-Thanks to Emily B. for the heads up!
-Thanks to Emily B. for the heads up!
New Article: Darren Lenard Hutchinson, “Continually Reminded of Their Inferior Position”: Social Dominance, Implicit Bias, Criminality, and Race, 46 Wash. U. J.L. & Pol’y 23 (2014). Abstract below:
This Article contends that implicit bias theory has improved contemporary understanding of the dynamics of individual bias. Implicit bias research has also helped to explain the persistent racial disparities in many areas of public policy, including criminal law and enforcement. Implicit bias theory, however, does not provide the foundation for a comprehensive analysis of racial inequality. Even if implicit racial biases exist pervasively, these biases alone do not explain broad societal tolerance of vast racial inequality. Instead, as social dominance theorists have found, a strong desire among powerful classes to preserve the benefits they receive from stratification leads to collective acceptance of group-based inequality. Because racial inequality within criminal law and enforcement reinforces the vulnerability of persons of color and replicates historical injuries caused by explicitly racist practices, legal theorists whose work analyzes the intersection of criminality and racial subordination could find that social dominance theory allows for a rich discussion of these issues.
New Year’s Resolutions: Ten Ways to Combat Upward Redistribution of Income | BillMoyers.com. (written by Dean Baker).
Article Review: Toni Williams, “By All Means Possible,” Jotwell, Oct. 6, 2014 (reviewing Thomas Mitchell, Growing Inequality and Racial Economic Gaps, 56 How. L. J. 849(2013)).
NOTE: it is great to see that Jotwell has expanded its coverage such that there is more space for coverage of poverty related articles.
New Article: Joseph Fishkin & William E. Forbath, The Anti-Oligarchy Constitution, 94 B.U. L. Rev. 671 (2014). Abstract below:
America has awakened to the threat of oligarchy. While inequality has been growing for decades, the Great Recession has made clear its social and political consequences: a narrowing of economic opportunity, a shrinking middle class, and an increasingly entrenched wealthy elite. There remains broad agreement that it is important to avoid oligarchy and build a robust middle class. But we have lost sight of the idea that these are constitutional principles.
These principles are rooted in a tradition we have forgotten – one that this Article argues we ought to reclaim. Throughout the nineteenth and early twentieth centuries, generations of reformers responded to moments of mounting class inequality and crises in the nation’s opportunity structure with constitutional claims about equal opportunity. The gist of these arguments was that we cannot keep our constitutional democracy – our republican form of government – without constitutional restraints against oligarchy and a political economy that maintains a broad middle class, accessible to everyone. Extreme class inequality and oligarchic concentrations of power pose distinct constitutional problems, both in the economic sphere itself and because economic and political power are intertwined; a “moneyed aristocracy” or “economic royalists” may threaten the Constitution’s democratic foundations.
This Article introduces the characteristic forms of these arguments about constitutional political economy and begins to tell the story of anti-oligarchy as a constitutional principle. It offers a series of snapshots in time, beginning with the distinctive political economy of the Jacksonian Democrats and their vision of equal protection. We then move forward to Populist constitutionalism, the Progressives, and the New Deal. The Constitution meant different things to these movements in their respective moments, but all understood the Constitution as including some form of commitment to a political economy in which power and opportunity were dispersed among the people rather than concentrated in the hands of a few. We conclude with a brief discussion of how this form of constitutional argument was lost, and what might be at stake in recovering it.
New Article: Michele E. Gilman, A Court for the One Percent: How the Supreme Court Contributes to Economic Inequality, Utah L. Rev. (forthcoming 2014). Abstract below:
This Article explores the United States Supreme Court’s role in furthering economic inequality. The Occupy Wall Street movement in 2011 not only highlighted growing income and wealth inequality in the United States, but also pointed the blame at governmental policies that favor business interests and the wealthy due to their outsized influence on politicians. Numerous economists and political scientists agree with this thesis. However, in focusing ire on the political branches and big business, these critiques have largely overlooked the role of the judiciary in fostering economic inequality. The Court’s doctrine touches each of the major causes of economic inequality, which includes systemic failures of our educational system, a frayed social safety net, probusiness policies at the expense of consumers and employees, and the growing influence of money in politics. In each of these areas, the Court’s deference to legislative judgments is highly selective and driven by a class-blind view of the law that presumes that market-based results are natural, inevitable, and beneficial. For instance, the Court rejects government attempts to voluntarily desegregate schools, while deferring to laws that create unequal financing for poor school districts. The end result is that poor children receive subpar educations, dooming many of them to the bottom of the economic spectrum. Similarly, the Court overturned Congress’s attempt to rein in campaign financing, while upholding state voter identification laws that suppress the votes of the poor. These decisions distort the electoral process in favor of the wealthy. In short, the Court tends to defer to laws that create economic inequality, while striking down legislative attempts to level the playing field. While a popular conception of the Court is that it is designed to protect vulnerable minorities from majoritarian impulse, the Court, instead, is helping to protect a very powerful minority at the expense of the majority. This Article is one step toward understanding how law intertwines with politics and economics to create economic inequality.