New Symposium: “The Law of Parents and Parenting Symposium”

New Symposium: The Law of Parents and Parenting Symposium, 90 Fordham L. Rev. (2022). Contained Articles listed below:


New Article: “Excluding Non-Citizens from the Social Safety Net”

New Article: Wendy E. Parmet, Excluding Non-Citizens from the Social Safety Net, 49 Ga. J. Int’l & Comp. L. 525 (2021).

New Article: “Whose Child Is This? Improving Child-Claiming Rules in Safety-Net Programs”

New Article: Jacob Goldin, Ariel Jurow Kleiman, Whose Child Is This? Improving Child-Claiming Rules in Safety-Net Programs, 131 Yale L.J. 6 (2022). Abstract below:

To address the staggering problem of child poverty in the United States, policymakers distribute a host of safety-net and transfer programs designed to support children and families. All of these programs require rules to determine how benefits are distributed. Among the more important of these are “child-claiming” rules. These rules determine which adults can receive benefits for which children, driving how well a program helps recipients and satisfies societal goals.

This Article critically assesses the design of child-claiming rules for safety-net programs, using as case studies the Child Tax Credit and the Earned Income Tax Credit. It considers how best to design child-claiming rules to achieve specific program goals, the foremost of which is supporting children’s well-being. This analysis illustrates that no single rule regime dominates. Rather, policymakers must compromise between important objectives such as channeling benefits to children’s caregivers and providing flexibility to claimants’ households. Informed by a principle-driven framework, the Article considers how best to navigate these difficult tradeoffs and proposes specific child-claiming rules under several different benefit structures. The analytical framework can inform the design of administrable and inclusive child-claiming rules across safety-net programs.

New Article: “The Federal Rules of Pro Se Procedure”

New Article: Andrew Hammond, The Federal Rules of Pro Se Procedure, 90 Fordham L. Rev. 2689 (2022). Abstract below:

In recent years, more than a quarter of all federal civil cases were filed by people without legal representation. Yet, the Federal Rules of Civil Procedure refer to pro se litigants only once, and the U.S. Supreme Court has not considered in over a decade the question of what process is due to unrepresented civil litigants. Many judicial opinions in these cases go unpublished, and many are never appealed. Instead, the task of developing rules for pro se parties has taken place inside our federal district courts, whose piecemeal and largely unnoticed local rulemaking governs thousands of such litigants each year.

This Article illuminates this neglected corner of the federal courts. It collects and analyzes every pro se–specific rule and practice—nearly 500 in total—in the ninety-four federal district courts. This Article first categorizes these rules and then digs deeper into the most resource-intensive practice—the appointment of counsel—in the roughly forty district courts that maintain a pro bono program. In doing so, this Article unearths the procedures unrepresented litigants must follow when they walk into federal court.

In addition to its descriptive contribution, this Article pushes the bench, bar, and academy to revisit these federal rules of pro se procedure. It considers how to improve the process of making such local rules to better consider the needs of pro se litigants. This Article points the way forward for civil justice reform in the federal courts.

New Article: “Small Suburbs, Large Lots: How the Scale of Land-Use Regulation Affects Housing Affordability, Equity, and the Climate”

New Article: Eric Biber, Giulia Gualco-Nelson, Nicholas Marantz & Moira O’Neill, Small Suburbs, Large Lots: How the Scale of Land-Use Regulation Affects Housing Affordability, Equity, and the Climate, 2022 Utah L. Rev. 1 (2022). Abstract below:

Housing costs in major coastal metropolitan areas nationwide have skyrocketed, impacting people, the economy, and the environment. Landuse regulation, controlled primarily at the local level, plays a major role in determining housing production. In response to this mounting housing crisis, scholars, policymakers, and commentators are debating whether greater state involvement in local land-use decision-making is the best path forward.

We argue here that there are good reasons to believe that continuing on the current path—with local control of land-use regulation as it is— will lead to persistent underproduction of housing. The benefits of housing production are primarily regional, including improved job markets, increased socioeconomic mobility, and reduced greenhouse gas emissions. But the costs associated with producing more housing are often local, felt at the neighborhood level. Local governments whose voters are impacted by the local negative impacts of housing and will usually have less incentive to consider those regional, and national, benefits and approve housing. Recent political science, planning, economics, and legal research shows that smaller local jurisdictions tend to produce less housing, and when political institutions decentralize control over housing to the sublocal (e.g., neighborhood) scale, less housing is approved.

A central theory in academic research in land-use regulation and local government law has been the idea that competition among highly fragmented local governments can produce more efficient outcomes in public services and land-use regulation, even if there may be significant inequities across local jurisdictions in outcomes. Our analysis shows that this theory no longer accurately describes how fragmented local governance affects economic efficiency. Indeed, our analysis makes clear that fragmented local governance is both inequitable and inefficient, at least in the context of land-use regulation. Our analysis also raises questions about local government law scholarship contending that increased local governmental power can effectively address the dysfunctions of metropolitan areas in the United States.

We present a range of policy proposals to address the problems we identify. First, greater state intervention in local land-use regulation is necessary. While a greater state role need not (and probably should not) entirely displace local control, it is essential to ensure that the larger-scale benefits of housing are appropriately considered. Second, we note that the highly fragmented local land-use regulatory system imposes challenges for housing production, in part, because variation among local regulatory practices creates barriers to entry for new housing across jurisdictions. Accordingly, we advocate for a state role to increase the standardization of local land-use regulatory tools as a key step to help advance greater housing production, even where local control is maintained.

New Article: “Downtown Condos for the Rich: Not All Bad”

New Article: Michael Lewyn, Downtown Condos for the Rich: Not All Bad, 51 N.M. L. Rev. 400 (2021). Abstract below:

Through a survey of the academic and popular literature as well as a review of relevant data, this Article suggests that the growth of high-end condominiums is likely to increase supply and hold down costs for local residents. Part I of the Article discusses the background of the debate, including the increased popularity of downtown life, the explosion of urban housing costs in some cities, and the growth of high-cost condos. Part II critiques the claim that the growth of high-end condos will fail to lower housing costs and suggests that this claim is wrong because (1) at least some of these condos are purchased or rented by local residents; and (2) even if this was not the case, these condos might lower housing costs by shifting demand away from older housing units that might otherwise be purchased by out-of-town investors. The Article further demonstrates that even if out-of-town investment has increased housing demand, a vacancy tax would limit this demand more effectively than restrictive zoning. Finally, Part III discusses other externalities allegedly caused by these condos and argues that those externalities do not justify limits on condo construction.

News Coverage: The Extraordinary Wealth Created by the Pandemic Housing Market

News Coverage: Emily Badger and Quoctrung Bui, The Extraordinary Wealth Created by the Pandemic Housing Market, N.Y. Times, May 1, 2022.

New Article: “Claimin’ True: Optimizing Eligible Take-Up of the EITC”

New Article: Jaden Warren, Claimin’ True: Optimizing Eligible Take-Up of the EITC, 28 Geo. Poverty L. & Pol’y J. 243 (2021). Abstract below:

The Earned Income Tax Credit (EITC) suffers from two competing issues: incomplete take-up and overclaims—some eligible people do not claim the credit while some ineligible people do. This Note applies concepts from behavioral economics to these issues to determine why existing reforms have had limited success and what can be done to address them. This Note proposes the creation of an “opt-out” EITC system in which the IRS automatically determines EITC eligibility and the harmonization of the EITC audit rate with the national audit rate, accompanied by a bundle of existing EITC reform proposals.

New Article: “Bridging the Two Cultures: Toward Transactional Poverty Lawyering”

New Article: Gregory E. Louis, Bridging the Two Cultures: Toward Transactional Poverty Lawyering, 28 Clinical L. Rev. 411 (2022). The article is here: Louis – Bridging the Two Cultures. Abstract below:

As U.S. society emerges from the COVID-19 pandemic that decimated Black and Brown communities and law schools reexamine their curricula after the summer of 2020, a moment of interest convergence has emerged: the need for legal education to matter for Black and Brown livelihoods. This Article proposes a concrete measure for meeting this moment. Informed by CUNY School of Law’s lawyering seminar and building upon scholarship long calling for a paradigm shift toward a transactional understanding of social justice – especially Professor Susan R. Jones’s work – this Article calls upon law schools to leverage their positions and resources toward Black and Brown economic recovery. Specifically, the Article proposes that law schools do so by requiring their students to enroll in a transactional poverty law seminar and clinic instructing students toward assisting socially and economically disadvantaged small businesses with applications for capitalization and finance. With such a course, law schools can become centers of what Professor Jones terms “action research,” assisting the flow of assets to populations historically locked out of capital, most recently with the pandemic economic stimulus programs. It also would serve to enlighten privileged law students on the stark exclusions within the U.S. market economy and initiate socially and economically disadvantaged law students into transactional practice. Through advancing mutual benefit about this principle of double discovery, the course would serve to bridge the gap between the two Americas as well as the silos of litigation and transactional lawyering.

New Article: Uncoupling

New Article: Naomi Cahn & June Carbone, Uncoupling, 53 Ariz. St. L.J. 1 (2021). Abstract below:

A series of Supreme Court decisions recognize the end of the federal–state–corporate partnership that once provided a foundation for employment security and family stability. That partnership, which reached its pinnacle during the industrial era, established a family wage made available to the majority of the male population through unionization, a social safety net that filled the gaps left by wage labor, and the extension of these public and private benefits to women and children through marriage.

Uncoupling shows how family security and stability can no longer be linked to employment or marriage, requiring a redesign of the state response. The Supreme Court has framed the necessary elements in that response. First, although other scholars note that the Court’s marriage equality decision in Obergefell celebrates marriage, this Article emphasizes that the decision rejects the historical conception of marriage that made it mandatory, gendered, and foundational to family security. Second, the Court’s opinion in Little Sisters of the Poor in 2020 reaffirms the Court’s earlier decisions that employers owe no civic obligations to their employees or the public good and are thus inappropriate partners for the administration of state benefits. Third, the Court’s ongoing decisions interpreting the Affordable Care Act, including those pending during the upcoming Supreme Court term, lend more support to direct state–citizen compacts than to employment-based benefits.

What other legal scholars have yet to acknowledge is that these decisions point the way toward the emergence of a new legal order. This Article’s groundbreaking analysis of the rise and fall of the male family wage leads to the conclusion that coupling—between men and women in marriage and between employers and state-sponsored benefits—no longer works, clearing the way for the creation of a new legal order.