New Article: The ‘Georgists’ Are Out There, and They Want to Tax Your Land

New Article: Conor Dougherty, The ‘Georgists’ Are Out There, and They Want to Tax Your Land N.Y. Times (Nov. 12, 2023).

Amid a crisis in affordable housing, the century-old ideas of Henry George have gained a new currency.

New Article: Efficiency and Equity in Regulation

New Article: Caroline Cecot, Efficiency and Equity in Regulation, 76 Vand. L. Rev. 361 (2023).

The Biden Administration has signaled an interest in ensuring that regulations appropriately benefit vulnerable and disadvantaged communities. Prior presidential administrations since at least the Reagan Administration have focused on ensuring that regulations are efficient, maximizing the net benefits to society as a whole, without considering who benefits or who loses from these policies. Critics of this process of regulatory review have celebrated President Biden’s initiative, hoping that distributional analysis and the pursuit of equity will displace traditional tools and interests such as cost-benefit analysis and the pursuit of efficiency. Meanwhile, supporters of the current process are concerned that pursuing equity will come at significant cost to efficiency and ultimately leave everyone worse off.

This framework—efficiency versus equity—is misguided and counterproductive in many cases. As an initial matter, all regulations have distributional consequences, and the traditional arguments for ignoring these consequences are outdated or wrong. Understanding distributional effects and considering equity in regulation is long overdue.

But current agency practice is often far from efficient, and there are opportunities to advance equity by improving the efficiency of regulations. In fact, neutral procedures such as cost-benefit analysis are more likely to benefit disadvantaged groups than is raw politics, whatever the intention, at least based on experience in regulatory policy. Furthermore, cost-benefit analysis and efficiency considerations more generally could help avoid outcomes that are, in their implementation, inequitable.

This Article supports these arguments by drawing on examples from the environmental context, where considerations of equity and efficiency have often been thought to conflict. Importantly, it highlights how thinking about both equity and efficiency can help regulators identify ways to promote both using their existing authorities. And, in particular, it argues that funding and subsidy programs could be deployed in connection with regulatory actions to help realize equitable outcomes. This Article articulates some simple rules of thumb agencies could use to identify these contexts and thoughtfully deploy their resources, and it compares this approach to broader proposals to consider equity in regulation more generally.

New Article: Welfare Now

New Article: Cass R. Sunstein, Welfare Now, 72 Duke L.J. 1643 (2023).

In evaluating interventions, policymakers should consider both their welfare effects, including their effects on people’s emotional states, and their effects on distributive justice, including their effects on those at the bottom of the economic ladder. The arguments for investigating welfare effects, and effects on distributive justice, are meant as objections to efforts to evaluate behaviorally informed interventions solely in terms of (for example) revealed preferences and effects on participation rates. The arguments are also meant as a plea for investigation and specification of the effects of such interventions on experienced well-being. If interventions give people a sense of security and safety, that is a strong point in their favor; if they make people feel frightened and sad, that is a strong point against them. A central concern is that policymakers sometimes neglect the emotional impact, whether negative or positive, of behaviorally informed interventions. Personalized approaches can promote distributive goals and also target interventions to those who are most likely to be helped by them.

New Report: How Much Could Full Funding and Use of Housing Choice Vouchers Reduce Poverty?

New Report: Laura Wheaton, Ilham Dehry, Linda Giannarelli & Sarah Knowles, How Much Could Full Funding and Use of Housing Choice Vouchers Reduce Poverty? (Aug. 2023).

Housing assistance programs funded through the US Department of Housing and Urban Development (HUD) are a key component of the US social safety net. However, these programs are not funded at levels that would serve all eligible households, and only one-quarter of eligible households receive assistance. Housing choice vouchers are the most common type of assistance provided by HUD and account for about half of the households served. Vouchers subsidize the rent of units obtained through the private market. In this paper, we use the Analysis of Transfers, Taxes, and Income Security (ATTIS) microsimulation model to hypothetically create a situation in which every eligible household receives a housing choice voucher and finds a rental unit that will accept it. We examine the results in terms of aggregate benefit dollars and reductions in poverty as measured by the Supplemental Poverty Measure (SPM), both nationally and at the state level. We also look at the results by age group and by race and ethnicity.

We estimate that under the hypothetical scenario of full funding and full use of housing vouchers, aggregate annual housing subsidies would increase by $118 billion. Because of the increased benefits, the SPM poverty rate would decline by 13 percent overall and by 23 percent for children. An estimated 6.4 million people—including 2.5 million children—would receive enough additional support to have their families’ resources rise above the SPM poverty level. The extent of the change would vary, but across all states there would be substantial increases in benefits and reductions in poverty. Poverty would also decline for all racial and ethnic groups, with the biggest relative decline for Hispanic people.

New Article: Social Safety Net Mitigates the Impact of Poverty on Brain Development and Mental Health

New Article: David G. Weissman, Mark L. Hatzenbuehler, Mina Cikara, Katie A. McLaughlin & Deanna M. Barch, Social Safety Net Mitigates the Impact of Poverty on Brain Development and Mental Health, Policy Brief, 12 U.C. Davis Ctr. for Poverty & Ineq. Rsch. (Sept. 2023).

In a recent study, we explored the relationship between state-level macrostructural characteristics, such as cost of living and anti-poverty programs, and the magnitude of socioeconomic disparities in brain development and mental health. To do so, we analyzed data covering more than 10,000 children across 17 US states. We found that lower income was associated with smaller hippocampal volume (a brain region involved in learning and memory) and higher internalizing psychopathology (denoting conditions such as depression and anxiety).

These associations were stronger in states with higher cost of living. However, socioeconomic disparities in hippocampal volume were reduced by 34 percent in high-cost-of-living states that provide more generous cash benefits for low-income families. In these states, the association of family income with hippocampal volume resembled that in states with the lowest cost of living. We also observed similar patterns for internalizing psychopathology.

Our findings suggest that generous state-level anti-poverty policies may help to address the relationship of low income with brain development and mental health, particularly in states with high cost of living.

New Report: How Much Would Poverty Decrease in Each State If Every Eligible Person Received Safety Net Benefits?

Linda Giannarelli, Sarah Minton, Laura Wheaton, Sarah Knowles, and Ilham Dehry, How Much Would Poverty Decrease in Each State If Every Eligible Person Received Safety Net Benefits?, URBAN Institute 2023. Overview Below.

Social safety net programs provide critical support to individuals and families with low incomes. However, limits on program funding, a lack of awareness of benefits, stigma, and other barriers mean many people don’t receive the assistance they’re eligible for.

But what if everyone who qualified for these programs actually received assistance?

In these fact sheets, we examine how much poverty would decrease—overall, by age, and by race and ethnicity—and how much benefits would increase if all people eligible for safety net programs received the full benefits they qualify for in each of the 50 states and DC.

To test the effects of this hypothetical scenario, we use the Analysis of Transfers, Taxes, and Income Security (ATTIS) microsimulation model. We apply ATTIS to detailed household data from the 2018 American Community Survey that we have projected to represent 2022 (because 2022 data were not available). We include the following seven means-tested safety net programs in our analysis: Supplemental Security Income (SSI); the Supplemental Nutrition Assistance Program (SNAP); the Special Supplemental Nutrition Program for Women, Infants, and Children (WIC); Temporary Assistance for Needy Families (TANF); child care subsidies supported by the Child Care and Development Fund (CCDF); the Low Income Home Energy Assistance Program (LIHEAP); and public and subsidized housing.

We test the scenario using real-world rules, without assuming any changes in federal or state eligibility rules or benefit levels. See our accompanying report for more details about our methodology.

Nationally, the total amount of benefits for which families are eligible across all seven programs is twice what families currently receive. We find that full funding for these programs and full participation in them would have two major impacts:

The total amount of benefits people receive would double. If every program were a fully funded entitlement (meaning all eligible people could receive benefits) and all eligible people participated, aggregate annual benefits would increase from $220 to $447 billion.
Poverty would decrease by almost one-third overall and by more than 40 percent for children. The overall poverty rate, as measured with the Supplemental Poverty Measure, would decrease from 14.7 to 10.1 percent (31 percent). The child poverty rate would decrease from 15.2 to 8.5 percent (44 percent).

New Article: Equalizing Remediation

Chinonso Anozie, Equalizing Remediation, 23 Wis. L. Rev. 3 (2023). Abstract Below.

Environmental harm remediation occurs far less than it should in minority and low-income communities. One in six Americans live within three miles of a designated toxic waste or contaminated site, which causes a variety of health hazards. Frequently, these sites are located within minority or low-income communities. Multinational corporations and even governmental agencies sometimes intentionally or negligently exploit loopholes to escape responsibility, especially when poor or low-income communities are involved. Lead agencies focused on remediation efforts tend to have fewer resources in poorer areas. By contrast, in affluent communities, offending companies commence remediation efforts much more quickly. Such disparate remediation efforts contravene the principle of environmental justice.

Delayed or inadequate environmental remediation exacerbates harm across the country and it disproportionately harms numerous underprivileged U.S. communities. Often, environmental justice scholars and advocates focus on equal enforcement of the current environmental protection laws. I argue that current environmental protection laws leave room for unequal remediation, and equalizing remediation does not lie in the strict enforcement of the current environmental protection laws particularly when similarly situated communities are involved.

This Article initiates the conversation towards equalizing remediation by highlighting failures to equalize environmental harm remediation. It advocates for new policies, which better ensure no community is shortchanged in such activities based on race, geographical location, or income level. It argues for various statutory amendments and distant regulations capable of better promoting equalized remediation of environmental harms and thereby advancing environmental justice.

New Article: Criministrative Law: Data-Collection, Surveillance, and the Individualization Project in Us Child Welfare Law

Yael Cohen-Rimer, Criministrative Law: Data-Collection, Surveillance, and the Individualization Project in Us Child Welfare Law, Colum. J. Gender L. (forthcoming). Abstract Below.

This article joins the growing discussion in the critical legal scholarship on the incarcerating welfare state and the relationship between care and punishment in the United States. It adds a further dimension by nuancing the legal definition of Child Welfare Law and exposing its organizing concepts. It claims that one pivotal characteristic of the incarcerating or otherwise punitive welfare state is the administrative law it uses, which is framed, worded, and operated as criminal law. The author explores how ‘criministrative law,’ as she terms it, attains benefits for the state while intentionally limiting even further the protections afforded to its most vulnerable recipients. Beyond deterrence and punishment, it seeks to remove these citizens from society. Since race and poverty are inseparable, this operation of Criministrative law is discussed in relation to both.

Textual and legal analyses of the Child Protection chapter within the Massachusetts general law show the ‘dance’ between the administrative and the criminal that is rooted in the ‘individual choice’ fixation. This, coupled with an individualization mindset that promotes the fragmentation of the family unit, forms the bedrock of the punitive American welfare state. Among the harms caused by this mindset that is enshrined in Criministrative law, this article identifies that (i) practically, it presents a hurdle for legal practitioners and other professionals seeking to defend anyone caught up in this system; and (ii) it creates the effect of ‘legal gaslighting’ by deliberately conflating the benign, efficient, objective, and professional traits of administrative law with the legally violent actions of the punitive state. Simultaneously, it prevents the use of legal tools that are inscribed in the criminal legal framework to ensure the protection of the accused and incarcerated and provide them with agency and voice. Criministrative law is hence the law of the closely-watched-but-not-seen. To address this, the author proposes a novel construction of the legal treatment of children at risk of harm caused by poverty—one that does not inflict Criministrative law on parents and thus harm the very children it is meant to protect.

New Article: Baseline for Distributional Analysis

Ari D. Glogower, Baseline for Distributional Analysis, 48 BYU L. Rev. 6 (2023). Abstract Below.

Studies of income inequality and the distributive effects of taxes and government spending drive debates over progressive fiscal reform and economic justice. These distributional studies provide vital information on inequality in market outcomes and how government policies mitigate these disparities.

Despite its critical importance, however, distributional analysis encounters inevitable and familiar limitations. These studies face practical challenges in measuring income and the distributional impacts of government policies. Distributional analysis also faces inherent complications in seeking to distinguish between the effects of the market and the government.

Even if distributional analysis could precisely measure income and the effects of government policies, these studies would still embed assumptions as to which measures of inequality matter. For example, the measure of market income used in distributional studies offers one possible measure of inequality. This measure, however, does not compare taxpayers’ disposable income available for discretionary consumption or savings, and therefore does not reflect accurately differences in household spending ability.

No methodology can offer an objectively correct way to perform distributive analysis. Because of their limitations, however, current distributional studies can understate inequality of household budgets. They can also overstate the distributive effects of government benefits to lower-income individuals and understate benefits at the top of the distribution.

This Article introduces a new approach which yields a different assessment of income inequality and the effects of government policies. This method first deducts costs individuals incur for basic needs from the baseline of market income to construct what this Article terms a “basic needs baseline.” The method then assesses the distributive effects of explicit taxes and government spending from this new baseline. In effect, this methodology treats expenses for basic needs as implicit taxes or burdens from government inaction, when the government does not provide for them, rather than as affirmative benefits when the government does provide for them.

A basic needs baseline does not offer a “solution” to the measurement challenges and inherent limitations in distributional analysis. It does, however, offers a different—and valuable—measure of economic inequality and the effects of government policies. This method more accurately reflects the reality of differences in household budgets and redresses the imbalances in distributional analysis resulting from its unavoidable limitations.

New Article: Power and Pay Secrecy

Michael M Oswalt, Jake Rosenfeld, and Patrick Denice, Power and Pay Secrecy, 99 Ind. L. J. (forthcoming 2023). Abstract Below.

The legal momentum toward pay transparency is widespread and fast-moving. Since 2010, over a dozen states have passed laws prohibiting employers from telling workers they may not talk about wages. Proponents see these and related transparency laws as crucial steps to combat sex- and race-based pay discrimination in the workplace. But do state anti-secrecy laws actually reduce pay secrecy in the first place? That basic question remains largely unexplored. This Article fills the gap through a unique national survey that includes information about pay discussion rules and a range of other relevant employer and employee characteristics across the fifty states.

We find that just under half of all workers in states that have prohibited pay secrecy rules still confront one at work. Surprisingly, this is only slightly less than the fraction of workers who are subject to pay secrecy rules in states without a law against them. Moreover, employers seem to react to state laws not by removing the expectation that workers should remain silent but by making their pay secrecy rules more informal — though no less illegal. Our analyses also show that state variations in the types and severities of employer penalties for violating the law have little overall impact on the prevalence or formality of pay secrecy rules, with the notable exception of California and its especially comprehensive remedies. But even in California, 4 in 10 workers remain subject to an illegal pay secrecy policy.

Though employment law enforcement is notoriously poor, pay secrecy rules seem uniquely durable — and state pay secrecy bans uniquely futile. In considering why, we document the old and new arguments used to understand secrecy’s persistence. But even in combination these factors are not adequately explanatory. We contend instead that the dominant driver is employer power, in two forms. The first, coercive power, is widely documented and understood. The second, known as legitimating power, is not. We find strong evidence for this latter form and suggest it is the key to explaining the pervasiveness of illegal pay secrecy rules. The insight helps critique the newest efforts to legislate transparency, like mandated pay ranges in job postings. Most importantly, a legitimate power lens clarifies the best paths towards nationwide pay transparency in the future.