Zoning and Race, from Ladue to Ferguson

Rebecca Tushnet —

When James Grimmelmann, Jeremy Sheff, Mike Grynberg, Steve Clowney and I decided to write an open source property casebook that could be shared freely with students, one of the benefits was the ability to teach the material in ways that made sense to us. The mortgage chapter, for example, is actually the “foreclosure” chapter: it focuses heavily on the foreclosure crisis of the past decade. In contrast to the casebook I used to use, it asks why lenders issued terrible loans rather than asking only why borrowers took terrible loans. Likewise, most casebooks call the topic of initial ownership “acquisition”; we call it “allocation” to emphasize that there are rarely resources that don’t lend themselves to a conflict over initial ownership.  (Not unrelated to our general orientation towards the topic, we rely on fair use for some of the material we quoted, which traditional publishers often don’t allow no matter how strong the fair use case is.)

We also tell a different story around zoning than most casebooks. Our chapter on the topic, which I wrote, explores how zoning works in practice, with a particular focus on how it is used to create and reproduce racial hierarchies. As part of this approach, we include actual zoning codes and maps, which is surprisingly uncommon in the casebooks I looked at before writing this one. (There’s a slightly more standard version of the chapter for those who don’t want to spend multiple classes on zoning.)

To keep things concrete, our casebook focuses on St. Louis. St. Louis proper is one of the most segregated cities in the country, and its surrounding county is likewise highly segregated. Zoning in and around St. Louis is illustrative of issues that recur across the country. Examining zoning laws from this area allows the chapter to illustrate how property regulation in the US is, to a first approximation, always about race.

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The State as the Foundation of Property

Ezra Rosser —

A few years ago, I set out somewhat deliberately to publically out myself as being at the far left extreme when it comes to property law scholarship. I attacked progressive property scholarship from the left and attacked information theorists as rationalizing the status quo. So perhaps it is surprising that my 1L Property class is a fairly standard, establishment-type class. Given the vaguely progressive bent of most of my students, I find that doing so forces them to think harder (and, as Jed Purdy notes, we do have an independent obligation to prepare students for the bar exam). Indeed, early in the semester I do a lot of work encouraging conservative and libertarian students to be active participants in the class. Though their peers may not change their minds, having a critical mass of vocal conservatives or libertarians in the classroom forces the rest of the class to be more careful when they make arguments and more critical about even matters of progressive consensus.

But I do subtly introduce critical perspectives throughout the semester. In particular, the emphasis I place on the state provides space for students to question existing property rules and to recognize the malleability of those rules. Though I resist directly telling students that one of the main things I want them to get from the course is an appreciation for the role the state places in creating, defining, and protecting property rights, throughout the semester I emphasize the singular importance of the state.

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But Who Gets the Driveway? Teaching Property as LPE (Sort of)

Jedediah Purdy —

I wrote a lot about Property between 2005 and 2010. I came to the topic as a new law professor because it struck me as something like constitutional law for the economy: the basic arrangement of power, cooperation, and legitimacy. The writing I did then was about how property law creates the terms on which people cooperate. By allocating the resources we all need to live, act, and pursue our projects, it sets up the scope of options and the bargaining power between, say, an investor and an entrepreneur, a business owner and an employee, a homeowner and an undocumented worker doing yard maintenance. The distribution of control over resources is also the distribution of control over lives—one’s own and others.’ It empowers people and, by the same token, makes us vulnerable to one another’s demands.

Property law is often taught as a kind of elementary version of the theory of voluntary market cooperation generally: without ownership, we would fall into the tragedy of the commons, but with it we achieve both economic efficiency and autonomy-respecting uncoerced collaboration. I was interested in the underbelly of this theory: how the ideal landscape of free cooperation is in fact terribly uneven, marked by towers of wealth, highlands of security and capacity, and full of vulnerable lowlands, populated by people who mostly find they have to take what they are offered. The point was critical but also reformist—to look for places where different regimes could make the terms of cooperation more genuinely equal, which ideally would require people to enlist one another’s energy by appealing to their wishes more than to their fears—to make “an offer you can’t refuse” a slogan of joyful acceptance rather than unshakable threat. If the usual utopia of Property is Ronald Coase’s frictionless allocation of all resources to their wealth-maximizing uses, regardless of distributional results, I wanted to introduce an alternative utopia of truly voluntary cooperation, focused not first on the use of resources, but on the shape and tone of the human relationships that arise from a pattern of control over resources.

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“As if the Last 30 Years Never Happened”: Towards a New Law and Economics, Part 2

Suresh Naidu and Elliott Ash —

Our previous post dealt with the outsize influence of well-funded conservatives at the interface between economics and law, and in particular over the judiciary. This influence is the product of many decades of institution-building, which includes the adoption of a particular (and in our opinion outdated) approach to economics in legal research and teaching. Addressing the analytical imbalance requires an articulation of and investment in an updated approach to economics. This post introduces some idea of how such a modern law and economics might look, and highlights the diverse normative implications of state-of-the-art economics. As we will see, taking economics seriously is consistent with many different policy positions.

The place in law where economics has made its biggest impact is probably antitrust, where doctrine was transformed over the course of the 1980s. The key doctrinal achievement of this movement was the consumer welfare standard, based on the canonical economic model of monopoly. Mergers among previously competing firms will increase market power but may also lower costs, with potentially ambiguous effects on price. The doctrine states that the legality of mergers should be judged based on net benefits to consumers, with no attention paid to the distribution of returns across producers or factors of production (e.g. capital and labor).

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Rethinking Criminal Law

Jocelyn Simonson and Amna Akbar —

Energized and challenged by the rise of powerful grassroots movements in the wake of the Ferguson and Baltimore rebellions, law professors are rethinking how to teach first-year Criminal Law. At the Law and Society Association annual meeting this summer, Alice Ristroph convened a group to ask “Are we teaching what we should be teaching? . . . Might the path to criminal justice reform begin in, or at least run through, the classroom?” During a Criminal Law Casebooks session at the 2017 AALS Mid-year Meeting/CrimFest, Prof. Cynthia Lee–coauthor to our fellow LPE contributor Angela Harris–highlighted the need to bring more critical perspectives into Criminal Law. These are but two recent examples of many conversations formal and informal. What should we be teaching future lawyers about the history, causes, and solutions to mass incarceration and the on-the-ground experiences of people interacting with the criminal process?

Our engagement with these questions led us to co-write the Guerrilla Guide to Teaching Criminal Law in August 2016. The guide was itself part of our larger project, described in an earlier post, of reimagining law school discourse in the “movement moment.” The Guerrilla Guide to Criminal Law discusses a range of tactics to disrupt the standard fare criminal law discourse, from introducing theories of abolition (or alternatives to criminal law, policing, and incarceration for dealing with deep-seated social problems), to the inclusion of voices and experiences from directly impacted people and the movements that represent them, to changing the very topics that the course covers, for example by eliminating some traditional subjects in favor of units on drug crimes, police violence, or criminal law reform debates.

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Teaching, Guerrilla Style

Amna Akbar, Jocelyn Simonson, and Sameer Ashar —

A few years ago, we got together to consider how to teach differently in the “movement moment” provoked by the Ferguson and Baltimore rebellions. We felt a particular sense of urgency given that the movements of our day—the Movement for Black Lives, #Not1More, #IdleNoMore, #Fightfor15, Occupy—have at the center of their critique our system of laws; and that those critiques represented long-standing concerns in communities of color and poor communities about law’s violence and inequality.  We aimed to embrace an opportunity to teach the law with an attentiveness to its entanglement with concentrated racialized/gendered violence and, simultaneously, its transformative potential. It felt important to root our work in that of others—in movements and the academy–and to produce practical, creative manuals to provoke new approaches. And that’s why, along with Bill Quigley, we put together The Guerrilla Guides to Law Teaching.

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Teaching Criminal Law from an LPE Perspective

Angela Harris –

In the introduction to Chapter 1 of the casebook that Cynthia Lee and I edit, we tell students that the first-year course on criminal law answers the question, “What, in our society, makes a crime, and why?” We suggest that the answer involves “culture,” and that we therefore intend to approach criminal law as a “system of cultural meaning.” In 1974, though, William Chambliss offered a very different perspective:

The criminal law is . . . not a reflection of custom (as other theorists have argued), but is a set of rules laid down by the state in the interests of the ruling class, and resulting from the conflicts that inhere in class structured societies; criminal behavior is, then, the inevitable expression of class conflict resulting from the inherently exploitative nature of the economic relations. What makes the behavior of some criminal is the coercive power of the state to enforce the will of the ruling class; criminal behavior results from the struggle between classes whereby those who are the subservient classes individually express their alienation from established social relations.

Tasked with imagining a criminal law class taught from an LPE perspective, I’m going to focus on the points of connection between our cheery, “It’s all culture!” and Chambliss’s “it’s all alienation!” I’ve thought of four themes to structure such a course: (1) how political and economic power shapes the production of “crimes” and  “criminals” in (our) society; (2) the tensions between market and state governance in a capitalist democracy; (3) the relationship between economic analysis and other forms of analysis, including the psychological; and (4) the political economy of the criminal justice system itself.

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“As if the Last 30 Years Never Happened”: Towards a New Law and Economics, Part 1

Suresh Naidu and Elliott Ash —

In our experience and in that of others, left and progressive legal scholars tend to view arguments rooted in economic reasoning with a deep skepticism. This suspicion is understandable, given that law and economics was birthed by the foundations and political entrepreneurs of economic conservatism. Our empirical work on economics training for federal judges, summarized below, demonstrates just how sizable—and quantifiable—has been the conservative impact of law and economics.

Before getting to this evidence, though, we ask that “economics” as a whole not be conflated with the 1970s University of Chicago economics department – any more than legal scholarship as a whole should be conflated with the University of Chicago Law School faculty during that era. The empirical research we present in this post itself exemplifies how economics can be a powerful tool for examining (and not just assuming) the relationships between the formal structure of the law and the activities of economic exchange. As we lay out further in a subsequent post, legal leftists who fail to engage with the richness of academic economics miss out on many important insights.

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“A Place to Die”: LPE in the 1970s

Karen Tani —

As a historian working in a law school, I think often about what history adds to the study of law and the training of future lawyers. Rarely does history provide an obvious road map to solving new legal problems, but it does at least two other things well: (1) it helps explain why the legal landscape looks the way it does; and (2) it illuminates the consequences of particular legal choices. This makes all the more valuable recent historical work that engages with political economy. We gain from this work a better sense of the political economies that produced our current configuration of laws. We also gain insights into how law constructs the political economy of the future—by sending signals about who will be insulated from the vicissitudes of “the market” and who will be exposed, whose rights can be bargained away and whose are too sacred, whose lives have value and whose do not.

An excellent example of this work is historian Gabriel Winant’s recent article in the Journal of American History, “A Place to Die: Nursing Home Abuse and the Political Economy of the 1970s.” Winant does not frame the piece as legal history, but law is all over the history he tells, in complex and sometimes unintuitive ways.

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Neoliberalism and Higher Education Finance: Breaking out of the Ideology

Luke Herrine —

My earlier post on for-profit colleges discussed a special instance the limits that a neoliberal lens places on a progressive vision for higher education. In this post I discuss the more general phenomenon and an alternative approach to thinking about higher education. In doing so, I draw from a nascent project that Frank Pasquale and I have been working on.

In DC policy circles one rarely hears the value of higher education discussed in any terms aside from preparing students for future employment. Whether college is “worth it” is understood as an investment proposition, and colleges are understood as offering an investment good packaged with short-term consumption benefits (parties and the like).

This is the influence of a neoliberal frame. As several of the authors of this blog have explained, neoliberalism refers to an overlapping set of techniques for justifying social ordering via markets. Common among many of these techniques is the assumption that all social ordering is actually market ordering. Once one understands the underlying market dynamics, one understands that the proper approach is to work with them rather than against them.

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