Article: Jonathan D. Glater, Student Debt and Higher Education Risk, 103 Cal. L. Rev. 1561 (2015).
To borrow for college is to take a risk. Indebted students may not earn enough to repay their loans after they graduate or, worse, may fail to graduate at all. For students who cannot pay for college without borrowing, this risk is both a disincentive and a penalty. Greater risk undermines the efficacy of federal financial aid policy that seeks to promote access to higher education. This Essay situates education borrowing within a larger cultural and political trend toward placing risk on individuals and criticizes this development for its failure to achieve any of the typical goals of legislation that allocates risk—such as prevention of moral hazard or other, particular public policy outcomes.
The Essay describes dramatic increases in student borrowing and explains the negative effects of greater reliance on debt, which increases the risk of investing in higher education. The Essay contends that recognizing student debt as a mechanism that transfers risk bolsters criticisms of increased borrowing and provides a consistent way to evaluate aid policy. The Essay outlines an insurance regime as the logical response to undesirable or unmanageable risk. Such a regime would preserve access to higher education and mitigate the danger of borrowing for college.
News Article: John Bouman, What’s at Stake in the States, The Shriver Brief (Feb. 23, 2017).
Series: Jeanna Smialek and Patricia Laya, The New Face of American Unemployment, Bloomberg (2017).
News Article: Abby Goodnough, The Adults a Medicaid Work Requirement Would Leave Behind, New York Times (Feb. 25, 2017).
Article: Richard M. Re, ‘Equal Right to the Poor,’ U. Chicago L. Rev. (forthcoming 2017).
By law, federal judges must swear or affirm that they will “do equal right to the poor and to the rich.” This frequently overlooked oath, which I call the “equal right principle,” has historical roots dating back to the Bible and entered U.S. law in a statute passed by the First Congress. Today, the equal right principle is often understood to require only that judges faithfully apply other laws. But that reading, like the idea that the rich and poor are equally barred from sleeping under bridges, is questionable in light of the equal right principle’s text, context, and history.
This Article argues that the equal right principle supplies at least a plausible basis for federal judges to promote substantive economic equality when implementing underdetermined sources of law. There are many implications. For example, the equal right principle suggests that federal courts may legitimately limit the poor’s disadvantages in the adjudicative and legislative processes by expanding counsel rights and interpreting statutes with an eye toward economically vulnerable groups. The equal right principle should also inform what qualifies as a compelling or legitimate governmental interest within campaign finance jurisprudence, as well as whether to implement “under-enforced” equal protection principles.
More broadly, the equal right principle should play a more central role in constitutional culture. The United States is unusual in that its fundamental law is relatively silent on issues of economic equality. The equal right principle can fill that void by providing a platform for legal and public deliberation over issues of wealth inequality. Through judicial confirmation hearings and other forms of public contestation, the equal right principle can help to specify federal judges’ legal and moral commitments toward the poor.
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News Article: Nelson D. Schwartz, “Small Factories Emerge as a Weapon in the Fight Against Poverty,” New York Times, Oct. 28, 2016.
Report: Housing Development Toolkit, The White House (Sept. 2016).