New Article: Michelle Layser, How Federal Tax Law Rewards Housing Segregation, forthcoming Indiana L.J., SSRN Mar. 2018. Abstract below:
Residual, de facto segregation is among the most enduring barriers to equal opportunity in America. Nearly five decades after the Fair Housing Act of 1968, Blacks and Latinos still tend to live in neighborhoods where the majority of residents are people of color. Such racial segregation is often accompanied by economic segregation. Meanwhile, sociologists, housing law scholars, and poverty law experts have stressed the importance of residential location to the impact of poverty and the potential for upward economic mobility. But an unlikely source of federal housing law—the tax code—may interfere with efforts to promote more integrated communities.
This Article argues that federal tax law rewards White-flight and economic segregation and, as a result, may exacerbate the enduring effects of past policies like redlining and exclusionary zoning, while also limiting the effectiveness of non-tax federal programs intended to promote housing choice, such as the Section 8 tenant voucher program. The Article begins by using publicly available data from the Internal Revenue Service and the Department of Housing and Urban Development to map the flow of mortgage interest deduction benefits and the location of low-income housing tax credit properties in a representative city, Philadelphia. Next, the Article uses thought experiments to demonstrate how features of the tax law create monetary incentives to reinforce the segregation patterns reflected in the spatial distribution of these tax-subsidies. Finally, the Article sets forth recommendations for tax policy reforms that would better promote integrated communities.
New Article: Erez Aloni, The Marital Wealth Gap, 93 Wash. L. Rev. 1 (2018). Abstract below:
Married couples are wealthier than people in all other family structures. The top 10% of wealth holders are, in great proportion, married. Even among the wealthiest households, married couples hold significantly more wealth than others. The Article identifies this phenomenon as the “Marital Wealth Gap,” and critiques the role of diverse legal mechanisms in creating and maintaining it. Marriage also contributes to the concentration of wealth because marriage patterns are increasingly assortative: wealth marries wealth. The law entrenches or even exacerbates these class-based marriage patterns by erecting structural barriers that hinder people from meeting across economic strata.
How can the state restructure the law to alleviate the marital wealth gap? The Article proposes a fundamental shift in the way the state treats wealth and family status. It advances a theory grounded in transformative “recognition and redistribution” that decentralizes marriage’s monopoly on wealth-related benefits and simultaneously aims to reduce wealth concentration among the richest households. Principally, since marriage is the preserve of the well-off, the state should decouple wealth benefits from marriage. At the same time, it should combat the structures that enable wealth concentration among affluent married couples, thereby dismantling the architecture that supports the marital wealth gap.
New Article: Alec Schierenbeck, The Constitutionality of Income-Based Fines, forthcoming Chicago L. Rev. (SSRN Mar. 2018). Abstract below:
When Americans break the law — whether it’s a minor offense like littering or a serious crime like felony assault — they tend to face the same financial penalties, no matter their income. The consequence is a system that puts low-income offenders in a cycle of debt and jail while letting rich offenders break the law without financial consequence, and which fails to meet basic goals of the justice system: to treat like offenders alike, punish the deserving, and encourage respect for the law. Outside the United States, however, systems that assess fines based on earnings have been around for nearly 100 years. The most common model — known as the “day fine” — scales penalties according to a person’s daily income. These models are credited with ensuring proportionality in sentencing, improving the effectiveness of fines as a sanction, and even allowing fines to serve as an alternative to incarceration. But by their very nature, day fine systems can lead to startling results: in 2015, for instance, a €54,000 speeding ticket was assessed to a Finnish businessman caught going 65 miles per hour in a 50 zone. This article is the first in-depth attempt to examine the constitutionality of a system of income-based fines that would levy significant financial penalties on the wealthy. Ultimately, it concludes that potential constitutional obstacles — arising primarily from the Excessive Fines Clause of the Eighth Amendment — are navigable, especially if a U.S. system caps how high fines can go. As more people awaken to the burden that criminal justice debt imposes on the poor, the article suggests that now may be an opportunity for a larger reconceptualization of financial sanctions — away from the inflexible fine and toward income proportionality.
New Book: W. Carson Byrd, Poison in the Ivy: Race Relations and the Reproduction of Inequality on Elite College Campuses (Nov. 2017). Overview below:
The world of elite campuses is one of rarified social circles, as well as prestigious educational opportunities. W. Carson Byrd studied twenty-eight of the most selective colleges and universities in the United States to see whether elite students’ social interactions with each other might influence their racial beliefs in a positive way, since many of these graduates will eventually hold leadership positions in society. He found that students at these universities believed in the success of the ‘best and the brightest,’ leading them to situate differences in race and status around issues of merit and individual effort.
Poison in the Ivy challenges popular beliefs about the importance of cross-racial interactions as an antidote to racism in the increasingly diverse United States. He shows that it is the context and framing of such interactions on college campuses that plays an important role in shaping students’ beliefs about race and inequality in everyday life for the future political and professional leaders of the nation. Poison in the Ivy is an eye-opening look at race on elite college campuses, and offers lessons for anyone involved in modern American higher education.
New Op-Ed: Anthea Butler, The Cheap Prosperity Gospel of Trump and Osteen, N.Y. Times, Aug. 30, 2017.
Op-Ed: Ezra Rosser, Louise Linton and the “Sacrifices” of the Very Rich and Incredibly Obnoxious, CommonDreams, Aug. 23, 2017. [Sadly, I was in a rush to pick up my kid from camp and did not read it through a second time before I pressed send–I missed a couple of grammar issues, but oh well.]
New Article: Edward J. McCaffery, Taxing Wealth Seriously, 70 Tax L. Rev. 305 (2017). Abstract below:
The social and political problems of wealth inequality in America are severe and getting worse. A surprise is that the U.S. tax system, as is, is a significant cause of these problems, not a cure for them. The tax-law doctrines that allow those who already have financial wealth to live, luxuriously and tax-free, or to pass on their wealth tax-free to heirs, are simple. The applicable legal doctrines have been in place for nearly a century under the income tax, the primary social tool for addressing matters of economic inequality. The analytic pathways to reform are easy to see once the law is properly understood. Yet our political systems show no serious interest in taxing wealth seriously. We are letting capital off the hook, and ratcheting up taxes on labor, at precisely a time when deep-seated and long-running economic forces suggest that this is precisely the wrong thing to do. It is time — past time — for a change. This Article canvasses a century of tax policy in the United States to show that we have never been serious about taxing wealth seriously, and to lay out pathways towards reform.
New Book: Wealth NOMOS LVIII (Jack Knight and Melissa Schwartzberg eds. 2017).