Carceral Feminism at a Crossroad

Aya Gruber–

In this watershed moment when policymakers feel liberated to embrace noncarceral responses to the behaviors that laws label crimes, one question rings out: “What about rape and domestic violence?” The pro-policing contingent intends this as a rhetorical “gotcha.” But many progressives open to meaningful reform genuinely worry about the demise of gender crime law, which they see as a formidable legal tool against the patriarchy.

gruberThe entrenched instinct to equate gender justice with criminal prosecution renders feminism one of the last legitimators of the penal state in an era of declining liberal faith in criminal law. My book The Feminist War on Crime traces the complex symbiotic relationship between U.S. feminism and the American penal system. Repeatedly, feminists stood at the crossroads of antiviolence policy and, despite warnings from insiders and other options, chose criminal law. I hope to dislodge this instinct to seek liberation through prosecution.

In the dominant genealogical account, contemporary carceral feminism arose fortuitously when tough-on-crime politicians and prosecutors coopted the feminist antiviolence agenda. This is often expressed by feminist scholars as law enforcement “taking over” the movement. Feminists in the 1970s and 80s, the account goes, reacted to centuries of social and legal tolerance for rape and DV and finally pushed the state to treat violence against women as a serious crime. This modest invocation of criminal law was seized upon by conservatives eager to use vulnerable women as poster children for the war on crime. By the close of the millennium, the stalwart suit-wearing SVU prosecutor had replaced the bra-burner as the symbol of women’s empowerment.

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Weekly Roundup: July 31, 2020

This week at the blog…

Noah Zatz analyzed the ways in which the CARES Act does and (mostly) does not support care work. He argues that the prioritization of supporting the formal employment market makes the support for care work maddeningly indirect and even perverse, especially as the pressure builds for returning kids to school.

The Blog (well, really, Isabel Echarte) interviewed law students from around the country about their involvement in the uprisings after George Floyd’s killing.

Krystle Okafor makes the case for rent cancellation.

 

And our hand-picked delicacies from the cyberfields…

Caroline Parker: I am finally back home in Colorado, which may be the epicenter of privatized outdoor pleasure. Every time I drive I-70 into the Rockies  I think about the fraught politics of mountain recreation here. Personally, it was a good week to encounter a call to nationalize all the nice places.

I have read a lot of articles about the Taylorist horror of factory farming, but Alex Vettese’s piece Pigs and Capital will stay with me. It is part book review and part agricultural history that ends with a call for inter-species solidarity. Unlike most reporting on CAFO conditions, Vettese explicitly frames animal agriculture in terms of political economy. “The meat industry isn’t a macabre exception but rather is typical of contemporary capitalism.” 

I also found this paper attempting to quantify whose voices get amplified in climate coverage so satisfying to read. Across climate stories published between 1985 to 2014, sociologist Rachel Wetts found that organizations opposing climate action were more than twice as likely to be cited than climate advocates. According to Wetts, the imbalance is a result of journalistic norms that have distorted public discourse in favor of business interests. Her analysis is reminiscent of the abundant criticism of the NYT style “both-sideism” we have seen since the 2016 election. Except she made a computer read 35,000 articles to prove it.

Ure Obioma: Like many people, one day I hope to become a mother. I know exactly how many kids I want, what their names will be. I sit and imagine what their personalities might be like, based on mine. Unfortunately, I come to terms with the fact that my risk of having a complication during childbirth is higher simply because I am a Black woman. Austin Frakt’s article in the New York Times explains highlights why the health care system fails so many Black women. 

Black Americans are less likely to have access to the health system and tend to receive overall poorer care than their counterparts. In recent years, the influence and impact that racism, in the form of overt and implicit biases found in health care, has become a topic of discussion. Most importantly, Frakt does a wonderful job of linking Black women’s maternal health outcomes to the differences in state Medicaid coverage. Due to economic factors, Black women are more likely than other women to be covered by Medicaid, and unfortunately for many, they are also more likely to have their coverage canceled postpartum, a crucial time in combatting maternal mortality rates. States that refused to expand Medicaid are three times more likely to have postpartum women be uninsured compared to States that have expanded the program.

Isabel Echarte: I learned the hard way that moving to a new home during the workweek is ill-advised, so this week I present to you what I found this week but plan to read this weekend:

  • K-Sue Park shared her new working paper titled Conquest and Slavery as Foundational to the property Law Course, where she outlines how that history has been erased in property law casebooks and then shows how “onquest constituted the context in which the singular American land system and traditional theories of acquisition developed, before turning to the history of the American slave trade and the long history of resistance to Black landownership that its abolition fueled.”
  • Amy Kapczynski, with Paul Biddinger and Rochelle Walensky, wrote about how the federal government can ensure an adequate supply of a key coronavirus treatment and distribute it evenly.
  • Brent Cebul wrote about how urban renewal programs destroyed Black communities in the mid-twentieth century.
  • And I’ve been meaning to dig into this Twitter conversation between Brad Setser, Nathan Tankus, Daniela Gabor, and JW Mason about capital flows, the deficit, and probably a lot of other things (I haven’t scrolled thru yet), but I’m sure it’s good. I would read anything these four have to say!

Sarang Shah: The big news in antitrust this week was the high profile congressional hearing before the House Antitrust Subcommittee on Wednesday focused on Big Tech. Attended by the CEOs of Amazon, Apple, Facebook, and Google, last Wednesday’s hearing trained its focus on the dominance exercised by these companies, their attempts to monopolize, and specific unfair practices that were exercises of their outsized power.

David Dayen, executive editor of The American Prospect, wrote up a blow-by-blow of the hearing on Twitter and has also written an excellent summary of these hearings, emphasizing the careful work done by several of the Democratic committee members (the GOP members were as ever focused more on conspiracy theories than substantive lines of inquiry). Dayen also notes the particular attention these hearings brought to the lack of enforcement in recent years by the DOJ and the FTC. While these agencies could do better, it is also up to the judiciary to abide by existing antitrust law and to reject the loose economic reasoning and even looser understanding of antitrust law and its history if we are ever to hold these big tech companies accountable.

Luke Herrine: Just a couple tidbits from me (beyond what my co-editors have already picked).

Over at OnLabor, Ben Sachs argues that police unions do not deserve many of the protections of collective bargaining, but reflects on the importance of justifying removing these protections in a way that does not endanger public sector unions more broadly.

I caught up on friend-of-the-blog Raúl Carrillo’s short article on the relationship between the framing of public spending as “taxpayer money” and the growth of fines and fees as ways for local governments to raise revenues, primarily from poor and black and brown communities. He argues that the valorizing people depend on their payments to the state is not only analogous to, but directly connected to, the racialized division between “deserving” and “undeserving” recipients of benefits from the state (as well as which benefits don’t even count as benefits).

Rent Cancellation: Social Protection in Uncertain Times

50167834446_19f4a27852_oKrystle Okafor–

With the onset of the coronavirus pandemic, interlocking structural inequities in health, employment, and racial justice have buffeted vulnerable populations. The looming “eviction apocalypse” sits at the nexus of these three ills. Black and Latinx people have the highest COVID infection, death, and unemployment rates nationwide. Mass evictions would only worsen this situation, preventing these households from sheltering in place and deepening the adversity they face.

As the latest federal stimulus package lingers in the Senate and the re-openings of states’ economies stall, activists have called for rent cancellation—the wholesale suspension of rent payments during the pandemic. It is neither a farfetched nor overblown proposition. Movements have made rent cancellation a central goal. Combined with precedential rent control cases, governments have the political and legal wherewithal to cancel rent. Further, social protection systems, institutional arrangements to insure against lifecycle and work-related contingencies, often evolve during times of crisis. If rent cancellation takes the form of a supply-side, landlord-facing debt relief program and is gusseted with tenants’ rights provisions, it could seize the moment, pass constitutional muster, and as I argue here, confer the necessary degree of social protection. Two arguments bear this out.

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Law Student Perspectives: On Grief, Organizing, and Joy in Support of Black Lives

Group_of_Black_Lives_Matter_protesters_shouting_paroles_(50115383087)Survey data suggests that the recent protests in support of Black lives constitute the largest movement in U.S. history. The Blog interviewed five law students about what it is like to be a law student right now. Below, you’ll see lightly edited quotes from these students describing their experiences and discussing how they are showing up to support the movement.  

Jordan Brewington is a rising 3L at Yale Law School who writes and dreams about reparations.

I think a lot of people at our law school talk about how the work is exhausting and spiritually draining, but not enough people talk about how the work is life-giving, deeply cathartic, spiritual. I don’t think that hit for me as profoundly as in this moment.

I remember hearing about Breonna and trying to stop it from percolating into my spiritual shield. I didn’t want to stop the happiness that I’d been experiencing, I didn’t want to remember my chains. When I finally let it in, I remember staring out my bathroom window, so depressed I could hardly keep my head up. I started hearing ambient people noise and jazz music and (a bit delusional) I convinced myself there was a second line in New Haven. I walked outside in basically pajamas to see what was going on and by the time I hit the Shops at Yale, I saw hundreds of people stopping traffic, chanting, moving. I just felt compelled to start walking with them, and that day we shut down the 95.

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Where Is the Care in the CARES Act?

Noah Zatz–

Two pandemic policy stories have been coming to a head: (1) the push for another relief bill as a key CARES Act unemployment insurance benefit expires on July 31, and (2) the ongoing national child-care crisis as school closures for the fall are announced amidst the virus’ resurgence. What connects them is kids’ needs for care and families’ needs for economic support when they—predominantly mothers, of course—perform that caring labor. A little-noticed feature of the CARES Act supports care for children who must stay home due to school closures.

Despite its title, the CARES Act takes an excruciatingly indirect route to supporting caregiving. These contortions reflect the deep-seated reluctance to recognize and value caring labor. Instead, the Act reflects the dominant approach—including within most progressive politics—of devoting resources to caregiving only to the extent that can be reframed as achieving some other goal: freeing up parents or other caregivers to do “real” work in the paid labor market, delivering education, delivering health care, etc.

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Weekly Roundup: July 24, 2020

This week at the blog…

Ivana Isailović analyzed the political struggles over working from home through the lenses of social reproduction and workers’ control over their time, comparing policy responses in France and the U.S.

and

Katharine Jackson argued that LPE should borrow some analytical tools from political theory to separate out different ways of thinking about the value of democratizing control over different parts of social life.

 

Elsewhere on the internet…

Luke Herrine: Some big news in the progressive antitrust world came out this week. Bloomberg reported that Fiona Scott Morton, economics professor at the Yale School of Management, widely feted for her critical-but-still-mainstream takes on the current non-enforcement regime, and well-connected with the elites of the Democratic party, has been doing a good deal of undisclosed consulting with Amazon (her consulting with Apple had been previously disclosed). Earlier this year, Morton had started the well-endowed “Thurman Arnold Project” to bring together some of the scholars and advocates doing new thinking in antitrust. Soon after the Bloomberg story dropped, Stacy Mitchell, the co-director of the Center for Local Self-Reliance, resigned her fellowship at TAP (to Mitchell’s surprise, the tweet went viral):

Blog contributor Sanjukta Paul announced she had done the same:

Zephyr Teachout has called for Morton to step down:

Whatever happens at TAP, it’s worth highlighting that Sanjukta’s announcement teased a tantalizing detail: she and a few others will be starting a more clearly left anti-monopoly collective in the coming months. Stay tuned!

In more academic news, Erik Peinert published an article in Review of International Political Economy that draws connections between domestic industrial organization policies and global economic/trade regulation, opening up space for exciting conversations on the nature of global political economy, of market and inter-state competition, and the political economy of antitrust. (h/t Nathan Tankus).

Sarang Shah: What is competition? And what makes for a competition wrong? And if competition is legalized injury, what harms do not deserve legal redress? These have been the questions I’ve been mulling over the past week with the help of the following two articles.

First, Nicolas Cornell in a piece recently published in the Yale Law Journal argues that comeptition wrongs may go well  beyond mere violations of legal entitlements. Cornell makes a case for why a violation of public norms in a particular market, much like cheating in a sports game, constitutes a wrong done to other participants in the market. While I take issue with some of the framing, particularly Cornell’s view of competition law as private law much like torts (I would rather call torts public law instead), this paper offers an interesting and constructive approach to thinking through what constitutes competition.

Second, I read an article by legal theorist Joseph William Singer on “The Legal Rights Debate in Analytical Jurisprudence from Bentham to Hohfeld.” In particular, I found the discussion of damnum absque injuria, or the category of harms that are not entitled to legal redress, to be especially relevant to understanding how we may legally characterize competition. After offering a brief but clear introduction to Hohfeld’s celebrated categories of legal categories, Singer reviews the contemporaneous debates and rights-based frameworks  in analytical jurisprudence to which Hohfeld was responding. In short, Singer demonstrates that the question of what constitutes fair competition cannot be answered through a simple analysis of rights and “self-regarding acts,” but instead must address underlying policy reasons in determining when a particular harm does or does not deserve legal redress 

Together, these articles have offered me an initial tasting of what the legal theory underpinning tort law has to offer an understanding of competition, as I look forward to reframing competition and antitrust law on a more secure theoretical foundation.

Anna Wherry: Slightly old news, but still fascinating: Somerville, MA’s city council passed an ordinance at the end of June granting polyamorous groups the right to be recognized as domestic partners and thus receive health insurance benefits and make hospital visits. 

LPE Blog Contributor Sam Moyn’s talk with Jacobin’s Ben Burgis on the problem with human rights. Moyn reviews the history of how human rights came to replace socialism as a dominant political language and argues that human rights, while important, are not enough for achieving a more egalitarian social order.

Tariq El-Gabalawy: The Center for the Study of Latino Health and Culture at the David Geffen School of Medicine at UCLA published a recent study focusing on the disparate impact the Corona Virus has had on California’s Latinx communities. As reported by Democracy Now, Latinx Californians between the ages of 50 and 64 have died of Corona Virus at more than five times the rate of white people of the same age. Dr. David Hayes-Bautista attributes the disparity to the fact that “Latino and people of color basically do the scut work that keep the state going, its economy going, but get very little of the resources.” This link has been anecdotally confirmed in a number of cases and exacerbated by employer malfeasance. For example, in Wasco CA employees at Primex Farms, which owns over 5,000 acres of pistachio orchards in the state, are fighting for greater protections after learning nearly 100 fellow farm workers have tested positive for the virus. Employees reported learning about the outbreak from fellow workers and media reports not from Primex, and when sick employees requested time off they were told they could resign instead. 

Last week the Supreme Court continued it’s trend of ignoring state abuses of voting rights by denying an application to vacate a stay issued by the 11th Circuit, this being the case despite clear ethics violations by two Trump appointed justices who refused to recuse themselves despite past involvement in the case while serving on the Florida Supreme Court. The head spinning malarky dates back to a 2018 amendment to Florida’s constitution that restored voting rights to Floridians who had been convicted of a felony. In response to this groundbreaking step towards equal suffrage, Florida Republicans passed legislation requiring ex-felons to pay all court-imposed fines and fees before having their voting rights reinstated, a move that will block between 750,000 and 1.1 million largely indigent Floridians from participating in November’s general election. The law imposes strict criminal consequences on those who cast a ballot without first settling court debts, essentially imposing a poll tax (or a “voter paywall” according to Justice Sotomayor’s dissent of the Court’s order). As the injunction reversed by the 11th Circuit points out, the state passed this law despite having no idea how much ex-felons actually owe due to poor record keeping, making clear their intention to exploit poverty and use criminal law to enact voter suppression. 

My final recommendation provides more context on the police abolition movement. A deeply personal account, I recommend reading because it makes a great case for replacing the police with much needed community services that heal rather than inflict and perpetuate violence. As author Derecka Purnell explains by referencing Michelle Alexander, the idea of living in a world without police is hard to understand because “calling them felt like something, …, and something feels like everything when your other option is nothing.”

Situating the Role of Democracy in LPE

Katharine Jackson–

One of LPE’s foundational commitments, as Sanjukta Paul reminds us, is that law constitutes markets – and that, as a result, we are free to constitute them differently. But this simply begs the question: how ought we constitute them? This is where political theory can be useful.

As Sam Bagg points out, many LPE scholars already understand that democracy must have something to do with it. We object to many of our laws because they are undemocratic, reflecting instead the power of entrenched elites. But what would count as democratic is a genus populated by a wide variety of species, from proceduralpopulist (leftright, and ideologically empty), republican (neo– and classical), epistemicagonisticdiscursiverepresentative, and participatory. Each implies different legal and institutional reforms and prioritizes different values. Moreover, if we are committed to some form of constitutionalism, we have to admit that democratic publics cannot shape the law any which way they please.

To find a way though this thicket, it is helpful to note that many of these conceptions of democracy tend to fall into two categories. Each posits a different relationship between democracy, law and justice. For some, law, if it is the outcome of democratic procedures, is inherently just or legitimate. Others value democracy instrumentally, useful as a reliable means to achieve otherwise desirable ends. Sometimes those ends include just laws. Sometimes they are more modest but no less important: anti-oligarchystability, peace.

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The “New Normal” Privatization of the Workplace

Ivana Isailović–

As the COVID-19 crisis rages on, individuals around the world are now thrown into a work-from-home, digitally-enabled “new normal” of the workplace. For most white-collar workers, homes have become offices, and boundaries between work and domestic life are being reshuffled.

This shift, however, is just an acceleration of prior developments well under way since the beginning of this new millennium. Before the pandemic, workers with some higher education more were already more likely to work from home. In part this shift resulted from demands for better “work-life balance” prompting employers to accommodate workers with caring responsibilities by introducing remote work and flexibility. More importantly, though, digital technology makes it easier for firms to outsource costs and flexibility onto workers, accelerating the rise of the gig-economy globally. Platforms like Upwork, firms can be assembled with labor from around the world, further privatizing and extending the traditional notion of the workplace.

For many, the current situation has made evident the conflicts between work and family responsibilities, something that feminist scholars have repeatedly put forward.

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Weekly Roundup: July 17, 2020 (Featuring New Editors!)

This week at the Blog…

we continued our symposium on the legal representation of poor people.

On Monday, Gregory Louis argued that critical legal practice requires a critical realist approach to law: looking everywhere, not just courts, to interfere in the political contests that structure and restructure governance regimes.

On Tuesday, Sam Allison-Natale engaged with two influential articles on the ethos of public interest lawyering, using them to launch his argument that radical lawyering must draw from an ethos of solidarity, not altruism.

On Wednesday, Jamila Michener shared some early results of her research on housing courts, reporting a surprising result that people who are repeatedly screwed by the system often find that experience motivating rather than just disempowering, and having legal assistance and, especially, organizing can turn that motivation into mobilization.

(and don’t forget the LPE Project is looking to hire a Deputy Director! and the LPE summer series continues next week!)

 

We also added two new editors!

Ure Obioma is a rising 3L at the University of California, Davis School of Law, where she is a member of the Black Law Students’ Association, and the Business Law Journal. She will be covering topics related to health outcomes and the criminal justice system. As a student at Cornell, she volunteered in the Ithaca Court System. After her first year of law school, she worked as a Summer Legal Associate at Morrison Mahoney in Boston, Massachusetts, where she learned the art of litigation. However, after taking a negotiations course in law school she developed a passion for drafting contracts and negotiations. Her passion is rooted in the belief that true negotiations bring two parties together. This summer she is interning at the Office of the California Governor Gavin Newsom as a Legal Fellow to the Tribal Negotiations Advisor.

Tariq El-Gabalawy (@telgabal) is a rising 3L at UC Davis School of Law, where he is a member of the Middle East North African and South Asian Law Students Association, the Black Law Students Association, and the student run Workers Rights Clinic. During law school, he has been an RA for the Aoki Center for Critical Race and Nation Studies, clerked with the E.D. of CA Federal Defender’s Office, externed with the Adolescent Defense Team at Yolo County Public Defender’s Office, and currently works with the Los Angeles County Public Defender’s. Tariq is interested in ending carceral violence and has studied the racialized nature of state violence, specifically the politically motivated targeting of Muslim communities in the wake of 9/11.

 

And here’s our guided tour of the internet

Tariq El-GabalawyAs activists and communities across the country call for defunding the police, the tragic case of Sean Worsley highlights the need to reform the entire criminal justice system. As reported by the Alabama Appleseed Center for Law and Justice, Worsley, a disabled veteran of the Iraq war, was arrested for possession of marijuana while playing air guitar at an Alabama gas station, a charge which eventually left him homeless and sentenced to five years in prison. His story shows how onerous fines, fees, and probation requirements tend to punish poor people of color for being poor, and raises the question of when someone should be sent to prison for “crimes” that harmed no one.

This week Asheville North Carolina made a splash with the passage of a resolution to provide reparations to the city’s black residents. Although what reparations should look like is a topic of debate, the resolution passed by the Asheville city counsel is aimed at “increasing minority home ownership and access to other affordable housing, increasing minority business ownership and career opportunities, strategies to qrow equity and generational wealth, closing the gaps in health care, education, employment and pay, neighborhood safety and fairness within criminal justice.” Beyond these overarching goals, the city hasn’t offered many specific details so it remains to be seen how effective this resolution will be in bringing about economic justice for its black residents. 

Finally, a deeply troubling story has come out of Louisville Kentucky, where protests demanding justice for Breonna Taylor continue. A protest staged on the front lawn of Kentucky’s Attorney General Daniel Cameron led to the arrest of 87 protesters. All 87 people arrested were charged with felony “intimidation of a participant in the legal process” on the basis that chants used by the protesters constituted a threat of violence. A law meant to protect witnesses is now being weaponized to insulate an elected official from public scrutiny and those arrested face one to five years in prison despite the fact the protest was peaceful.  This blatant attempt to chill free speech is the latest use of criminal law to intimidate Black Lives Matter protesters.

Luke Herrine: As the Blog considers revisiting our 1LPE series, I have been trying to keep track of the wave of meditations on how to incorporate a racial lens into the law school curriculum that have come as a sort of aftershock to the earth-moving protests this summer. The Civil Procedure Workshop is holding an event on July 22 on teaching civil procedure with race in mind. The Contracts Blog is hosting a series of posts on critical race analysis in the contract curriculum. Just Security is hosting a “racing national security” series. Let me know if you see others!

Over at the New Inquiry, Tamara Nopper took on the trope that the suburbs are a good image of what police abolition looks like, but her account is not just a critique: it is a deep reconsideration of how we think about the relationship between police, budgets, and racial capitalism. She brings together critical geography, black radicalism, and Modern Monetary Theory to force reconsideration of the very way we understand how the social construction of disadvantage operates. Somehow she does all this in only a few hundred words!

Relatedly, Nathan Tankus’s substack–which has become a publication with a paid editor, guest contributors, and over 40k subscribers since I first mentioned it here (coincidence??)–has an amazing post from Phillip Rocco on the relationship between federal budgets and state/local budgets. It’s got history, legal analysis, institutional economics, sociology, macro-informed accounts of budgeting, and SO MUCH MORE.

At Democracy Journal, Sandeep Vaheesan takes critical analysis of Amazon took the next level by outlining a schematic for restructuring it in the public interest. The post is a masterclass in thinking through the interrelation between antitrust, public utilities, and other forms of regulation (even if you don’t agree with his ultimate solution!). And as has become his habit (perhaps it should be all of ours), Vaheesan begins his analysis by re-emphasizing the fact that law, the state, and political power are always involved in constructing the sort of “private” power that Amazon has.

Bonus: I just discovered that the Kool-Aid Man and Punchy (from Hawaiian Punch) were created when RJR Reynolds and Phillip Morris (i.e. two tobacco companies) bought up food companies when they thought their profits would be threatened by anti-smoking regulation. Apparently, tobacco executives only know how to make money by slowly killing people?

Anna Wherry: Jason DeParle’s piece in the New York Review of Books offers a fascinating look into the history of measuring “child poverty” and on child allowances as a promising policy intervention. The entire article is worth a read, but particularly interesting was his account of the politics of measuring child poverty. Since the 1960s, the Census Bureau’s “Official Poverty Measure.” has used a family’s cash income before taxes to measure levels of poverty. This way of measuring poverty, however, fails to capture the aid that poor families receive in the form of non-cash aid in the form of Medicaid, food stamps, or housing assistance, and cash aid that is distributed via the tax code. As DeParle explains, “by official standards, a family that gets $10,000 a year from food stamps and tax credits is just as poor as if it had received nothing. If hundreds of billions in anti-poverty spending doesn’t appear to be reducing poverty, that’s because the statisticians don’t count it.” This government’s blunt statistical tool, in turn, easily bolsters claims on the right that government aid doesn’t reduce poverty and, in the words of Reagan, “we fought poverty and poverty won.” 

This piece, by Cristina Nova, on how childcare disruptions hurt parents of color. Childcare was in short supply and expensive for families of color even before the pandemic. As Nova explains, “A thinner financial cushion means full-time work—and affordable child care to support parent employment—is a more urgent necessity for many families of color than it is for non-Hispanic white families. However, despite being more dependent on full-time work and child care, parents of color are more likely to experience job disruptions that affect their bottom lines in both the short and long term—a fact that makes recovering from the economic impacts of a pandemic especially challenging.” As a first step toward addressing this problem, Nova endorses the Child Care is Essential Act which would apportion $50 billion to provide grants to child care providers during the COVID-19 crisis. 

When I have a moment this weekend, I’m looking forward to listening to this recorded conversation between Maya Schenwar, Victoria Law and Mariame Kaba, on Schenwar and Law’s new book Prison by Another Name. Their book looks at how “alternatives” to jail and prisons, such as drug treatment, electronic monitoring, mandated psychiatric treatment, “actually widen the net, weaving in new strands of punishment and control, and bringing new populations, who would not otherwise have been subject to imprisonment, under physical control by the state.”

And, finally, this fantastic piece in the Boston Review on global health austerity.

Isabel Echarte: Today I’m taking you on a deep dive into everyone’s favorite subject–tax law! (Okay okay, I’ll admit, only tax nerds like me love tax law but boy do we really love it). But I can say that you’ll be interested to hear about some developments in government efforts to close international tax loopholes. 

This week, the EU general court annulled the European Commission’s case against Apple and Ireland for unpaid taxes resulting from Ireland’s “sweetheart” deals for Apple subsidiaries. “[T]he commission had calculated Apple’s outstanding tax bill on the basis of all of the company’s sales outside North and South America, including the value of its intellectual property. The judges said the commission should have shown the income represented the value of the activities carried out by the Irish subsidiaries as opposed to that relating to decisions taken and implemented elsewhere.” The case underscores how challenging it will be for countries to reign in these practices. It’s a big deal because the scale is enormous. These schemes have significantly eroded the U.S.’s ability to collect taxes from these entities: Gabriel Zucman stated “40% of multinational profits are shifted to tax havens each year globally and the United States loses about 15% of its corporate income tax revenue because of this shifting.”

The FT article (linked to above) discussing the EU case argues that the answer to this problem can be found in the OECD’s efforts to combat these practices–termed the “base erosion and profit shifting” (BEPS) project. But some scholars have questioned more than just the practices of firms and countries like Ireland. Steven Dean, for example, has pointed to the “international tax constitution” as the source of these dynamics, arguing for more than just tweaking the corners of international taxation, as BEPS seeks to do: the international tax constitution “just says we are not going to double tax. That unwritten constitution grew out of the post-World War I concerns . . . . [T]here was broad consensus among experts that . . . double taxation posed a threat to cross border ties, and in the wake of World War I, such a threat was not to be taken lightly.” That means, the tax system today favors consistently undertaking companies than risking any chance of over taxing them. 

I promise I spared you a lot of detail there. But now you know just enough to be annoyed at the EU court! And something enjoyable to reward that effort: Avatar: The Last Airbender is back on Netflix! Read the New Yorker’s take here.

Caroline Parker: In the 1990s, Steven Donziger helped direct a groundbreaking class action against Chevron on behalf of indigenous villages near the Lago Agrio oil fields in Ecuador.  This story about the legal counterattack against him is dystopian. When federal prosecutors chose not to pursue criminal contempt charges against Donzinger, a judge appointed a private law firm with deep ties to oil & gas to lead the prosecution. Law school has not yet taught me why or how that is possible…

A GAO report released Tuesday found that the Trump administration has systematically undervalued the “costs” of climate change in its “social cost of carbon” formula. If any blog readers happen to believe that federal CBAs reflect a stable scientific objectivity, surprise! 

This piece from Politico explores whether the Federal Reserve has a role in climate policy. If the Fed is really about stability, the answer has to be yes.

You have read headlines about the 15 y.o. who was sent to [in-person] juvenile detention in Michigan last in May for failing to attend online school. “Cyber truancy,” they’re calling it. This ProPublica investigation describes all the details of the Michigan case. I think this story should remind us that social workers are often a part of–not an alternative to–the carceral state.

You Planted a Seed: Legal Problems as Power Building Possibilities

This is part of our symposium on the legal representation of poor people.

Jamila Michener–

In January 2020, I sat in a courtroom in Atlanta observing as people with various housing problems went before a judge. The case that stood out most that day involved a Black man in his late 30s whom I’ve since given the pseudonym Ray. Ray was being evicted by his landlord, a man I’ll call Mr. Young.

All parties agreed that Ray had been paying his rent. The rent was once partially covered by the housing choice voucher program (colloquially known as Section 8) and Ray had reliably paid the remaining portion. In fact, Ray paid extra as part of an off-the-books rent-to-own agreement. Ray hoped to one day buy the home he rented and Mr. Young led him to believe that would be possible if he agreed to pay a sum over and above what HUD allowed. Nonetheless, by the time I observed them in court, Mr. Young wanted Ray out. The neighborhood where Ray’s rental home was located had begun to gentrify, demand was on the uptick, and Mr. Young saw a chance to maximize his profits. Claiming that Ray was on a month-to-month lease (a fact that Ray disputed but could not disprove), Mr. Young’s lawyer made the case that his client could evict at any time. It did not matter that Ray had paid his rent. It did not matter that Mr. Young had defrauded Ray with a false promise of selling him the home. Nor did it matter that Mr. Young had neglected home repairs, sent men to Ray’s residence to intimidate him, or put Ray’s family through enough prolonged stress that his daughter needed counseling.

All of those facts emerged in court. None affected the outcome. Mr. Young retained experienced legal counsel. Ray represented himself. Ray was passionate, organized and smart. But he did not know the law. He struggled to make his way through the formal courtroom proceedings. When all was said and done, the judge expressed sympathy for Ray but insisted that he had to vacate the home within 7 days. She firmly assured him that one week was “all the law allowed.”

When the trial ended, Ray’s landlord laughed with his lawyer about how annoying Ray had been. Ray held his head high and swiftly walked past Mr. Young. I followed him. When I caught up, I explained that I was a researcher seeking to learn more about his experiences. He seemed eager to commiserate with someone who had been in the room to witness what happened. We talked for an hour. I mostly listened. Ray told me too much to recount here. Most of it reflected his profound sense of injustice (“I didn’t have a chance for a fair trial today…They want you homeless, they want us on the street, they want us desolate”).

Ray now had seven days to move his wife and four children out of the home they had lived in for seven years. He was frazzled and frustrated. What stood out most, however, was that he was resolute and clear minded about the politics of what he was going through. He confidently told me that, “the judge represents the bankers” then almost immediately declared of her and her ilk: “y’all thought you’ll put me in the ground, ya’ll didn’t bury me you planted a seed.” Ray went on to talk through his plan for “fighting this”— a path he was intent on whether he lost his home or not. Among other things, he mentioned “going public” and getting the media involved to expose “what they do to us [Black people]” in housing.

Ray’s experiences with his landlord, the public housing authority, and the civil court system had been almost entirely negative. Yet, instead of being demobilized, he was activated. This is not what theories of political participation would lead us to expect.

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