Teaching Trusts & Estate as Critical Wealth Genealogy

Allison Tait–

Step into a Trusts & Estates classroom and you’ll find the first thing most students learn is that the guiding principle in U.S. wealth transfer law is freedom of disposition. As the Restatement (Third) of Property tells us: “The organizing principle of the American law of donative transfers is freedom of disposition. Property owners have the nearly unrestricted right to dispose of their property as they please.” From the very beginning, students are trained to understand that wealth transfer law is designed to facilitate testator intent, which is the lodestar of both rulemaking and interpretation.

Teaching Trusts & Estates from a perspective of critique, accordingly, starts with an inquiry into the foundations of this core principle and an excavation of its genealogy, as defined through critical theory. Focusing on the critical genealogy of unrestricted property disposition rather than the principle itself requires that we identify not the “origins” of inheritance practices but “the accidents, the minute deviations—or conversely, the complete reversals—the errors, the false appraisals, and the faulty calculations that gave birth to those things that continue to exist and have value for us.” (Foucault, Nietzsche, Genealogy, History)

Consequently, in the classroom we not only inquire into the contingencies of history and the social practices that have shaped and reshaped the doctrine; we also focus on outcomes, rules, and reversals that deviate from and push against the principle of freedom of disposition. And indeed, from this perspective, we can glimpse several ways in which freedom of disposition is not all-encompassing but, rather, bounded. Freedom of disposition is bounded for individual testators by the norms of family formation and freedom of disposition is bounded for certain groups by the lack of material resources that would allow them to benefit from rules designed for families with income and wealth. These forms of boundedness, unearthed through critical genealogy, reveal a more nuanced conception of testamentary freedom while underscoring the substantial privileges that come with both family status and wealth.

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Losing at Its Own Game: the Right Retreats from Cost-Benefit Analysis

Amy Sinden —

Over the past four decades, the right wing has painstakingly built an intellectual scheme to try to justify the weakening of regulatory public health protections on the basis of neoliberal economic theory.  But a couple of decades ago, when the EPA began to figure out how—at least sometimes—to beat them at their own game, that edifice began to crumble.  At the 2018  APPEAL conference, I presented a brief sketch of this story. More recently, I developed it in an article that appears in this month’s edition of The American Prospect.

In brief, the story goes like this:

In the 1970s, industry lobbyists and their right-wing allies, disgruntled by the wave of environmental, health, and consumer protection legislation that had just swept through Congress, latched onto an idea that had begun to kick around among conservative economists at the University of Virginia, the University of Chicago and the London School of Economics. Before government is allowed to intervene in the market with regulation, they argued, it should be made to show that the regulation can pass a cost-benefit test.  This idea began to show up in industry briefs challenging EPA’s first efforts at environmental regulation and in white papers from right-wing think tanks.  Its pedigree in neoliberal economic theory lent an air of academic legitimacy to the idea and was a perfect fit with the Right’s larger political strategy of selling the American public on laissez-faire economics.

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Medicare for All: How to Reduce Inequality in the Long-Term Care Market

Medicare for All: How to Reduce Inequality in the Long-Term Care Market

This post is part of our symposium on Medicare for All. You can find all the posts in the series here.

Ruqaiijah Yearby – 

Medicare for All has the potential to address gaps in access to quality long-term care services for the elderly by mitigating some of the inequities in the market for long-term care. It could do this by increasing reimbursement rates for long-term care, fostering competition between long-term care providers, and improving federal enforcement of non-discrimination requirements.

In the long-term care services market, the issue is not private insurance versus single payer because the government already finances most long-term care services through Medicare and Medicaid (Medicaid is the primary payer for long-term services and supports ranging from institutional care to community-based services). Instead, the issue is who will provide the care: institutions or home- and community-based providers.

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Zarda, Just Work, and the Limits of Antidiscrimination Law

Today, the Supreme Court will hear oral argument on the question of whether Title VII’s prohibition on sex discrimination includes sexual orientation and gender identity discrimination. LPE Blog is hosting contributions from scholars that detail the history of sex discrimination protections and address how law should redress gender hierarchies and disparities in economic power. Find all the posts in the series here.

Deborah Dinner –

The stakes in Altitude Express Inc. v. Zarda, pending before the Supreme Court, are unquestionably high. The question in the case is whether the prohibition on discrimination “because of … sex” under Title VII of the Civil Rights Act of 1964 includes discrimination because of sexual orientation and gender identity. A ruling in favor of the plaintiffs would enhance the employment security of the more than an estimated eleven million adults in the United States who identify as gay, lesbian, bisexual, or transgender. It would also bolster the ability of unions and worker organizations to strengthen the power of workers by preventing employers from using gender and sexuality to divide the workforce in ways that inhibit collective organization.

As progressives push for antidiscrimination protections for LGBTQ individuals, they would do well to look for ways to connect this fight to workers’ collective struggles regarding work hours, conditions, and pay. The history of Title VII and sex-based employment laws offers lessons about the crucial importance of pursuing antidiscrimination law together with protective labor regulations. In an article titled Beyond “Best Practices”: Employment Discrimination Law in the Neoliberal Era and in a forthcoming book, I show how sex discrimination law and retrenchment in labor regulation intertwined in the late twentieth century. This history reminds us that antidiscrimination law does not itself guarantee substantive justice in the employment relationship; reveals the ways in which employers may use antidiscrimination as a deregulatory tool; and offers a vision for economic justice that synthesizes individual freedom with collective protections for workers.

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Looking Beyond the Law: The Movement for LGBTQ Rights at Work

Tomorrow, the Supreme Court will hear oral argument on the question of whether Title VII’s prohibition on sex discrimination includes sexual orientation and gender identity discrimination. LPE Blog is hosting contributions from scholars that detail the history of sex discrimination protections and address how law should redress gender hierarchies and disparities in economic power. Find all the posts in the series here.

Katherine Turk –

LGBTQ workers have never turned solely to the law to define or protect their rights. In years when many feminists and workers of color were narrowing their focus to pursuing individual advancement under antidiscrimination provisions like Title VII, LGBTQ workers articulated a new kind of right: to be fully oneself at work. They argued that sexuality and gender were irrelevant to job performance, as the older “homophile” gay rights movement had claimed. But they also denied that anyone could—or should—shed a piece of their identity at the office, factory, or schoolhouse door. Realizing this right, they argued, required altering the nature of work itself, This was a transformative vision that demanded change beyond the limited jurisdiction of the Supreme Court. However the Supreme Court rules on LGBTQ rights at work, today’s movements for workplace justice should not pin their hopes on the technical adjudication of the antidiscrimination principle. As activists demonstrated in the 1970s, sweeping reforms are possible — even in the absence of legal victories — with creative tactics that pressure employers directly.

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AB5: Regulating the Gig Economy is Good for Workers and Democracy

Veena Dubal –

Poverty is not a suspect classification under our Constitution, but it is an affront to life and dignity and to democracy more broadly.  With the evisceration of the U.S. welfare state and the judiciary’s deference to political outcomes in the area of “economics and social welfare,” employment is the primary legal and political means to address economic inequality. In turn, employment is—for better or for worse—key to our democracy.  It provides access to the tools for basic sustenance in modern America: the minimum wage, health insurance, safety net protections, and even the right to organize and collectively bargain. Our capacity to participate in life and partake in politics, depends, in no small part, on our employee status. In the words of political theorist Judith Shklar, We are citizens if we ‘earn.’”  To this observation, I might add that we are citizens if we earn enough.

AB5—a bill which was just signed into law in California—is the first state law in the country to push back against an alarming trend of the last half decade: the use of app-based technology to proliferate work outside the regulatory framework of “employment.”  The potential for labor platforms relying on non-employee labor to exacerbate poverty looms large in debates about the future of work and of workers.  While the number of app-based workers remains comparatively small, the potential for this sector to grow and for industries to reproduce this model across the service economy looms large.

AB5 is the first significant step in pulling these workers back under the “employee” umbrella. It codifies the presumption of employee status under state law and puts forth an exacting, conjunctive test that hiring entities must meet if they wish to engage workers as non-employees.  Because labor platforms have posed risks to employment regimes and the security of workers the world over, the bill has been internationally lauded and states across the U.S. seek to replicate it.

How did California manage to pass this law, and what implications might AB5 hold for the relationship between work, poverty, and democracy more broadly?

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The Market Does Not Bind Us

NB: This post is part of a debate on the Loan Shark Prevention Act, a bill that would create a federal usury cap. Anne Fleming’s argument against the bill is here.

Emma Caterine–

The central fallacy of the arguments against the Loan Shark Prevention Act, including Professor Fleming’s, is the limitation of regulation to merely attempting to steer the market. I argue here the purpose of regulation should instead be to carry out a democratic vision of how our society, including the economy, functions. The Loan Shark Prevention Act is an ideal start to pushing back against the decades of economic control by a select, mostly white and male, few.

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A Single Federal Usury Cap is Too Blunt an Instrument

NB: This post is part of a debate on the Loan Shark Prevention Act, a bill that would introduce a federal usury cap. Emma Caterine’s response is here.

Anne Fleming–

In May 2019, Senator Bernie Sanders and Representative Alexandria Ocasio-Cortez unveiled the Loan Shark Prevention Act, a bill that would cap the cost of consumer credit nationwide. Under the bill, the total cost of a loan, calculated as an annualized percentage rate (APR), could not exceed 15%.

Although high credit card charges are the bill’s main target, payday loans rank among the most expensive forms of consumer credit in the United States. A typical payday loan from a storefront lender costs $15 per $100 borrowed. For a $350 loan that must be repaid in one lump sum in two weeks, the borrower would pay $52.50 in fees. This equates to a 391% APR.

Payday lenders argue that it is misleading to calculate the cost of their products in terms of an APR because payday loans are not marketed for long-term use. But most borrowers cannot repay their loans in full in two weeks. Instead, they pay only the fee and rollover the balance into a new two-week loan. In this way, consumers can end up in a months-long cycle of borrowing, paying hundreds of dollars in fees. This vicious cycle is especially concerning because most borrowers are low-income, just making ends meet. Furthermore, Hispanic and African-American households account for a disproportionate share of payday loan users.

In other words, high-cost credit is a real concern that policymakers must address. But a one-size-fits-all 15% APR cap is a blunt instrument for tackling this problem.

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To Democratize Environmental Law, Let Ordinary People Decide

This post is part of our symposium on democratizing administrative law. You can find all the posts in the series here.

Conor Dwyer Reynolds

Environmental law has never felt so undemocratic. On nearly every aspect of environmental protection, the federal government is disconnected from the desires of its citizens. Despite overwhelming public support for increased government action on the environment, the Environmental Protection Agency’s workforce is shrinking, industry lobbyists increasingly regulate their former employers, and polluters face fewer and fewer inspections and criminal prosecutions. And while the majority of Americans believe climate change is an “urgent” problem the government needs to do “a lot” about, the Trump Administration proposes rules which will exacerbate greenhouse gas emissions, like its methane rollback plan.

It’s easy to feel powerless in the face of this delay and destruction. Petitions can be signed, protests can be attended, but at day’s end, those actions don’t seem to direct or decide environmental policy. Government officials do. The best most citizens can hope for is that a still-distant election will produce a friendlier administration, one that will manage to embrace our priorities despite the immense influence of industry.

There’s an irony beneath that sense of powerlessness, one that reveals a tragic flaw in modern environmental law. I want to both explore that flaw and introduce a tool from environmental law’s past that might help fix it. It’s a tool that entrusts ordinary people to decide: the jury.

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The democratic political economy of Administrative Law

This post is part of our symposium on democratizing administrative law. You can find all the posts in the series here.

K. Sabeel Rahman-

The modern administrative state has always faced ongoing debates about the appropriate balance between administrative authority and procedural constraint. But we are in a new moment of political peril in this debate. A newfound skepticism of administrative power has shaped recent judicial decisions exploring limiting previous deference regimes and even suggesting a revival of the non-delegation doctrine. The defense of administrative agencies takes on even greater urgency in the current political moment, as the Trump administration, from its very outset, has sought the “deconstruction of the administrative state.” These critiques have more in common with the arguments made by conservatives in the 1930s that found a welcome audience in the early Hughes Court than they do with the critiques that followed the New Deal. Indeed, academic and journalistic defenders of the administrative state have warned about the risks of what Gillian Metzger has dubbed the new “anti-administrativism” movement.

But this moment of debate is about more than just the familiar clashes between “big government” and “free market” visions of political economy. These attacks on the administrative state—and the historical and current efforts to (re)build administrative institutions—are a critical frontline for our substantive moral values of democracy, equality, and inclusion.

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