New Article: Erez Aloni, The Marital Wealth Gap, 93 Wash. L. Rev. 1 (2018). Abstract below:
Married couples are wealthier than people in all other family structures. The top 10% of wealth holders are, in great proportion, married. Even among the wealthiest households, married couples hold significantly more wealth than others. The Article identifies this phenomenon as the “Marital Wealth Gap,” and critiques the role of diverse legal mechanisms in creating and maintaining it. Marriage also contributes to the concentration of wealth because marriage patterns are increasingly assortative: wealth marries wealth. The law entrenches or even exacerbates these class-based marriage patterns by erecting structural barriers that hinder people from meeting across economic strata.
How can the state restructure the law to alleviate the marital wealth gap? The Article proposes a fundamental shift in the way the state treats wealth and family status. It advances a theory grounded in transformative “recognition and redistribution” that decentralizes marriage’s monopoly on wealth-related benefits and simultaneously aims to reduce wealth concentration among the richest households. Principally, since marriage is the preserve of the well-off, the state should decouple wealth benefits from marriage. At the same time, it should combat the structures that enable wealth concentration among affluent married couples, thereby dismantling the architecture that supports the marital wealth gap.
New Book Chapter: Mark Tushnet, The Inadequacy of Judicial Enforcement of Constitutional Rights Provisions to Rectify Economic Inequality, and the Inevitability of the Attempt, SSRN 2018. Abstract below:
This essay, to appear in a chapter in Judicial Review: Process, Power and Problems, edited by Shruti Bedi and Lokendra Malik, a festschrift for Upendra Baxi, argues that the pursuit of judicially enforced social welfare and equality rights in the modern world is bound to fail but must be pursued. The contemporary picture of judicial enforcement of social welfare rights in one in which there is a consensus that such enforcement is possible, general agreement that enforcement should be dialogic rather than coercive, and a sense that enforcement is rather less effective than is desirable. As to the last, the essay argues that the predicate for generating resources to finance the provision of social welfare rights – investment from abroad – generates economic and legal limitations that inhibit the government from accumulating those resources. The essay develops a parallel argument about judicial enforcement of substantive equality rights, referring specifically to problems associated with the horizontal effect/state action doctrine. The conclusion here is that courts have the capacity to move outcomes in the direction of substantive equality, and might not face overwhelming constraints from the domestic political system, but their ability to achieve true substantive equality is limited by economics, both domestic and international.
Yet, where constitutions are committed to substantive equality and social and economic rights, the lesson of the twentieth century is that judges will – and should – attempt to enforce those commitments. Enforcing the constitution – the entire constitution – is what democratic-minded citizens have come to expect of their courts. What is needed is a realistic understanding of what courts can accomplish – less than one might hope (the noble dream), but more than nothing (the nightmare). The attempt more than the achievement is what matters. The task then might be to develop a judicial rhetoric associated with the enforcement of these rights that effectively communicates why what the courts are doing is worth doing, why what they are doing is not enough, and why it is as much as the courts can do.
New Article: David Herzig, The Income Equality Case for Eliminating the Estate Tax, 90 S. Cal. L. Rev. 1143 (2017). Abstract below:
The estate tax and income tax rules independently attempt to either promote or deter different behaviors. The interaction of these different rules often leads to disparate or unintended consequences to taxpayers: for example, achieving an overall lower effective tax rate by paying more estate tax to lower the income tax rate. This overlay of the estate tax rules on the income tax rules is a key problem at the core of our tax system. Yet, few scholars focus on this topic.
In this Article, I document the actual behavior of the trust and estate bar. By looking at how attorneys approach the intersection of estate and income taxes, I demonstrate deficiencies in the current scholarly belief, which is based largely on anecdotal information, that the wealthy have a preference for paying less or no estate tax. I show the real-world preferences that indicate wealthy taxpayers are paying high levels of estate tax to minimize the income tax incidents. After showing the shift of preferences and the resulting overall tax loss to the fisc, the Article then proposes useful policy solutions, such as elimination of the estate tax or using death as an income tax triggering event.
New Article: Kate Andrias, The Fortification of Inequality: Constitutional Doctrine and the Political Economy, forthcoming Indiana L.J. (SSRN 2018). Abstract below:
Judge-made constitutional doctrine, though by no means the primary cause of rising inequality, has played an important role in reinforcing and exacerbating it. This Symposium Essay examines judges’ role with particular focus on the areas of labor and education. It shows that judges have acquiesced to legislatively structured economic inequality, while also restricting the ability of legislatures to remedy it. Moreover, for several decades, even the Supreme Court’s more liberal members have offered only tepid opposition to economically regressive constitutional interpretations, sometimes helping shape them. Yet, while much constitutional law relating to the distribution of economic and political power and the nonexistence of social welfare rights now seems indisputable, sometimes even quintessentially American, regressive holdings were once hotly contested and deeply divided. Indeed, the losing side had equally strong, if not stronger, doctrinal arguments.
These descriptive observations, in turn, form the basis for three claims about the future of constitutional law. First, judges matter. Progressives ought not lose sight of their importance. Although strong arguments counsel against turning to courts as primary agents for social and economic change, courts are critical in constructing the political economy. Second, for those who object to economic inequality, mere resistance to the Trump agenda and efforts to return to the constitutional status quo ante are not enough. In particular, the liberal embrace of judicial minimalism has contributed to the fortification of economic inequality; a fundamental shift is needed. Third, such change is plausible, not utopian. Particularly if Americans begin to challenge inequality in the political and social realm, constitutional change in the courts will become not only imperative but also achievable.
Upcoming Conference: “Race, Inequality, and Debt” – Irvine, Mar. 16-17, 2018. Includes a great list of speakers.
New Article: Thomas Scott-Railton, Shifting the Scope: How Taking School Demographics into Account in College Admissions Could Reduce K-12 Segregation Nationwide, 36 Yale Law & Policy Review 219 (2018). Abstract below:
Deepening racial and socioeconomic segregation is producing unequal educational outcomes at the K-12 level, outcomes that are then reproduced in higher education. This is particularly true as rising competition among colleges has led many of them to focus increasingly on measures of merit that correlate with income and as parents and students adjust their behavior in light of those metrics. While existing affirmative action programs at colleges provide some counterweight to this dynamic, they are limited by institutional (and constitutional) constraints. Out of concern for revenue and rankings, many colleges are constrained in the number of students from low-income backgrounds they are willing to admit. Such a limited scope is not inevitable, however.
If colleges were to give a substantial admissions bonus to applicants who had attended K-12 schools with at least a certain percentage of low-income students, higher education could become a force for countering inequality at the K-12 level, instead of reproducing it. College admissions policies serve as a crucial reference point for parents, students, and educators on down through K-12. By rewarding applicants for attending socioeconomically integrated schools, colleges would mobilize the resources of private actors across the country towards integration. The benefits of this would be significant, especially for students from low-income families who would have an increased chance of attending integrated K-12 schools as a result. Such a policy would also help colleges better foster diversity on campuses, as more students would have had prior experience in integrated settings.
This Note explores the ongoing problem of K-12 re-segregation, argues that by adopting this policy colleges could work to promote integration, examines how such a policy could best be designed to do so, and addresses why such a policy would be constitutional. At a time when educational inequality is on the rise, there is an urgent need for new affirmative action proposals that can combat segregation and do so within colleges’ existing constitutional and institutional constraints. The policy proposal advocated in this Note would do both, interrupting key elements of the present vicious circle.
News Coverage: Elizabeth Kolbert, The Psychology of Inequality, The New Yorker, Jan. 15, 2018.
-Thanks to Francine Lipman for the heads up!
New Report: “World Inequality Report 2018” [Note: this is a very professionally done report with big “coordinator” scholars behind it and has great charts.]
Book Review: Archon Fung, It’s the Gap, Stupid, Boston Review, Sept. 1, 2017 [editorial note: worth reading].
Op-ed: Jim Hightower, Inequality is Feeding America, CommonDreams, Jan. 3, 2018.