A THEORY OF POVERTY: LEGAL IMMOBILITY.

• Author: Greene, Sara S.

Abstract

The puzzle of why the cycle of poverty persists and upward socioeconomic mobility is so difficult has long captivated scholars and the public alike. Yet with all of the attention that has been paid to poverty, the crucial role of the law, particularly state and local law, in perpetuating poverty is largely ignored. This Article offers a new theory of poverty, one that introduces the concept of legal immobility. Legal immobility considers the cumulative effects of state and local laws as a mechanism through which poverty is perpetuated and upward socioeconomic mobility is stunted. The Article provides an initial description and normative account of this under-theorized aspect of our laws and argues that in order to fully understand poverty, a more complete understanding of the relationship between law and poverty is needed. After discussing several examples of laws that can contribute to legal immobility (everything from state and local tax laws to occupational licensing laws), the Article offers a three-prong theory to help understand the distinct pathways through which individual laws that contribute to legal immobility function: (1) calculated exploitation; (2) gratuitous management; and (3) routine neglect. This framework provides a guide for future work to build on legal immobility theory. By bringing to light the cumulative effects of local and state laws in perpetuating poverty, the goal is for legal immobility theory to ultimately help lawmakers develop new structural approaches to tackling poverty.

TABLE OF CONTENTS INTRODUCTION I. WHAT IS LEGAL IMMOBILITY THEORY AND WHY DO WE NEED IT? II. LEGAL IMMOBILITY IN PRACTICE A. State and Local Taxes B. Nuisance Laws C. Occupational Licensing Laws D. Child Welfare Laws E. Non-Driving Related License Suspensions F. Driving-Related Laws G. Understanding Cumulative Effects and Legal Immobility: A Theoretical Case Study III. TRIPARTITE THEORY OF LEGAL IMMOBILITY A. Calculated Exploitation B. Gratuitous Management C. Routine Neglect IV. PRELIMINARY IMPLICATIONS FOR POVERTY POLICY CONCLUSION INTRODUCTION

Nearly one-third of Americans are poor or near poor. (1) For these families, living wages, affordable housing, adequate food, and other basic needs are increasingly out of reach. For decades, scholars have worked to identify the mechanisms that contribute to the cycle of poverty and to the thwarting of upward socioeconomic class mobility for poor families. (2) Depending on the era, stagnant wages, (3) the education system, (4) incarceration, (5) neighborhoods, (6) and most recently, eviction, (7) have each been identified as a potential holy grail answer--a key to unlocking poverty's hold. Yet with all of the attention that has been paid to poverty, the crucial role of the law, particularly state- and local-level law, in perpetuating, exacerbating, and creating poverty is largely ignored. In the 1970s a poverty lawyer once said: "Poverty creates an abrasive interface with society; poor people are always bumping into sharp legal things." (8) These sharp legal things, however, have rarely been systemically studied or theorized about.

Sociologists, economists, and political scientists have long grappled with the causes and consequences of poverty, yet the law is usually an afterthought, if it is mentioned at all. Legal scholars, of course, focus on the law, but they have been strikingly absent from the discourse on poverty. The central lines of inquiry for those legal scholars who do write about poverty law typically fall into two distinct camps: (1) Understanding how the law might be used to aid the poor; (9) or (2) Understanding how one particular statute, case, or legal procedure may disadvantage the poor. (10)

This narrow conception of "poverty law," which focuses almost solely on individual silos of study within federal law, (11) is an analytical error and leaves us with a gaping hole in our understanding of poverty. (12) A much broader understanding of poverty law is needed, one that considers how the cumulative effect of laws--particularly state and local laws--may be a mechanism through which poverty is created, perpetuated, and exacerbated. (13) This critical examination means expanding the scope of poverty law well beyond the traditional areas of inquiry.

While many legal scholars are aware of laws in their own individual fields of study that may perpetuate poverty, the literature has not developed a vocabulary for describing how, in a broad sense, the law is a key driver in thwarting upward socioeconomic mobility. (14) Indeed, the literature has not conceptualized what I call legal immobility, (15) Undertaking this type of inquiry is a tall order, in part because the law often functions to perpetuate poverty through local processes that are largely hidden and difficult to uncover. While there are certainly federal laws that perpetuate poverty, on a day-to-day basis, it is often the subtleties of these state and local laws, cumulatively and invisibly, that are the driving forces for how the law works to perpetuate poverty. This invisible localism of law is rarely studied or even acknowledged.

While it may appear puzzling that legal scholars have not engaged more with the relationship between local and state laws and poverty, legal scholars may have shied away from this type of inquiry in part because it is difficult, from an empirical perspective, to capture how different states and localities handle the same problem. Indeed, invisible localism makes it difficult to make generalizations or claims beyond problems in just one state or just one locality.

The goal of this Article, however, is not empirical in nature, and I am not attempting to make causal claims. The purpose of this Article is to provide an initial description and normative account of this undertheorized aspect of our laws, with a focus on the role of the invisible localism of the law in contributing to legal immobility. As I explore the often-ignored role of local and state laws in perpetuating poverty, I hope to convince the reader that in order to fully understand poverty and mobility, a more complete account of the relationship between local and state law and poverty is needed. In recent years, some progress toward this end has been made. In 2015, the United States Department of Justice's report on the Ferguson Police Department and courts ("the Ferguson Report") brought a national spotlight to the use of fees, fines, and other monetary penalties as a means for generating revenue at the state and local level. (16) In this Article, I argue that the revelations exposed in the Ferguson Report are just a small piece of a much larger systemic phenomenon of local and state laws and systems stunting upward mobility and contributing to the perpetuation of poverty. (17) In the course of the Article, I discuss driving laws and fees (touched upon in the Ferguson Report), but I also explore state and local tax law, family law, nuisance law, and employment licensing law, among others. I argue that the cumulative effects of all of these laws (and others), working together to form a complex web of barriers, lead to legal immobility.

While I focus on the cumulative effects of all of these laws, I also articulate a three-prong theory to help understand the roots of the individual laws that contribute to legal immobility. I argue that there are three distinct pathways through which these individual laws function: (1) calculated exploitation; (2) gratuitous management, and (3) routine neglect. In some cases, through calculated exploitation, states and localities are intentionally exploiting the poor in order to fund government activities and satisfy more powerful interest groups. In other cases, states and localities are engaging in gratuitous management, using the law as a means to control and regulate the poor. Finally, at times, states are engaging in routine neglect--the poor are an afterthought, essentially forgotten as the status quo reigns and systematically makes mobility a distant dream to the least powerful. My hope is that this framework for understanding the roots of the laws that together contribute to legal immobility will be helpful for future work that expands legal immobility research and focuses on normative goals and change.

One important caveat to note is that the theory of legal immobility is not meant to be the "holy grail" answer to why upward mobility is so difficult and poverty perpetuates. Instead, my argument is that to fully understand why poverty is so persistent, we need to consider the role of local and state law as a whole, bridging the silos of various legal disciplines. And when we do, a useful and thus far neglected perspective on poverty emerges, one that shows how the structures of state and local laws, cumulatively, function to inhibit upward mobility for the poor.

This Article proceeds as follows: In Part I, I consider legal immobility theory and discuss why we need such a theory. As part of this discussion, I explore the current state of theory related to law and poverty. In Part II, I discuss legal immobility and invisible localism in practice, showing how a confluence of rules and laws across a range of legal areas work together to stunt mobility. In Part III, I expand on the concepts of calculated exploitation, gratuitous management, and routine neglect, considering examples of laws that contribute to legal immobility I discussed in Part II. In Part IV, I broadly consider some of the implications of legal immobility theory, and finally, I conclude.

1. WHAT IS LEGAL IMMOBILITY THEORY AND WHY DO WE NEED IT?

   In the United States, the study of poverty has long captivated both scholars and the public. (18) Over a half a century ago, in 1962, Michael Harrington published The Other America, (19) drawing wide attention to the millions of people living in poverty in inner-city housing projects, Appalachia, and rural America. (20) Not long after, in the...