Article: Max Raskin, The Raisins of Wrath: The Constitutionality of Interest on Lawyers’ Trust Accounts Following Horne v. USDA, 10 NYU J. L. & Liberty 857 (2016).
Interest on lawyers’ trust accounts (IOLTA) are programs that require lawyers to remit their some of their clients’ interest to the state. This money is used to fund legal aid programs. The Supreme Court, in a five-to-four 2003 decision in Brown v. Legal Foundation of Washington, upheld such a program against a Fifth Amendment takings challenge. This note argues that in light of subsequent Supreme Court jurisprudence, the Court’s reasoning in Brown is no longer tenable. The culmination of the post-Brown jurisprudence is Horne v. United States Department of Agriculture. Although the accounts are creations of the state, the benefits that flow from them cannot be unconstitutionally conditioned. Because no linkage can be drawn between providing free legal aid and the provision of IOLTA accounts, the interest remission requirement is unconstitutional.
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: Katharine G. Young, Rights and Queues: On Distributive Contests in the Modern State, 55 Colum. J. Transnt’l L. 65 (2016).
Two legal concepts have become fundamental to questions of resource allocation in the modern state: rights and queues. As rights are increasingly recognized in areas such as housing, health care, or immigration law, so too are queues used to administer access to the goods, services, or opportunities that realize such rights, especially in conditions of scarcity. This Article is the first to analyze the concept of queues (or temporal waiting lines or lists) and their ambivalent, interdependent relation with rights. After showing the conceptual tension between rights and queues, the Article argues that queues and “queue talk” present a unique challenge to rights and “rights talk.” In exploring the currency of rights and queues in both political and legal terms, the Article illustrates how participants discuss and contest the right to housing in South Africa, the right to health care in Canada, and the right to asylum in Australia. It argues that, despite its appearance in very different ideological and institutional settings, the political discourse of “queues” and especially “queue jumping” commonly invokes misleading distinctions between corruption and order, markets and bureaucracies, and governments and courts. Moreover, queue talk obscures the first-order questions on which resource allocations in housing, health care, or immigration contexts must rely. By bringing much-needed complexity to the concept of “queues,” the Article explores ways in which general principles of allocative fairness may be both open to contestation and yet supportive of basic claims of rights.
Posted in Articles, Development (and Law), Health, housing, Immigration, Legal Aid, Politics, Socio-Economic Rights, Uncategorized, Urban Issues, Welfare
Article: Michael Haber, CED after #OWS: From Community Economic Development to Anti-Authoritarian Community Counter-Institutions, 43 Fordham Urb. L.J. 295 (2016).
Community Economic Development (“CED”) and community-based social justice non-profits more generally have been criticized by social justice lawyers, legal scholars, practitioners, and activists, who charge that these efforts too often overlook the structural drivers of inequality, strip social justice movements of their confrontational, activist politics, and fail to give community members meaningful control over their programs. Over the past decades, anti-authoritarian activists — perhaps most famously known through Occupy Wall Street — have developed new frameworks for social change movements based on philosophical commitments to horizontalism, autonomism, and prefigurative politics. Many anti-authoritarian activists have turned their attention to creating community-based social change groups. These groups often engage in both activism and service provision, but do so outside of traditional frameworks for community-based organizations. These “community counter-institutions” hold the potential to address some of the critiques of CED models, and may develop to become more confrontational, democratic, and inclusive community-based social change organizations that still provide essential community services as part of their work. Transactional social change lawyers can play an important supportive role in helping anti-authoritarian activists to develop these new models.
News Article: Bryce Covert, Trump wants to cut off poor people’s legal lifeline, Think Progress (Apr. 6, 2017).
Article: Iris J. Goodwin, Access to Justice: What to Do About the Law of Wills, 5 Wisc. L. Rev. 947 (2016).
News Article: Steven Mufson and Tracy Jan, If you’re a poor person in America, Trump’s budget is not for you, Washington Post (Mar. 16, 2017).
Posted in Family, Finance, Health, housing, Inequality, Legal Aid, Measuring Poverty, News Coverage of Poverty, Politics, Uncategorized, War on Poverty, Wealthy, Welfare
Blog Post: Rachel Rintelmann, Why I — and Legal Aid — Stand in Solidarity with LSC, Making Justice Real blog (Mar. 17, 2017).