Where Is the Care in the CARES Act?

Noah Zatz–

Two pandemic policy stories have been coming to a head: (1) the push for another relief bill as a key CARES Act unemployment insurance benefit expires on July 31, and (2) the ongoing national child-care crisis as school closures for the fall are announced amidst the virus’ resurgence. What connects them is kids’ needs for care and families’ needs for economic support when they—predominantly mothers, of course—perform that caring labor. A little-noticed feature of the CARES Act supports care for children who must stay home due to school closures.

Despite its title, the CARES Act takes an excruciatingly indirect route to supporting caregiving. These contortions reflect the deep-seated reluctance to recognize and value caring labor. Instead, the Act reflects the dominant approach—including within most progressive politics—of devoting resources to caregiving only to the extent that can be reframed as achieving some other goal: freeing up parents or other caregivers to do “real” work in the paid labor market, delivering education, delivering health care, etc.

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LPE on COVID (vol 2)

Today we’re reposting a letter from Professor Noah Zatz to his City Counsel regarding evictions during the pandemic:

Dear City Council — Thank you for all the hard work going into responding to the COVID-19 crisis locally, both by you and City staff. I hope you each are safe and secure. I wanted to write briefly about the eviction moratorium issue. Some of the specific questions raised by the moratorium are those that are central to my academic expertise in antipoverty & social insurance policy design (unlike housing in general, on which I speak merely as a well-informed resident). I hope this analysis drawing on that expertise is useful to the City. I am writing quickly, so apologies for any incompleteness or errors.

The bottom-line is this: Although it is well-intentioned and makes some sense in theory, the attempt to limit the moratorium to COVID-19-impacted individuals will likely make it almost completely useless in practice. I urge you to adopt an across-the-board eviction moratorium even if you are motivated only by ensuring protection for COVID-19-impacted households.

There are three key pieces of the restriction that work together to produce this result:

  1. a) the burden is placed on the tenant to establish the defense (“if the tenant is able to show”),
  2. b) the protection is limited to an “inability to pay rent,” and
  3. c) the protection is further limited to such an inability “due to circumstances related to the COVID-19 pandemic.”

First, remember that we are imagining someone who not only faces the restrictions, shutdowns, health, and social isolation imperatives that all of us are struggling with, but who also–by definition–is facing severe economic distress. This person now has to go to court to prove a defense, collect documentation, contact witness or sources of documentation, etc. When doing so, they cannot be working, caring for their family (kids home from school, etc.). What a nightmare.

Second, “inability to pay.” This concept is central to my decades of academic work on antipoverty policy. It is a morass, totally unsuited to first-time deployment during an emergency between litigants of unequal power. Is someone “unable to pay” if they have no present income but could exhaust retirement savings to pay one month of rent? What if they have to choose between paying rent and medical care? Food? Fixing their car? In some sense, one could say, “they have the money!” But is that what you mean? If not, what do you mean? Could anyone know in advance? How would a landlord litigate this? Is someone unable to pay if they could ask for money from someone who is not on the lease? What if they could close the gap by picking up some gigs with Task Rabbit?  Again, imagine the documentation/proof issues.

Third, “due to circumstances related to the COVID-19 pandemic.” Again, the kind of issue central to disaster relief programs, unemployment insurance, and the like. What if someone fell behind on their rent LAST month — not due to COVID-19 — but now THIS month is unable to make up the gap b/c COVID-19? Imagine all the proof and line-drawing issues with the concept of “due to.” Is every layoff in LA County Since March 1 due to COVID-19? If not, how are we to find out which ones are? Is it by industry? What if the industry is not severely affected, but the boss shut down the company voluntarily to protect the workers? If the boss’ mother got sick, and so the boss decided to shutdown? If the worker loses their job b/c they are caring for a child dismissed from school, is THAT due to COVID-19? What if it’s not their child, but their sister’s? Again, imagine the documentation/proof issues.

Note that all of these severe problems apply even if you focus narrowly just on the people intended to be protected by this moratorium. Obviously, there are also very serious broader questions about whether this is a time for ANYONE to be forced to try to fight an eviction and potentially need to find emergency housing during a crisis (especially no-fault evictions). But even if you are unmoved by those problems, in practice this moratorium is likely to fail to protect even those narrowly targeted by it. Under these circumstances, the only way to protect them is to protect everyone.

I doubt that this is the time (if ever!) when you are interested in reading an academic law review article, but in case you are interested in seeing (or verifying) my work in this area, here is the link to my essay “Poverty Unmodified: Critical Reflections on the Deserving/Undeserving Distinction”: https://www.uclalawreview.org/pdf/59-3-3.pdf.

I understand that there may have been limitations on what could be done by emergency order (though I do not know), but if a universal moratorium cannot be issued by emergency decree, I urge the Council to immediately pass a universal moratorium ordinance. Thank you again for all your efforts at an incredibly difficult time. I hope you find this analysis to be helpful to your deliberations.

Sincerely,

Noah Zatz

Care Work In & Beyond the Labor Market

Click here to read all posts in our Care Work series.

Noah Zatz –

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via ssir

Big ideas are flourishing these days—the Green New Deal, Medicare for All, sectoral bargaining, Universal Basic Income, prison abolition. This makes it all the more noteworthy when major policy areas are relatively quiet. One example is child care, despite Elizabeth Warren having started there in her “I have a plan for that” strategy.

What’s lacking is not merely depth of attention but also breadth of imagination. In particular, child care is being viewed almost entirely through the lens of labor market policy. Policy initiatives such as Warren’s focus first on enabling parents to flourish in paid work through access to affordable, quality care. Secondarily, they strive to ensure that the resulting caregiving jobs are themselves well-paid, protected, and respected. These important commitments especially advance the interests of women workers, particularly working class women of color overrepresented on both sides of this needing care/providing care ledger. The dual emphasis undermines both the family wage system’s gendered breadwinner/caretaker division of labor centered on married, middle-class white women and its incorporation of women of color into paid work, including specifically domestic work for white families, that lay outside the structures of labor citizenship designed for white, male breadwinners.

Nonetheless, focusing on universalizing access to better paid work submerges two other longstanding elements of critical feminist analysis of care work. These are particularly pertinent to LPE conversations about the political-economic centrality of markets. First, feminist accounts of social reproduction have long highlighted the extensive, essential, but systematically devalued or outright ignored work performed outside conventional labor markets in families and communities. This includes especially direct care work and housework or other household production, but also broader forms of civic participation often denoted “volunteering.” Second, attaching economic resources to nonmarket social reproductive labor starts to loosen paid work’s iron grip on household income more generally. That grip creates a legitimated dependency on labor markets that undergirds power relations both between labor and capital and, within families, between market “breadwinners” and those more conventionally labelled “dependents.” Valuing care thus could facilitate both reimagining work and decentering markets.

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The Public Law of Private Promising, And Not Even That: LPE 101 for Contracts

Noah Zatz—

What would a 1L Contracts course look like from a law and political economy perspective? I can’t claim to have designed my course from the ground up to answer that question—and indeed I am intentionally more eclectic than that. Nonetheless, several of my choices—about how to thematize the material and what to include at all—clearly reflect an LPE approach.

From start to finish, I present Contracts—perhaps the quintessential “private law” topic—as a study in public power. That is among the main reasons to start with remedies (as many Contracts professors do). Ultimately, the question is whether a government institution (a court) will render a judgment and back it up with the threat of publicly authorized violence: seizing property to satisfy a judgment or throwing someone in jail for contemptuously defying a court order. I underline this point on the first day of class by assigning a recent ACLU report on incarceration for nonpayment of private consumer debt. This reading also challenges conventional field boundaries, enabling students to follow a thread of debt and poverty that connects their Contracts class to Ferguson and racialized mass incarceration.

The publicness of Contracts goes beyond the brute fact that it is law. Rather, the field reflects policy judgments about when to make the force of law available to private parties. Although invocations of party intent typically submerge this point, it actually appears on the surface of the most conventional place to start Contracts: the very first section of the Restatement (Second) of Contracts. “A contract is a promise or a set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty.”  Well then, when and how does “the law” (speaking for we, the people) choose to transform private promises into legal duties? Continue reading

Masterpiece Cakeshop and the Constitutionalization of “Both Sides”-ism

Noah Zatz

mastercakeAt first glance, Masterpiece Cakeshop v. Colorado Civil Rights Commission appears not to be among the more important of this past term’s disastrous Supreme Court opinions. It was issued much earlier than the June blockbusters and has widely been treated as a bullet dodged, allowing a Christian conservative baker to refuse to make a cake for a same-sex wedding but not setting much of a precedent. But something more insidious may be seen at work if one revisits Masterpiece Cakeshop (allowing anti-gay discrimination if it is religiously motivated) in light of not only the travel ban opinion (allowing anti-Muslim discrimination if it is adorned with paperwork) but also the recent “civility” eruption.

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Colorblindness and Liberal Racial Paternalism in Bailey v. Alabama

Noah Zatz – 

Anyone familiar with Bailey v. Alabama understands that it was a case about racial domination in the Jim Crow South. Lonzo Bailey was a Black agricultural laborer who quit his job with a white farmer. For that, a white legal system convicted him of a crime. The prosecution was characteristic of an effort throughout the post-Civil War South to reestablish the brutal exploitation of Black labor in the aftermath of chattel slavery’s formal abolition. The Supreme Court Justices who sided with Bailey surely knew this, too.  And yet they went out of their way to deny it.

This willful, absurd denial makes Bailey an excellent vehicle for critical engagement with colorblindness rhetoric, including the limits of formally race-neutral legal doctrine as a means to address racial inequality. In particular, we can see in Bailey a particular and pernicious dynamic by which, constrained by colorblindness, liberal efforts to remedy racial injustice turn to a form of racial paternalism (terminology I adapt from a forthcoming essay by historian Nathan Connolly). Rather than treating state intervention as correcting the exploitation of systemic racial imbalances of power, racial paternalism treats legal protection as an exceptional intervention on behalf of the incompetent, often relying on the same racial stereotypes that underwrite the exploitative practice at issue.

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California Bans the Box, Twice

Noah Zatz – 

A core LPE theme is the construction of markets through political choices institutionalized in law. Those choices create an economy structured by whatever matters politically, including race. My Bailey series has been developing this theme in connection to the criminal regulation of work, in particular the use of criminal punishment to compel work. The more familiar racialized criminal justice/labor interaction concerns how the state marks individuals with criminal records, which employers then use to deny work.

Over at OnLabor, I’ve got two new posts up on some of the more technical aspects of using employment discrimination law to counter criminal records exclusions. The first one flags a familiar rules vs. standards problem in deciding when criminal record screening is permissible. The second one explores what kinds of evidence appropriately demonstrate the disparate racial impact of criminal record exclusions. In both cases, my jumping off point is innovative new regulations issued under California’s state employment discrimination law.

At some point I will share some thoughts on how these coercive and exclusionary dynamics work together.

Is “the Market” the Enemy?: Racial Exploitation in Bailey v. Alabama

Noah Zatz –

vote communist

“In our current moment, anticapitalism and struggles against state violence and incarceration tend to be separate movements.” So wrote renowned historian Robin D.G. Kelley recently in a new preface to his classic book Hammer and Hoe, which examines the largely Black Communists of early-mid 20th century Alabama. Kelley’s protagonists, in contrast, saw struggles against economic inequality and exploitation and also against specifically racialized state violence as “inextricably bound together.” This same milieu produced the groundbreaking 1911 case of Bailey v. Alabama. There, the Supreme Court struck down under the Thirteenth Amendment Alabama’s use of criminal law to hold Black workers in peonage.

This post extends my prior treatment of Bailey. My focus here is on Bailey as a case study in “racial capitalism”, and I want to challenge specifically the common conflation of all things “economic” with the outcomes of “markets,” even markets understood in Legal Realist fashion to be structured by laws of property and contract. Like Kelley, I do this with one eye on the contemporary, and in particular on the separation between critiques of “precarious work” in today’s labor markets and those aimed at our racialized carceral state.

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State Power and the Construction of Contractual Freedom: Labor and Coercion in Bailey v. Alabama

Noah Zatz – 

If forced to choose, I might pick Bailey v. Alabama as my favorite contract law case. That is, if it even counts as one. Which is pretty much my point. Decided in 1911, Bailey is a criminal case – Lonzo Bailey was convicted for fraud.  It is also a constitutional case – the Supreme Court struck down the conviction as violating the Thirteenth Amendment’s prohibition of involuntary servitude. A labor case, too – the criminal statute specifically targeted workers who took advances on wages and then later quit before paying the debt. And a race case, though the Court denied it – Alabama’s “false pretenses” statute was one cog in the wheel of Jim Crow neoslavery. But yes, also a contracts case (in a libertarian’s casebook, no less!) because the Court used the case to erect a boundary between criminal and civil consequences for breach of contract.

This overflowing of conventional doctrinal boundaries makes Bailey the perfect vehicle to deliver key insights of a Law & Political Economy approach. So much so that I will do it over multiple posts.

In this first installment, Bailey punctures the ubiquitous conceit that there is or could be an autonomous sphere of economic life – “the free market” – that stands apart from politics, from contests over whether and when to authorize the coercive exercise of governmental power. That contrast between economic freedom and political power is ubiquitous, as in the language contrasting “private” law with government “intervention” in the market (via “public” law). This conceit renders unremarkable what might seem contradictory: a ubiquitous politics that abhors government regulation (of “the economy”) yet thirsts for a state that is “tough on crime.” Continue reading

Thinking Intersectionally About Race and Class in the Trump Era

Trump_victory_speech

Noah Zatz –

More than a year after the 2016 election, progressive analysis and strategy continue to be limited by the ping and pong of class-not-race and race-not-class accounts, and recriminations they provoke. Understanding what happened and charting a way forward require an alternative, a thoroughly intersectional analysis of race and class. On such a view, taking race seriously is necessary to understand how class works, not to diminish its importance.

“Intersectionality” risks depletion with its rise as a buzzword, but I mean to invoke specific insights animating the pathbreaking work of Kimberlé Crenshaw and other feminist scholars of color. In particular, they argued that understanding race and racial oppression requires an analysis of how race is gendered and gender is racialized. As Sarah Haley argues in a recent tour de force in this tradition, “gender is constructed by and through race.” So, too, we cannot understand and respond to the racism on display in the 2016 election and since without understanding its intersection with class, and how class is constructed by and through race.

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