Tag Archives: Poverty Law

Bringing Everyone, Including the Poor, in Energy Law and Policy

May 7, 2025 Ezra RosserPoverty Law1 comment

Uma Outka’s article, Energy Law and the Low-Income Household (forthcoming in Environmental Law), convincingly argues that the affordability challenges related to energy facing poor households should not be treated as external to the field of energy law. As Professor Outka shows, it is tempting to treat the problems faced by low-income households—high energy cost burdens, poor insulation, and vulnerability to service cutoffs—as exogenous to energy law. By sidelining such concerns as matters of poverty law, those within the energy sector, as well as academics working within energy law, can ignore the precariousness of low-income households and neglect the need for innovation and support within the field. Professor Outka succeeds in contributing to the conversation in both the energy law and poverty law spaces by presenting an in-depth history of the principal government program, the Low-Income Home Energy Assistance Program (LIHEAP), supporting the needs of low-income households, and by carefully connecting the poverty and energy law fields.

The article begins with a rich history of the LIHEAP program and then expands slightly to include the Low-Income Weatherization Assistance Program (WAP). This history will be new to many in the poverty law field since energy policy, even programs that help low-income households, is beyond the scope of most work in the field. Yet, as Professor Outka notes, access to reliable energy is often crucial for basic survival in summer or in winter. Inability to pay can leave poor households extremely vulnerable to loss of service. Even when such households can pay their energy bills—Professor Outka highlights research showing that need for money to pay utilities is the number one reason low-income households turn to payday lending—high energy costs relative to income can threaten such households’ other basic needs. The history that Professor Outka includes is presented at just the right level of detail; readers come away understanding how the LIHEAP and WAP programs work as well as the politics shaping their creation and evolution.

One of the norms of legal scholarship that can be frustrating is that it is not enough to give a good history. Though a complete description of an area of study—and Professor Outka’s article has that, the footnotes offer a great leaping off point for anyone interested in delving deeper into the political currents of these programs—would be enough in many fields, in legal scholarship the expectation is that articles will be both positive and normative. Fortunately, Professor Outka’s article delivers here too, on top of her comprehensive coverage of programs that support low-income households, the prescription she advocates for, the incorporation of the energy needs of the poor into energy law.

Just as some law-and-economics scholars have strived to define the problems of poverty as outside the bounds of ordinary legal debate, as matters that should be dealt with solely through tax-and-transfer programs, so too it is common, according to Professor Outka, for energy law works to push aside affordability concerns by declaring them matters of “poverty law.” This all-too-easy out, Professor Outka argues, is neither fair nor appropriate for the energy field. The article ends with examples highlighting ways in which deliberately incorporating the concerns and needs of low-income households into energy policy can lead to better outcomes and make the benefits of energy more secure to all households.

Professor Outka’s primary goal is to bring the needs of low-income households, and the programs that serve them, out from the cold by showing how they are fundamental to the larger energy law field. The article succeeds in that goal, but it also does the inverse, showing poverty law scholars the importance of not neglecting these programs and of elevating the place that energy policy has in our understanding of the challenges facing low-income households.

Rethinking Federal Strategy After Disappointment

Nov 5, 2024 Wendy Anne BachPoverty LawAdd a Comment

For those who care about the scope and effectiveness of America’s federal safety net, the last two years have been disappointing. To be frank, it’s always been disappointing, but this time we were naïve enough to get our hopes up. In the wake of the pandemic we saw, and loudly celebrated, significant expansions and reforms. Even more loudly, we touted the harms prevented, and the surely incontrovertible good that resulted for poor families and poor children and called for many of those reforms to become permanent. First among many, in this category, was the brief restructuring and expansion of Child Tax Credit, which significantly broadened both the size and reach of this benefit, reducing child poverty down to historic lows. That change, along with significant expansions to unemployment benefits, Medicaid, and housing and food assistance, dramatically altered and expanded the reach of the federal safety net. There were flaws, mistakes, and holes no doubt, but overall, the extent and effect of assistance reform was breathtaking. Despite the clear positive effect of these policies and despite significant political investment by center/left policy organizations and the Biden administration, in large part attempts to make these changes permanent failed.

The authors of the article celebrated in this jot, Andrew Hammond, Ariel Jurow Kleiman and Gabriel Scheffler, have written previously in 2020 in How the Covid-19 Pandemic Has and Should Reshape the American Safety Net. In their latest piece, the authors engage in a crucial post-mortem analysis, and identify and propose a potentially highly effective solution to a key post-failure question: “the next time there is an opportunity to strengthen anti-poverty programs, what should Congress do?” Their answer, while perhaps not as lofty as the sweeping vision of those who hoped that the pandemic reforms would translate into a far broader and more universally-oriented system of support, provides a workable, effective, responsive and, potentially more resilient set of mechanisms for reform the next time opportunity calls.

In short, the authors propose that when future and sadly inevitable economic crises create an opportunity for safety net reform, legislators should focus on incorporating automatic triggers into relevant legislation. These trigger provisions, principally for these authors, legislative triggers and indexing, are statutory mechanisms that change policy automatically in response to external events. Their great appeal is that, once enacted, they require no congressional action to enact benefit changes or rule adjustments. So, for example, a trigger might automatically expand benefits or lift a restriction (say work requirements) when unemployment goes above a specific rate. It would also, of course, go back down (in the case of a benefit) or be reinstated (in the event of an eligibility rule shift) once the triggering event subsided, but at least triggers could be designed to actually respond at the beginning and last the length of the crisis. Of all the good things one can say about the pandemic era reforms, as the authors show, many failed on both those tests. Benefits did not always arrive soon enough, and they often went away far before the crisis had concluded.

Indexing, while slightly different, automatically links benefit amounts to an external index or rate, adjusting benefit levels to account for the external shift. As the authors point out, indexes are fairly common in the federal safety net (for example SSDI, SSI, SNAP and the EITC are all indexed to inflation) but many other programs that support low-income Americans (for example the SSI asset limit and the Child and Dependent Care Tax Credit amount and phase out) are not.

The authors freely admit that these proposals are not designed to make the safety net more generous per se. Instead, they argue persuasively that triggers and indices can make the safety net “less politicized, more responsive, and more protective of vulnerable Americans.” They carefully analyze a wide range of other, softer legislative triggers (e.g. sunset provisions and prompting legislation) and demonstrate that their proposals are more likely to be effective. They also carefully analyze the problems endemic to cyclical, crisis-induced legislating and easily persuade their readers that their proposals will effectively mitigate harmful policy drift, make the safety net more responsive to non-economic “disasters,” address state level variation, and improve the relationship between data and policy. These authors wield their deep technical expertise to provide a sound roadmap for those working now to craft legislative proposals that might, at a future political moment, more effectively and permanently respond to crisis and make the safety net stronger over time. In an era of disappointment, that is no small thing.

Building Community in Poor Towns and Cities

Jun 29, 2023 Ezra RosserPoverty LawAdd a Comment

Michelle Wilde Anderson’s The Fight to Save the Town: Reimagining Discarded America is worth reading for its optimistic approach to the challenges facing poor communities. Governments in such communities are often beset by significant legal and structural limitations that make it hard for them to provide even basic services to poor residents. With government programs related to poverty largely forced into retreat since the War on Poverty, the Affordable Care Act being the notable exception, it is easy for those who care about how the government responds to poverty to fall into despair. Poverty law offers little solace. The promise of Goldberg v. Kelly having long since faded, poverty law scholars are left searching for reasons for hope. The Fight to Save the Town provides glimmers of hope despite the legal and structural limitations facing struggling communities.

Anderson explains in the introduction that she aligns herself with the “‘call in,’ rather than ‘call out,’ tradition of social change,” (P. 31) which captures the book’s tone and approach. Portraits of community leaders and community organizations fighting back against urban decay and government decline form the heart of the book. But for all the heroism depicted in The Fight to Save the Town, readers are left—as they arguably should be—simultaneously inspired by the many examples of communities coming together and horrified by the fact that anti-government and anti-poor sentiment has been so effective in gutting these same communities for so long.

While some readers of the book will likely accuse it of being too optimistic—being so celebratory of minor wins that can only do so much in the face of major structural barriers—Anderson begins each community profile by explaining the roots of today’s citywide poverty in the four towns profiled. Anderson is not the first author working on local communities to structure a book in this way. William Julius Wilson and Richard P. Taub’s excellent work, There Goes the Neighborhood: Racial, Ethnic, and Class Tensions in Four Chicago Neighborhoods and Their Meaning for America (2006), for example, has a similar structure. What makes Anderson’s book stand out is her ability to show the commonalities across four cities and areas that initially seem so distinct. On the surface, Stockton, California; Josephine County, Oregon; Lawrence, Massachusetts; and Detroit, Michigan are quite different in terms of scale, economics, racial composition, and politics. Such differences, Anderson shows, matter–and shape everything from what the community values to what sort of work is needed to make improvements. But The Fight to Save the Town is as much about the people working to help others find jobs, ensure the public library stays open, or make an area safe again, as it is about the distinct places. Anderson’s book is both a  portrait of ground-up activism and a portrait of communities hoping for a better future.

The themes tackled by The Fight to Save the Town are not easy ones and, Anderson is careful to note, are not the issues that impact all communities. Because each town has its own history and own struggles, the book is not a how-to manual for community activists. But Stockton, Josephine County, Lawrence, and Detroit are going through things that many struggling places are going through. Hit hard by deindustrialization and tax rebellions that leave local governments unable to collect enough revenue to fund basic services, residents see their livelihoods collapse—even as they find themselves unable to rely upon government services that, in earlier periods, were taken for granted. Mistrust of government is a common feeling in such places, whether the politics in the area lean blue or red. Community activists are forced to do the best that they can to improve things, whether that means building up networks outside of government or finding ways to convince taxpayers to agree to be taxed in order for the government to rebuild.

Before tackling the most challenging part of the book, it is worth pausing to give Anderson credit for being a very talented writer. The Fight to Save the Town flows beautifully. The town histories and the portraits of community activists and politicians are written in such a way that they draw the reader in, making one care about these places and people. Like most breakout books on poverty, Anderson’s choice to write a people-centered book allows her to connect with readers in a way that cannot be achieved through wonky policy-centered approaches.

It is also worth acknowledging that, for many readers, the hardest part of The Fight to Save the Town to deal with is likely Anderson’s relentless optimism. I suspect that all law faculties have colleagues whose modus operandi is to be positive. You see them in the hall, where every day is the best day ever, and in faculty meetings, where they think every idea is a great one, even if the issue really demands they take a stance. I cannot say that I hate such people, that is way too strong a claim. But, admittedly,  they do annoy me. Let’s be realistic—some days suck and some choices are bad ones. Anderson can come off as too positive. Fortunately, she knows it and spends time in the introduction defending her choice to “celebrate and support a new generation of people-centered leadership.” (P. 32.) As Anderson observes, “eulogistic writing records memories of a place, as though it is already lost,” (P. 25) even though places that Anderson calls “discarded America” still are home to large numbers of poor people. And those poor people have agency, attachment to place, and hopes and dreams that should not be written off.

My view is that there is value in both the “call in” and the “call out” traditions of social change. There must be works such as Matthew Desmond’s Evicted: Poverty and Profit in the American City (2016) and Barbara Ehrenreich’s Nickel and Dimed: On (Not) Getting By in America (2001) that call out the gross inequalities that the country tolerates and the hardships that the poor endure. Such works speak to some readers and can force the upper and middle classes to recognize the humanity (and the suffering) of the poor. But, there is also a need for more optimistic takes. Works like this show readers that people living in poor places should be not only listened to, but that through their leadership and example are already providing a path forward for these struggling communities.

On Divesting, Investing, and Critically Examining Help:  Lessons from a Symposium Centering Abolition

Sep 20, 2022 Wendy Anne BachPoverty LawAdd a Comment

Abolition is, as we have been well taught, at a minimum, a vision, a process, and a “theory of change.” (P. 867.) It is also crucially about power and resource allocation. Specifically, the transfer of power and resources away from those who have built institutions that reify white supremacy and to Black (and often intersectionally Brown, disabled, poor, Indigenous, Queer) communities subject to that institution’s violence. For academics and policymakers seeking to participate, one among many essential tasks is to attempt to step back and begin to understand how abolitionist praxis envisions change. This question is, at the very least, about who is in charge of change and how change happens. The who is clear. Change is led primarily by those most acutely subject to white supremacy’s violence. As to the how, abolitionists “recognize that the world may not change tomorrow; however, [they] also reject incrementalism that reinforces the status quo and entrenches oppressive cultures.”  (P. 890.)

Visioning abolition and understanding the difference between reform proposals that would “reinforce the status quo and entrench oppressive cultures” and those that would be a step toward the vision were at the heart of a recent, groundbreaking symposium. Sponsored by the Columbia Journal of Race and the Law, Strengthened Bonds: Abolishing the Child Welfare System and Reenvisioning Child Well Being, marked the occasion of the twentieth anniversary of Dorothy Roberts’s Shattered Bonds: The Color of Child Welfare, by renaming the child welfare system as the family regulation,² family policing³ or family destruction system (P. 883) and by calling for its abolition. The proceedings and papers are quite astounding and easily the subject of several entries in this particular, celebratory forum. But because I had to choose and because of the importance of understanding the vision, the specifics of abolitionist theories of change, and ways in which well-meaning professionals can get in the way of these goals, I feature a symposium piece that is beautiful, inspiring, and profoundly challenging:  Ending the Family Death Penalty and Building a World We Deserve, co-authored by Ashley Albert, Tiheba Bain, Elizabeth Brico, Bishop Maria Dinkins, and Kelis Houston. My purpose here is simply to highlight some of what they share and to strongly encourage you to spend some time reading and reflecting on the article in full.

The authors describe themselves as “directly impacted mothers, community organizations, and allied advocates across the country” who have been working closely together since at least since 2019. They describe their collective process, share their vision, reveal how the family regulation system as a whole, and the Adoption and Safe Families Act (ASFA) in particular, is grounded in and reinforces white supremacy. They call for the abolition of the family regulation system and, crucially, lay down a specific metric by which to evaluate potential steps on the road to abolition.

Before turning to the test for proposed reform, I want to start, as the authors do, not with the problem but with their vision:

We demand a world where the integrity of all families is valued and family ancestry is held sacred. In this world, families are supported and given the resources they need to thrive, and the family death penalty, or termination of parental rights, no longer exists. (P. 869.)

Starting with the vision is important, because visioning challenges us all to “stretch, twist, and wring out all the permutations of possibility and fully embrace the capacity of potential.” (P. 867.) Recognizing that the world may not change tomorrow, though, the authors make clear that, as is the case when talking about abolition and the criminal legal system,⁴ particular changes can be either a step toward the goal (a non-reformist or abolitionist reform) or it can be a reformist reform, one that strengthens the very institutional forms that abolition seeks to unroot.  To tell the difference in the context of family policing, they offer a four-part test:

1. Are the changes that are being proposed reducing funding to the child welfare industrial complex and increasing funds to communities?
2. Is the narrative around the policy shift pushing the dominance narrative that the family regulation system is an arbiter of safety?
3. Are we supporting changes that decrease the size, power, and scale of the family destruction system?
4. Are we supporting a shift in material conditions and the politicization for our people?

(Pp. 891-92.) To see how this might play out in the context of family regulation, the authors focus on ASFA and the destruction of families wrought by that act. Assuming there may be steps towards abolition short of the ultimate goal, they provide examples of what would be an abolitionist v. a reformist reform in this context.  On the abolitionist side, they suggest that ending terminations of parental rights (TPR) would be a step toward abolition presumably because it would “decrease the size, power and scale of the family destruction system” and “shift material conditions…for our people.” (P. 892.) In contrast, internal agency reviews of TPR policy fails because it does not reduce funding to the system. (Id.) Instead, it increases it. Moreover, giving the power to conduct reviews to the child welfare agency supports the narrative that the family regulation system is an arbiter of safety and fails to make progress on the goals listed in the last two parts of the test. This all seems straightforward.

Another example though, squarely raises a crucial issue–the ways in which professional interventions that seek to understand a particular person or family’s “problem” and then create a “program” to address that “problem” can be particularly counterproductive. To make this point, the authors highlight the concept of adverse childhood experiences (ACES) and the relationship between ACES and foster care prevention services. There’s no question that putting resources into the hands of agencies associated with the family regulation system to provide prevention services fails the abolitionist reform test. It builds, rather than shrinks, the system and reinforces the narrative that that agency is the arbiter of safety. It also does nothing to directly advance the material or political power of communities most deeply harmed by white supremacy. An advocate for such policy might respond that the concept of ACES and programs genuinely informed by an understanding of ACES have been shown to help particular families. How could this be a problem? To that, the authors have a clear response:

These industries are so faithful to technical surveys like “ACES” that are supposed to address adverse childhood experiences, rather than actually building up Black women and children.They spend more time building out family regulation apparatuses like “prevention models” than advocating for housing, baby bonds, and universal basic incomes for our communities. (P. 894.)

The message to those who would support such an intervention here is clear. If you agree we should move toward their vision, stop diagnosing “problems” and stop “helping” by expanding institutions. Instead, use whatever political power, resources, and/or technical expertise you have to work, in collaboration, toward the transfer of both significant power and significant resources from existing careceral institutions to Black families and communities. The road abolitionists propose is not easy, but I have no doubt it is the only road that will ultimately address the overwhelming violence wrought by carceral systems. We would all do well to heed their words.