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.
New Article: Naomi Cahn & June Carbone, Uncoupling, 53 Ariz. St. L.J. 1 (2021). Abstract below:
A series of Supreme Court decisions recognize the end of the federal–state–corporate partnership that once provided a foundation for employment security and family stability. That partnership, which reached its pinnacle during the industrial era, established a family wage made available to the majority of the male population through unionization, a social safety net that filled the gaps left by wage labor, and the extension of these public and private benefits to women and children through marriage.
Uncoupling shows how family security and stability can no longer be linked to employment or marriage, requiring a redesign of the state response. The Supreme Court has framed the necessary elements in that response. First, although other scholars note that the Court’s marriage equality decision in Obergefell celebrates marriage, this Article emphasizes that the decision rejects the historical conception of marriage that made it mandatory, gendered, and foundational to family security. Second, the Court’s opinion in Little Sisters of the Poor in 2020 reaffirms the Court’s earlier decisions that employers owe no civic obligations to their employees or the public good and are thus inappropriate partners for the administration of state benefits. Third, the Court’s ongoing decisions interpreting the Affordable Care Act, including those pending during the upcoming Supreme Court term, lend more support to direct state–citizen compacts than to employment-based benefits.
What other legal scholars have yet to acknowledge is that these decisions point the way toward the emergence of a new legal order. This Article’s groundbreaking analysis of the rise and fall of the male family wage leads to the conclusion that coupling—between men and women in marriage and between employers and state-sponsored benefits—no longer works, clearing the way for the creation of a new legal order.
New Book: Jon C. Dubin, Social Security Disability Law and the American Labor Market (2021). Overview below:
How social security disability law is out of touch with the contemporary American labor market
Passing down nearly a million decisions each year, more judges handle disability cases for the Social Security Administration than federal civil and criminal cases combined.
In Social Security Disability Law and the American Labor Market, Jon C. Dubin challenges the contemporary policies for determining disability benefits and work assessment. He posits the fundamental questions: where are the jobs for persons with significant medical and vocational challenges? And how does the administration misfire in its standards and processes for answering that question? Deploying his profound understanding of the Social Security Administration and Disability law and policy, he demystifies the system, showing us its complex inner mechanisms and flaws, its history and evolution, and how changes in the labor market have rendered some agency processes obsolete. Dubin lays out how those who advocate eviscerating program coverage and needed life support benefits in the guise of modernizing these procedures would reduce the capacity for the Social Security Administration to function properly and serve its intended beneficiaries, and argues that the disability system should instead be “mended, not ended.”
Dubin argues that while it may seem counterintuitive, the transformation from an industrial economy to a twenty-first-century service economy in the information age, with increased automation, and resulting diminished demand for arduous physical labor, has not meaningfully reduced the relevance of, or need for, the disability benefits programs. Indeed, they have created new and different obstacles to work adjustments based on the need for other skills and capacities in the new economy—especially for the significant portion of persons with cognitive, psychiatric, neuro-psychological, or other mental impairments. Therefore, while the disability program is in dire need of empirically supported updating and measures to remedy identified deficiencies, obsolescence, inconsistencies in application, and racial, economic and other inequities, the program’s framework is sufficiently broad and enduring to remain relevant and faithful to the Act’s congressional beneficent purposes and aspirations.
New Article: Jennifer J. Lee, Legalizing Undocumented Work, 42 Cardozo L. Rev. 1893 (2021). Abstract below:
An estimated eight million undocumented workers live as a subclass of workers in the United States. Their essential work is cast in a shadow of “illegality” because federal immigration law prohibits employers from hiring such workers. As a result, undocumented workers are relegated to low-paying jobs in specific industries, such as agriculture, construction, or domestic work. Employers can easily take advantage of such workers by paying them less than the minimum wage or requiring them to work under dangerous conditions.
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: Abbye Atkinson, Commodifying Marginalization, 71 Duke L.J. 773 (2022). Abstract below:
Pillars of U.S. social provision, public pension funds rely significantly on private investment to meet their chronically underfunded promises to America’s workers. Dependent on investment returns, pension funds are increasingly investing in marginalized debt, namely the array of high-interest-rate, subprime, risky debt—including small-dollar installment loans and other forms of subprime debt—that tends to concentrate in and among historically marginalized communities, often to catastrophic effect. Marginalized debt is a valuable investment because its characteristically high interest rates and myriad fees engender higher returns. In turn, higher returns ostensibly mean greater retirement security for ordinary workers who are themselves economically vulnerable in the current atmosphere of public welfare retrenchment. They must increasingly fend for themselves if they hope to retire at a decent age and with dignity, if at all.
This Article surfaces this debt-centered relational connection between two socio-economically vulnerable groups: retirement-insecure workers and marginalized borrowers. It argues that in the hands of private financial intermediaries, whose fiduciary duties and profit-sensitive incentives eschew broader moral considerations of the source of profits or the social consequences of regressive wealth extraction, depends openly on the tenuous socioeconomic condition of one community as a source of wealth accumulation for another vulnerable community. Consequently, it argues that the incursion of private entities into the arena of public welfare is pernicious because it commodifies and reinforces the subordinate socioeconomic conditions on which marginalized debt thrives.
New Article: Brian Galle, The American Rescue Plan and the Future of the Safety Net, 131 Yale L.J. Forum 561 (2021). Abstract below:
In the year preceding the American Rescue Plan (ARPA), the unemployment insurance system in many states collapsed, leaving many workers to wait weeks and months to receive benefits. Millions more were ineligible despite losing significant sources of earned income.
This Essay examines the pressures that made the unemployment insurance (UI) system crumble and aims to sketch a way forward. UI cannot survive without much more extensive federal funding, and this Essay explores several design options.
I also propose tentative answers to the data issues and moral hazard worries that have been major obstacles to supporting the millions who work in part-time and gig jobs.
Finally, I examine the constitutional and budgetary obstacles to safety-net reform. For example, current federal budget rules perversely penalize efforts to enact “automatic stabilizers” built to respond immediately to future crises. In effect, these rules damage our economic future in the name of preserving it.
New Article: Deborah A. Widiss, Chosen Family, Care, and the Workplace, forthcoming Yale L. J. Forum. Abstract below:
Fewer than twenty percent of American households consist of a traditional nuclear family—a married couple living together with their shared children. Couples routinely live together without marrying, blended and multigenerational families are increasingly common, and many adults, including a sizeable share of senior citizens, live alone. It is therefore not surprising that employees often request time off work to care for the medical needs of loved ones who are part of their extended or chosen family.
Until recently, most workers would not have had any legal right to take such leave. A rapidly growing number of state laws, however, not only guarantee paid time off for family health needs but also adopt innovative and expansive definitions of eligible family. Several provide leave to care for intimate partners without requiring legal formalization of the relationship and they also explicitly cover a broad range of extended family. Some go further to include any individual who has a relationship with the employee that is “like” or “equivalent to” a family relationship. Still others employ a functional approach that simply asks whether a sick individual depends on the employee for care.
This Essay provides the first detailed analysis of inclusive definitions of family enacted in state paid leave laws, as well as similar language in proposed federal legislation. It argues that providing workers the autonomy to define their own concept of family is essential, given varied makeup of modern families. A flexible standard is especially important for people of color and the LGBTQ+ community, whose care networks are particularly likely to extend beyond the boundaries of the nuclear family.
Such flexibility, however, can pose administrative challenges. The laws will only achieve their purpose if both public and private personnel implementing them understand the broad scope of coverage and take steps to ensure that employees whose families depart from traditional norms are protected from workplace discrimination. This Essay identifies potential obstacles to effective implementation and suggests strategies for addressing them.