Category Archives: Inequality

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.

New Article: Antisubjugation and the Equal Protection of the Laws

New Article: Evan D. Bernick, Antisubjugation and the Equal Protection of the Laws, 110 Georgetown L. J. (2021). Abstract Below:

For nearly 150 years, the Supreme Court has held that the Fourteenth Amendment to the United States Constitution does not secure “positive” rights to governmental aid or apply to “private” action. This Article argues that neither of those things is true as a matter of the original meaning and purpose of the Equal Protection Clause. It then contends that constitutional doctrine should be reconstructed to realize the Constitution’s promise of “the equal protection of the laws.”

The Court has articulated a general rule against judicial use of the Fourteenth Amendment’s Due Process Clause to guarantee governmental protection against private violence.2 It has also hindered Congress’s efforts to provide civil remedies for private violence. At the same time, the Court has insisted that the Equal Protection Clause generally prohibits unjustified, intentional discrimination.

Scholars have long questioned these features of Fourteenth Amendment law. One group of scholars—call them protection theorists—contends that the original meaning of “the equal protection of the laws” only guarantees security against physical violence and possibly access to the courts.6 Another group of scholars contends that the “state-action doctrine” is incoherent and that the original meaning of the Fourteenth Amendment does guarantee positive rights to certain kinds of governmental aid, including protective services.

This Article contends that the Equal Protection Clause guarantees both nondiscriminatory law enforcement and nondiscriminatory laws. The Clause also prohibits states from interfering with any protection provided by constitutionally proper federal laws. Under the Clause, state governments are: 

(1) required to impartially execute nondiscriminatory state laws that protect life, liberty, and property; 

(2) required to provide people with impartial access to the courts; 

(3) prohibited from enacting discriminatory laws that unreasonably burden or benefit the life, liberty, and property of some people more than others; 

(4) prohibited from denying people life-, liberty-, and property-related protection that is provided by constitutionally proper federal laws. 

New Article: Race and Medical Double-Binds

New Article: Craig Konnoth, Race and Medical Double-Binds, Colum. L. Rev. Forum (2021). Abstract Below:

Race and medicine scholarship is beset by a conundrum. On one hand, some racial justice scholars and advocates frame the harms that racial minorities experience through a medical lens. Poverty and home­lessness are social determinants of health that medical frameworks should account for. Racism itself is a public health threat. On the other hand, other scholars treat medicine with skepticism. Medical frameworks, they argue, will reify racially charged narratives of biological inferiority. This Piece affirmatively claims that the debate is unresolvable. Rather, the re­lationship between race and medicine should be conceptualized as a double-bind, a concept that creates space for mutually contradictory claims. Indeed, such contradictions are a feature of a double-bind such that the harm a minority faces is intensified. This understanding also breaks ground for antidiscrimination scholarship more generally, which histori­cally has assumed that prominent double-bind frameworks do not apply to racial minorities. Accu­rately mapping all sides of the conceptual space that race and medi­cine advocacy scholarship occupies creates space for future work to think of ways in which to resolve the double-bind.

New Article: Dismantling the Master’s House: Reparations on the American Plantation

New Article: Jordan Brewington, Dismantling the Master’s House: Reparations on the American Plantation, 1952 Yale L. J. 2273 (2021). Abstract Below:

In southeastern Louisiana, many plantations still stand along River Road, a stretch of the route lining the Mississippi River that connects the former slave ports and present-day cities of New Orleans and Baton Rouge. Black communities along River Road have long experienced these plantations as sites of racialized harm. This Note constructs a normative framework for local reparations that centers these descendant communities and explores the use of eminent domain to break up the landholdings of current plantation owners to make those lands available to descendants. Beyond the descendants in Louisiana’s river parishes, this Note is aimed at inspiring a discussion about reparations in other local contexts—across institutions, cities, and states—that are also sites of historical and continued subjugation.

New Symposium and Publication: American Journal of Law and Equality and the Symposium on Michael Sandel’s The Tyranny of Merit

New Symposium and Publication: American Journal of Law and Equality, Symposium on Michael Sandel’s The Tyranny of Merit, 1 Am. J. L. Equal. (2021). List of Articles Below: