New Article: Felix B. Chang, Asymmetries in the Generation and Transmission of Wealth, forthcoming Ohio St. L.J. Jotwell review here. Abstract below:
This Article assigns a redistributive role to the legal rules of trusts and estates. Unlike business law, trusts and estates has lagged in articulating a comprehensive theory on inequality. Consequently, income inequality is compounded intergenerationally as wealth inequality, with dire consequences for economic productivity and social stability. To move the discourse on wealth inequality, this Article explores the divergent approaches toward inequality in business law and trusts and estates.
Additionally, this Article recasts trusts and estates’ legal rules as wealth transfer mechanisms. Four categories of rules are implicated: (1) rules that interact with the tax system, (2) rules that govern relations between beneficiaries and creditors, (3) rules that govern relations between beneficiaries and trustees, and (4) rules that govern relations among beneficiaries.
More broadly, this Article contributes to three lines of scholarly debates. The first revolves around the propriety of drawing analogies between trust law and the law of enterprise organization. The second is whether legal rules or the tax system better effectuates redistribution. The third is whether legal rules should reflect our notions of fairness or welfare.
New Article: Laura I Appleman, Cashing in on Convicts: Privatization, Punishment, and the People, 2018 Utah L. Rev. 579. Abstract below:
For-profit prisons, jails, and alternative corrections present a disturbing commodification of the criminal justice system. Though part of a modern trend, privatized corrections has well-established roots traceable to slavery, Jim Crow, and current racially-based inequities. This monetizing of the physical incarceration and regulation of human bodies has had deleterious effects on offenders, communities, and the proper functioning of punishment in our society. Criminal justice privatization severs an essential link between the people and criminal punishment. When we remove the imposition of punishment from the people and delegate it to private actors, we sacrifice the core criminal justice values of expressive, restorative retribution, the voice and interests of the community, and systemic transparency and accountability. This Article shows what is lost when private, for-profit entities are allowed to take on the traditional community function of imposing and regulating punishment. By banking on bondage, private prisons and jails remove the local community from criminal justice, and perpetuate the extreme inequities within the criminal system.
New Article: Stacy Purcell, The Current Predatory Nature of Land Contracts and How to Implement Reforms, 93 Notre Dame L. Rev. 1771 (2018). Abstract below:
Because land contracts are frequently inequitable, advocates and legislators have called for enhanced regulation. This Note examines the imbalance of power between sellers and buyers during the formation of land contracts, the ways the law has attempted to lessen the inequality, and how to implement potential reforms. Part II discusses the history of land contracts and their recent resurgence since the 2008 housing crash. Part III explains that while current land contracts are often predatory, land contracts could potentially be a useful way for low-income individuals to become homeowners. Part IV outlines proposed national and state reforms. Part V makes recommendations for future reform and discusses potential obstacles to the implementation of two of the most promising reforms: mandatory independent inspections and mandatory independent appraisals.
New Book: Sarah Smarsh, Heartland: A Memoir of Working Hard and Being Broke in the Richest Country on Earth (2018). Overview below:
During Sarah Smarsh’s turbulent childhood in Kansas in the 1980s and 1990s, the forces of cyclical poverty and the country’s changing economic policies solidified her family’s place among the working poor. By telling the story of her life and the lives of the people she loves, Smarsh challenges us to look more closely at the class divide in our country and examine the myths about people thought to beless because they earn less. Her personal history affirms the corrosive impact intergenerational poverty can have on individuals, families, and communities, and she explores this idea as lived experience, metaphor, and level of consciousness.
Smarsh was born a fifth generation Kansas wheat farmer on her paternal side and the product of generations of teen mothers on her maternal side. Through her experiences growing up as the daughter of a dissatisfied young mother and raised predominantly by her grandmother on a farm thirty miles west of Wichita, we are given a unique and essential look into the lives of poor and working class Americans living in the heartland. Combining memoir with powerful analysis and cultural commentary, Heartland is an uncompromising look at class, identity, and the particular perils of having less in a country known for its excess.
Upcoming Panel on City of Debtors: A Century of Fringe Finance, Georgetown Law, Oct. 23.
New Article: Deborah Thorne et al., Graying of U.S. Bankruptcy: Fallout from Life in a Risk Society, SSRN Aug. 2018. Abstract below:
The social safety net for older Americans has been shrinking for the past couple decades. The risks associated with aging, reduced income, and increased healthcare costs, have been off-loaded onto older individuals. At the same time, older Americans are increasingly likely to file consumer bankruptcy, and their representation among those in bankruptcy has never been higher. Using data from the Consumer Bankruptcy Project, we find more than a two-fold increase in the rate at which older Americans (age 65 and over) file for bankruptcy and an almost five-fold increase in the percentage of older persons in the U.S. bankruptcy system. The magnitude of growth in older Americans in bankruptcy is so large that the broader trend of an aging U.S. population can explain only a small portion of the effect. In our data, older Americans report they are struggling with increased financial risks, namely inadequate income and unmanageable costs of healthcare, as they try to deal with reductions to their social safety net. As a result of these increased financial burdens, the median senior bankruptcy filer enters bankruptcy with negative wealth of $17,390 as compared to more than $250,000 for their non-bankrupt peers. For an increasing number of older Americans, their golden years are fraught with economic risks, the result of which is often bankruptcy.
New op-ed: Brian Gilmore, Give Tenants Lawyers, N.Y. Times, Oct. 9, 2018.
I want to highlight this article, or really the research from Raj Chetty et al. that it is covering, as something worth checking out. The map feature included in the article from Opportunity Insights is not only something that would be great to share with students in class but has the sort of data/information that could launch dozens of law review articles. Emily Badger & Quoctrung Bui, Detailed New National Maps Show How Neighborhoods Shape Children for Life, N.Y. Times, Oct. 1, 2018. And check out all the other stuff on Opportunity Insights’ page as well. Highly recommended.
News Coverage: Jill Lepore, Is Education a Fundamental Right?, New Yorker, Sept. 10, 2018.
-Thanks to Susan Bennett for the heads up.
New Report: Margot L. Crandall-Hollick, Congressional Research Services, The Earned Income Tax Credit (EITC): A Brief Legislative History (2018).