LPE: A Rising Tide at Miami Law?

This post continues our series featuring efforts to organize LPE student groups at several law schools. You can read the rest of the posts here.

Maddie Seales and Amelia Daynes —  

Screen Shot 2019-10-28 at 2.34.10 PMOur introduction to Law & Political Economy came during the February 2019 Rebellious Lawyering Conference (“RebLaw”) at Yale Law School. The Miami Law chapter of the National Lawyers Guild sent six students to the conference, and three of those students attended the “Building the FedSoc of the Left” event organized by students from both Yale Law School and Harvard Law School. When those students returned to Miami Law, they reached out to other progressive Miami Law students and student organizations about these early efforts to organize the LPE Student Network, and other students got involved. Since then, students from Miami Law have been involved in the cross-campus organizing along with fellow students from Harvard, Yale, Berkeley, and University of Pennsylvania.

At Miami, we were particularly interested in adding LPE and critical legal theory courses to the curricular offerings at our school. Miami Law provides some institutional support for public interest—such as a center that connects students with pro bono opportunities, provides public interest scholarships and summer stipends, and oversees a student-run board to manage on-campus programing and fundraise for summer internship programs. But these public interest offerings do not create space for a more critical reflection on the law.

And in the classroom, it can be difficult for students, especially first year students, to find critical approaches to the law. First year students are allowed to take one elective course in their spring semester (only one of which can be explicitly considered a “social justice” elective); furthermore, the main 1L courses lack critical approaches. This dynamic leads to second-year public interest law students stretched beyond their means, doing anything and everything public interest and social justice they can get their hands on because they have not had that opportunity during their first year. Beyond this, the availability of courses that teach or engage with critical legal scholarship depends on what professors choose to teach. There are no courses devoted to critical legal approaches to the law. Thus, one goal of our LPE group is to demonstrate student interest in curriculum that engages with LPE and critical legal theories, in order to push the school to ensure that more of those courses are available and that existing courses incorporate critical approaches to a greater degree.

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Challenging Legal Education Through Student Activism at HLS

This post continues our series featuring efforts to organize LPE student groups at several law schools. You can read the rest of the posts here.

Ava Liu —   

Screen Shot 2019-10-28 at 2.34.10 PMAt Harvard, institutional spaces for students to think about topics of law and justice remain limited, especially during the first year of law school when we are pummeled with work. While Harvard Law School has a rich history of student organizing, especially around teaching and academic appointments, we have had limited success in curriculum reform the last few years. From 2015 to 2016, student activists in the Reclaim Harvard Law School movement demanded academic reform as part of their broader demands for racial justice, but there still remain no dedicated critical race theorists appointed to the Harvard Law School faculty. On campus, official student organizations sometimes seem out of touch with the broader conversations happening on the left. Furthermore, these groups have been aligned with an old Democratic Party consensus in ways that felt intellectually staid in the post-2016 climate. Before fall 2019, progressive efforts active on other campuses such as NLG have had little presence.

Within these limited spaces, the alienation I experienced as a 1L led me to pursue work organizing what is now Harvard’s LPE. I came into law school interested in understanding the law and its relationship to power, but found the first year curriculum to be largely inattentive to questions of power and distribution. In particular, I thought the primacy of law and economics was strange. Having studied political philosophy in undergrad, I found the normative focus on grounding efficiency as the supreme goal of the law in Torts and Property to be rather arbitrary. In most classes, and especially in courses around private law, we rarely discussed the simple question of whether an outcome was “fair.” Concerns of distributive justice never entered the fray even when law was the chief mechanism by which distribution was conducted. I suspect this was an experience shared by many other students.

When other students and I found the LPE movement and this blog, it felt like discovering room to breathe. Starting in the fall semester of 2018, students at Harvard Law School began organizing around themes of law and political economy, grounded broadly in economic justice and its intersections with race and gender. Our efforts include reading groups, academic conferences, speaker events, and an alternative curriculum effort to support critical legal scholarship.

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LPE Student Organizing at YLS

Over the past year, student organizing has become an important part of the Law and Political Economy Project. This week we’re highlighting the work of several LPE student chapters. We hope that by amplifying their work—the impetus behind the student network, the successes and challenges of different chapters, and the community that students are building around LPE—we can reach more students at more law schools. So professors, if you’re reading this, let your students know that there’s a student network eager to include them, and law students, we’re excited to meet you! 

If you’re interested in starting a chapter or doing LPE work at your law school, you can start by 

  1. signing up for our list serve to get connected to the network and get help launching your chapter,
  2. checking out our syllabi,
  3. reading our 1LPE series on LPE approaches to 1L courses

We’re starting the series with the Yale Law School chapter: 

Isabel Echarte — 

Screen Shot 2019-10-28 at 2.34.10 PMThe LPE student group at Yale Law School sprung from the same root as the broader LPE Project. In 2016, a group of students asked Amy Kapczynski to teach a seminar that would allow them to better understand the social, political, and legal structures that have led our society to the various crises it faces and that facilitated President Trump’s election. To build this first seminar, students pulled in scholarship from existing traditions like ClassCrits, Critical Race Theory, and APPEAL to locate the law’s role in our current political economic structure, as well as to understand how the law might be used to facilitate the work of movements seeking to build a better one.

This seminar gave rise to LPE Blog. The students wanted to continue the conversations they’d had in class and to bridge methodological and geographic divides by providing a space for legal scholars to engage each other on the central LPE questions. As the blog became more and more successful at facilitating academic conversations, and as demand for the LPE seminar grew to nearly 100 students (a sizeable share of the law school), students recognized the need for space outside of the blog and seminar. In particular, we were interested in expanding beyond academia to make LPE approaches relevant and accessible to students who want to practice law and to build networks with alumni and practitioners as well as students at other campuses. We are also interested in curriculum reform—in particular, unseating the dominance of Law and Economics in legal pedagogy and to provide a more robust and critical account of the role of racialized subordination and the patriarchy.

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The Constitutional Role of Economic Coordination Rights

This post is part of our series on the political economy of labor & the constitution. You can find all of our posts on this topic here.

Sanjukta Paul –

Arizona Teachers Go On Strike And March To State Capitol

(via Jacobin)

There’s a common notion that pervades legal and policy debate—including among fairly liberal Democrats—that collective bargaining mechanisms, and even public coordination of markets through minimum wages and working conditions, distort market outcomes and are therefore inefficient (though they may be justified by countervailing considerations). This position immediately sets up a kind of presumption against labor coordination or public coordination of markets to benefit workers, a presumption analytically and normatively supported by Law and Economics.

Too often, progressive and even left responses have been limited to asserting that considerations other than efficiency should be balanced with efficiency concerns—we should balance fairness, or humanitarian concerns, with efficiency for example; or worker voice, living wages, and so forth are indeed efficient because they correct market failures. Some critiques rely heavily on the idea that labor is different from other commodities, which can imply that we can understand everything else as a potential commodity.

While these approaches often have merit, the Law & Political Economy orientation should attend to deeper critiques of L&E emanating from fields such as economic sociology and heterodox microeconomics. These critiques call into question the coherence of basic theoretical assumptions that are indispensable to L&E’s prescriptions about what is efficient in the first place. For example, many economists now challenge the idea that prices are determined according to orthodox microeconomic assumptions, and that these “market prices” in turn maximize welfare by allocating resources in an optimal manner; a number of sociologists, meanwhile, emphasize the indispensable role of social coordination in markets.

Also, Law & Political Economy itself can pose a powerful internal challenge to L&E, by reviving and updating the old legal realist insight that all markets are legally constructed, and by applying that insight in the weeds of particular areas of law that today have been all but given up to L&E. Relatedly, the Legal Realist move of displaying, in detail, the historical contingency of certain rules of law takes on especial importance in the context of an analytic framework like L&E, which assumes certain market rules that are given by law, but also often ignores legal contingencies and treats law as derivative of independent economic principles.

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A Law and Political Economy Agenda for Labor and the Constitution

This post is part of our series on the political economy of labor & the constitution. You can find all of our posts on this topic here.

Kate Andrias

Arizona Teachers Go On Strike And March To State Capitol

(via Jacobin)

At the end of September, labor law scholars gathered at a conference focused on “Labor and the Constitution: Past, Present, and Future.”  There, a group of us considered the problem of “Political Economy and the Constitution”—and the extent to which the Law and Political Economy (LPE) analytical frame can be useful in building a more democratic and egalitarian future for workers.

As readers of this blog know, LPE represents an emerging approach in legal scholarship—or at least a return to an old approach that had long been dormant.  Yet, in contrast to other areas of the legal academy, attention to questions of economic power never disappeared from view in labor law.  Maybe more than in any other field, people who study the history of the workplace and workers’ position in society have long recognized the importance of power. They have been acutely aware of connections between the political and the economic, between markets and law. Continue reading

A Political Economy the Constitution Requires

Join us this week for a series on the political economy of labor & the constitution. 

Willy Forbath –

Arizona Teachers Go On Strike And March To State Capitol

(via Jacobin)

“Political economy” has an antique ring. More than a century ago, the field of “political economy” began to give way to what was called “economics.” By the mid-twentieth century, political economy was forgotten; economics ruled the roost. But what is old is new again. Political economy is coming back. Economics sidelines the distribution of wealth and power; political economy puts it at the center. Economics claims to be value-free; political economy asks: “What is the good economy?”

Because it blends the normative with the analytical and the economic with the political, political economy always has lent itself to constitutional discussion. And when you go back to the eighteenth , nineteenth and early twentieth centuries, you find that judges, lawmakers, reformers, advocates, constitution-makers and policy-makers of all stripes looked at and argued about the Constitution through a political economy lens and the political economy through a constitutional lens.

They started from the premise that the Constitution was inevitably entwined with – and not neutral with respect to – the economic order. Thus, many matters that we see as policy debates about the maintenance or reform of institutions affecting the distribution of wealth and economic power they saw as the stuff of constitutional law and politics.

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Friday Roundup

What’s good in LPElandia?

  • This week on the blog, we featured Allison Tait’s take on teaching Trusts and Estates from an LPE perspective.
  • An interview with political scientist Alex Gourevitch on the history of labor republicanism in the United States over at The Dig.
  • Gabe Winant wrote on the political valence of being in the “professional-managerial class” at n+1.

And an Upcoming ACS Event in DC:

Income inequality has taken center stage in America’s political debate. As the 2020 presidential election heats up, candidates on all sides of the political divide are tapping into feelings of economic anxiety fueled by a disappearing middle class and increased concentrations of wealth. Indeed, the continually rising gap between the rich and everyone else has fueled unrest across the globe and has shown itself to have a corrupting effect on democracy itself. Labor law, antitrust law, and tax law all offer potential avenues to help increase wages, grow the middle class, deconsolidate corporate power, and shrink the racial wealth gap. What policy proposals should be on the table? Would increasing antitrust enforcement help? Could a wealth tax be the answer to growing inequality? What changes to labor law might help reduce income disparities? And perhaps most importantly, what constitutional potholes should advocates make sure to avoid as they go about this work?
Panelists are Lisa Cylar Barrett (Director of Policy at LDF), Lina Khan (Counsel, U.S. House Subcommittee on Antitrust, Commercial, and Administrative Law), Anne Marie Lofaso (West Virginia College of Law), and Ganesh Sitaraman (Vanderbilt Law). Nicole Berner, SEIU General Counsel will moderate.
-LPE Blog

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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