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January 06, 2023 HUMAN RIGHTS


by Ezra Rosser

Wealth and poverty differences profoundly shape how people live, their relationship with the law, and whether they are afforded a basic level of dignity and equality reflective of their shared humanity. Though he is invoked today primarily by champions of the free market, Adam Smith noted the importance of even the poorest workers having linen shirts so they could “appear in public” without shame. Two hundred and fifty years later, the equivalent of Smith’s linen shirt may take other forms—access to decent housing and education, fair working conditions, and attention to the intersections between race, gender, poverty, and wealth—but the essential insight remains: dignity and justice that are reserved only for the wealthy are neither of those things.

Long gone are the days when the young attorneys staffing legal aid offices across the country as part of the War on Poverty could look optimistically to the U.S. Supreme Court, expecting that the law would vindicate the claims of the downtrodden. In 1970, the Supreme Court held that welfare recipients have a right to a hearing before the state cuts off their benefits (Goldberg v. Kelly, 397 U.S. 254 (1970)). But the Court almost immediately beat back the hope that it would rewrite the country’s economic code. Through a series of cases, the Court announced that it was going to take a hands-off approach to matters relating to welfare, the larger economy, and even differential provision of basic services such as education. (See, e.g., Dandridge v. Williams, 397 U.S. 471 (1970); Jefferson v. Hackney, 406 U.S. 535 (1972); and San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973).)

As this issue shows, tackling the legal challenges associated with wealth disparities is not easy, and there have been setbacks along the way.

As this issue shows, tackling the legal challenges associated with wealth disparities is not easy, and there have been setbacks along the way.


Though engraved over the entrance to the Supreme Court, “Equal Justice Under Law” has proven more of an aspiration than a statement of fact. The gulf in life experiences between the poor and those with more resources contributes to the problem. In United States v. Kras, 409 U.S. 434 (1973), the Court held that an unemployed man had to pay $50 in filing fees in order to apply for bankruptcy protection. Writing for the majority, Justice Harry Blackmun reasoned that, given the payment plan options available, the weekly cost of the fee would be “less than the price of a movie and little more than the cost of a pack or two of cigarettes” and should be something within the man’s “able-bodied reach.” Justice Thurgood Marshall, writing in dissent, noted, “It may be easy for some people to think that weekly savings of less than $2 are no burden. But no one who has had close contact with poor people can fail to understand how close to the margin of survival many of them are. . . . [I]t is disgraceful for an interpretation of the Constitution to be premised upon unfounded assumptions about how people live.”

As the exchange between Justices Blackmun and Marshall highlights, it is often difficult for those in positions of power to see across the wealth divide. Writing for a popular audience in 1969, Judge Skelly Wright observed, “In our society the law has worked a hardship on those least able to withstand it. Rather than helping the poor surmount their poverty, the law has all too frequently served to perpetuate and even exacerbate their despair and helplessness.” (The Courts Have Failed the Poor, N.Y. Times Mag. (Mar. 9, 1969).) The political salience of wealth inequality has only grown since then. Academic works such as Thomas Piketty’s Capital in the Twenty-First Century (2013) and Matthew Desmond’s Evicted: Poverty and Profit in the American City (2016) helped bring attention to the powerful forces shaping the relationship between the haves and the have-nots. Such works are products of their time, a period that has been called the New Gilded Age.

Rising inequality, increasing awareness of the lasting consequences of race- and gender-based discrimination, and weakening of the social safety net together invite us to consider how the law contributes to ongoing inequalities. The numbers tell a dramatic story. According to the U.S. Census Bureau, while non-Hispanic whites had a median household wealth of $187,300, Blacks had a median household wealth of only $14,100, and Hispanics were only slightly wealthier, with a median household wealth of $31,700. (Neil Bennett et al., Wealth Inequality in the U.S. by Household Type, U.S. Census Bureau America Counts (Aug. 1, 2022).) The figures are even more striking when considering aggregate wealth. According to the Federal Reserve Bank of St. Louis, in 2016, the top 10 percent of Americans owned 77 percent of total U.S. wealth, while the bottom 50 percent held only 1 percent of total U.S. wealth, with 1 in 10 American families having a negative net worth. (Ana Hernández Kent et al., What Wealth Inequality in America Looks Like: Key Facts & Figures, Federal Reserve Bank of St. Louis Open Vault Blog (Aug. 14, 2019).) Indeed, the combined net worth in 2019 of just three individuals—Jeff Bezos, Bill Gates, and Warren Buffett—exceeded the total wealth held by the bottom 50 percent of the population.

Similar dynamics are at play on the income side. The gender gap—the median earnings in 2019 for civilian men who worked full-time year-round was $53,544, while the median wage for similar women was $43,394, a gap of more than $10,000. (Megan Wisniewski, What Is the Gender Wage Gap in Your State, U.S. Census Bureau America Counts (Mar. 1, 2022).) The top 10 percent of income earners made 50 percent of all income in 2016, up from 42 percent in 1989. Incomes for those in the bottom half of income earners ranged from $0 to $53,000, while the top 10 percent of earners had incomes of $176,000 and above. As the Council on Foreign Relations observes, “income gains have been heavily skewed toward the top” for decades. Indeed, as a PEW Research Center Report notes, “the 1980s marked the beginning of a long and steady rise in income inequality.”

These statistical snapshots tell only part of the story. As the work of Harvard Professor Raj Chetty’s Opportunity Insights team shows, wealth and income inequalities persist across time as well. Economic mobility has fallen sharply since the 1940s, and “the consequences of the ‘birth lottery’—the parents to whom a child is born—are larger today than in the past.” Racism only compounds these problems. Researchers at Stanford, Harvard, and the Census Bureau found that “a black man raised by two parents together in the 90th [income] percentile—making around $140,000 a year—earns about the same in adulthood as a white man raised by a single mother making $60,000 alone.” For too many people, the American Dream is in disarray, with the gulf between the lives led by the privileged few and the rest of society continuing to grow.

Focusing only on macro-level comparisons risks losing sight of the ways wealth disparities impact people’s lives. Lawyers know that the playing field is not level and that access to representation, relative status, and other social markers can lead individuals to have very different experiences of the law. The articles in this issue of Human Rights cover a diverse range of topics, from wage inequality and predatory lending to environmental justice and fair housing. As this issue shows, tackling the legal challenges associated with wealth disparities is not easy, and there have been setbacks along the way. But many of the areas covered in this issue are areas with enough space, hopefully, for legal arguments, community organizing, and other efforts to make a difference.

The passing of Barbara Ehrenreich, on September 1, 2022, provides both an excuse and a reason to remind ourselves of the searing commentary on the country’s income and wealth disparities that made Nickel and Dimed: On (Not) Getting by in America an instant classic. Ehrenreich observed:

When someone works for less pay than she can live on—when, for example, she goes hungry so that you can eat more cheaply and conveniently—then she has made a great sacrifice for you, she has made you a gift of some part of her abilities, her health, and her life. The “working poor,” as they are approvingly termed, are in fact the major philanthropists of our society. They neglect their own children so that the children of others will be cared for; they live in substandard housing so that other homes will be shiny and perfect; they endure privation so that inflation will be low and stock prices high. To be a member of the working poor is to be an anonymous donor, a nameless benefactor, to everyone else.

Passages such as the above made Nickel and Dimed a staple on college campuses for a decade and inspired endless debate about the relationship, what Matthew Desmond later labeled “exploitation,” between the privileged and the disadvantaged. What is certain and what this issue of Human Rights highlights is that income and wealth disparities are not matters that impact only the poor; instead they implicate us all, connecting us in a web of responsibility and (in)justice.

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Ezra Rosser

Associate Dean of the Part-Time and Evening Division and Professor of Law, American University Washington College of Law

Ezra Rosser teaches poverty law, federal Indian law, and property at American University Washington College of Law. His most recent book is A Nation Within: Navajo Land and Economic Development (Cambridge University Press 2021).