New Op-ed: Nostalgic for the Trump years? That’s because his draconian budget cuts never passed.

New Op-ed: Jason Paul & Jeremy Paul, Nostalgic for the Trump years? That’s because his draconian budget cuts never passed, The Hill, Mar. 20, 2024.

New Article: Community, Society, and Individualism in Constitutional Law

New Article: David A. Super, Community, Society, and Individualism in Constitutional Law, 111 Geo. L.J. 761 (2023).

Alongside the familiar ideological splits in constitutional law lies another division older and more fundamental. Since the Federalists battled the Anti-Federalists, our allegiances have been divided between two vastly different forms of social organization. Community is built around the close, complex relationships among small groups of people, such as the members of a family, the residents of a small town, or the congregants of a church. On the other hand, Society organizes limited interactions among relative strangers, pursuing efficiency or ideological ends. Industrialization and urbanization ensured Society’s dominance in economic life, politics, and law. Yet continued reverence for Community ideals of connection and belonging keeps it a powerful force.

Society’s neglect of Community is deeply destabilizing. President Trump’s ability to speak to many voters’ fear of Society obliterating Community helped him triumph over establishment Republicans and Democrats speaking the language of Society.

This affinity for Community has shaped numerous constitutional doctrines. Ideologically disparate Justices have united to protect key manifestations of Community such as small towns, schools, local police, and juries.

Ignoring Community has undermined constitutional litigation. It has also led to the acceptance of dubious and inconsistent analogies between different phenomena in Community and Society. This has warped doctrines from campaign finance to affirmative action.

Community’s champions must decide whether to continue to regard the federal government as the paramount threat to be cabined whenever possible, or to see it as Community’s only hope for protection against multinational corporations, Big Data, and other private sector threats. This strategic choice will shape numerous areas of constitutional law.

[Self-promotion] New Article: “Navajo Statehood: From Domestic Dependent Nation to 51st State”

New Article: Philip S. Mullenix & Ezra Rosser, Navajo Statehood: From Domestic Dependent Nation to 51st State, 101 Oregon L. Rev. 307 (2023). Abstract below:

The Supreme Court’s recent holding in Oklahoma v. Castro-Huerta that “Indian country is part of the State, not separate from the State” is a reminder of tribal sovereignty’s precarious foundation under U.S. law. The Court’s holding not only broke with longstanding precedent regarding the relationship between tribes and states, it also is incompatible with the lived experience of those living on the Navajo Nation. The Navajo Nation, not the states and not the federal government, has primary responsibility for governing an area roughly the size of West Virginia. Yet, most maps of the United States only demarcate state boundaries, obscuring the existence of Indian nations as the third type of sovereign operating within the borders of the United States.

The inability or unwillingness of the U.S. Supreme Court, and to some extent all other non-Indian governance institutions at the state and federal level, to take tribal sovereignty seriously forces a question: Should the Navajo Nation pursue statehood? Such a question may seem far-fetched or merely an academic thought experiment, but there is historical precedent for contemplating the idea that an Indian nation might form a state. Moreover, Navajo Nation already meets many of the attributes required for the formation of a new state and journalists, academics, and politicians have floated the possibility. So, while the idea of the Navajo Nation becoming the 51st state of the Union seem far-fetched, considering the possibility provides a way to better understand both statehood and the hard choices Indian nations must make.

-Note: This is the first paper I have ever written with a student, but Philip is hardly a typical law student. He came to law school as a surgeon and I got to know him as the fastest reader I have ever met, with a passion for both knowledge and for matters related to tribes. It may be a while until I write another article with a student, but only because Philip set the bar so high.

This article came out of a question I was asked by a candidate for the position of Navajo Nation President before the last Navajo election: should he/she push for statehood? It is a question that Navajo officials raise periodically, but I didn’t have an answer nor a way to help tribal leaders consider such a question. This is an effort to give a partial answer. Ultimately of course, the answer will come from tribal members and from the Navajo Nation government.

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: 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.

News Coverage: Homeless Camps Are Being Cleared in California. What Happens Next? – New York Times

Source New York Times: Homeless Camps Are Being Cleared in California. What Happens Next?

New Issue: Georgetown Journal on Poverty Law and Policy.

New Issue: Georgetown Journal on Poverty Law and Policy Volume 30, Issue 3 (Spring 2023).

Samantha M. Rudelich and Megan C. Kilduff, Letters from the Editors, 30(3) Geo. J. on Poverty L. & Pol’y (2023).

Jon DeCarmine and Joseph S. Jackson, A Tale of Two Ten Cities: The Critical Role of Housing Engagement in Addressing Homeless Encampments, 30(3) Geo. J. on Poverty L. & Pol’y (2023).

Rebecca Horwitz-Willis and Leanna Katz, The Interdependence of Family, State, and Market: Childcare in the Shifting Landscape of the COVID-19 Pandemic, 30(3) Geo. J. on Poverty L. & Pol’y (2023).

Pamela A. Izvănariu, Contesting Racial Wages, 30(3) Geo. J. on Poverty L. & Pol’y (2023).

Katherine L.W. Norton, Accessing Justice in Hybrid Courts: Addressing the Needs of Low-Income Litigants in Blended in-Person and Virtual Proceedings, 30(3) Geo. J. on Poverty L. & Pol’y (2023).

Lauren Sudeall, Elora Lee Raymond, and Phillip M.E. Garboden, Disaster Discordance: Local Court Implementation of State and Federal Eviction Prevention Policies During the COVID-19 Pandemic, 30(3) Geo. J. on Poverty L. & Pol’y (2023).

New Issue: Journal of Affordable Housing & Community Development Law

New Issue: Journal of Affordable Housing & Community Development Law Volume 32, Number 1 (2023).

Allyson E. Gold, Addressing Housing Instability and Medical Debt: A Community-Based Approach to ARPA.

Gregory M. Zlotnick, Facing Emergencies with Equity: Adopting ARPA’s. Emergency Rental Assitance Eligibility and Documentation Standards for Undocumented Individuals as a Model for Hosing Stability.

Sam Gilman, Ending Evictions: The Lived Case for Replacing the Violence of Eviction with the Humanity of a Safety Net.

Trevor Samios, Lessons Learned by a Landlord from a Housing Stability Program.

Nathan Cummings and Anika Singh Lemar, Anticipating the Impact of the White House’s Bluepring for a Renter Bill of Rights.

New Article: The Abolition of Food Oppression

Etienne C. Toussaint, The Abolition of Good Oppression, 111 Geo. L. J. 5 (2023). Abstract Below.

Public health experts trace the heightened risk of mortality from COVID-19 among historically marginalized populations to their high rates of diabetes, asthma, and hypertension, among other diet-related comorbidities. However, food justice activists call attention to structural oppression in global food systems, perhaps best illuminated by the prevalence of unhealthy fast-food restaurants (and the lack of healthy alternatives) in low- income Black and Hispanic/Latinx neighborhoods nationwide. In response, local governments have begun to prioritize local food production to reduce food insecurity. Yet, even well-intentioned food justice initiatives, such as urban farming programs, can perpetuate structural inequities by glorifying entrepreneurialism or privatization as effective solutions to poverty. Further still, when lawmakers propose targeted relief programs for food insecure communities, such as the Biden Administration’s federal debt relief program for socially disadvantaged farmers, they are routinely challenged on constitutional grounds for preferencing non-White racial and ethnic groups. Thus, food insecurity in the urban ghettos and rural towns of America persists.

To defeat this impasse, this Article advocates an abolition constitutionalist framing of food insecurity in the United States. Specifically, it argues that framing the problem of food insecurity in historically marginalized communities as a badge of the antebellum system of chattel slavery invokes the legislative potential of the Thirteenth Amendment’s Enforcement Clause. Although the Supreme Court has empowered Congress to pass laws necessary for abolishing all badges and incidents of slavery, there remains a lack of clarity on the scope of material conditions or forms of discrimination that constitute such lingering harms, leading some lower courts to limit the Amendment’s enforcement to literal slavery or involuntary servitude.

Accordingly, this Article proposes a dignity based normative framework to assess the nature of injuries or material conditions that are proximately traceable to the political economic system of American slavery. Using the problem of food insecurity as a guiding explanatory thread, this framework reveals how modern badges of slavery can inflict: (i) equality-based; (ii) liberty-based; and (iii) integrity-based dignitary harms. These dignitary harms, individually and collectively, can perpetuate the types of oppression levied by chattel slavery; in this instance, the exploitative, marginalizing, and violent harms of food oppression. Whether modern-day food oppression is animated by state action (or inaction) or by private actors, it not only hinders public health and degrades democracy, but most importantly, it also violates the spirit and letter of the Thirteenth Amendment.