Creeping impoverization: material conditions, income inequality, and ERISA pedagogy early in the 21st century.

• Author: Hylton, Maria O'Brien

INTRODUCTION

To say that poverty remains one of the most pressing issues of our time is a colossal understatement. A staggering number of people on the planet live in poverty. In the United States alone, the working poor and those living at or below the poverty line make up 12.6 percent of our populace. (1) While these individuals may not all be in imminent danger of starving or homelessness, they often lack basic safeguards that those in the upper socio-economic levels of society take for granted: basic health insurance, access to pension programs, disability coverage, and the certainty of a living wage that keeps pace with inflation. Poverty and its attendant social manifestations (crime, illiteracy, malnutrition, etc.) are urgent social problems.

Why, then, is poverty often ignored in law school? Even though religion and philosophy, two areas deeply concerned with social issues such as income inequality, inform many legal doctrines, there is, in my experience, noticeably less discussion now about poverty and income inequality in law schools than there was twenty years ago. Whether in the classroom or in faculty workshops and other forums for legal conversation, the problems of poor people do not command the attention they did a generation ago.

According to the great scholar of comparative religion Diana Eck, all major religious traditions share a strong emphasis on the centrality of compassion. (2) A corollary of compassion for others is mindfulness of the material conditions of the impoverished. John Rawls, whom many students read in law school, bases his utilitarian theory of justice on the logic that in a society where one's position is uncertain, a person should always maximize the well being of the society's poorest members. (3) Rawls is not alone in advocating a philosophy or world view that takes into account the material conditions of our least advantaged citizens. (4) These considerations form integral parts of the several academic disciplines from which the study and practice of law emerges.

With such strong foundations and current need, it is more than a little disappointing that poverty issues seem to be falling by the wayside in almost every area of the law school experience. Legal discourse is now dominated by the language and analytical tools of law and economics. The focus has shifted to economic efficiency, wealth maximization, the development of optimal default rules, and other language imported into the legal academy through the law and economics movement. (5) While the discourse of law and economics has made many impressive contributions to the pantheon of legal scholarship, its rise has had unfortunate consequences for those concerned about fostering discourse in the areas of poverty law and material conditions.

Partly because the language and method of law and economics place a heavy emphasis on value-neutral discourse, the poverty conversation has, itself, become impoverished, when it takes place at all. The singular emphasis on economics leads to the regrettable omission of candidly compassionate and morality-centered solutions to many of society's most pressing issues. Solutions which aim to decrease income inequality and focus on the material conditions of our most vulnerable and impoverished citizens are in desperately short supply, particularly in the areas in which I teach--ERISA (Employee Retirement Income Security Act), insurance, and employment law. The central problem is that it is not always useful to have value-neutral conversations about subjects that cannot be fully understood without some measure of compassion.

1. WHAT ARE THE MATERIAL CONDITIONS ISSUES IN INSURANCE AND BENEFITS LAW?

   The conditions of the working poor and a growing number of the middle class in the United States have been declining steadily over the past decade, especially in the areas of insurance and benefits. There are nearly forty-seven million Americans without any health insurance at all. (6) This number includes children and working adults whose employers are not required by the Employee Retirement Income Security Act ("ERISA") to offer even basic coverage, as well as those who...