Video: Gunner’s Journey, by Jeremy Meek with Dine Policy Institute.
Opinion: Martha Minow and Robert Post, Standing up for ‘so-called’ law, Boston Globe (Feb. 10, 2017).
Article: Gregory R. Day & Salvatore J. Russo, Poverty and the Hidden Effects of Sex Discrimination: An Empirical Study of Inequality, 37 Penn. J. Int’l L. 1183 (2016).
Sexist laws are more prevalent in regions where poverty is endemic. The corollary is true as well: the places where women tend to experience better treatment are typically more highly developed. The legal academy has drawn several inferences from this observation, including the observations that poverty and the development process appear to be detrimental to women’s rights. But despite the strength of this relationship, few legal studies seek to understand precisely why gender inequality seems to be inextricably linked to poverty.
Our research finds the opposite of what is generally assumed: the act of depriving women of fundamental rights is the very cause of underdevelopment. First, using a law and economic approach, sexist laws appear to create perverse behavioral incentives whereby actors rationally engage in inefficient behaviors. This is because sexist laws, in contrast to other forms of discrimination, burden society’s basic economic unit—the family. For instance, regions that prohibit women from earning a wage depress the rate of investment since single-income families must approach the market overcautiously. These deductions are then supported by an original empirical analysis, which indicates that gender inequality and poverty are significantly and powerfully connected. Sexist laws are thus less the result of underdevelopment as much as its very cause.
Podcast: Busted: America’s Poverty Myths, from On the Media
#1: The Poverty Tour
#3: Rags to Riches
New Article: Raymond H. Brescia, “When Interests Converge: An Access-to-Justice Mission for Law Schools,” Geo. J. on Poverty L. & Pol’y (forthcoming).
In recent years, law schools have faced a crisis brought on by the external forces of technology, automation, and legal process outsourcing that has translated into poor job prospects for their graduates, and, in turn, a diminution in the number of students interested in attending law schools. Such external phenomena are joined by internal critiques of law schools: that they have failed to educate their students adequately for the practice of law and have adopted dubious strategies without a defining mission, all at a time when the market for legal services seems to be changing, perhaps dramatically. Paradoxically, while graduates face diminished job prospects, there is still a vast justice gap: the inability of millions of Americans to obtain legal assistance when facing a legal problem. There is thus an interest convergence between those who might want access to a lawyer and the law schools that strive to educate the next generation of lawyers and the ones after that. This Article uses this interest convergence — and the late Derrick Bell’s “Interest Convergence Theory” as a lens through which to view it — as an opportunity for law schools to retool their missions to confront the access-to-justice crisis facing many Americans. It argues that law schools should embrace an access-to-justice component to their missions to help increase demand for legal services, re-establish the value of legal assistance to the community, restore the importance of the legal profession in preserving and extending societally important rights and interests, and improve the demand for legal education.
Article: Jamie Lee, “Poverty, Dignity, and Public Housing,” 47 Colum. Hum. Rts. L. Rev. 97 (2016).
Antipoverty efforts are persistently subverted by broad societal contempt for poor people. The belief that poor people are morally and behaviorally inferior, and that their personal failings are the cause of their own poverty, is a staple of American opinion polls and political rhetoric. This presumption is so widespread that it even permeates antipoverty programs, which treat poor people with disdain even as they offer aid and assistance.
Income discrimination creates not just social stigma, but legal inequalities. The Supreme Court recognized some forty years ago that welfare law promoted wealth-based Constitutional inequalities, and responded by invoking the doctrines of equal protection and due process to protect the rights of the poor. The Court grounded these rulings in an affirmation of the human dignity of all people, regardless of wealth. Yet these dignitary rulings have not prevented societal discrimination against the poor from flourishing. This societal discrimination has consistently undermined antipoverty initiatives and turned programs meant to alleviate suffering into tools of subordination.
New Article: Yair Listoken, “Law and Microeconomics: The Law and Economics of Recessions,” Yale Law School Public Research Paper (Sept. 2016).
In this Article, I offer a macroeconomic perspective on law that reshapes the microeconomic perspective that currently dominates law and economics. I argue that 1. The economy works one way in ordinary economic conditions, in which supply capacity determines output, and a different way in deep recessions, in which demand for spending determines output. 2. Because the economy functions differently in deep recessions than in ordinary times, a law causes one set of effects in deep recessions and a different set of effects at other times. 3. Because the same law has different effects at different times, law should be different in deep recessions than in other times. Specifically, law should do more to promote spending in deep recessions than in ordinary economic conditions. Because the stakes of deep recessions are so high (tens of trillions of dollars in lost output, countless lives impaired, and political upheaval), I argue that the (significant) costs associated with introducing macroeconomics into law are worth bearing.
Article: Jonathan Zasloff, “The Price of Equality: Fair Housing, Land Use, and Disparate Impact,” 49 Columbia Rights Review (forthcoming, 2017).
What happens when local government policies run head-on into federal civil rights laws? Nowhere does this question assume greater importance than with land use and fair housing, yet in the nearly half-century since the passage of the Fair Housing Act (FHA), courts and commentators have skirted the question. With the Supreme Court’s recent decision in Inclusive Communities Project v. Texas, the most significant fair housing decision in the nation’s history, they can no longer do so. This Article represents the first sustained effort to show how the FHA affects land use, the most important power that cities have under American localism. The Supreme Court held for the first time that the FHA allows disparate impact liability, and outlined when such disparate impact cases can be brought. But it left many crucial questions unanswered, and this Article attempts to fill the gap. It concludes that when cities restrict affordable and multifamily housing, which often has a disparate impact on people of color, zoning ordinances must withstand intermediate scrutiny in order to be sustained. Courts must balance local policies with demands for inclusion: sometimes those policies will triumph, but in many instances they will not, for they rest on weak empirical or legal foundations, or they can be addressed in less restrictive ways. The Article sets forth a series of the most common scenarios and justifications for exclusionary zoning, and seeks to show that such justifications have far less purchase than is commonly supposed. The FHA comes nowhere close to abolishing zoning, but it does insist that local zoning must no longer exclude racial minorities, and the Court’s decision makes clear how fair housing advocates can and should use the law to fight such exclusion. If localities no longer have the discretion to exclude people of color, then that is the price of equality.
Article: Milan Markovic, “Lawyers and the Secret Welfare State,” 84 Fordham L. Rev. 1845 (2016).
Lawyers play an outsized role in the distribution of public benefits in the United States. This article suggests that, in assisting clients to circumvent stringent eligibility requirements for programs such as Social Security Disability Insurance (“SSDI”) and Medicaid, attorneys have created a secret welfare state that favors comparatively well-off Americans at the expense of the truly needy. Lawyers’ handling of evidence of non-disability in SSDI proceedings and participation in Medicaid planning is used to illustrate the argument.
News Article: Michael Kimmelman, “In ‘By the People,’ Designing for the Underserved and Overlooked,” New York Times, Sept. 29, 2016.