Category Archives: Inequality

New Article: Dr. King’s Dream of Affirmative Action

New Article: David B. Oppenheimer, Dr. King’s Dream of Affirmative Action, U.C. Berkeley Public Law Research Paper (2017). Abstract below:

President Trump and Attorney General Sessions have decided to challenge affirmative action policies in higher education as a form of discrimination against white people. We should expect them to soon be citing Dr. King’s “I Have A Dream” speech as evidence that Dr. King would be supporting their position if he were still alive. We should also expect them to propose that class-based affirmative action replace race-based affirmative action, and again cite Dr. King, as a supporter of remedies for poverty, regardless of race. Indeed, the contemporary debate about affirmative action increasingly pits those who support race-based affirmative action against those calling for class-based affirmative action, which is frequently described as a “color-blind” alternative. And in support of this alternative to race-conscious affirmative action, its proponents often invoke Dr. King as a supporter of color-blind affirmative action.

The truth is more complicated, and infinitely more interesting and instructive. While Dr. King dreamed of a time when racism – and thus race – would be irrelevant, he was an active supporter of both kinds of affirmative action – race-based and class-based. As a supporter of race-conscious affirmative action, he spent much of the last six years of his life actively promoting it, including the use of racial quotas in employment. Specifically, from 1962-68 Dr. King orchestrated and implemented “Operation Breadbasket,” a civil rights boycott campaign that demanded racial quotas through the employment of Black American workers in proportion to their number in a workforce, neighborhood or city. With regard to class-based affirmative action Dr. King supported a massive war on poverty. In advocating for special benefits for poor Americans he sometimes used color-blind language and pointed out that it would benefit poor whites as well as poor Blacks, while at other times he justified it as an example of the kind of reparations to which Black Americans were entitled under the equitable remedy of restitution for unpaid wages. To those who invoke Dr. King as a supporter of color-blindness and an opponent of race-conscious affirmative action, and to those who advocate race-conscious affirmative action over class-based affirmative action, nearly fifty years after his murder Dr. King’s voice continues to send us an important message: we don’t need to choose one approach over the other; we can and should do both.


New Article: Trapped in Tragedies: Childhood Trauma, Spatial Inequality, and Law

New Article: David Dante Troutt, Trapped in Tragedies: Childhood Trauma, Spatial Inequality, and Law, 101 Marq. L. Rev. 601 (2018). Abstract below:

Each year, psychological trauma arising from community and domestic violence, abuse, and neglect brings profound psychological, physiological, and academic harm to millions of American children, disproportionately poor children of color. This Article represents the first comprehensive legal analysis of the causes of and remedies for a crisis that can have lifelong and epigenetic consequences. Using civil rights and local government law, this Article argues that children’s reactions to complex trauma represent the natural symptomatology of severe structural inequality—legally sanctioned environments of isolated, segregated poverty. The sources of psychological trauma may be largely environmental, but the traumatic environments themselves are caused by spatial inequality. This Article sets forth a theory of structural inequality that demonstrates the importance of place-based differences in institutional functioning and the role of such disparities in producing the neurobiological, psychological, and behavioral outcomes comprehensively described in the literature from those disciplines (including the results of an original study of Newark, New Jersey school children). International analogies show how similarly human beings process traumatic events. This alternative legal analysis of child trauma compels a different remedial approach to both intervention and prevention. It argues that interventions like special education reform are necessary but problematic because they risk pathologizing the African American poor and exhausting institutional capacity. Instead, it provides a framework for prevention focused upon increasing mobility options and reforming local institutions.

New Op-Ed: We can’t solve homelessness until we understand how we’ve made it worse

New Op-Ed: Benjamin Holtzman, We can’t solve homelessness until we understand how we’ve made it worse, Wash. Post, October 25, 2018.

New Article: Exclusionary Taxation

New Article: Shayak Sarkar & Josh Rosenthal, Exclusionary Taxation, Harv. Civ. Rights – Civ. Lib. L. Rev. (2018), Forthcoming. Abstract below:

Property tax assessments appear to be technocratic calculations. But they may be calculated to discriminate, even unintentionally. California’s constitutional limitations on property taxes, as first enacted by Proposition 13 in 1978, remain the poster child for the so-called “property tax revolt” of the late twentieth century. Such laws privilege preexisting homeowners by capping assessments at historic levels far below contemporary value. As property prices rise, beneficiary homeowners may even bequeath this taxpayer windfall to their descendants and immortalize these underassessments. Newer, increasingly diverse residents end up paying higher taxes because the law treats them with less regard than their more pedigreed neighbors. These tax policies are rationalized as providing “stability” to the existing residents. The aggrieved have found cold comfort in the Constitution, with the Supreme Court upholding the core of California’s system in the canonical Nordlinger v. Hahn.

In this Article, we argue that even if such exclusionary tax policies do not violate the Constitution, they likely violate another facet of federal law: the Fair Housing Act’s disparate impact liability. Our contributions are threefold. First, as a procedural matter, we identify recent caselaw that offers a means for such legal challenges to enter the courthouse door. Although state and federal courts in the twentieth century erected barriers to judicial review of property tax policies, we argue that the landscape has changed.

Second, using California as a case study, we illuminate the contours of a Fair Housing Act challenge to discriminatory, acquisition-value assessments. We do so with reference to prior and ongoing tax litigation in diverse municipalities, namely Long Island and metropolitan Detroit. We thus explore the federal prohibition of what we call “exclusionary taxation.”

Third and most significantly, we train our sights on the justifications for exclusionary taxes. We map, and begin to reconcile, the tensions between, on one hand, recognized local government interests in “stability,” and, on the other, property-based inclusion of a demographically-evolving America. We argue that, while property tax assessments can be used to protect existing homeowners, they must be employed through narrowly tailored methods, such as circuit breakers or deferred payment, rather than overly broad acquisition-value assessment systems. While the latter might pass constitutional muster, they fail to comply with the Fair Housing Act’s vision of property-based pluralism.

New Book: Democracy and the Welfare State

democracy and the welfare stateNew book: Alice Kessler-Harris & Maurizio Vaudagna, Democracy and the Welfare State: The Two Wests in the Age of Austerity, Columbia Univ. Press, 2017.


After World War II, states on both sides of the Atlantic enacted comprehensive social benefits to protect working people and constrain capitalism. A widely shared consensus specifically linked social welfare to democratic citizenship, upholding greater equality as the glue that held nations together. Though the “two Wests,” Europe and the United States, differ in crucial respects, they share a common history of social rights, democratic participation, and welfare capitalism. But in a new age of global inequality, welfare-state retrenchment, and economic austerity, can capitalism and democracy still coexist?

In this book, leading historians and social scientists rethink the history of social democracy and the welfare state in the United States and Europe in light of the global transformations of the economic order. Separately and together, they ask how changes in the distribution of wealth reshape the meaning of citizenship in a post-welfare-state era. They explore how the harsh effects of austerity and inequality influence democratic participation. In individual essays as well as interviews with Ira Katznelson and Frances Fox Piven, contributors from both sides of the Atlantic explore the fortunes of the welfare state. They discuss distinct national and international settings, speaking to both local particularities and transnational and transatlantic exchanges. Covering a range of topics—the lives of migrant workers, gender and the family in the design of welfare policies, the fate of the European Union, and the prospects of social movements—Democracy and the Welfare State is essential reading on what remains of twentieth-century social democracy amid the onslaught of neoliberalism and right-wing populism and where this legacy may yet lead us.

New Article: Against Market Insularity: Market, Responsibility, and Law

New Article: Avihay Dorfman, Against Market Insularity: Market, Responsibility, and Law, Cornell Journal of Law and Public Policy, 2018. Abstract below:

In this paper, I take stock of some leading attempts to drive a wedge between distinctively market reasoning and practical (including moral) reasoning. Although these attempts focus on different normative foundations — the epistemology of market interaction, the autonomy of its participants, the stability-enhancing quality of markets, and the authority of democratic decision-making — they are of a piece insofar as they seek to trivialize the role of private responsibility for realizing the demands of morality and justice. Essentially, they seek to insulate, at least to an important extent, the market practice of doing well from the demands of doing right. I argue that they each fail, and that their respective failures motivate the pursuit of a more successful conception of the interaction between markets and morality. I argue that the key to developing this conception is law and, in particular, the legal forms of interaction that lie at the center of economic markets. Rather than merely facilitating any number of desirable goals, these legal forms construct the moral landscape within which market participants act. This observation opens the door for a better account of the ineliminable place of moral responsibility in and around the market.

New Blog Post: A Sense of Alarm as Rural Hospitals Keep Closing

New blog post: Austin Frakt, A Sense of Alarm as Rural Hospitals Keep Closing,, Oct. 29, 2018.

New Article: Vulnerability, Access to Justice, and the Fragmented State

New Article: Elizabeth L. MacDowell, Vulnerability, Access to Justice, and the Fragmented State, 23 Mich. J. Race & L. 51 (2018). Abstract below:

This Article builds on theories of the fragmented state and of human and institutional vulnerability to create a new, structural theory of “functional fragmentation” and its role in access to justice work. Expanding on previous concepts of fragmentation in access to justice scholarship, fragmentation is understood in the Article as a complex phenomenon existing within as well as between state institutions like courts. Further, it is examined in terms of its relationship to the state’s coercive power over poor people in legal systems. In this view, fragmentation in state operations creates not only challenges for access, but also opportunities for resistance, resilience, and justice. Focusing on problem-solving courts, and family courts in particular, the Article examines the intersection of human and institutional vulnerability within legal institutions and provides a framework for identifying ways to create greater access to justice. The Article contributes to state theory and the feminist theory of vulnerability, while providing a new way to understand and address an increasingly coercive state and its punitive effects on low-income people.

New Article: Exclusionary Megacities

New Article: Wendell Pritchett & Shitong Qiao, Exclusionary Megacities, 91 So. Cal. L. Rev. 3 (2018) Forthcoming. Abstract below:

Human beings should live in places where they are most productive, and megacities, where information, innovation and opportunities congregate, would be the optimal choice. Yet megacities in both China and the U.S. are excluding people by limiting housing supply. Why, despite their many differences, is the same type of exclusion happening in both Chinese and U.S. megacities? Urban law and policy scholars argue that Not-In-My-Backyard (NIMBY) homeowners are taking over megacities in the U.S. and hindering housing development therein. They pin their hopes on an efficient growth machine that makes sure “above all, nothing gets in the way of building.” Yet the growth-dominated megacities of China demonstrate that relying on business and political elites to provide affordable housing is a false hope. Our comparative study of the homeowner-dominated megacities of the U.S. and growth-dominated megacities of China demonstrates that the origin of exclusionary megacities is not a choice between growth elites and homeowners, but the exclusionary nature of property rights. Our study reveals that megacities in the two countries share a property-centered approach, which prioritizes the maximization of existing property interests and neglects ultimate housing consumers’ interests, resulting in unaffordable housing. Giving housing consumers a voice in land use control and urban governance becomes the last resort to counteract this result. This comparative study shows that the conventional triangular framework of land use comprising government, developers, and homeowners is incomplete, and argues for a citizenship-based approach to urban governance. The essential component of this approach is clearly defining the boundary between the political and property markets, facilitating citizens’ equal access and participation in the political market that set general parameters for development while leaving individual development decisions to the property market.

New Blog Post: An exclusive look at Cory Booker’s plan to fight wealth inequality: give poor kids money

New Blog Post: Sarah Kliff, An exclusive look at Cory Booker’s plan to fight wealth inequality: give poor kids money,, Oct. 22, 2018.