There’s nothing a like a good chart. As work requirements appear all the rage, Krugman importantly asks a simple question to keep things in perspective: With a superior macroeconomic situation (U.S. near full employment), why are so many more Americans in poverty than in the “welfare states” of Europe? Hint: Don’t blame state generosity.
New Op-Ed: Paul Krugman, Benefits, Work, and Poverty, NYTimes.com, July 15, 2018.
The Council of Economic Advisers released a new report, Expanding Work Requirements in Non-Cash Welfare Programs, July 2018, that has some surprising parts (a claim–from this White House!–that the War on Poverty was successful and the idea that there are not that many poor people in the United States). The Washington Post overview of the report is here. The New York Times’ news coverage is here. And Paul Krugman’s response op-ed is here.
New Article: Martha Albertson Fineman, Injury in the Unresponsive State: Writing the Vulnerable Subject into Neo-Liberal Culture, Emory Legal Studies Research Paper Forthcoming In Injury and Justice: The Cultural Politics of Harm and Redress, Bloom, Engel, and McCann Eds., Cambridge Studies in Law and Society, 2018. Abstract below:
State neglect of the needs of those individuals living in poverty or suffering under social, economic, and material disadvantage is not seen as requiring legal or political remedy. Quite the contrary: state inaction is typically viewed as the appropriate manifestation of state restraint in the face of individual liberty or autonomy rights that condemn any move toward the “redistribution” of private wealth or property. “Private” structures, such as the family, market, charity, or the workplace, are designated as the prime mediating institutions to provide for the needs of individuals. Arguably, the state may be seen as having some responsibility in regard to the conduct and operation of those institutions, but at best the state is seen as an incremental and contested residual actor when they fail. This understanding of state inaction as not constituting injury or harm is both validated and compelled by the ways in which, over the course of American political history, the political subject and social contract have been understood as anchored in liberty and autonomy.
New Op-Ed: Outside in America team, Bussed Out: How America moves its homeless, TheGuardian.com, Dec. 20, 2017.
I am once more abusing my role as editor to share this new op-ed: Ezra Rosser, Beyond “Smart”: Kavanaugh’s Credentials and the Limits of Intelligence, The Hill, July 11, 2018.
New Article: Barbara Fedders, Schooling At Risk, 103 Iowa L. Rev. 871 (2018). Overview below:
The Article proceeds as follows. Part II offers the historical context within which the current form of exclusion is situated. It describes the central norm of universal public education advanced by the 19th century “common school” movement. It details the history of outright bans, and later segregation, of African-American students and students with disabilities. It demonstrates that the notion that these groups were undeserving of education animated those exclusionary practices. Part III demonstrates that while de jure segregation has ended and federal laws now protect students with disabilities, the trope of an undeserving child persists. It supports this contention through detailing the increase in misbehavior-based exclusion and rise of AEPs. It analyzes how the structure and operation of AEPs work to harm rather than help students and thus reinforce notions that the students within them are undeserving. Part IV examines the difficulty of combatting suspension with legal remedies and shows that key legal and legislative strategies that advocates have used to curb the most blatant forms of exclusion are ill-equipped to reform the flaws of the AEP. Looking forward toward possible solutions, Part IV notes as a welcome trend the small but growing number of schools that have implemented alternatives to exclusionary forms of discipline. It concludes by arguing that while individual districts may be able to institute small improvements in AEPs, this particular educational innovation should be abandoned.
New Report: National Low Income Housing Coalition, Out of Reach: The High Cost of Housing, 2018.
This is the newest annual edition of NLIHC’s report, a vital piece advancing understanding of the affordable housing crisis across the nation.
New Article: Jeremiah A. Ho, Why Flexibility Matters: Inequality and Contract Pluralism, U.C. Davis Business Law Journal, Forthcoming, 2017. Abstract below:
In the decade since the Great Recession, various contract scholars have observed that one reason the financial crisis was so “great” was due in part to contract law—or, more precisely, the failures of contract law for not curbing the risky lending practices in the American housing market. However, there is another reason why contracts made that recession so great: contracts furthered inequality. In recent years, when economic inequality has become a dominant national conversation topic, we can see development of that inequality in the Great Recession. And indeed, contract law was complicit. While contractual flexibility and innovation were available to soften the blow of large commercial deals gone wrong during the crisis, residential mortgage defaults across the U.S. were subject to strict contractual formalism that led to severe consequences for those pursuing one of the hallmark prizes of the American Dream, homeownership. Specifically, cases during the Great Recession featured commercial parties relying on the gravity of the Great Recession as the reason why their contract breaches ought to be excused through doctrines such as impracticability. Although impracticability defenses premised on economic changes are usually unconvincing, commercial claimants during the Great Recession had some surprising successes and advantages in taking such positions. Meanwhile, hundreds of thousands of homeowners, whose abilities to honor their mortgage agreements were also hindered by the economic downturn, could not predicate their defaults on the crisis and get away with it. Instead, they were subject to rigid contract formalism. The entitlement to flexible and innovative excuse arguments seemed particularly exclusive to commercial claimants during the Great Recession. And contract law helped sustain that exclusivity. Therein lies the inequality.
This Article’s ultimate goal is not to argue, like others already have, for the efficacy of expanding contract excuse doctrines in significant times of crisis. Instead, the heart of this Article’s investigation examines, using the example of impracticability arguments during the Great Recession, why commercial parties had more access to flexibility in contracts than others in order to point out how it resonates societally for contracts. Modern contract law furthered inequality when it could have been more instrumental in advancing social mobility and economic opportunity. Thus, this Article’s observations ultimately support the idea that rather than formalism, contract pluralism ought to be adopted in order to give contracts a more meaningful role in furthering a fair and just society.
New Op-Ed: Morgan Baskin, Life Inside D.C.’s Motel Homeless Shelters, Wash. City Paper, June 28, 2018.
New Article: Thomas Scott-Railton, Note, Shifting the Scope: How Taking School Demographics Into Account in College Admissions Could Reduce K-12 Segregation Nationwide, 36 Yale L. & Pol’y Rev. 219 (2017). Abstract below:
Deepening racial and socioeconomic segregation is producing unequal educational outcomes at the K-12 level, outcomes that are then reproduced in higher education. This is particularly true as rising competition among colleges has led many of them to focus increasingly on measures of merit that correlate with income and as parents and students adjust their behavior in light of those metrics. While existing affirmative action programs at colleges provide some counterweight to this dynamic, they are limited by institutional (and constitutional) constraints. Out of concern for revenue and rankings, many colleges are constrained in the number of students from low-income backgrounds they are willing to admit. Such a limited scope is not inevitable, however.
If colleges were to give a substantial admissions bonus to applicants who had attended K-12 schools with at least a certain percentage of low-income students, higher education could become a force for countering inequality at the K-12 level, instead of reproducing it. College admissions policies serve as a crucial reference point for parents, students, and educators on down through K-12. By rewarding applicants for attending socioeconomically integrated schools, colleges would mobilize the resources of private actors across the country towards integration. The benefits of this would be significant, especially for students from low-income families who would have an increased chance of attending integrated K-12 schools as a result. Such a policy would also help colleges better foster diversity on campuses, as more students would have had prior experience in integrated settings.
This Note explores the ongoing problem of K-12 re-segregation, argues that by adopting this policy colleges could work to promote integration, examines how such a policy could best be designed to do so, and addresses why such a policy would be constitutional. At a time when educational inequality is on the rise, there is an urgent need for new affirmative action proposals that can combat segregation and do so within colleges’ existing constitutional and institutional constraints. The policy proposal advocated in this Note would do both, interrupting key elements of the present vicious circle.