Online Tool: Economic Policy Institute’s Minimum Wage Calculator. With links/info on every state.
Online Tool: Economic Policy Institute’s Minimum Wage Calculator. With links/info on every state.
New Book: Steven M. Virgil & Sherri Lawson Clark, Poverty Law: Cases and Materials (forthcoming 2019).
New Article: Daniel Jacob Hemel, Federalism as a Safeguard of Progressive Taxation, (March 30, 2017). 93 New York University Law Review 1 (2018); U of Chicago, Public Law Working Paper No. 633; University of Chicago Coase-Sandor Institute for Law & Economics Research Paper No. 816. Abstract below:
This Article considers the distributional consequences of the Supreme Court’s federalism jurisprudence over the past quarter century, focusing specifically on the anti-commandeering, anti-coercion, and state sovereign immunity doctrines. The first of these doctrines prevents Congress from compelling the states to administer federal programs; the second prevents Congress from achieving the same result through offers that for practical purposes the states cannot refuse; the third prohibits Congress from abrogating state sovereign immunity outside a limited class of cases. These doctrines vest the states with valuable entitlements and allow the states to sell those entitlements back to Congress for a price. In this respect, the doctrines have an intergovernmental distributional effect, shifting wealth from the federal government to the states.
The distributional consequences of the anti-commandeering, anti-coercion, and state sovereign immunity doctrines are not purely intergovernmental, however. The doctrines also have potential implications for the distribution of wealth across individuals and households. By forcing Congress to bear a larger share of the costs of federal programs, and by shifting some of the costs of liability-imposing statutes from the states to Congress, these doctrines allow the states to raise less revenue and compel Congress to raise more. For a number of historical as well as structural reasons, the federal tax system is dramatically more progressive than even the most progressive state tax systems, and so the reallocation of fiscal responsibility resulting from these federalism doctrines causes more revenue raising to occur via the more progressive system. The likely net effect is a shift in wealth from higher-income households (who bear a larger share of the federal tax burden) to lower- and middle-income households (who would have borne a larger share of the burden of state taxes).
This conclusion comes with a number of caveats. The distributional consequences of the Supreme Court’s federalism doctrines may be moderated—or magnified—by differences in federal and state spending priorities. Moreover, the doctrines may affect the size of government as well as the allocation of fiscal responsibility across levels of government (though the net effect on government size is ambiguous). And the doctrines may have distributional consequences that are not only interpersonal, but also intergenerational. What seems clear from the analysis in this Article is that federalism doctrines affect the distribution of income and wealth in subtle and sometimes unexpected ways, and that a comprehensive understanding of wealth inequality in the United States requires careful attention to key features of our fiscal constitution.
New Article: K. Sabeel Rahman, Constructing Citizenship: Exclusion and Inclusion Through the Governance of Basic Necessities, Columbia L. Rev. Vol. 119, Forthcoming (2018). Abstract below:
While income inequality has become an increasingly central focal point for public policy debate and public law scholarship, systemic inequality and exclusion are produced not just by disparities in income but rather by more hidden and pernicious background rules that systematically disadvantage and subordinate constituencies. This paper focuses on a particularly crucial — and often underappreciated — site for the construction and contestation of systemic inequality and exclusion: the provision of, and terms of access to, basic necessities like water, housing, or healthcare. We can think of these necessities as “public goods” in a broader moral and political sense: these are foundational goods and services that make other forms of social, economic, or political activity possible, and thus carry a greater moral and political importance. This paper argues that the way in which we administer these essential public goods represents one of the major ways in which law and public policy constructs systemic forms of inequality and exclusion. Conversely, the paper also argues that promoting equality and inclusion requires a more inclusionary approach to the administration of these public goods.
In Part I the paper develops the central theoretical argument that the provision of and access to basic necessities constitutes a central vector for structural inequality and exclusion — and more broadly, for the moral ideals of inclusion, equality, and citizenship itself. The importance of these public goods makes communities subordinate and vulnerable to those actors that can exert control over these goods. This normative critique parallels historical efforts to secure greater economic and social citizenship in part by contesting the power of actors that control infrastructure, from the Progressive Era fights over public utilities to civil rights battles over public accommodations. Part II then identifies three specific patterns of structural exclusion produced through the maladministration of these public goods: bureaucratic exclusion, fragmentation, and privatization. These three strategies are more subtle than direct denial of access; they represent a kind of “second-order” exclusion operating through background rules of governance and administration. Part III then imagines what a more inclusionary governance regime built to prevent these more subtle forms of exclusion would look like. Here the paper identifies three particular strategies for inclusionary administration of public goods: expanded enforcement authority; greater governmental accountability; and direct public provision.
Finally, Part IV of the paper links this exploration of structural inequality, exclusion, and public goods to broader debates in public law scholarship. First, this focus on public goods represents an important application and extension of the recently renewed interest in inequality and “constitutional political economy,” suggesting a concrete legal and institutional context in which the normative ideas and historical narratives developed in this literature can have purchase. Second, the focus on public goods also provides greater weight and context to current debates over the “deconstruction” of administrative agencies, particularly in context of economic inequality and racial and gender exclusion.
New Article: Jessica L. Roberts, Nudge-Proof: Distributive Justice and the Ethics of Nudging, 116 Mich. L. Rev. 6 (2018). Abstract unavailable.
New Article: Cristina Rodrigues, The Cost of Justice: The Importance of a Criminal Defendant’s Ability to Pay in the Era of Commonwealth v. Henry, Northeastern Univ. L. Rev. Vol. 10, No. 1 (2018). Abstract below:
Individuals involved with the criminal courts are exposed to a minefield of fees. In fiscal year 2016, the (state) trial courts of Massachusetts collected over $99 million in fines, fees and court costs. Much of that amount came from the state’s poor residents, poor communities and communities of color, because those groups are dramatically over represented in criminal courts. Individuals who do not make criminal court ordered payments can be jailed. As a public defender in Boston, I see my clients burdened by these fees everyday.
In this article, I detail the way in which these criminal court fees are exacerbating the stark racial and economic inequalities that persist. The statistics are alarming. With great enthusiasm though, I argue that the Supreme Judicial Court’s (SJC) 2016 decision in Commonwealth v. Henry provides powerful legal tools for addressing the unjust imposition and collection of criminal court payments. In Henry, the SJC 1) barred judges from ordering defendants on probation to pay restitution amounts that are beyond their actual ability to pay and 2) barred the very common practice of extending a person’s probation for the sole purpose of collecting more restitution payments. These rules extend beyond what exists in most jurisdictions. In the article, I analyze Henry closely. I then argue that Henry’s rules should be formally extended to all criminal court payments. Doing so could render Henry a watershed case regarding the criminalization of poverty in Massachusetts and beyond. These rules will bring us a bit closer to actualizing the fundamental principle that no individual should be incarcerated for his poverty or treated more harshly by the courts based on his poverty.
New Article: Yael Cannon, A Mental Health Checkup for Children at the Doctor’s Office: Lessons from the Medical-Legal Partnership Movement to Fulfill Medicaid’s Promise, Yale Journal of Health Law, Policy, and Ethics, Vol. 17, Iss. 2, Art. 2 (2017). Abstract below:
Traumatic childhood events and the stress they cause can negatively affect health over a lifetime. For children with Medicaid coverage, visits to the doctor’s office present an opportunity to improve this trajectory. Medicaid’s Early Periodic Screening Diagnostic and Treatment (EPSDT) mandate requires that children receive more than a basic physical when they see a doctor for regular “well-child checks.”
New Article: James M. Puckett, Improving Tax Rules by Means-Testing: Bridging Wealth Inequality and “Ability to Pay”, 70 Okla. L. Rev. 405 (2018). Abstract below:
The federal income tax can and should do more to address wealth disparities and income inequality. The income tax does not directly count wealth, and the realization rule and basis “step-up” at death exclude substantial amounts of income for the wealthy. The Constitution limits Congress’s ability to tax wealth. Despite these serious challenges, this Article considers how to potentially bridge the gap between wealth and the income tax. For example, asset-based phase-outs in the income tax should pass muster without apportionment, although their bite would necessarily be limited. The Article posits that the public would be more receptive to phase-outs than more progressive tax brackets. Relevant to complexity, the existing literature has identified potential mark-to-market solutions to correct the exclusion of unrealized gains. The design of asset-based phase-outs would be prefigured to some extent by whether these proposals gain traction. The income tax, to be sure, cannot by itself solve the problem of wealth inequality. Principles of tax justice, however, arguably require greater attention to wealth in measuring the taxpayer’s “ability to pay.”
New Article: Cameron Custard, Installment Land Contracts & Low-Income Homebuyers in Chicago: A Call for Legislative Reform, 67 DePaul L. Rev. (2018). Abstract unavailable.
This work explores the hazards that increasing use of installment land contracts have on low-income residents in particular.
New Report: Women’s Student Debt Crisis in the United States, American Association of University Women, Updated May 2018.