New Article/Book Review: “The Political Economy of ‘Constitutional Political Economy'”

New Article: Jeremy Kessler, The Political Economy of ‘Constitutional Political Economy’, forthcoming Texas L. Rev. Abstract below:

Joseph Fishkin and William Forbath’s book-in-progress, The Anti-Oligarchy Constitution, offers a radical alternative to the constitutional histories that emerged in the 1990s to defend the New Deal synthesis. Fishkin and Forbath’s new constitutional history promises to recast the New Deal as a contingent and incomplete resolution of a centuries-long struggle to achieve the political-economic conditions that the Constitution requires — “requires” in the double sense of “demands” and “depends upon.” This struggle is still ongoing and even accelerating, Fishkin and Forbath report, yet it has become increasingly “one-sided.” First, the post-WWII economic boom dissipated, taking with it much of the middle class that the New Deal and Great Society legal orders had hoped to create. Then, conservative lawyers and politicians stepped up their attacks on the New Deal and Great Society’s remaining achievements, trumpeting a constitutional political economy in which private property free of overweening public management is the pillar of constitutional democracy. Confronted by these dire conditions, legal liberals have forgotten how to fight back, rendered mute by the New Deal synthesis itself, which ironically and erroneously implied that political economy was no longer a matter of constitutional concern. Hoping to even the odds, Fishkin and Forbath offer liberals a grammar of egalitarian constitutional political economy — “the constitution of opportunity” — that was once spoken fluently and effectively by those Americans who argued that the Constitution prohibited oligarchic concentrations of wealth and mandated the political and judicial construction of a broad, inclusive middle class.

By placing the discourse of political economy back at the center of constitutional debate, Fishkin and Forbath have — by any fair measure — done more than enough. Yet scholarly innovators tend to find the ranks of their critics swelled by those who have benefited most from their labor. This Essay is no exception to the oedipal rule. It argues that Fishkin and Forbath could go further still in integrating political economy and constitutional history. At times, their detailed analysis of the discourse of “constitutional political economy” comes at the expense of a more fully materialist account of the political-economic conditions and effects of that discourse. Such a discursive emphasis, in turn, risks an overly optimistic assessment of the past virtues and present utility of “the constitution of opportunity,” the egalitarian dialect of constitutional political economy that Fishkin and Forbath commend to legal liberals today.

News Coverage: “The Millions of Americans Donald Trump and Hillary Clinton Barely Mention: The Poor”

News Coverage: Binyamin Appelbaum, The Millions of Americans Donald Trump and Hillary Clinton Barely Mention: The Poor, New York Times, Aug. 11, 2016.

 

New Report: “Report on the Future of Legal Services in the United States”

Report PhotoNew Report: ABA Commission on the Future of Legal Services, Report on the Future of Legal Services in the United States (2016) [the link for the whole report is here].

Op-Ed: “The Poverty Of Progressivism” – Richard Epstein

Op-Ed: Richard Epstein, The Poverty Of Progressivism, Hoover Institution, Aug. 1, 2016 [defending markets from a conservative perspective].

Blog Posts on Ban the Box by Noah Zatz

Three Blog Posts on Ban the Box by Noah Zatz:

BoxBan the Box and Perverse Consequences, Part I; Ban the Box and Perverse Consequences, Part II; and Ban the Box and Perverse Consequences, Part III.

See also this Atlantic Magazine article.

 

New Report: “The Safety Net’s Impact: A State-by-State Look”

New Report/Fact Sheets: Center on Budget and Policy Priorities, The Safety Net’s Impact: A State-by-State Look (2016).

-Thanks to Francine Lipman for the heads up!

New Article: “Serfdom Without Overlords: Lawyers and the Fight Against Class Inequality”

New Article: Eli Wald, Serfdom Without Overlords: Lawyers and the Fight Against Class Inequality, 54 U. Louisville L. Rev. 269 (2016).  Abstract below:

Lawyers are not very engaged in the public discourse about class inequality in America, reflecting a belief that class inequality is primarily an economic and political problem rather than a legal one. Because lawyers are not commonly perceived to be a cause of the class problem, some believe that lawyers should not be part of the solution. This article challenges the legal profession’s passive stance on class inequality, arguing that all lawyers have an important role to play in the fight against inequality.

The article first identifies a class challenge for lawyers, the rise of an increasingly segregated and stratified legal profession, based on attorneys’ socioeconomic status, showing that the well-documented and growing opportunity gap among our kids will result in a growing opportunity gap among our lawyers. It then disproves an enticing retort dismissing the growing opportunity gaps among our kids and lawyers as somebody else’s problems, asserting that lawyers in their (neglected) role as public citizens have a special duty to address inequalities affecting our kids, and that lawyers as officers of the legal system must combat inequality within the profession.

The rest of the article explores the means by which law schools, law firms, lawyers and the organized bar can and should help fight class inequality. Its main claim is that all lawyers must take part in a capital campaign designed to narrow our kids’ and lawyers’ opportunity gaps, a campaign involving no expenditure of economic capital. Rather, American lawyers, the affluent as well as the less prosperous, possess ample social and cultural capital — connections, relationships, and ties, as well as knowledge, information, and experience — which are the very assets that explain the opportunity gaps.

Law schools amplify lawyers’ opportunity gap by using admission, teaching and grading policies that privilege the affluent at the expense of the less fortunate, and can become part of the solution by replacing these criteria with policies that give everybody an equal opportunity to be admitted and excel based on merit considerations. Law firms systematically, if implicitly, trade in and rely on their lawyers’ social, cultural, and identity capital to make hiring and promotion decisions. They can become part of the solution by transparently acknowledging the role of social, cultural, and identity capital in their practices and providing all lawyers equal opportunities to acquire the requisite capital needed for success within their ranks. Lawyers, in turn, must lend their social and cultural capital assets to help build the capital endowments of the underprivileged. Finally, the organized bar must act as an intermediary connecting lawyers with disadvantaged kids and lawyers, and support the roles of lawyers as public citizens and officers of the legal system. In sum, the legal profession can and should play a meaningful role in narrowing the opportunity gap afflicting our kids and our lawyers.

New Book: “The Poverty Law Canon: Exploring the Major Cases”

Poverty Canon CoverI am excited to announce that The Poverty Law Canon: Exploring the Major Cases (Marie Failinger & Ezra Rosser eds., Univ. of Michigan Press, 2016) is now published and available through both the Michigan Press website and Amazon, etc (the library edition is $95 and the paperback is $39.95).

I have a bit more to say about this book, below, but first I want to highlight the contents of the book.  The book came out of a 2013 conference and features a great group of contributors as can be seen from the chapter list:

 

Introduction – Ezra Rosser

Part I: Victories

When Paupers Became People: Edwards v. California (1941) – Clare Pastore

Remaking the “Law of the Poor”: Williams v. Walker-Thomas Furniture Co. (1965)  – Anne Fleming

Sylvester Smith, Unlikely Heroine: King v. Smith (1968) – Henry Freedman

Legal Services Attorneys and Migrant Advocates Join Forces: Shapiro v. Thompson (1969)  – Elisa Alvarez Minoff

Dignity and Passion: Goldberg v. Kelly (1970) – Melanie B. Abbott

Litigating in the Zeitgeist: Rosado v. Wyman (1970) – Wendy A. Bach

Part II: Losses

A Sweeping Refusal of Equal Protection: Dandridge v. Williams (1970) – Julie A. Nice

Privacy as a Luxury Not for the Poor: Wyman v. James (1971) – Michele Estrin Gilman

A Tragedy of Two Americas: Jefferson v. Hackney (1972) – Marie A. Failinger

Denying the Poor Access to Court: United States v. Kras (1973) – Henry Rose

“The Poor People Have Lost Again”: San Antonio Independent School District v. Rodriguez (1973) – Camille Walsh

Part III: The Modern Era

Reflecting and Foreshadowing: Mathews v. Eldridge (1976) – John J. Capowski

Chronicle of a Debt Foretold: Zablocki v. Red Hail (1978) – Tonya L. Brito, R. Kirk Anderson, and Monica Wedgewood

The Movement for a Right to Counsel in Civil Cases: Turner v. Rogers (2011) – Kelly Terry

Public Housing as Housing of Last Resort: Department of Housing and Urban Development v. Rucker (2002) – Nestor M. Davidson

 

As with any effort to put together a list of important cases, there are cases that arguably should have been included and/or excluded; the chapters represent a combination of the importance of the cases and the interests of the contributors.  But I hope this book will be of interest to those interested in poverty or poverty law in the United States.

“The contributors include some of the best academics who write and teach about poverty. The back stories of these cases are multidimensionally interesting—the clients, the legal strategies, the lawyers themselves, the historical and political context, the effect on the law, the backstage of the Supreme Court and the role of the law clerks.” – Peter Edelman

As one of the editors, I want to thank Michigan Press for taking a chance on this book, Marie Failinger for being such a great co-editor, and all the contributors for their patience as this book made its slow way from idea to something that can be picked up.


I want to end on a personal note.  I see The Poverty Law Canon as being closely related to the Juliet Brodie, Clare Pastore, Ezra Rosser & Jeff Selbin, Poverty Law, Policy, and Practice (2014) in that both are efforts to think through and share the connection between poverty and law in a manner that hopefully will appeal to scholars and students.  The books are linked in my mind, and not only because of the work involved.  I dedicated my role on the textbook to my late father-in-law, Mario Castro, and my part of the dedication page of The Poverty Law Canon reads:

To my students and to my colleagues and mentors at American University Washington College of Law, especially Susan Bennett, Claudio Grossman, and Ira Robbins. It is a privilege to get to teach and write in your company.

Thanks for putting up with this long aside, now buy your copy and tell your librarian to do the same!  =)

New Article: “Discrimination in Evictions: Empirical Evidence and Legal Challenges”

New Article: Deena Greenberg, Carl Gershenson & Matthew Desmond, Discrimination in Evictions: Empirical Evidence and Legal Challenges, 116 Harv. C.R.-C.L. L. Rev. 115 (2016).  Abstract below:

Tens of thousands of housing discrimination complaints are filed each year. Although there has been extensive study of discrimination in the rental market, discrimination in evictions has been largely overlooked. This is because determining whether discrimination exists in evictions presents several challenges. Not only do landlords typically have a non-discriminatory reason for evictions (e.g., nonpayment), but they also wield tremendous discretion over eviction decisions—discretion that can be informed by conscious or unconscious bias against a protected group. Detecting discrimination in evictions, moreover, poses a number of challenges that conventional methods of assessing housing discrimination are ill-suited to address. This Article is among the first to empirically investigate racial and ethnic discrimination in eviction decisions. It does so by drawing on the Milwaukee Area Renters Study, a novel observational study of 1,086 rental households. Statistical analyses reveal that among tenants at risk of eviction, Hispanic tenants in predominantly white neighborhoods were roughly twice as likely to be evicted as those in predominantly non-white neighborhoods. Hispanic tenants were also more likely to get evicted when they had a non-Hispanic landlord. This Article discusses possible explanations for these findings and evaluates legal and policy solutions for addressing discrimination in the eviction process.

An Aside: Time to Clean House at the DNC

This is a personal aside, but given the emails that are now public from the DNC, it is amazing to me that the top officials of the Democratic National Committee have not been fired or forced to resign.  As the N.Y. Times reported, DNC officials actively favored one candidate, and in what seems to me like a clear case of discrimination, whether the law recognizes it or not, attempted to use religious intolerance to support Clinton over Sanders.  At the very least I think Democrats (which I have always been, though this and other moves by the party elite and commentators raise questions in my mind) ought to demand the resignation of Debbie Wasserman Schultz, committee chairwoman; Brad Marshall, the chief financial officer of the committee; and Amy Dacey, the committee’s chief executive.  Perhaps demands for such resignations are the best way to respond at this point to the DNC’s constant fear tactic solicitation emails; that or channel such donations to Debbie Wasserman Schultz’s challenger, Tim Canova.