Category Archives: Socio-Economic Rights

New Symposium: “American Cities Struggling with Economic Justice Reform”

New Symposium: American Cities Struggling with Economic Justice Reform, 52 Seton Hall L. Rev. (2022). Contained Articles and Comments listed below:

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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: Social Security, Dead Capital and Economic Inequality

New Article: Marshall E. Tracht, Social Security, Dead Capital and Economic Inequality, SSRN, Sept. 2021. Abstract below:

Economic inequality in America continues to grow, taking on ever greater economic and political importance. The reasons for increasing inequality are complex and widely debated, as are potential policies to address it. This paper focuses on a vital but unrecognized part of the story: how the social security retirement program has become a major systemic barrier to the acquisition of wealth by low- and moderate-income families, worsening inequality in general and the racial wealth gap in particular. Most families have no meaningful financial assets other than their social security wealth. Unlike other retirement savings, however, social security wealth is “dead capital,” completely inaccessible to families in need of resources to invest (in homeownership, most importantly) and to cope with unexpected financial shocks. After setting out the nature and magnitude of the problem, this article proposes a straightforward, practical remedy – the creation of Social Security Downpayment and Financial Emergency Loans – that would reduce inequality by helping families build financial security for themselves and wealth for future generations. These loans would counter the adverse effects of social security’s forced-but-inaccessible savings, opening the way to a much broader distribution of wealth.

New Article: “Education’s Deep Roots: Historical Evidence for the Right to a Basic Minimum Education”

New Article: Caroline A. Veniero, Education’s Deep Roots: Historical Evidence for the Right to a Basic Minimum Education, 88 U. Chi. L. Rev. 981 (2021). Abstract below:

For decades, the U.S. Supreme Court has left open the question whether the U.S. Constitution protects a right to some amount of education. While such a right is not specifically enumerated in the Constitution, advocates have long argued for the existence of an implicit, fundamental right to a basic minimum education under the Due Process Clause of the Fourteenth Amendment. Recognition of such a right requires grappling with the Supreme Court’s substantive due process jurisprudence. To be a fundamental right, one requirement is that a proposed right have deep roots in U.S. history and tradition. This Comment examines whether the right to a basic minimum education—defined as basic literacy—is deeply rooted.

While courts differ in how they analyze whether a right is deeply rooted, they all generally view the time around the Fourteenth Amendment’s enactment as a relevant historical consideration. With a focus on that time period, this Comment analyzes two case studies: the Bureau of Refugees, Freedmen, and Abandoned Lands—or “Freedmen’s Bureau”—and the Bureau of Indian Affairs. In both cases, the federal government perceived a gap in local provision of education and responded through these agencies with support for literacy education. In serving as a backstop to local educational failures, the federal government’s actions ensured access to a basic literacy education. This pattern of behavior provides support for the notion that the right to a basic minimum education is deeply rooted.

New Article: Redistribution for Realists

Zachary D. Liscow, Redistribution for Realists (February 24, 2021). Abstract below:

Inequality is a defining issue of our time. Nevertheless, the longstanding economic orthodoxy for addressing inequality is that we should redistribute solely through tax and transfer policies because those are the most efficient means for doing so. 

While the orthodoxy holds in theory, it fails in practice because of the public’s psychology about redistribution. New evidence shows that individuals silo their policy views: many are reluctant to redistribute through taxes and transfers but are willing to do so in other policy domains, like provision of necessities such as transportation, food, and housing. The orthodoxy thus restricts redistribution efforts to a policy domain where the public resists redistribution while neglecting the many policy domains where the public embraces redistributive policies. The current orthodoxy may be more efficient, but it is also a prescription for widespread inequality. 

We need to flip the old economic orthodoxy on its head by spreading our redistribution efforts across many policy domains, but doing so modestly in each domain. This “thousand points of equity” approach has the virtue of redistributing where it can be achieved, by allowing policymakers to seek modest and attainable redistribution in many domains rather than pushing for massive redistribution in a single domain where it is difficult to attain. This approach would allow us to make substantial inroads on inequality while doing the most good at the least cost. The approach does so by retaining the traditional economic goal of efficiency, but combining it with data-driven behavioral insights about what redistribution is politically realistic. The Article illustrates how the approach would apply to areas across the law, including regulatory cost-benefit analysis, labor law, tax law, social insurance, tort law, and housing law. 

New Article: Reconstructing the Algebra of Race and Rights

Raul Carrillo, Reconstructing the Algebra of Race and Rights, L. & Pol. Econ. (Feb. 18, 2021). Introduction below:

In The Alchemy of Race and RightsPatricia Williams critiques capitalism for narrowing our demands on the state to monetizable claims, arguing the “purchasing of our liberties; the peonage of our citizenship” situates us in eternal stasis. If “…a change on one side of the equation is always balanced by the algebraically obligatory change on the other” then “[m]oney reflects law and law reflects money, unattached to notions of shared humanity.” For advocates demanding direct deployment of public money, (via a right to guaranteed income, for example), a rigid conception of public finance is a trap.

Critical legal scholars persuasively argue rights are abstract, unstable, and indeterminate. But these qualities are not generated merely by courts: indeed, issues of justiciability are downstream from the broader public law of collective governance and monetary design, which shapes our understanding of each other as economic agents and units, and the form and function of rights demands in the first place. 

News Coverage: Election Day Voting in 2020 Took Longer in America’s Poorest Neighborhoods

News Coverage: Kevin Quealy and Alicia Parlapiano, Election Day Voting in 2020 Took Longer in America’s Poorest Neighborhoods, N.Y. Times, Jan. 4, 2021.

Article: Human Rights, Economic Justice and U.S. Exceptionalism

Article: Natasha Lycia Ora Bannan, Human Rights, Economic Justice and U.S. Exceptionalism, 31 Pace Int’l L. Rev. 563 (2019). First paragraph below:

While the human rights framework recognizes all rights as inherently interrelated and necessary to the full realization of a dignified life, economic justice—as it’s litigated at least—is often forced to stand on its own, reduced to a “benefit” or “entitlement” and isolated from the larger context to which its demands are linked. Yet, when working with immigrant communities or communities of color, there can be no demands of justice that do not also address systemic economic inequalities that have been built into our economic, political and legal systems by design.

Article: (Under)Enforcement of Poor Tenants’ Rights

Kathryn Anne Sabbath, (Under)Enforcement of Poor Tenants’ Rights, 27 Geo. J. on Poverty L. & Pol’y 97 (2019). Abstract below:

Millions of tenants in the United States reside in substandard housing conditions ranging from toxic mold to the absence of heat, running water, or electricity. These conditions constitute blatant violations of law. The failure to maintain housing in habitable condition can violate the warranty of habitability, common law torts, and, in some cases, consumer protection and anti-discrimination statutes. Well-settled doctrine allows for tenants’ private rights of action and government enforcement. Yet the laws remain under-enforced.

This Article demonstrates that the reason for the under-enforcement is that the tenants are poor. While the right to safe housing extends to all tenants, poor people are the most likely to get stuck in substandard conditions, and the enforcement of their rights is undermined precisely because of their social position. The Article reveals significant limitations in current approaches to the enforcement of poor people’s rights. The private legal market devalues poor tenants’ cases due to class, race, and gender biases in the governing doctrine. Public actors also fall short: they dis-invest in the agencies charged with enforcing housing standards, and, when agency lawyers do initiate enforcement, tenants do not control the litigation.

The Article envisions a new approach to enforcement of housing standards. It identifies specific ways to expand enforcement by market actors, government agencies, and non-profits. Given the relative strengths of the public and private sectors, a combination of the following approaches is likely to be most effective: (1) strengthening support for private enforcement through legislative reform that enhances fee-shifting and aggregation of claims; (2) increasing agency funds and shifting agency culture to promote zealous government enforcement; and (3) appointing counsel for tenants who wish to bring cases or intervene in suits brought by government actors.

Article: The Institutional Design of Community Control

Article: K. Sabeel Rahman and Jocelyn Simonson, The Institutional Design of Community Control, 108 Cali. L. Rev. 679 (2020). Abstract below:

A growing set of social movements has in recent years revived interest in “community control,” the idea that local residents should exercise power over services like the police, infrastructure, and schools. These range from a call from the Partnership for Working Families, a grassroots coalition, to build community control through the direct democratic governance of local infrastructure, to the push from the Movement for Black Lives, a racial justice coalition, to institute community control of law enforcement agencies. For these movement reformers, community control grants local communities greater power over both the levers of urban policy-making and the direction of local services and resources. These social movement visions of community control offer a real-time exploration of potentially transformative institutional designs to shift power in a more equitable direction.

This Article uses two current movement governance proposals—community control of the police and community control of local economic development—to develop a broader, transsubstantive framework for analyzing how local governance institutions might shift power and attempt to redress inequality. We identify three key dimensions along which to analyze the potential for power-shifting and contestation in local governance: the nature of authority, the composition of the governing body, and the moment of authority. Community control may or may not be part of the answer to longstanding structural inequality. But it is still worth exploring the dynamics of local governance that can (or cannot) facilitate contestation, build power, and push back on the antidemocratic structures of law themselves. This Article begins to take on that task.