Current Issue

  • Volume 71,
  • Number 4 -
  • January 2022


Commodifying Marginalization
Abbye Atkinson

Pillars of U.S. social provision, public pension funds rely significantly on private investment to meet their chronically underfunded promises to America’s workers. Dependent on investment returns, pension funds are increasingly investing in marginalized debt, namely the array of high-interest-rate, subprime, risky debt—including small-dollar installment loans and other forms of subprime debt—that tends to concentrate in and among historically marginalized communities, often to catastrophic effect. Marginalized debt is a valuable investment because its characteristically high interest rates and myriad fees engender higher returns. In turn, higher returns ostensibly mean greater retirement security for ordinary workers who are themselves economically vulnerable in the current atmosphere of public welfare retrenchment. They must increasingly fend for themselves if they hope to retire at a decent age and with dignity, if at all.

This Article surfaces this debt-centered relational connection between two socio-economically vulnerable groups: retirement-insecure workers and marginalized borrowers. It argues that in the hands of private financial intermediaries, whose fiduciary duties and profit-sensitive incentives eschew broader moral considerations of the source of profits or the social consequences of regressive wealth extraction, depends openly on the tenuous socioeconomic condition of one community as a source of wealth accumulation for another vulnerable community. Consequently, it argues that the incursion of private entities into the arena of public welfare is pernicious because it commodifies and reinforces the subordinate socioeconomic conditions on which marginalized debt thrives.

The Economic Dimensions of Family Separation
Stephen Lee

Migrants in the United States experience varying degrees of harm related to family separation. This article focuses on the economic dimensions of these harms by focusing on transnational remittances, a topic that has generated significant scholarly attention. Within this story, remitters are pitched as heroes and remittances are held up as a critical, market-based solution for solving global poverty. Of course, this picture is incomplete. This account ignores remittance-sending countries and provides only a narrow account of law. This Article focuses on anti-money laundering policies, an important set of U.S. laws that regulate the remittance economy. Examining remittances from this perspective shows that anti-money laundering and antimigration policies form a joint project that regulates the relationship between migrants and their family members. While antimigration laws inhibit migrant mobility, anti-money laundering laws create uneven opportunities for transferring wage earnings to family members left behind on their journey. Recognizing the connection between these areas of the law leads to the Article’s broader contribution: identifying different ways that the law exacerbates or mitigates the economic harms related to family separation. Specifically, anti-money laundering policies help structure the conditions in which migrants engage in expression of affinity across borders, thereby showing the intertwined nature of economic and physical harms within transnational families.


Give and Take: State Courts Should Be Able To Certify Questions of Federal Law to Federal Courts
John Macy

For some time, federal courts faced with unresolved questions of state law have been able to certify those questions to state courts for resolution. In the past half-century, certification practice has exploded. Nearly every state allows at least one federal court to certify questions to its state courts, and some federal courts exercise the option frequently. However, there is no analogous tool for state courts to certify questions of federal law to federal courts. This Note argues that the creation of such a tool would benefit both courts and litigants. Of course, the considerations motivating certification to state courts, such as Erie and abstention doctrines, are not equally present in the other direction. But many of the benefits of certification would be reciprocal, including enhanced uniformity, an increased sense of fairness to litigants, and institutional comity between courts. Given these benefits, this Note argues that there should be some give and take in certification practice.

Regulating Homeowners’ Disaster Insurance Through Federal Intervention: Lessons from the Affordable Care Act
Shannon O’Hara

One of the most impactful effects of climate change in recent years has been the increasing frequency and severity of natural disasters, even in geographic areas not previously known as disaster-prone. These disasters have caused untold property damage. Typically, the cost of rebuilding a home is assumed at least in part by private insurance companies, but many homeowners are significantly underinsured for disaster-related losses. Additionally, in areas where natural disasters are becoming increasingly frequent, private insurers have determined that it is no longer profitable to continually issue massive payouts without charging astronomical premiums, leaving many homeowners without access to financial relief. This Note argues that these circumstances call for a federal intervention. Specifically, it analogizes owning a disaster-prone home to having a preexisting health condition as defined by the Affordable Care Act. Using lessons from this analogy, this Note proposes a federal mandate requiring all homeowners to purchase natural disaster insurance and argues such a policy is achievable through Congress’s taxing power. Further, this Note argues that features of the proposed mandate, such as precaution crediting and a subsidized insurance program, render it superior to previously attempted regulation of natural disaster insurance.