New Article: Michele E. Gilman, Expanding Civil Rights to Combat Digital Discrimination on the Basis of Poverty, 75 SMU L. Rev. 1 (2022, Forthcoming). Abstract below:
We live in a datafied society in which a vast network of public and private entities collect and combine our personal data. Algorithms sort these data troves and generate digital profiles that serve as gatekeepers to life’s necessities such as jobs, housing, health care, and education. Several scholars and civil rights organizations have highlighted the potential for algorithmic bias in these artificial intelligence systems, and examples of digital discrimination on the basis of race, gender, and other protected characteristics are ubiquitous. As a result, there are numerous legislative proposals and emerging litigation strategies for countering algorithmic bias. However, these civil rights initiatives leave out one group of Americans who are particularly vulnerable to digital discrimination – people experiencing poverty. Low-income people are suffering in the datafied society, while businesses amass large profits at their expense and governments digitally deny them social safety net benefits. This Article explores the harms poor people suffer from algorithms used in tenant screening, credit scoring, higher education admissions, and online advertising platforms. In light of these harms, this Article argues that existing and new laws prohibiting digital discrimination should include low socio-economic status as a protected characteristic. This legal reform would limit the digital harms low-income people suffer, enhance economic opportunity for millions of Americans, advance the fight for racial justice, and generate the data needed to improve anti-poverty policymaking.
New Article: Brentin Mock, Inside the Minority-Led Movement to Create an Inclusive City, Bloomberg (May 26, 2022). Excerpt below:
After three failed proposals to create new cities in Georgia’s Cobb County, a fourth is touting diversity, affordability and inclusive voting rights. Out of four new cities proposed just west of Atlanta, only one is still in play.
Campaigns to establish the municipalities of Lost Mountain, East Cobb, and Vinings in what are now unincorporated parts of Cobb County, Georgia, all failed their May 24 ballot referendums. Voters living within the proposed boundaries of Mableton, on the southern edge of the county, will vote on cityhood in November. Organizers of that movement, which would create one of metro Atlanta’s most racially and economically diverse cities, say the later voting date will give them more time to educate the electorate on the benefits of incorporation.
New Book: Dan Immergluck, Hot City, (Forthcoming, 2022). Overview below:
An incisive examination of how growth-at-all-costs planning and policy have exacerbated inequality and racial division in Atlanta.
Atlanta, the capital of the American South, is at the red-hot core of expansion, inequality, and political relevance. In recent decades, central Atlanta has experienced heavily racialized gentrification while the suburbs have become more diverse, with many affluent suburbs trying to push back against this diversity. Exploring the city’s past and future, Red Hot City tracks these racial and economic shifts and the politics and policies that produced them.
Dan Immergluck documents the trends that are inverting Atlanta’s late-twentieth-century “poor-in-the-core” urban model. New emphasis on capital-driven growth has excluded low-income people and families of color from the city’s center, pushing them to distant suburbs far from mass transit, large public hospitals, and other essential services. Revealing critical lessons for leaders, activists, and residents in cities around the world, Immergluck considers how planners and policymakers can reverse recent trends to create more socially equitable cities.
New Article: Melody McCombs, The Willful Neglect of the American Child Welfare and Family Court System, (2022). Abstract below:
In 2015 a poor, minority mother of six young children was accused of neglect and reported to the Department of Children and Family Services. Her two youngest children, born within fourteen months of each other, were both delivered prematurely and, at the time of the complaint, suffered from significant health issues. Despite no reported concerns from the medical professionals working closely with the mother, the trial court issued an instant order placing all six children in the State’s custody after declaring them ‘in need of care’. The trial court’s decision in this case is not unique to this family, it is the norm for poor minority families in the United States.
This article examines the historical development of child welfare programs, legislation, and practice within the United States family court. Additionally, academic exploration will connect the explicit link between poverty and child maltreatment and what, if anything, the United States legal system does to address what is often considered a significant root cause of child maltreatment.
Analysis will utilize Louisiana in rel K.M., a case which was handled in Louisiana, one of the poorest states in the United States. Louisiana in rel K.M. provides important context for how poor minority families are taken through a biased and ineffective court process which attempts to “remedy” allegations of child maltreatment. The analysis confirms that in many cases, the court system fails to protect children, families, and remove systemic bias and racism against poor, minority families; and suggests possible resolutions to the failures exposed in our family court system.
New Article: Limor Riza, Taxation of Long-term Unemployment in the Digital Economy: Facing the Twenty-First Century Challenges, 70 Cath. U. L. Rev. 421 (2021). Abstract below:
The article examines the policy of taxing long-term unemployment. We claim that tax systems should not tax the unemployed regardless of whether they reenter the labor market. Unemployment is a socioeconomic problem. The fear of expanding unemployment increases due to COVID-19 that shut down large sectors of the economy for a long period and also due to the digital economy. As early as the 1930s, Keynes expressed his fear of the economic challenges his grandchildren’s generation would face, coining the term “technological unemployment.” Several contemporary economists substantiate this fear by showing that some occupations are bound to disappear. Unemployment insurance is part of social law aimed at granting financial security during unemployment. This article focuses on security benefits paid out of unemployment insurance programs to unemployed who become chronically so. In many countries it is common to tax unemployment benefits, but tax laws do not distinguish between short-and long-term unemployed taxpayers. Given that the future of the occupational security of the unemployed is dubious, taxation should take into consideration the future “dimension” of equity. In order to assess the proper taxation of the long-term unemployed, the article adopts the reciprocity principle, which is reinforced by lifecycle theory. Equity cannot be measured over a single year, but over a longer period, during which we should examine whether the unemployed has become chronically so–one who cannot find a job even after exhausting his rights to unemployment insurance. The article proposes three taxation periods reflecting reciprocal relationships between a taxpayer and society–employment, regular unemployment, and chronic unemployment–and the reciprocity between two adjacent periods is then examined. Since unemployment insurance programs are well rooted in many countries, the article’s recommendations are practically universal.
New Article: Olivia Crow, Education Inequality During COVID-19: How Remote Learning Is Widening the Achievement Gap and Spurring the Need for Judicial Intervention, 63 B.C. L. Rev. 713 (2022). Abstract below:
Remote learning during the COVID-19 pandemic (COVID-19) disrupted nearly every student’s life and will cause immense learning losses. Low-income students and students of color are the most likely to be in online classes, yet the least likely to have necessary resources to succeed in a remote school environment. Studies show that the COVID-19 pandemic has and will continue to worsen the racial and socio-economic achievement gap in education. As a result, two groups of parents in California filed class action lawsuits alleging that the State of California and the Los Angeles Unified School District respectively failed to provide a basic education to students of color in impoverished neighborhoods since the school closures in spring 2020. Following the United States Supreme Court’s seminal ruling in Brown v. Board of Education in 1954, education litigation has slowly progressed under State constitutions towards recognizing an affirmative duty for States to provide a free and equal education. The Supreme Court’s decision in San Antonio Independent School District v. Rodriguez in 1963 solidified that the federal Constitution does not guarantee an equal public education for all citizens. As such, since the federal Constitution does not guarantee the right to public education, but all state constitutions do, the citizens of California and other states must use their state constitution to enforce the constitutional guarantee of a free and equal education. During the Pandemic, California’s remote learning plan has disproportionately affected low-income students of color, while privileging students in wealthier districts. This Note contends that both class action complaints sufficiently allege an equal protection violation, spurring the need for judicial intervention, and providing a model for future litigants in other states. The courts, therefore, should advise the legislature to adopt a plan that accounts for the lost learning time and ensures the most disadvantaged students receive a meaningful education during and post COVID-19.
New Article: Francine J. Lipman, Tax Audits, Economics, and Racism, Oxford Research Economics and Finance (2022 Forthcoming). Abstract:
The Internal Revenue Service (IRS) is the federal agency charged with tax revenue collection. In fiscal year 2020, the IRS collected $3.5 trillion in taxes, which represented about 96 percent of aggregate annual federal funding (IRS, 2020). In its mission statement the IRS states that its primary role is to enforce tax laws. The IRS’ website announces that it is responsible “to help the large majority of compliant taxpayers with the tax law, while ensuring that the minority who are unwilling to comply pay their fair share,” among similar duties. Nevertheless, the IRS’ most recent official estimate of the “tax gap” or the amount of net taxes owed by taxpayers who did not “pay their fair share” even after IRS enforcement efforts was $1.143 trillion for the three-year period 2011-2013 or $381 billion average annually. This amount is more than all the income taxes paid by 90 percent of all taxpayers (Rossotti & Forman, 2020). Assuming constant compliance rates, the Treasury has estimated that the tax gap in 2019 was $584 billion, $7 billion over the decade, or 15 percent of annual tax liabilities (IRS, 2019). Economists have estimated that the tax gap was at least $630 billion in 2020 (Sarin & Summers, 2019).
Despite these titanic uncollected tax obligations and the IRS’ patent failure to accomplish its charge and stated goal every year, Congress has significantly cut the IRS budget since 2010. Budget cuts have occurred even though Congress has been requiring broader and deeper IRS engagement in tax reform, health care, and economic stimulus payments. The IRS has responded to these budget cuts and additional work with meaningful decreases in its enforcement activities even with increasing annual tax gaps. Most notably, the audit rates of corporations and high-income individuals have dropped precipitously. Audits on millionaires have plummeted 71 percent (Center on Budget and Policy Priorities, 2021) and on large corporations they have dropped 51 percent (Huang, 2020). As a result, voluntary compliance rates likely have not stayed constant, but more likely have declined.
Past IRS Commissioners and notable economists have found that the IRS’ reported estimate of the tax gap significantly understates sophisticated tax evasion among wealthy taxpayers and large corporations (Guyton et al., 2021; Debacker et al., 2020; Alstadsaeter et al., 2019; Johns & Slemrod, 2010). IRS Commissioner Charles Rettig in testimony before Congress estimated that the tax gap could be as high as $1 trillion a year or almost 30 percent of gross revenues (Davidson, 2021). Unless systemic changes are made, Americans can expect to lose 3 percent of gross domestic product or $7.5 trillion in tax liabilities due and payable under current tax law over the next decade (Rossotti et al., 2020; Sarin, 2021).
The IRS, economists, scholars, and policy experts generally agree on an effective remedy. The tax gap could be reduced by increased funding for targeted IRS enforcement that would more than pay for itself severalfold (U.S. Department of the Treasury, 2021; Holtzblatt, 2021, Huang, 2020). Despite this obvious and lucrative remedy, Congress has done the opposite while certain representatives simultaneously complain about increasing federal deficits. Why has Congress defunded the IRS when the annual tax gap has soared? Why has the IRS decreased audits of the highest income taxpayers and largest corporations when economists have estimated they are responsible for more than 70 percent of the tax gap? This article will attempt to provide a critical tax framework with which to analyze this enigma.
New Article: Rachel F. Moran, The Pocketbook Next Time: From Civil Rights To Market Power In The Latinx Community, 73 Am. L. Rev. 579 (2022). Abstract below:
The United States is undergoing a demographic transformation. Nearly one in five Americans already is Latinx, and the United States Census Bureau projects that by 2060, nearly one in three will be. Latinx will substantially outnumber every other historically underrepresented racial and ethnic minority group, and non-Hispanic whites no longer will be a majority. Those changes have unsettled traditional approaches to full inclusion.
Civil rights activists have suffered numerous setbacks, and the burgeoning Latinx population is searching for other paths to belonging. Some leaders have turned to growing Latinx market power to demand recognition and equal opportunity. These efforts rely heavily on aggregate contributions that Latinx make to the labor force, consumption of goods and services, and entrepreneurship. Advocates use these statistics to show that Latinx are vital to continued prosperity for all Americans.
Aggregate statistics do not grapple with the internal heterogeneity of the Latinx population, particularly along lines of class and immigration status. Nor do the numbers address the ways in which the law itself constrains market participation. Earlier movements to promote economic empowerment are instructive. Marcus Garvey’s Universal Negro Improvement Association (UNIA), though not a Latinx movement, mobilized working-class Black Americans to advance race pride and an enterprising spirit. That initiative foundered in the face of two implacable forces: opposition from middle-class Black leaders committed to a civil rights agenda and a capitalist system that made little room for entrepreneurship by poor people. Cesar Chavez’s labor organizing for the United Farm Workers (UFW) is the most famous mobilization to advance Latinx economic interests, and his movement continues to influence activists to this day. The UFW’s rise and fall reveal how disputes over the treatment of the undocumented and legal battles over union tactics divided the membership and drained precious resources.
These lessons of history reveal the limits of both market aggregation and traditional civil rights strategies in addressing contemporary Latinx labor force participation, political consumerism, and entrepreneurship. Aggregation conceals distinct challenges that Latinx face depending on whether they are working-class or middle-class, undocumented or legally present. For working- class and undocumented Latinx, the most essential reforms depart from a civil rights framework, requiring structural investments in human capital and comprehensive immigration reform. For middle-class and legally present Latinx, civil rights can be a useful tool in fighting discrimination on the job and in lending markets. However, new approaches will be needed to address exclusionary social networks, which create barriers to advancement at work and limit access to capital. To leverage growing numbers, Latinx therefore must forge innovative strategies that recognize the intricate interdependency of the civic square and the marketplace.
New Article: Tressie McMillan, America Turned the Greatest Vehicle of Social Mobility Into a Debt Machine, N.Y. Times (May 21, 2022). Excerpt below:
If it weren’t for all of the Black women students milling about, Bennett College in Greensboro, N.C., would be the picture of Hollywood’s idea of a small liberal arts college. The red-brick architecture anchors a manicured quad. Wide footpaths crisscross the small but tidy commons.
And then a brick wall announces a boundary not quite breached by the surrounding area’s racial segregation and economic precarity. But it is a half wall, one on which you can sit and stare outside the bubble toward the reality from which students arrive. As metaphors go, it is a strong one: Black colleges like Bennett cannot afford to build a wall so high that the world does not intrude.
New Article: Erica Braudy and Kim Hawkins, Power and Possibility in the Era of Right to Counsel, Robust Rent Laws & COVID-19, 28 Geo. J. Poverty L. & Pol’y 117 (2021). Abstract below:
New York City (NYC) finds itself in an unprecedented housing crisis as the coronavirus (COVID-19) pandemic reveals with devastating force that safe, sustainable and affordable housing is both a human right and a public health necessity. The profound humanitarian and economic devastation of COVID-19 puts millions of New Yorkers at risk of eviction—especially those within Black and Latinx communities. In addition, the pandemic hit just as the legal landscape for tenants was transformed through landmark legislation ensuring the Right to Counsel in eviction proceedings and sweeping reforms of New York’s rent laws. The unparalleled COVID-19 pandemic, the influx of hundreds of new tenant attorneys resulting from the Right to Counsel, and the robust rent law reforms fundamentally alter the role and powerful potential of housing advocacy and the very function of NYC’s Housing Court. These three forces provide an opportunity for housing attorneys representing low-income tenants to imagine new and creative ways to provide housing security and build tenant power.
This Article canvasses the fundamental shifts in the NYC housing landscape and the movement to expand tenants’ rights. It urges lawmakers to take bold action to avoid an eviction pandemic and shield tenants from homelessness and crushing debt. Next, it lays a blueprint for housing attorneys, both experienced and novice, to aggressively use the new tenant-friendly rent laws, creatively maximize underused tools, and leverage their collective strength to re-envision housing as a human right. The combination of the Right to Counsel, which has filled the ranks with passionate tenant attorneys, an empowered and progressive state legislature, and a vibrant tenants’ movement has created a powerful force to demand comprehensive and far-reaching housing and racial justice for all New Yorkers and redefine the housing world that lies beyond the virus.