Reclaiming Notice and Comment

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

Matthew Cortland and Karen Tani –

In June 2016, five months before the election of President Donald Trump, Senator Elizabeth Warren wrote a post for the Regulatory Review on “corporate capture of the regulatory process.” It highlighted myriad opportunities in the rulemaking process “for powerful industry groups to tilt the scales in their favor.” The “notice and comment” process offered a key example: “industry insiders and their highly-paid allies” produce “an avalanche of detailed, well-funded, well-credentialed comments,” Warren observed, which administrators must consider if the eventual rulemaking is to survive judicial review.

Fast forward three years, into an administration that has besieged the administrative state—questioning its legitimacy, demoralizing its personnel, slowing the pace of regulation, and  withdrawing from important regulatory realms. In this anti-regulatory moment, notice-and-comment might seem a quaint artifact from a bygone age: with such meager regulatory output, especially aimed at industry, what is left to comment on?  Instead, however, notice-and-comment has become a key tool of opponents of the current administration—a vehicle for mobilizing “grassroots experts” and enabling marginalized voices to speak against dehumanizing agency action.

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Democratizing Administrative Governance: How the Civil Rights Movement Shaped Medicare’s Implementation

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

David Barton Smith –

In January 1966, the Johnson administration faced a regulatory battle between a risk-averse federal executive branch and the demands of a grassroots social movement.  Starting on July 1, 1966, federal Medicare funds would begin to account for more than 25% of the revenue of the nation’s 6,000 private acute care hospitals. Medicare would serve as the first real test of Title VI of the 1964 Civil Rights Act, which banned the allocation of any federal funds to entities that discriminated on the basis of race. The success of Title VI would depend on forging a strong relationship between officials administering the program and the civil rights movement. The change that ultimately resulted from this collaboration offers a concrete example of how democratic movements can leverage grassroots pressure, public enforcement and government spending power to transform sectors of the economy.

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Medicare for All: A Leap into the Known?

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

Nathan Cortez – Screen Shot 2019-07-22 at 8.33.16 AM

The Affordable Care Act of 2010 was the most significant health legislation since Congress created Medicare and Medicaid in 1965, breaking a half-century of health policy incrementalism. But thanks to the Senate, the final bill failed to include a “public option.” And thanks to the Supreme Court, many states rejected Medicaid expansion. Ultimately, the ACA preserved private insurance as the main source of coverage, rendering the act much more incremental than originally envisioned.

Almost a decade later, we are seeing more ambitious reform ideas like “Medicare for All” which until very recently was a political nonstarter. My contribution to this symposium argues not only that some version of Medicare for All is necessary, but also that it may not be as radical as critics claim.

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Medicare for All and Medicare for America: What Are We Fighting Over? Part II

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

Christina S. Ho – 

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In yesterday’s post, I evaluated Medicare for All and considered some of the implications of a single-payer system. Today’s post will assess the Medicare for America bill, which, by contrast, is a public option.  This label may not appear obvious, and is even disputed by some, since the bill sunsets the Affordable Care Act (ACA) exchanges and individual private health insurance.  Instead, it enrolls the majority of Americans in a public Medicare plan with benefits close to what Medicare for All would offer.

While the Medicare for America bill is arranged with great promise and enormous care, its real significance lies not in this snapshot description but in the distributional and politico-historical dynamics that its opt-out structure unleashes over time.

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Medicare for All and Medicare for America: What Are We Fighting Over? Part I

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

Christina S. Ho – 

The early contours of the health care debate have featured a loose divide between those favoring so-called “single-payer Medicare for All,” and those who propose some kind of “public option.”

Screen Shot 2019-07-22 at 8.33.16 AMTo drill down to what’s really at stake, I looked at the leading and most detailed proposals representing these two basic outlooks.  To understand “single-payer Medicare for All,” I read the “Medicare for All Act of 2019,” H.R. 1384 introduced by Reps. Pramila Jayapal and Debbie Dingell, which largely tracks the Senate counterpart introduced by Bernie Sanders.  I also looked at the most ambitious and developed “public option” proposal, the “Medicare for America Act of 2019,” H.R. 2452, sponsored by Reps. Rosa DeLauro and Jan Schakowsky and drawn in part from the Center for American Progress’ (CAP) Medicare Extra for All plan.

I argue that there may not be as much of a difference between the two plans as the Presidential primary camps will be motivated to portray, and I want to lay out why – with the caveat that at this stage of the debate, no one’s views should be immune from revision, least of all mine.

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Medicare for All as a Democratic Movement

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

Allison K. Hoffman – 

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Medicare for All (MFA) has become the symbol of a larger, brewing movement that is attempting to bring major change to how we pay for and regulate health care in the United States. Even if MFA never becomes law, the conversation around it is building popular support for significant reforms and is creating fissures in the decades-old market-based approach to health care financing and regulation—and in the justification that this approach promotes choice.

Many Americans are well aware that our current health care system is failing them, as nearly 27.4 million people (14 percent of adults) remain uninsured, even after the Patient Protection and Affordable Care Act (ACA), and even those with insurance are struggling to pay for the care they need. The U.S. spends twice as much per capita on health care than the average OECD nation and has worse outcomes on critical measures, like life expectancy and infant mortality.

Over the past three decades, the primary policy solution to the mismatch between high spending and poor outcomes has been to turn to consumerism and market competition for a fix. The underlying theory is that if people have options—options for health plans, hospitals, prescription drugs, providers, and so on—they will choose the higher-value options. In turn, competitors will in theory produce higher-value options to win more customers.

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Inaugural LPE Project Conference – Call for Papers!

Call for Papers: “Law and Political Economy: Democracy After Neoliberalism”

Over the past several years, a growing group of legal scholars have begun to center questions of “law and political economy” as part of a deliberate effort to enable a critical transformation in legal thought. Joined by the insight that the “the economy” cannot be separated from questions of power, distribution, and democracy, these scholars have advanced new conceptions of antitrust, constitutional law, criminal law, labor law, intellectual property, international trade, and other areas that begin to spell out what it means to reunite what decades of legal scholarship and governance have kept apart. In so doing, these scholars have highlighted law’s role in the perpetuation of racial and gender injustice, the devaluation of social and ecological reproduction, and the violence of the carceral state under capitalism. They have also sought to offer alternative visions for law’s role and concrete legal reforms designed to move beyond neoliberalism and toward a genuinely responsive, egalitarian democracy, with critical attention to the need for power and movement-building as part of any such transformation. There is still, however, much work to be done to map the path of this new scholarly initiative. 

The Law and Political Economy (LPE) Project’s inaugural conference, to be held April 3rd & 4th, 2020 at Yale Law School, will be an opportunity for LPE scholars to come together to identify and develop pressing questions for law and political economy as a movement, and for the current political moment.  Many of us already gather in generative sub-field conversations, so rather than reproduce conversations happening elsewhere and convening panels by topic (“labor,” “trade,” “criminal law”), we hope to organize panels to surface critical analytic questions that must be answered if we are to dislodge the status quo in legal thought. This aim is ambitious, so what follows is longer than the usual CFP. Please see this as an invitation to connect our work through productive lines of critique. Challenge or develop the prompts further as you see fit. 

In hopes of fostering a more open dialogue, we welcome proposals for traditional legal scholarship (law review works-in-progress), as well as shorter pieces (of about 4000-5000 words that might be more suitable for online “forum” publication or other non-law review formats) addressing these difficult questions. In addition to proposals for individual papers (which will be placed onto panels), we also welcome proposals for fully formed panels. Drafts of all papers must be made available/circulated to all participants two weeks prior to the conference. Please submit proposals of no more than a page, clearly indicating whether for an article-in-progress or a shorter piece, to Sarah Harwood at sarah.harwood@yale.edu by September 15, 2019. 

The LPE Project will ensure that cost is not a barrier to participation for all selected panelists. There will not be a conference fee. We will cover all participants’ hotel accommodations. We will also cover travel expenses for anyone without sufficient funding from a home institution. 

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Teaching Penal Abolition

Amna Akbar –

In April, the New York Times ran a profile on abolitionist visionary and scholar Ruth Wilson Gilmore, and the Harvard Law Review published an entire issue on prison abolition. This fall, the University of Texas Law School Human Rights Center is hosting a conference on abolition. The new journalistic outlet The Appeal runs abolitionist pieces as a matter of course, and outlets like Rolling Stone, The Nation, and Jacobin have too. Podcasts like Chris Hayes’s Why Is This Happening, The Appeal’s Justice in America, and Beyond Prisons have featured probing conversations on abolition with leading organizer-intellectuals Rachel Herzing and Mariame Kaba. And behind it all is a growing movement of abolitionist organizing and campaigns, calling to defund and delegitimize police and prisons, shift resources towards the social wage, and build alternative methods to dealing with the pains and crises of capitalism, white supremacy, and patriarchy that prisons and police now deflect and exacerbate: Critical Resistance, BYP100No New Jails Seattle, Mijente, Survived and Punished, INCITE, and more.  

Like the movements abolitionist ideas emerge from and are circulating in, abolitionist praxis is shaping the urgency and discourse around criminal law reform. A primary difference between abolitionists and mainstream reformers is the end goal: Abolitionists work toward eliminating prisons and police, and building an alternate and varied set of political, economic, and social arrangements or institutions to respond to many of the social ills to which prison and police now respond. Importantly, abolitionists see their struggle as part of the unfinished work of transforming  the afterlives of slavery in economic, political, and social life.

Abolitionist thinking is central to contemporary debates over how to interpret the meaning of the criminal law and our criminal processes and enforcement mechanisms: it is literally part of the subject of “criminal law” today. We should teach it that way. More broadly law scholars teaching any course touching on criminal law and procedure, police and prisons, borders and border enforcement, should teach abolition. I have written before, including with Jocelyn Simonson, about how to teach criminal law differently, in this movement moment, and attune to the centrality of racialized and anti-black violence to our criminal legal system. Here, I share some notes and resources on teaching abolition. In my experience, teaching abolition requires study, but the study and teaching are more fruitful than I can say in this brief post. Teaching and learning abolition has deepened my study of the history of the United States and the unfinished social movements that define its shape, expanded my imagination of the future, and profoundly reshaped my sense of the work ahead. 

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In Defense of Grassroots-Powered Progressive Federalism

This piece is part of a collection on “progressive federalism,” which addresses the conditions under which American federalism advances and hinders the interests of democratic political movements. Other contributions can be found here. If you are interested in participating in the discussion, join us on Twitter at @lpeblog.

Annelise Orleck –

Over fifty years ago, Frances Fox Piven and Richard Cloward suggested that poor people’s movements take to the streets as their only lever for influencing public policy. But as the 1960s welfare rights movement they were advising soon showed, and as the modern living wage and labor movements have demonstrated, “progressive federalism” can enhance the power of poor and working people. Rather than serving as an obstacle to progressive change, the diffusion of power and resources across federal, state and local governments has allowed poor people’s movements to turn to federal authorities at times when local governments have been conservative and resistant and vice versa. Today, progressive federalism has allowed community-based organizations and poor people’s movements to expand the political class—making successful runs for elected office and pushing through local ordinances that become models for other city, state, and federal governments.

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Federalism is unlikely to save progressive politics

This piece is part of a collection on “progressive federalism,” which addresses the conditions under which American federalism advances and hinders the interests of democratic political movements. Other contributions can be found here. If you are interested in participating in the discussion, join us on Twitter at @lpeblog.

Lisa L. Miller–

Can federalism work for progressives? Since the election of Donald Trump, left-leaning scholars and political activists have increased their focus on state and local governments as potential venues for progressive policies. Legal scholars Heather Gerken and Joshua Revesz championed the use of federalism’s multi-layered venues as an opportunity for progressives to “resist Washington overreach, shape national policies, and force the Republicans to compromise.” Because state and local governments are often “led by dissenters and racial minorities,” they argue, progressives have little to fear from the old days when white supremacists used state and local governments to oppose civil rights. In their view, “This is not your father’s federalism.

The problem with this argument is that it lacks any account of power, that is, how the structure of American federalism shapes and channels political activities in ways that are more advantageous to some interests than to others. American federalism is not neutral. In fact, federalism’s many venues generally disadvantage groups with comprehensive, progressive policy aims for several reasons: first, federalism does not just create political opportunities but also limits them; second, state and local governments  are poorly situated to solve national problems; third, jurisdictional boundaries can be remade in ways that disadvantage progressives; and finally, contestation itself over which level of government should perform which activities harms progressive causes.

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