broader context of the social safety net and redistribution and should be organized and managed in a way that comports with that. The IRS would discern the various purposes, values, and goals of these programs and note how they interrelate with other purposes, values, and goals within the tax system and the broader social safety net. As a result, contextualized purpose often requires that the IRS coordinate with other agencies to avoid administrative cross-purposes and that the agencies iteratively grow through learning by doing.

The article uses contextualized purpose to examine and suggest administrative changes to key income support programs like the earned income tax credit (EITC), the child tax credit (CTC), and the pandemic economic impact payments (EIP). It then discusses what are some of the advantages and concerns with this approach and how this approach fills the gap left by traditional discussions of tax programs to effectuate social policy.

New Article: “Closing the Health Justice Gap: Access to Justice in Furtherance of Health Equity”

New Article: Yael Cannon, Closing the Health Justice Gap: Access to Justice in Furtherance of Health Equity, 53 Colum. Hum. Rts. L. Rev. 517 (2022). Abstract below:

A massive civil “justice gap” plagues the United States. Every day, low-income Americans—and disproportionately people of color—go without the legal information and representation they need to enforce their rights. This can cost them their homes, jobs, food security, or children. But unmet civil legal needs in housing, employment, and public benefits, for example, are not simply injustices—they are well-documented drivers of poor health, or social determinants of health. Those marginalized by virtue of both race and socioeconomic status are particularly harmed by inaccessibility to justice and also by chronic health conditions and lower life expectancy. When a tenant walks into court alone for an eviction hearing and faces an experienced landlord’s attorney, the tenant is unlikely to prevail, and her eviction can lead to myriad poor health outcomes.

The health justice movement leverages law and policy to advance health equity. In recent years, it has gained tremendous traction, especially due to the COVID-19 pandemic’s spotlight on health disparities. In tandem, the access to justice movement is progressing with the advancement of major federal, state, and local legislation and initiatives. However, the movements have been running on parallel tracks, and their connections have been under-examined. This Article puts the two movements and bodies of scholarship squarely in dialogue with one another.

New Article: Digital Barriers to Economic Justice in the Wake of COVID-19

New Article: Michele E. Gilman & Mary Madden, Digital Barriers to Economic Justice in the Wake of COVID-19, Data & Society, April 21, 2021. Abstract below:

This primer highlights major barriers to economic justice created or magnified by data-centric technologies in the wake of the coronavirus pandemic. Specifically, there are three major trends related to data-centric technologies that are undermining the current and future economic stability for marginalized communities:
1) Collapse of benefits automation, particularly with regard to unemployment insurance
2) Expanded workplace and school surveillance
3) Digital profiling of economic distress

There has been little discussion of how these trends will heighten existing economic inequalities as the nation attempts to rebuild post-pandemic. The primer aims to fill this gap through a conception of data justice, in which technology serves to empower people rather than to oppress them. Further, it provides suggestions for reform so that technology works for people, rather than against them, as the nation emerges from the grip of the pandemic.

New Article: “Bad Apples or a Rotten Tree: Ameliorating the Double Pandemic of COVID-19 and Racial Economic Inequality”

New Article: Nathalie Martin, Bad Apples or a Rotten Tree: Ameliorating the Double Pandemic of COVID-19 and Racial Economic Inequality, 82 Mont. L. Rev. 105 (2021).

New Article: Vaccination, Disabled Children, and Parental Income

New Article: Karen Syma Czapanskiy, Vaccination, Disabled Children, and Parental Income, 24 J. Health Care L. & Pol’y 59 (2021).

New Article: “Revolutionizing Redistribution: Tax Credits and the American Rescue Plan”

New Article: Ariel Jurow Kleiman, Revolutionizing Redistribution: Tax Credits and the American Rescue Plan, forthcoming Yale L.J. Forum. Abstract below:

The American Rescue Plan Act (ARPA) dramatically alters the federal government’s approach to redistribution in 2021. Among its boldest reforms are its temporary expansions of the Child Tax Credit and the Earned Income Tax Credit. For the first time, ARPA authorizes meaningful cash support for nonworking families and childless workers, two groups that have been historically disadvantaged by social safety net programs. This Essay considers ARPA’s effects on low-income American taxpayers, spotlighting in particular how the reforms will protect millions of households from being pushed into poverty or further into poverty as a result of paying taxes—a phenomenon called “fiscal impoverishment.” Policy makers must make ARPA’s reforms permanent in order to ensure that low-income taxpayers remain protected past 2021. As they work to do so, policy makers should be mindful of gaps in the tax credits that will undermine the reforms’ positive effects. The Essay identifies several such gaps and argues that Congress should legislate more dramatic inclusion for households with and without children.

New Article: Setting the Health Justice Agenda: Addressing Health Inequity & Injustice in the Post-Pandemic Clinic

New Article: Emily A. Benfer, James Bhandary-Alexander, Yael Cannon, Medha D. Makhlouf, and Tomar Pierson-Brown, Setting the Health Justice Agenda: Addressing Health Inequity & Injustice in the Post-Pandemic Clinic, Clinical Law Review, Forthcoming, Fall 2021. Abstract below:

Among the tenets of clinical legal pedagogy is the goal of teaching students about the lawyer’s role in both ensuring the quality of and access to justice for historically marginalized populations. The COVID-19 pandemic illustrated how, for far too many, justice is inaccessible, inequity is rapidly increasing, and health justice is out of reach. Historically marginalized groups experienced disproportionate infection and mortality rates from COVID-19, as well as the highest rates of unemployment, barriers to healthcare access, food insecurity, and extreme eviction risk during the pandemic. These disparities stem from the social determinants of health . Social determinants of health “encompass[] the full set of social conditions in which people live and work,” and drive health inequity for people living in poverty, people of color, and other historically marginalized groups. Structural determinants of health, including the political and legal systems in which discrimination can become embedded, influence poor health outcomes. No other profession bears more responsibility for the role of law in lifting or oppressing members of society. It is upon the legal profession to uncover how the law, laden with bias and discrimination, can operate as a vehicle of subordination, creating barriers to opportunity, long-term hardship, and poor health. The pandemic-related increase in the need for legal services highlighted the urgency of not only providing the next generation of lawyers with foundational lawyering skills, but also imbuing them with a sense of legal stewardship. In this way, the pandemic underscored the need for clinical legal education to adopt strategies that both increase lawyering skills and directly address the structural determinants at the root of the justice crisis.

Health justice is the eradication of unjust health disparities caused by discrimination and poverty. The health justice framework provides a model for training students to recognize the structural and intermediary determinants of health at the root of their clients’ hardship, and to actively work with the community to address barriers to health equity and social justice. The authors have used the health justice framework to conceptualize and explain the work of MLPs. The framework is centered on engaging, elevating, and increasing the power of historically marginalized populations to address structural and systemic barriers to health, as well as to compel the adoption of rights, protections, and supports necessary to the achievement of health justice. In the law clinic setting, health justice offers a holistic, interprofessional, and proactive approach to addressing social injustice. It teaches students to investigate the roots of their clients’ legal crises and to identify leverage points to shift the deeply connected health disparities and injustices that plague marginalized communities. A holistic understanding of social injustice and health inequity prepares students to seize those opportunities for leverage and to develop proactive—rather than reactive—legal interventions to address potential health crises.

This Article arose from a discussion of five clinicians who, combined, have over three decades of experience designing and working in medical-legal partnerships (MLPs) to address health-harming legal needs for low-income and historically marginalized patients. The Article provides our reflections on the successes and challenges of the MLP model in achieving health justice during the COVID-19 pandemic. Part I describes the relationship between structural injustice and the health impacts of the pandemic. It also describes individual-level responses to these crises that have largely failed to protect the populations that are widely considered marginalized in U.S. society, and the role of legal interventions in combatting racial health inequity. Part II explains how MLPs employ a health justice framework to address “wicked problems” at the intersection of law, health, race, and poverty. Part III proposes maxims for achieving health justice for law clinics generally, drawn from the authors’ experiences over the past fourteen months.

We believe that the health justice framework and our reflections could be useful to all clinicians because of the relationship between unmet legal needs and poor health: When clinics intervene to help clients address financial or food insecurity, unstable or unsafe housing, employment discrimination, inadequate educational supports, immigration issues, and interpersonal or community violence, among other legal needs, we address SDOH. Because we are, in a sense, all working for health justice, this framework may provide helpful insights to clinicians working across a range of legal issues. In the midst of the global COVID-19 pandemic, the link between health justice and access to justice is clearer and more salient than ever before.