New Article: Freddie Deboer, Inequality University, Jacobin, May 22, 2017
New Article: Freddie Deboer, Inequality University, Jacobin, May 22, 2017
News Coverage: Matthew Desmond, How Homeownership Became the Engine of American Inequality, N.Y. Times Magazine, May 9, 2017.
Article: Mary Madden, et al., Privacy, Poverty and Big Data: A Matrix of Vulnerabilities for Poor Americans, Washington L. Rev. (forthcoming 2017).
This Article examines the matrix of vulnerabilities that low-income people face as a result of the collection and aggregation of big data and the application of predictive analytics. On the one hand, big data systems could reverse growing economic inequality by expanding access to opportunities for low-income people. On the other hand, big data could widen economic gaps by making it possible to prey on low-income people or to exclude them from opportunities due to biases that get entrenched in algorithmic decision-making tools. New kinds of “networked privacy” harms, in which users are simultaneously held liable for their own behavior and the actions of those in their networks, may have particularly negative impacts on the poor. This Article reports on original empirical findings from a large, nationally-representative telephone survey with an oversample of low-income American adults and highlights how these patterns make particular groups of low-status internet users uniquely vulnerable to various forms of surveillance and networked privacy-related problems. In particular, a greater reliance on mobile connectivity, combined with lower usage of privacy-enhancing strategies may contribute to various privacy and security-related harms. The article then discusses three scenarios in which big data – including data gathered from social media inputs – is being aggregated to make predictions about individual behavior: employment screening, access to higher education, and predictive policing. Analysis of the legal frameworks surrounding these case studies reveals a lack of legal protections to counter digital discrimination against low-income people. In light of these legal gaps, the Article assesses leading proposals for enhancing digital privacy through the lens of class vulnerability, including comprehensive consumer privacy legislation, digital literacy, notice and choice regimes, and due process approaches. As policymakers consider reforms, the article urges greater attention to impacts on low-income persons and communities.
Article: Bethany Y. Li, Now is the Time: Challenging Resegregation and Displacement in the Age of Hypergentrification, 85 Fordham L. Rev. 1189 (2016).
Gentrification is reaching a tipping point of resegregating urban space in global cities like New York and San Francisco, often spurred by seemingly neutral government policies. The displacement resulting from gentrification forces low-income people from their homes into areas of concentrated poverty. Low-income communities consequently lose space, place, social capital, and cultural wealth that residents and small businesses have spent decades building up. This Article argues that communities at this tipping point must integrate litigation strategies directly aimed at stemming the adverse impacts of gentrification. Community organizing is integral to antidisplacement efforts, but litigation—and its injunctive powers—should play a larger role in protecting residents in hypergentrified neighborhoods. Using a rezoning that spurred gentrification in New York City’s Chinatown and Lower East Side as a case study, this Article considers how the Fair Housing Act, state constitutions, and a new vision of property law could counter the negative and often racially discriminatory effects of gentrification on low-income communities.
Article: Kathryn A. Sabbeth, Housing Defense as the New Gideon, 43 Harv. J. L. & Gender (forthcoming).
New York City is poised to become the first jurisdiction in the United States to guarantee a right to counsel for poor people at risk of losing their homes. Although millions of Americans are evicted every year, until recently, scholars and policymakers largely ignored the eviction phenomenon. New research demonstrates the frequency of eviction and the breadth of its economic and social impacts on individuals, their families, and society at large. Relying on studies showing that housing defense lawyers decrease eviction rates and promote positive social outcomes, NYC legislators concluded that a right to housing defense counsel would be both morally right and cost-effective. They introduced Intro 214-A to establish such a right and, in February 2017, the NYC mayor announced that his administration will provide the funds the bill needs to move forward. This Article is the first to analyze this ground-breaking legislation.
The right to appointment of criminal defense counsel recognized in Gideon v. Wainwright grew out of the Supreme Court’s response to the Civil Rights Movement. Using NYC’s housing defense bill as a case study, this Article identifies three ways in which the civil right to counsel has the potential to build on the Gideon model and expand it for today. First, in targeting the secondary effects of the eviction phenomenon, the NYC legislature moves beyond procedure to promote substantive outcomes. Second, its focus on housing defense recognizes a set of concerns that disproportionately impact Black women, thus building on the racial equality aims underlying Gideon and adding a move toward gender equality. Third, whereas the criminal defense model defends individuals against state power, the new bill applies to tenants of public and private landlords, thus checking abuses of private power.
The Article also addresses the dynamics of defensive lawyering, a feature of both the old and the new models of appointment of counsel. Defensive lawyering suffers from systemic limitations and fails to challenge social problems that could be addressed through affirmative suits—such as discrimination, harassment, and unsafe conditions. The availability of counterclaims in civil litigation, however, makes the civil defensive position more flexible than its criminal cousin, and may overcome some of these limits. The Article concludes that the new right to counsel holds significant promise.
Article: Matthew Dimick, Should the Law Do Anything About Economic Inequality?, SUNY Buffalo Legal Studies Research Paper No. 2016-011 (2016).
What should be done about rising income and wealth inequality? Should the design and adoption of legal rules take into account their effects on the distribution of income and wealth? Or should the tax-and-transfer system be the exclusive means to address concerns about inequality? A widely-held view argues for the latter: only the tax system, and not the legal system, should be used to redistribute income. While this argument comes in a variety of normative arguments and has support across the political spectrum, there is also a well-known law-and-economics version. This argument, known as the “double-distortion” argument, is simply stated. Legal rules that redistribute income only add to the economic distortions that are already present in the tax system. It would therefore be better for everyone, and especially the poor, to instead adopt an efficient, nonredistributive legal rule, and increase redistribution through the tax system.
This Article challenges the double-distortion argument from a law-and-economics perspective. There are two main arguments, in addition to several other subsidiary points. First, in the abstract, there is no reason to believe that legal rules that have redistributive effects will always reduce efficiency; indeed, they can sometimes increase efficiency. Examples from the regulation of product markets, labor markets, and financial markets underscore this claim. In these cases, legal redistribution is more efficient than redistribution through the tax system. Second, legal rules are likely to be more attractive than taxation precisely in cases where inequality itself or normative concerns about inequality is high. Under the optimal tax policy, higher inequality or greater concern about inequality will justify larger tax distortions. Therefore, a particular legal rule is more likely to be more efficient than the optimal tax policy under these circumstances. The ultimate conclusion is that a mix of legal rules and taxation, rather than taxation exclusively, will be the best way to address economic inequality.
News Article: Carolina Moreno, Sonia Sotomayor: Not Everyone Can Just Pull Themselves ‘Up By The Bootstraps’, Huffington Post (Apr. 4, 2017).
Sandra G. Mayson, Dangerous Defendants, University of Pennsylvania Law School, Public Law Research Paper No. 16-30 (2016).
Bail reform is underway — but it is proceeding on shaky ground. The reform model, which deploys actuarial risk assessment to identify “high-risk” defendants, assumes that the state has the prerogative to detain or control dangerous defendants. This assumption is not new. But it is anomalous. In general, we do not permit the state to restrain sane, responsible adults solely to stop them from committing hypothetical future crimes, even those who are high-risk. The reform movement’s focus on danger thus crystallizes a fundamental question about pretrial policy: What justifies the state in restraining defendants for dangerousness before trial if we would prohibit the same restraint for equally dangerous members of the public? Although there is an extensive literature on preventive detention, neither the Supreme Court nor prior scholarship has focused on this comparative question. This Article endeavors to answer it. It makes the first effort to articulate and evaluate potential justifications for subjecting defendants to restraint that we would forbid for non-defendants who pose an equal risk. The Article explores doctrinal, deontological and instrumentalist justifications, but ultimately rejects them. It contends that pretrial restraint for dangerousness can only be justified at the risk threshold where we would authorize equivalent restraint of a member of the population at large. Communities, policymakers and courts should therefore determine what they believe this threshold to be, then ensure that pretrial risk assessment and management are tailored to it.
Article: Daniel Shaviro, The Mapmaker’s Dilemma in Evaluating High-End Inequality, New York University Public Law and Legal Theory Working Papers (2016).
The last thirty years have witnessed rising income and wealth concentration among the top 0.1 percent of the population, leading to intense political debate regarding how, if at all, policymakers should respond. Often, this debate emphasizes the tools of public economics, and in particular optimal income taxation. However, while these tools can help us in evaluating the issues raised by high-end inequality, their extreme reductionism – which, in other settings, often offers significant analytic payoffs – here proves to have serious drawbacks. This paper addresses what we do and don’t learn from the optimal income tax literature regarding high-end inequality, and what other inputs might be needed to help one evaluate the relevant issues.