Category Archives: Inequality

New Article: “Reparations for Racial Wealth Disparity as Remedy for Social Contract Breach”

New Article: Martha M. Ertman, Reparations for Racial Wealth Disparity as Remedy for Social Contract Breach, Law and Contemporary Problems, Forthcoming. Abstract below:

Acute crises such as the COVID-19 pandemic and the 2008 financial meltdown exposed and exacerbated chronic racial wealth disparities. Those disparities accumulated over time as government and private actions—often involving contracts—systemically benefitted White Americans and institutions at the expense of African-Americans. This essay focuses on a private law mechanism—loan contracts—as one important contributor to systemic racial wealth disparities, labels particular lending contracts and related government action as breaches of the social contract, and proposes a restitution-based form of reparations as a remedy for that breach.

News Coverage: The Extraordinary Wealth Created by the Pandemic Housing Market

News Coverage: Emily Badger and Quoctrung Bui, The Extraordinary Wealth Created by the Pandemic Housing Market, N.Y. Times, May 1, 2022.

New Article: For Every Rat Killed

New Article: Etienne C. Toussaint, For Every Rat Killed, 9 Critical Analysis of Law 1 (2022). Abstract below:

If my grandmother had survived the sickness of old age and were alive to witness the economic injustices wrought by capitalist culture, what would she think? If my grandmother were alive to observe familiar technologies for exterminating household pests—surveil-lance, capture, imprisonment, disposal—being increasingly aimed toward low-income Black communities, what would she believe? If my grandmother were alive to discover, in the palm of her hands, a digital platform for spreading information (and misinformation) to the masses and painting new futures into the minds of lawmakers and politicians, what would she say?

Studies have shown that low-income individuals are more likely to suffer physiological and psychological harms than middle- and high-income individuals due to the substandard conditions of their communities. Yet, such indignities are justified by market opportunities to grasp for better—to take “personal responsibility” and “pull yourself up by the bootstraps”—even when the process of grasping for upward social mobility inflicts its own trauma. Placing Richard Wright’s novel “Native Son” and Tara Bett’s poem “For Those Who Need A True Story” in conversation with my personal narrative, this Essay explores the trauma of grasping for better in the United States where wealth inequities only seem to be getting worse.

In so doing, it considers whether capitalism’s competitive and individualistic culture—a spirit that thrives on the exploitation of the weak to further the capital accumulation of the strong—not only normalizes violence as a mechanism for social mobility but sews division and strife where alternative futures, perhaps even Afro-futures, might finally set us all free.

New Article: Antitrust and Inequality

New Article: Eric A. Posner & Cass Sunstein, Antitrust and Inequality, SSRN Feb. 2022. Abstract below:

In its current form, antitrust law is often said to advance consumer welfare and to disregard economic inequality. But with the right priority-setting and other modest reforms, efforts to increase consumer welfare might simultaneously reduce economic inequality. Because monopoly and monopsony benefit shareholders at the expense of workers and consumers, ideal enforcement of antitrust law should redistribute resources from shareholders to workers and consumers. Antitrust enforcement agencies seeking to reduce inequality might adjust their priorities and target markets that are disproportionately important for low-income people. We also suggest that antitrust law could, with little violence, be turned toward advancing consumer welfare (in the sense of utility) rather than consumer surplus. Agriculture and health care would be good places to start; food and medicine compose a larger share of the budget of low-income people than of others, and these goods are essential to basic well-being. Regulators should also give priority to labor markets, especially labor markets in which lower-income people participate, and especially where pay gaps based on race or gender are large. In some cases, it is also appropriate to consider sacrificing economic efficiency for distributional goals by introducing distributional weights into antitrust analysis; doing so can increase social welfare.

New Article: “Teaching Critical Tax: What, Why, And How”

New Article: Diane Klein, Teaching Critical Tax: What, Why, And How, Pittsburgh Tax Review, Forthcoming. Abstract below:

“Critical tax” is an approach to the analysis of tax law and policy that takes race, gender, sexual orientation, disability, citizenship/immigrant status, and other historically marginalized statuses into account, and does so in a way that is centrally focused on the role of tax law in creating and perpetuating persistent economic inequality and disadvantage. This descendant of Critical Legal Studies and Critical Race Theory has been around for more than twenty years. And yet, critical tax is almost entirely absent from the casebooks and syllabi used for the teaching of the core tax courses. This can and should change, and this Article is a practical guide to both why and how teachers of tax law should integrate critical tax perspectives into their courses.

Part I explores a basic question: what is “critical tax”? Part II advocates for the addition of critical tax perspectives to the teaching of tax law by describing some of the intellectual, pedagogical, and professional benefits associated with it. Finally, Part III shows tax teachers how to add these perspectives relatively seamlessly into traditional tax courses, by providing an annotated bibliography of readily available readings that can be added to Syllabi for the basic Federal Income Tax course. This bibliography is intended to provide some points of access to the critical tax literature; it is only a starting point, of course, and is neither comprehensive nor exhaustive.

The recommendation to include critical tax perspectives has precursors. In 2010, Professor Dorothy Brown published an essay called “Teaching Civil Rights Through the Basic Tax Course” in the St. Louis Law Review. Professor Brown at that point framed her approach as “how to incorporate race and class into the basic tax course,” which she paraphrases in her title as “civil rights.” She was not, at that stage, arguing for the inclusion of distinctively critical tax perspectives; it was challenging enough at that time simply to advocate that race (and class, and in some cases, gender) be taken into account at all. Similarly, while Anthony Infanti and Bridget Crawford’s 2009 anthology, CRITICAL TAX THEORY: AN INTRODUCTION, collects many important early works of feminist, queer, and other “outsider” tax scholarship, it too is now more than a decade old, a decade during which the editors and many others have made numerous very substantive contributions to the literature. The legal academic and pedagogical landscape has also changed in the past decade, and Critical Race Theory is currently on everyone’s radar. This Article, and particularly Part III, the critical tax bibliography, is intended to reflect this.

New Article: “Addressing the Community Trauma of Inequity Holistically: The Head and the Hear Head and the Heart Behind Structural Interventions”

New Article: Amy T. Campbell, Addressing the Community Trauma of Inequity Holistically: The Head and the Hear Head and the Heart Behind Structural Interventions, 98 Denv. L. Rev. 1 (2021). Abstract below:

hildhood trauma — or toxic stress — presents potential lifelong consequences on health and well-being and on family and neighborhood stability. The consequences of childhood trauma are grave, but recent research highlights the value of early intervention in addressing childhood trauma. As a result, calls for trauma-informed practices and programs have grown. Moving beyond individualized approaches, research increasingly looks to address a community’s ability to prevent or mitigate trauma. But more broadly, what if the community itself is a victim of trauma? How do communities dealing with the chronic stresses of intergenerational poverty, discrimination, and violence heal? Are there interventions that might help?

This Article explores this systemic “community trauma,” using cities as examples to illustrate the complex issues involved and the potential trauma-informed, comprehensive interventions available. Specifically, this Article focuses on structural reforms that address the root causes of trauma. I will discuss the effect of trauma on the following systems: health, education, housing, criminal justice, wealth, and employment. These systems are strong candidates for intervention. I then propose next steps to address community trauma across systems. But while this Article discusses discrete policy issues, it ultimately argues that community trauma requires broad solutions. These solutions are grounded in social policies. I call this side the “head” of treating community trauma.

Beyond this, however, achieving holistic justice via unified action requires community unity, a recognition of the value and dignity in the whole that is greater than self. I call this side the “heart” of treating community trauma. This Article calls for a re-envisioned way of effective structural policy reform, one driven by greater appreciation of the need for civic engagement and community building versus sole reliance on appeals to an idealized, “rational” policy solution. Drawing on literature from across fields (e.g., public health, political philosophy, behavioral economics), this Article seeks to build the case for a transdisciplinary, iterative, and fundamentally interpersonal approach to address complex, intersectoral, inequity-driving, and inequity-maintaining problems for healthier community development. Thus, in addition to the substantive goals, this Article also explores capacity-building approaches to community development to rethink how to remedy systemic inequity, the “trauma” that haunts many of our communities. In sum it takes the “head” and the “heart”—the whole community.

New Book: “Hedged Out: Inequality and Insecurity on Wall Street”

9780520307704Hedged Out: Megan Tobias Neely, Inequality and Insecurity on Wall Street (2022). Overview below:

A former hedge fund worker takes an ethnographic approach to Wall Street to expose who wins, who loses, and why inequality endures.

Who do you think of when you imagine a hedge fund manager? A greedy fraudster, a visionary entrepreneur, a wolf of Wall Street? These tropes capture the public imagination of a successful hedge fund manager. But behind the designer suits, helicopter commutes, and illicit pursuits are the everyday stories of people who work in the hedge fund industry—many of whom don’t realize they fall within the 1 percent that drives the divide between the richest and the rest. With Hedged Out, sociologist and former hedge fund analyst Megan Tobias Neely gives readers an outsider’s insider perspective on Wall Street and its enduring culture of inequality.

Hedged Out dives into the upper echelons of Wall Street, where elite white masculinity is the standard measure for the capacity to manage risk and insecurity. Facing an unpredictable and risky stock market, hedge fund workers protect their interests by working long hours and building tight-knit networks with people who look and behave like them. Using ethnographic vignettes and her own industry experience, Neely showcases the voices of managers and other workers to illustrate how this industry of politically mobilized elites excludes people on the basis of race, class, and gender. Neely shows how this system of elite power and privilege not only sustains itself but builds over time as the beneficiaries concentrate their resources. Hedged Out explains why the hedge fund industry generates extreme wealth, why mostly white men benefit, and why reforming Wall Street will create a more equal society.

New Book: The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy

9780674980624-lgNew Book: Joseph Fishkin & William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (2022). Overview below:

A bold call to reclaim an American tradition that argues the Constitution imposes a duty on government to fight oligarchy and ensure broadly shared wealth.

Oligarchy is a threat to the American republic. When too much economic and political power is concentrated in too few hands, we risk losing the “republican form of government” the Constitution requires. Today, courts enforce the Constitution as if it had almost nothing to say about this threat. But as Joseph Fishkin and William Forbath show in this revolutionary retelling of constitutional history, a commitment to prevent oligarchy once stood at the center of a robust tradition in American political and constitutional thought.

Fishkin and Forbath demonstrate that reformers, legislators, and even judges working in this “democracy-of-opportunity” tradition understood that the Constitution imposes a duty on legislatures to thwart oligarchy and promote a broad distribution of wealth and political power. These ideas led Jacksonians to fight special economic privileges for the few, Populists to try to break up monopoly power, and Progressives to fight for the constitutional right to form a union. During Reconstruction, Radical Republicans argued in this tradition that racial equality required breaking up the oligarchy of the Slave Power and distributing wealth and opportunity to former slaves and their descendants. President Franklin Roosevelt and the New Dealers built their politics around this tradition, winning the fight against the “economic royalists” and “industrial despots.”

But today, as we enter a new Gilded Age, this tradition in progressive American economic and political thought lies dormant. The Anti-Oligarchy Constitution begins the work of recovering it and exploring its profound implications for our deeply unequal society and badly damaged democracy.

New Article: Credit Scoring Duality

New Article: Pamela Foohey & Sara Sternberg Greene, Credit Scoring Duality, Law and Contemporary Problems, Vol. 58, 2022 Forthcoming. Abstract below:

Credit scoring is central to people’s financial growth and prosperity or financial decline and stagnation. People with a good credit score and accompanying credit report can buy opportunities to advance economically. The benefits they reap from their attractiveness to lenders and employers helps feed their future success. In contrast, people with a fair or poor credit score become stuck in cycle of high interest rates and costly loan terms, large required down payments, and denied applications for rentals, cell phone plans, and employment. Employers, service providers, lenders, and alternative financial service providers have begun to use alternative credit scoring models, which rely on data not typically tracked by the three major credit bureaus, such as income, rental history, and subscription services. Although touted as beneficial, the use of this alternative data does not necessarily make people more attractive because they perform below-average on many of the inputs. For instance, they earn lower salaries and have imperfect rental histories. Ultimately, most of the people with fair and poor scores, however calculated, find it nearly impossible to erase the blemishes that feed those scores. This essay, written as part of Two Americas symposium, details how the increasing reliance on credit scores has made this type of scoring integral to people’s access to the gates of economic citizenship. The increasing reliance on credit scoring has helped perpetuate and fuel household economic inequality. The essay concludes with a proposal for how to support people who lack the credit history or family assistance often needed to succeed in a financial world that depends on scoring.

New Article: Inheriting Privilege

New Article: Allison Anna Tait, Inheriting Privilege, Minnesota Law Review, Vol. 106, 2021 (forthcoming). Abstract below:

All families may be created equal, so to speak. But differences between families in terms of economic wealth, resource networks, and access to cultural capital are both severe and stark. A large part of what shapes this scenery of economic possibility is the legal framework of wealth transfer. Wealth travels through generations and sticks, crystallizing in predictable places and shapes, thereby embedding complex forms of inequality within and between families. The family trust, in particular, is a mode of transfer that facilitates wealth preservation as well as wealth inequality. Family trusts are tailored to convey and defend complex patrimonies in ways that no other form of wealth transfer can do. Wills, the other most common form of wealth transfer, do not have the same functionality and can only effectuate a one-time transfer, making it difficult to exert long-term control over beneficiaries.

This Article’s primary goal is to excavate the myriad ways in which the family trust is a driver of inequality by explaining the family trust’s plasticity and ability to bend to the needs of high-wealth families. The Article accomplishes this by demonstrating how the family trust facilitates not only wealth inequality but also social and cultural inequality. These explorations into complex inequality and its furtherance by the family trust are useful because they help us better appreciate the significant role that family trusts play in the evolving story of class, gender, and race privilege in the United States. Attending to the practices and possibilities of the family trust also leads us to a better understanding of how trust reform might begin to dislocate the family trust from its central positioning within the legal architecture of inequality. Ultimately, the family trust does not have to be coextensive with elite family advantage; it can be reimagined to work on behalf of communities that are economically vulnerable and historically dispossessed.