Thursday, April 17, 2014

New Work on Inequality: "A Court for the One Percent"

Professor Michele E. Gilman, a prolific author on poverty issues, has written the forthcoming article in Utah Law Review: " A Court for the One Percent: How the Supreme Court Contributes to Inequality."  The article rounds up the Court's recent jurisprudence on campaign finance reform alongside longstanding doctrines on education, wealth classifications and violence against women and delivers a stinging critique.  The author's abstract is here:


This Article explores the United States Supreme Court’s role in furthering economic inequality. The Occupy Wall Street movement in 2011 not only highlighted growing income and wealth inequality in the United States, but also pointed the blame at governmental policies that favor business interests and the wealthy due to their outsized influence on politicians. Numerous economists and political scientists agree with this thesis. However, in focusing ire on the political branches and big business, these critiques have largely overlooked the role of the judiciary in fostering economic inequality. The Court’s doctrine touches each of the major causes of economic inequality, which includes systemic failures of our educational system, a frayed social safety net, probusiness policies at the expense of consumers and employees, and the growing influence of money in politics. In each of these areas, the Court’s deference to legislative judgments is highly selective and driven by a class-blind view of the law that presumes that market-based results are natural, inevitable, and beneficial. For instance, the Court rejects government attempts to voluntarily desegregate schools, while deferring to laws that create unequal financing for poor school districts. The end result is that poor children receive subpar educations, dooming many of them to the bottom of the economic spectrum. Similarly, the Court overturned Congress’s attempt to rein in campaign financing, while upholding state voter identification laws that suppress the votes of the poor. These decisions distort the electoral process in favor of the wealthy. In short, the Court tends to defer to laws that create economic inequality, while striking down legislative attempts to level the playing field. While a popular conception of the Court is that it is designed to protect vulnerable minorities from majoritarian impulse, the Court, instead, is helping to protect a very powerful minority at the expense of the majority. This Article is one step toward understanding how law intertwines with politics and economics to create economic inequality.


The article does not explicitly engage with human rights analysis as an alternative framework,  but as I have written elsewhere, the issues of inequality raised by the Occupy movement are not easily mapped onto formal human rights norms.  Nevertheless, Gilman's analysis cries out for the development of new legal doctrines with less devastating human impacts, of which a domestic human rights framework may be one.

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