Yesterday at the Tax Policy Colloquium, Sara Greene of Duke Law School presented her paper “A Theory of Poverty: Legal Immobility.”
Given the old gag (as P.G. Wodehouse would call it) about first impressions, it’s worth noting that the title risks creating inaccurate expectations regarding the paper’s actual content and contribution. It’s not primarily about what causes poverty, but about how state and local law can burden people who are trying to escape poverty, or even create downward spirals for the poor or near-poor.
Here are two alternative titles that one might have in one’s mind instead when reading the paper: (1) A Theory of State and Local Law: Needless Harm to Upward Mobility by the Poor, and (2) The Hidden Regressivity of State and Local Law. Although only the first of these was my particular suggestion, I think there is a case for each, or for trying to combine them somehow.
The first of these two alternative titles relates to an important point about why poverty can be hard to escape. One bad thing about being poor is that you have much less margin to handle adverse shocks. Say you have a low-wage job and a child, and live in an area where public transit is inadequate or nonexistent. (This is, after all, the United States, not Western Europe.) Getting the flu, or having your car break down and require major repairs, may trigger a broader crisis that a middle class person wouldn't face despite the extreme unpleasantness of such developments to anyone. For example, it may trigger income or job loss that one is not in a good position to bear without more serious disruption. Downward spirals are possible. People who live more comfortable lives, and who may self-congratutorily wonder why others aren't doing as well as themselves, may feel to appreciate how significant these risks and shocks can be. Walk a mile in other people's shoes before you judge them. And, such issues are relevant to how we as a society might go about addressing poverty.
But what does this have to do with state and local law? The paper's answer is that its defects, reflecting power imbalances that can lead to deliberate exploitation, to not so benign neglect of their needs and interests, and to an undue focus on social control, can have the effect of imposing needless adverse shocks - for example, via the over-use of eviction, driver's license suspension, and what is effectively debtors' prison as a consequence of unpaid fines.
The relevance of the second proposed title from above comes from the paper's also looking at the imposition of burdens, such as through former slave states' reliance on sales taxes, that don't impose shocks but may have adverse distributional effects at the bottom of the income distribution.
Why focus on state and local law in particular here? There are lots of other reasons why America is so unequal at the bottom and poverty is so hard to escape. The paper's main answers are (1) because this aspect is underappreciated and merits further study, and (2) because in many cases it is changeable for the better (leaving aside the political question of how one fixes defects that reflect underlying power imbalance).
Perhaps for some readers there will also be (3): because there is often an at least implicit assumption in legal discourse that "law" is neutral and objective and so forth. But of course "law" is a social product like anything else.
While I generally accept the paper's critique, one point I'd note, with which I know the author agrees, is that often there are hard choices and conflicting interests, even just regarding the welfare of the poor. For example, consider nuisance law and 911 calls (which the paper discusses), or "broken windows" issues, or the adverse impact on poor communities that both drug-dealing and the War on Drugs can have. Or for that matter, over-used though the suspension of driving licenses for speeding may perhaps be, consider that speed limits save lives. Some in poor communities may be helped and others hurt by disciplinary and other interventions, and getting it right is no easy matter for policymakers.