1LPE Round-up

Earlier this fall, the LPE blog launched 1LPE, which aimed to provide a critical countervailing perspective on the doctrinal areas traditionally constituting the 1L curriculum. Take a look at what we’ve published – and get ready for more posts after the break!

Criminal Law


Property

Torts

 

Constitutional Law

The Curative Power of Law and Political Economy

Amy Kapczynski —

Ask not for whom the First Amendment tolls: It tolls for you.  Or so I argue in an essay just published at the Columbia Law Review online.  It’s called “The Lochnerized First Amendment and the FDA: Toward a More Democratic Political Economy”—a boring title for a vital and urgent problem.  Courts, speaking in the name of the First Amendment, are “freeing” us from regulatory approaches that have worked for decades to protect us from snake oil and inform us about the products we put in our bodies. How did we arrive here? And how might demo­cratic prerogatives retain control over the webs of commodity exchange upon which our lives depend?  The essay addresses these questions, trying along the way to model how law and political economy analysis can contribute to our understanding.

The FDA is a key accomplishment of both the Progressive Era and the New Deal and perhaps the most muscular of all federal agencies. It regulates one-fifth of the consumer economy, and has enjoyed extraordinarily high levels of influence and public trust throughout its long history.  This popularity may have something to do with the fact that the FDA gained its powers through successive waves of democratic demand for its intervention when “free markets” proved deadly.  (If you don’t know the story of thalidomide, which left a trail of destruction around the world in the 1950s and 1960s, here is a vivid introduction). Perhaps unsurprisingly, the FDA has also been a prime target of neoliberals, who resent its extensive powers.  Industry lobbying and sustained criticism from Chicago-school types and have had an impact; several recent laws have weakened the agency.  But the respect and support the FDA commands have made legislative assaults challenging.  Perhaps that is why industry—and industry funded groups—have invested in the use of the courts to attack its power.

What does that attack look like?  The cases are astonishing.  Some suggest that drug companies have a free speech right to market drugs for unproven uses.  These threaten the system that the FDA has used for decades to develop the evidence we need to understand whether drugs work.  Nonetheless, citing these cases, the FDA appears poised to substantially deregulate drug marketing.  New commercial speech doctrine may also be the demise of a law passed recently to protect consumers from misleading claims about supposedly low-risk tobacco products.   E-cigarette companies (mostly backed, apparently, by big tobacco) argue that Congress doesn’t have the power to force them to validate claims that their products are low risk, though we know relatively little about their long-term implications.

The logic of these cases could go quite a bit further, even undermining the FDA’s ability to regulate medicines and tobacco altogether.  I don’t spell out the many possible implications for food, supplements, and cosmetics, but you can read between the lines.

How did this happen?  Here’s where law and political economy offers important insights. If we read the cases that build this new commercial speech doctrine, cases like Virginia Pharmacy and IMS v. Sorrell, with the literature on neoliberalism in mind, we see that they have been deeply shaped by market supremacist thinking. They mobilize images of markets, subjects, and the state that are not only contestable, but deeply undemocratic.

How we might we best respond to this new and rather ghoulish First Amendment?  There are some excellent doctrinal arguments that could bring the courts back from the brink, as I describe in the essay.  Importantly, though, these cases should also cause us to rethink our needs for public infrastructure.  If courts thrust us into a world with more limited authority over private markets, we must envision a much more substantial role for the public—in this case, for example, by expanding public funding for health research. This approach would sidestep recent court decisions in addition to having far-reaching benefits for health democracy or health justice. It is also an instance of a broader point. By undermining public-oriented regulation of private companies, the advance of market supremacy inside of constitutional doctrine paradoxically pushes the campaign for democratic control up a level.  New public infrastructure that displaces or routes around an increasingly ungovernable private sector would, in addition to cutting out the profit-oriented middleman, more easily brush off a Lochnerized First Amendment.  The parallels to Medicare For All—spurred on by attacks to the ACA—are easy to see.

The piece was a response to the superb conference and volume on “Free Expression in an Age of Inequality” put on recently by Columbia Law School, Columbia Law Review, and the Knight Institute.  If you’ve read this far, you’re incurable, and you should also check out the other pieces published as part of the symposium, especially Jed Purdy’s “The Bosses Constitution.”  People often ask me for work describing how to “do LPE.”  These two pieces provide possible examples.

Amy Kapczynski (@akapczynski) is a Professor of Law at Yale Law School. 

1LPE: Mullane, Financialization, and Procedural Pliability

Emily Villano —

Few cases were as difficult for me to initially grasp as Mullane v. Central Hanover Bank & Trust Co. (1950), a common case in first-year civil procedure courses. The appellant was a guardian ad litem, the opinion parsed the differences between jurisdiction in personam and in rem, and I woefully had never taken Latin.

My confusion also stemmed from the case’s many reversals of expectations. Mullane can be thought of as a proto-class-action lawsuit: it involved the aggregation and binding of multiple claimants to the judgment of a court—despite the fact that not everyone actively participated in (or even had awareness of) the lawsuit. Today, class actions are paradigmatic tools for making power accountable to people: such as when consumers band together to sue corporations, or prisoners seek reform of prison conditions.

Yet in Mullane, the original plaintiff was a bank. And rather than resisting the aggregation of claims, the bank sought the Court’s blessing for a procedural mechanism to bind absent parties. Herein lies Mullane’s special fascination: the Supreme Court first relaxed constitutional due process requirements in order to aggregate claims—bending central concepts like “notice” and the “opportunity to be heard”—to feed New York’s growing mid-century financial sector.

The story behind Mullane reveals a great deal about civil procedure: such as its role in shaping our political and economic landscape and its chameleon-like capacity for good and ill. Mullane, therefore, particularly lends itself to an LPE approach. Continue reading

The Uneasy Case Against Occupational Licensing (Part 2)

Frank Pasquale and Sandeep Vaheesan–

Successful ideological entrepreneurs change policy-makers’ focus and their presumptions. Those on the right, in particular, have been very effective at shifting attention from core confrontations of capital and labor to peripheral conflicts among laborers. We see this repeatedly in inequality policy, where fundamental tensions between capital and labor are ignored, obfuscated, or trivialized by a tidal wave of technocratic reframing. Continue reading

Teaching Civil Procedure with Political Economy in Mind

Helen Hershkoff–

Over a decade ago I wrote a short piece called “Poverty Law and Civil Procedure: Rethinking the First-Year Course [Poverty],” published as part of a symposium issue of the Fordham Urban Law Journal on the place of poverty in the law school curriculum. Reginald Heber Smith’s statement from 1919 was the epigraph: “The administration of American justice is not impartial, the rich and the poor do not stand on an equality before the law, the traditional method of providing justice has operated to close the doors of the courts to the poor, and has caused a gross denial of justice in all parts of the country to millions of persons.”

Poverty was practical and concrete, conceived almost in the style of Teacher’s Manual (indeed, it was geared to the casebook I know best, Friedenthal, Miller, Sexton & Hershkoff, Civil Procedure: Cases and Materials). I took inspiration from Kevin Johnson’s earlier article on introducing race into the 1L curriculum. Re-reading Poverty, it’s clear that the pedagogic suggestions are allied with the theoretical premises identified in this blog’s (near-)manifesto—(1) that politics and the economy “cannot be separated,” i.e. politics affects the distribution of economic resources and wealth affects the distribution of political power; and (2) that law constitutes, creates, promotes, and reshapes politics and the economy and is, in turn, affected by both. Here I sketch out some of Political Economy’s more important themes that relate to 1L Civil Procedure and begin to update the teaching approach in light of a few doctrinal developments. The goal is not a mechanical add-on of ideas associated with Political Economy, but rather to encourage a space in the 1L curriculum where suppressed issues about law and  power, both political and economic, can be raised and explored at an early stage in the students’ legal education. Continue reading

LPE of Civil Procedure: Equality Inside and Outside the Courts

Daniel Wilf-Townsend

What does civil procedure have to do with LPE? On the one hand, you might think of procedural rules as only instrumentally important. They don’t dictate our obligations, like tort law or criminal law, or define the terms of economic organization, like property law. But anyone wondering why procedure gets a prime place in the first-year law curriculum should consider the famous warning of Congressman John Dingell, who was heavily involved in landmark accomplishments of substantive policymaking like Medicare, the Endangered Species Act, and the Clean Air Act. In Dingell’s words, “If I let you write the substance and you let me write the procedure, I’ll screw you every time.”

In other words, procedure is power. Procedural rules are at the root of how legal institutions make decisions: who gets into court, what burden they must meet to prove their claims, what information they can find out, who decides which party is right, what remedies may be on the table, and more. This means that the set of procedures the law employs heavily influences the ultimate outcomes of any policy choice. Because legal procedures play such an important mediating role between political choices and actual outcomes, understanding those procedures is a key component of the study of law and political economy.

This post focuses on just one aspect of legal procedure—the idea of formal equality in legal proceedings. I’ll explain how the notion of “procedural equality” stands in tension with inequalities that exist outside of legal institutions and provide a few quick examples of this tension in contemporary doctrinal debates. Finally, I suggest two approaches that students of LPE can take to these kind of debates: one with an eye toward understanding what the law does in the world, and the other with an eye toward considering how the law can be used and improved.

Continue reading

The Uneasy Case Against Occupational Licensing (Part 1)

Frank Pasquale & Sandeep Vaheesan–

Obama-era technocrats and Trump cronies may not agree on much, but they have made common cause against occupational licensing. That focus undermines important social objectives while obscuring far more important problems in the labor market. In this post, we cover the basics of licensing, and then reframe current attacks on it. In our next post, we will explain why licensing’s mix of consumer protection and labor market stabilization is a legitimate policy option for a wide range of occupations.

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Who are “the People” in Criminal Procedure?

Jocelyn Simonson-

The customary case caption in criminal court, “The People v. Defendant,” pits the community against one lone person in an act of collective condemnation. When I was a public defender in New York City, it was common for judges, clerks, and other courtroom players to refer to individual Assistant District Attorneys as “the People,” as in, “Do the people have an offer?,” “Would the people like to request a lunch break?,” or, if an ADA was not visible in the courtroom, “Are the People in the bathroom?” Calling an individual prosecutor “the People” sends a powerful message to courtrooms full of defendants and their supporters waiting for their cases to be called: a message that they are not part of “the People,” are not part of the public that matters. Even in jurisdictions in which the prosecution calls itself the “State,” “Government,” or “Commonwealth,” this idea—that the prosecutor is the People’s representative in the courtroom—pervades how we think and talk about prosecution and criminal procedure.

Continue reading