Economic Inequality

  • January 18, 2017
    Guest Post

    *In October, ACS released "What's The Big Idea? Recommendations for Improving Law and Policy in the Next Administration." With that next administration on the horizon, authors of the report are reviewing their recommendations in the ACSblog symposium: Updating The Big Idea.

    by K. Sabeel Rahman, Assistant Professor of Law, Brooklyn Law School

    As the incoming Trump administration prepares to take office, many Obama era policy initiatives find themselves in the crosshairs of the new administration and the Republican Congress. On the table are a variety of proposals including not only the headline proposed dismantling of the Affordable Care Act, but also measures that could undo the FCC’s net neutrality rules, further privatize the public school system and even voucher-ize parts of Medicare. These proposals represent more than just a pendulum swing away from government regulation to conservative free market principles. Rather, at stake in this debate is a much deeper issue about the nature of public goods and the determinants of economic opportunity and freedom.

    While laissez-faire political thought often portrays the market as a domain of economic freedom and opportunity, unsullied and unskewed by government interference, genuine economic freedom and opportunity require much more than the removal of government interference (even if such a thing were possible). Freedom is not just the absence of restraint; it is the affirmative capacity to pursue life choices and ends that each of us has reason to value. That capacity in turn depends on equal and universal access to foundational goods and services that make such economic opportunity and freedom possible. The underlying infrastructure of economic opportunity thus includes access to things like education, healthcare, labor protections from economic insecurity and the like. In the absence of these goods and services, individuals and communities alike are deeply insecure, vulnerable, unable to enjoy meaningful economic freedom and opportunity

    If the goal is to provide this kind of freedom for each of us to develop the lives and experiences we have reason to value, then the purpose of social policies must be understood in terms of enabling access to those goods, services and opportunities whose presence in turn enables that freedom—and whose absence narrows it. We can think of these as public goods in which our policies must invest. These public goods are not physical infrastructure like roads or bridges; they are a kind of “social infrastructure,” that make possible a wider array of stable, secure life pathways. Since these resources are critical enablers of a wide range of social uses and projects, they must be managed as a commons: open to use by all on principles of equal access and nondiscrimination, simple to identify and access without excessive or confusing barriers, designed to maximize these downstream uses and the spillovers and innovations that might result.

  • January 12, 2017
    Guest Post

    by Phil Telfeyan, Executive Director of Equal Justice Under Law and lead attorney in Buffin v. San Francisco

    No person should have to spend even one day in jail solely because he or she is poor. This fundamental axiom of American law is the cornerstone of the movement to end America’s discriminatory money bail system. In the past two years, Equal Justice Under Law has filed 11 lawsuits seeking to end money bail in cities and states across the country. Seven of these suits have led to the end of money bail in those seven cities; our litigation in San Francisco has the potential to end wealth-based detention across all of California.

    On Oct. 26, 2015, 19-year-old Riana Buffin was arrested for stealing from a department store. Under San Francisco’s bail schedule, she could have been immediately released if she had paid $30,000. But because she is too poor to pay that amount, she sat in jail for two days until the District Attorney decided not to press charges. Because of those two days in jail — two days a rich person would not have endured — Ms. Buffin lost her job at the Oakland airport, cutting off an essential source of income for her mother and two younger brothers (all three of whom have disabilities). Nobody thought Ms. Buffin was a danger to society. She had never been arrested before and the DA did not even file charges against her.

    Ms. Buffin is the lead plaintiff in a class action lawsuit — Buffin v. San Francisco — seeking to end San Francisco’s wealth-based detention scheme. The city currently runs two systems of pretrial justice: one for the rich and another for the rest of society. The poorer you are, the worse San Francisco’s justice system treats you.

    After numerous motions to dismiss, United States District Court Judge Yvonne Gonzalez Rogers declared that our legal challenge could move forward on the merits against Sheriff Vicky Hennessy. On Nov. 1, 2017, the Sheriff’s response came in: she and the City Attorney refused to defend money bail. “This two-tiered system of pretrial justice does not serve the interests of the government or the public, and unfairly discriminates against the poor,” the filing stated. Although the Sherriff will continue to enforce the State’s law, “she is not required to defend it, and she will not.”

  • August 17, 2016

    By Kevin Battersby Witenoff

    In The Hill, Melissa Boteach and Rebecca Vallas advocate to reform TANF and expound upon the necessity to improve other social welfare programs.

    The ACLU has filed a lawsuit against the Florida Department of Corrections on behalf of transgender woman, Reiyn Keohane. The ACLU and Keohane are alleging the DOC has infringed upon her Eighth Amendment rights by disallowing hormone therapy treatment, reports Andrew V. Pestano of UPI.

    The Huffington Post published an op-ed by Jason Steed in which he explains why it may be in Republican Senators' best interest to reconsider a hearing for Supreme Court nominee Merrick Garland.

    Annalyn Kurtz in The New York Times highlights the challenges faced by new mothers in a male-dominated field that are representative of the struggles females encounter in the workplace across the country.  

  • August 2, 2016

    By Kevin Battersby Witenoff

    In the Huffington Post, Michael Curtis reflects on the recent decision in North Carolina’s 4th Circuit Court and shares his belief that there is still hope that democratic ideas will prevail across the country.

    Citing a new report produced by the United Nations, Thaddeus Talbot uses the ACLU’s Blog to decry that our right to assembly is being eroded.

    Sarah Kliff explains that there is more to the gender wage gap than meets the eye in an article for Vox. She shares often overlooked contributions to the perpetual gap.

    In Slate, Zachary Roth highlights the recent major voting rights victories across the country and challenges us, and our courts, to go even further. 

  • January 21, 2016
    Guest Post

    by Ron Fein, Legal Director, Free Speech for People

    Six years after the Supreme Court’s Citizens United v. FEC decision, it’s time for campaign finance reformers to move from defense to offense—in the courts.

    Since Citizens United struck down limits on corporate and union political spending, the Court has further chipped away at federal and state campaign finance laws in areas such as per-person overall contribution limits and effective public financing in elections with big-money candidates. These decisions have led to a growing popular movement to amend the Constitution to overturn Citizens United and the doctrines that led to it. They have also led to a florescence of innovative thinking from scholars and advocates on money in politics, corporations, and democracy.

    We have the foundation for a new jurisprudence ready for courts to adopt. And we have evidence of how big money in politics causes real harm to Americans’ wallets, justice system, environment, and even quality standards for children’s surgery.

    Now it’s time to move away from a position of indefinite defense, where James Bopp sets the legal agenda. It’s time to develop game-changing affirmative impact litigation challenging the role of big money in politics. It’s time to stop being amici in support of defendants and start being plaintiffs.

    Of course, we should be strategic in identifying the most likely avenues for success in the medium term. One area is state judicial elections, where the campaign finance reform position has won twice in a row at the Supreme Court, in cases stemming ultimately from concerns about judicial impartiality. Professors Erwin Chemerinsky and James Sample have argued that the due process implications of campaign spending in judicial elections justify a constitutional analysis quite different from legislative and executive elections.

    Another promising area involves challenging super PACs, the contribution-limit-evading mechanisms created by SpeechNow.org v. FEC, a D.C. Circuit decision that moved well beyond what the Court actually decided in Citizens United. Professors Laurence Tribe and Albert Alschuler have argued that the Supreme Court may be ready to overrule the court of appeals even while holding fast to Citizens United. Finally, we need to think beyond federal court and develop innovative cases based on state constitutions.