Volume 42, Number 2


Hila Keren

Does our legal system permit the economic exploitation of extreme vulnerability? Focusing on predatory housing loans—a thriving business at the dawn of the twenty-first century— this Article argues that the answer in most cases is yes. Under an individualistic neoliberal paradigm, borrowers are held liable for their contracts, even if they were targeted with predatory practices. Further, borrowers’ attempts to resort to antidiscrimination law, and frame their exploitation as “reverse redlining,” have offered no real answer. An important yet undertheorized explanation for this problem is the impact of the Supreme Court’s anticlassification jurisprudence on lower courts. In an anti-classification age, even outside of the constitutional arena, courts are reluctant to accept race-based arguments. As a result, colorblind analysis of predatory lending permits economic exploitation to thrive.

This Article proposes a unique solution to this deadlock: embedding the analysis of individual borrowers in the context of their neighborhood, a move that neither denies nor relies on their race. Drawing on a variety of disciplines, including psychology, sociology, and public health, this Article explains how residing in distressed neighborhoods—the most embattled neighborhoods of our country—creates conditions especially fertile for exploitation. Based on this interdisciplinary analysis, this Article suggests an alternative legal framework which would circumvent the anti-classification problem. The new framework is tailored around the idea of individual dignity, which includes the right to freedom from economic exploitation. To protect such right it is suggested to utilize contract law and particularly the doctrine of unconscionability—which is highly apposite for a contextual analysis of predatory agreements.

More broadly this Article argues that one of the important lessons to be learned from the tragic subprime crisis is how urgent it is to find an appropriate legal response to market exploitation of vulnerable individuals. Notably, the contractual framework suggested in this Article for predatory housing loans is useful for handling other exploitative loans, such as pay-day loans and auto-title loans. Further, the proposed framework is valuable beyond the contexts of lending and distressed neighborhoods, to address other forms of economic exploitation perpetuated by contract. Given persistent weakness in our economy, establishing an anti-exploitation norm in the market seems more important than ever.
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Adam H. Rosenzweig

The international tax regime is facing a defining moment. As stories of multinational companies expatriating and shifting income around the world with seeming impunity continue to emerge, the question of how to divide the international tax base among the countries of the world increasingly draws attention from policy-makers and academics. To date, however, the debate has tended to devolve into one over the two traditional tools used to divide worldwide tax base—transfer pricing and formulary apportionment. This Article demonstrates that such focus is misplaced on the instruments of dividing the worldwide tax base rather than on first principles. Instead, this Article will adopt the first principle of maximizing the efficiency of the worldwide tax regime under two key, but realistic, assumptions: first, that the presence of multiple states in the world is efficient and, second, that there is a declining marginal utility to public goods. Under these assumptions, dividing worldwide tax base efficiently requires balancing the goals of maximizing the neutrality of tax laws and the provision of public goods across all countries.

Based on this result, this Article explains how the modern debate has inappropriately focused on how to capture tax base or prevent corporations from shifting income across jurisdictions rather than how to build a new international tax regime for the modern international order. The Article then demonstrates that the traditional approaches to international tax will be inefficient under the stated assumptions. Instead, this Article will propose a hybrid regime in which each country is entitled to tax a portion of worldwide tax base based on that country’s amenities and then the relevant countries will divide the remaining common tax base among themselves so as to maximize the return to worldwide public goods. By taking into account both capital flows and public goods provisions in this manner, the efficiency of the international tax regime can truly be maximized.
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Jordan M. Singer

Gossip about judges is an essential source of information to civil litigators. Hearing third-party assessments of a judge’s personality, demeanor, intelligence, curiosity, and openness to new interpretations of the law can substantially affect a lawyer’s strategic decisions during the course of litigation, and sometimes whether litigation occurs at all. Yet gossip about judges rarely merits mention and has evaded serious study. This Article brings attorney gossip about judges out into the open, identifying its strategic benefits and drawbacks and explaining how attorneys use gossip (and other secondhand information on judges) to anticipate the likely outcome of judicial decisions. It further explains how common attorney practices in modern civil litigation unintentionally compromise the accuracy and reliability of gossip about judges and offers some thoughts on restoring the full value of this little-discussed resource.
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Martha M. Ertman

Isadora Duncan poked fun at “the” marriage contract. But the terms of marriage today differ considerably from the state-provided terms of Duncan’s 1922 marriage to a poet eighteen years her junior, which in turn differed from Duncan’s parents’ marriage. Those ever changing marital rules belie claims that marriage is an unchanging status mandated by God or Nature. To the extent that changes increase freedom to enter and exit a marriage, as well as to tailor the financial rights and duties of spouses vis-à-vis one another, they also reveal contractual aspects of marriage. If marriage is indeed a con-tract—defined in black letter law as a legally binding promise—instead of an immutable status controlled by forces divine or biological, then most arguments against same-sex marriage bite the dust.
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Alexander Nourafshan, Angela Onwuachi-Willig

After the Supreme Court’s decision in United States v. Windsor, which declared the federal Defense of Marriage Act (DOMA) unconstitutional, and after the granting of certiorari in Obergell v. Hodges, where the Supreme Court will decide whether the Fourteenth Amendment requires states to provide a marriage license to same-sex couples, national marriage equality seems like a legal inevitability. However, Windsor and Obergell, along with other state-level advances toward marriage equality, are not equally promising for all members of the lesbian and gay community. Although Windsor and the revolution of cases that have led to Obergell hold significant promise for one privileged subset of gays and lesbians—white, economically privileged, and educated gays and lesbians—they do not necessarily carry the same potential for less privileged subgroups within the gay and lesbian community, namely gays and lesbians of color. In fact, it is possible that inequality among these subgroups within the gay community will increase as gays and lesbians achieve marriage equality and other legal rights. After all, the gay community is not monolithic, and there are various forms of diversity among homosexuals, which have largely been overlooked in the mainstream gay rights movement.
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Deborah A. Widiss

If, as is widely expected, the Supreme Court soon holds that bans on same-sex marriage are unconstitutional, it is almost certain that the decision will rely heavily on the Court’s reasoning in United States v. Windsor. I strongly support marriage equality. However, a decision that amplifies Windsor’s conception of the harm caused by exclusionary marriage rules could set back efforts to secure legal recognition of, and respect for, non-marital families. That is, Windsor rectified a deep inequality in the law—that same-sex marriages were categorically denied federal recognition—but in so doing it embraced a traditional understanding of marriage as superior to all other family forms. Its rationale and its rhetorical flavor stand in tension with foundational cases from the 1960s and 1970s that dismantled the legal systems under which non-marital children were systematically denied benefits and that protected the decision-making autonomy of couples who engaged in sexual intimacy outside of marriage.

The expansion of marriage rights for same-sex couples, including any future victory at the Supreme Court, comes at a time when marriage rates more generally are at an all-time low and non-marital childbearing is at an all-time high. The lesbian, gay, and bisexual (LGB) community is part of these larger trends. Demographers believe that the majority of children currently being raised by same-sex couples were conceived in prior heterosexual relationships that included a member of the couple. Same-sex couples with relatively low levels of educational attainment are more likely to be raising children than couples with advanced degrees; same-sex couples that include racial minorities are also more likely to be raising children than white couples. If marriage and divorce by same-sex couples follow more general trends, the members of the LGB community who are statistically most likely to be raising children are also statistically least likely to marry and remain married. Accordingly, even if same-sex couples enjoy universal marriage rights, it is essential to continue to advocate support of non-marital families and other blended family forms that depart from the “traditional” nuclear family.
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