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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Policymaking as power-building

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

K. Sabeel Rahman-

Economic inequality and political inequality go hand in hand. American government is empirically more responsive to wealthy citizens, who are better organized and more represented in policymaking institutions. These findings, coupled with an increasingly blatant and troubling attack on democracy and voting rights more broadly, have helped fuel a renewed push around democracy reform. But an often-overlooked dimension of institutional democracy reform lies within the administrative state itself. It is in the administrative state that many of the critical day-to-day governance decisions—from zoning to civil rights enforcement to worker protections, financial regulations, and consumer rights and more—all take place. Without a greater degree of democratic responsiveness and accountability within the administrative process, these substantive rights are unlikely to be vindicated or equitably enforced. This means that policymakers and administrative law scholars alike need to start approaching the task of administrative institutional design with a greater attention to power disparities—what I call, “policymaking as power-building”.  In this post, I outline the idea of power-building as a focus for administrative policy and institutional design, and use the last decade of financial reform debates, particularly around the Consumer Financial Protection Bureau and the Financial Stability Oversight Council, as examples.

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A New Sex Positivity Dichotomy

A New Sex Positivity Dichotomy

This post is part of our symposium on the political economy of sex work. Read the rest of the symposium here.

 suprihmbé a.k.a. thotscholar – 

The constant assertion that sex work was “just like any other job,” that it was experientially rewarding, richly enumerating, or spiritually significant, or that sex workers “weren’t all homeless junkies working the streets” naturally alienated those who hated their work, struggled to make ends meet, used drugs, or were homeless. A dominating narrative of empowerment also contributes to a growing stigma against sex workers whose experience isn’t strictly empowering.

— From the Introduction to $PREAD: The Best of the Magazine That Illuminated the Sex Industry and Started a Media Revolution

I was asked to address whether and how feminist and queer movements at times create a false distinction between the “agency/empowerment” of sex work and the “oppression/coercion” of sex trafficking. I am a poor Black proheaux womanist creative and erotic laborer. These locations and more are important in my analysis, so I’ll begin my answer with my own story.

I started stripping at eighteen. I knew I was going to strip long before I did it. I had become enamored with Black feminist “hoe is life” empowerment rhetoric just before college. I skipped a grade and landed at a college in southern Indiana at age 17, a vocal major at the time. “Hoe is life” is the Black woman’s answer to the slut-chic culture that swept mainstream hegemonic feminism during the second and/or third wave— our pro-hoe, full of wanna-be (or actual) sugar babies and newly minted financial dommes, and “marry up” (into wealth and usually out of blackness) feminists. As a bisexual woman who had been exploring her sexuality throughout childhood, with girls first and boys later, I was intrigued by this idea that I felt fit my omnisexual proclivities. I was eager to dabble in promiscuity and discover erotic pleasure, and my entrance into the idea of erotic labor was part of that.

The other part: money. The first time I dipped my toes into erotic labor, it was for pocket money. Young men asked and offered. They were in my age group, so I didn’t feel exploited, and I wasn’t. I was in college, and for many young Black women, college is where we find ourselves. The need seems urgent — many of us grew up in church or similarly constrained by our families. Black and brown women of certain cultures are considered naturally promiscuous in the wider dominant white culture. The way we dress, how quickly we develop, all of it is scrutinized. I was called everything from a dyke to a whore growing up as adults rushed to categorize my known experiences: too (physically) close to this or that girl, too flirtatious with such and such boy, the way I licked an ice cream. Everything I did seemed to drip with eroticism, even when I wasn’t aware. I thought, there must be power there.

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Sex, Markets, and Political Economy

Sex, Markets, and Political Economy

This post is part of our symposium on the political economy of sex work. Read the rest of the symposium here.

Aziza Ahmed and Jason Jackson

Movements to decriminalize sex work in the United States have gained momentum in recent years.  In New York, the Decrim NY movement has advanced a bill that would decriminalize the purchase and sale of sex.  The debate has been intense. Proponents of decriminalization, including sex workers and their allies, argue that criminal laws keep those who choose to sell sex poor, homeless, and struggling for survival.  Many opponents of decriminalization argue that sex work leads to the commodification of the human body and thus is immoral. Some feminists believe that men who purchase sex should be prosecuted for engaging in the exploitation of women and girls.

Among the various perspectives utilized to understand and advocate for or against sex work, a political economy approach directs attention to the fundamentally political and moralized nature of markets. Markets are not abstract spaces for economic transactions but rather politically contested terrains of societal struggle where competing actors wield technical legal tools and moralized beliefs in attempts to shape structures of societal governance. A political economy of sex work might thus ask questions such as: how are the moral categories that justify market regulations distribute resources and govern populations created? How do legal rules shift the distribution of power and control between actors engaged in sex market transactions? And crucially, which societal actors win and lose when sex work is delegitimized and criminalized?

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Sex Work and Immigration: When Criminalization Is Disguised as Protection

Sex Work and Immigration: When Criminalization Is Disguised as Protection

This post is part of our symposium on the political economy of sex work. Read the rest of the symposium here.

Gilda Merlot

I am an undocumented immigrant from Honduras. I crossed the Guatemalan, Mexican, and U.S. borders when I was 5 years old. I’m currently a sex worker and a 25-year-old DACA recipient. Like most sex workers, I want decriminalization, or the elimination of all criminal penalties for sex work. The criminal legal system – and the vice divisions of police that carry out prostitution stings – will not solve the issues of poverty, housing, medical care, educational accessibility, and drug use, which are the actual issues affecting sex workers. The reasoning behind any kind of criminalization is to eliminate, destroy, or “end demand” for something through the deterrence/threat of state violence, prison, and death.

Sex workers are criminalized under various models – even if the state criminalizes just the acts of buying sex or managing or employing sex workers, a framework which is often called “the Nordic Model.” The Nordic Model is criminalization of sex workers by another name. To see how this works, we can look to another law that criminalized hiring a certain group of people under the guise of “protection” against exploitation: the Immigration Reform and Control Act of 1986 (IRCA). The Nordic Model criminalizes sex workers in the same way that the Immigration Reform and Control Act of 1986 (IRCA) criminalized undocumented workers.

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The Law and Political Economy of Sex Work: Symposium

The Law and Political Economy of Sex Work: Symposium

This post is part of our symposium on the political economy of sex work. Read the rest of the symposium here.

Lorelei Lee –

I am approaching my 20th year of living in the world as a sex worker. This year, presidential candidates are being asked whether they believe sex work should be decriminalized. Decrim NY and the Sex Worker Advocates Coalition have introduced decriminalization bills in New York State and Washington, D.C. California passed SB 233, joining a handful of other states in prohibiting the use of condoms as evidence in prostitution arrests, and expanding a San Francisco policy that prevents police from arresting sex workers who choose to report client violence. The public conversation is shifting. That shift is the result of hundreds of years of resistance and movement building by people who trade and have traded sex. As Juno Mac and Molly Smith explain in their new book, Revolting Prostitutes, “sex workers have shaped and contributed to social movements across the world.” Despite state, local, and new federal laws promoting profiling, surveillance, and exclusion of people in the sex trades from fundraising and communication platforms and from otherwise-public spaces, sex workers have continued to speak, to build coalitions, to insist on being heard.

People interested in law and political economy have a particular reason to listen to people in the sex trades. The conversations that sex workers are having are about markets, work, and coercion under neoliberalism. They are critiques of a legal system that implements policing to keep the “sacred” out of markets while enabling corporations to profit on the caging of human beings. In this symposium, Gilda Merlot will explain how the U.S. failure to “end demand” for migrant labor through the Immigration Reform and Control Act illuminates the unlikelihood of “ending demand” for sexual labor through criminalization. Aziza Ahmed and Jason Jackson will bring a political economy lens to sex work, critiquing the moral claims that justify criminalization. Finally, suprihmbé will unpack the false binary between the “agency/empowerment” of sex work and the “oppression/coercion” of trafficking.

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Reminder: LPE Conference Proposals due Sept 15

Just a reminder that paper and panel proposals for the LPE Project’s Conference, “Law and Political Economy: Democracy After Neoliberalism” (April 3-4, 2020, at Yale Law School) are due one week from today, September 15. You can find the call for papers here

One clarification: Panel proposals should include a description of the panel as a whole and abstracts for each paper. Each of those pieces can be up to a page in length (e.g., a proposal for a 4-person panel could be up to 5 pages).

We really hope you will join us!

Law and Political Economy of Commodity Rushes: Reflections on “Land Grabbing” in the Global South

Lorenzo Cotula –

A few years ago I travelled to central Ghana, in the fertile farmlands west of Lake Volta. A global land rush was in full swing: large agribusiness plantation deals – “land grabs” for the critics – were announced at a dizzying pace in many low- and middle-income countries. This transition belt between Ghana’s forest zone and the northern savannah proved popular with international agribusinesses, and I came to understand the deals’ local impacts.

One day I spoke with a farmer who, until then, had made a living growing maize and yam. Shaded by a rough straw hat, the grey-bearded man retraced how a jatropha plantation took much of his land. He thought the compensation was not enough to get land elsewhere, and felt too old to establish a new farm anyway – or take a job with the plantation. He had some land left but knew they would come for that too. When that happens, he concluded, he would just stay at home.

I asked him how he felt about these developments. “I am unhappy about what happened”, he said, “but there was nothing I could do”. As a long-term migrant, he did not own the land: the power to allocate land rested with the traditional chief, who signed a lease with the company. Behind the farmer’s life-experience lay the way law structures property, territory and decision-making power. Confronting the issue alone seems impossible: it calls for a bold agenda of action and research that ties the global with the local.

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Reclaiming the Right to Future Tense

Scott Skinner-Thompson –

By now, many of the societal, political, and distributive harms caused by large technology companies and so-called “social” media companies (Amazon, Facebook, Google, etc.) have been surfaced.  They invade our privacy, decrease market competition, erode our sense of self and, despite their euphemistic label, our sense of community.  Shoshana Zuboff’s new book—The Age of Surveillance Capitalism—intervenes to weave together the seemingly balkanized practices of large, monopolistic data-harvesting companies, painting a more comprehensive picture of their decidedly anti-social strategies.  At the same time, she situates their tactics in comparative, historical context as a distinctively new market logic.  Zuboff labels the emerging economic regime created by these tech companies “surveillance capitalism” in order to capture the transformative shift they represent in how our society is being organized—organized by surveillance capitalist corporations, not by the people.  Put simply, surveillance capitalism is an economic ideology that deploys divergent technologies as a means of cultivating and monetizing our identities. 

As Zuboff underscores, surveillance capitalists treat the information generated by our online activity and our situated, physical activity (collected through the Internet of Things) as raw material available for extraction—a pool of resources that Julie Cohen has theorized and critiqued as the “biopolitical public domain.”  But even more troubling, once scythed and privatized by the surveillance capitalists, our information is sifted to predict and shape our future behavior.  The shaping of our behavior by surveillance capitalists threatens individual autonomy, yes, but also popular sovereignty and democracy itself.  This may sound hyperbolic, but Zuboff methodically explains how surveillance capitalism is undermining core democratic values and why the stakes are so high. 

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