Last Week’s Surprisingly Deep Victory for LGBT Workers

Last Week’s Surprisingly Deep Victory for LGBT Workers

This post was originally published at Jacobin.

Kate Redburn–

Last Monday, the Supreme Court ruled that employment discrimination on the basis of sexual orientation or gender identity is prohibited by Title VII of the Civil Rights Act of 1964. The decision brings employment law in line with public opinion: a majority of Americans favor employment protections for LGBT people, and in 2015 the Harris Poll revealed that nearly a quarter of Americans believed that these protections were already enshrined in federal law.

The opinion, like today’s DACA decision, came as a shock to legal observers. The Supreme Court is a deeply conservative institution, currently occupied by five solidly conservative justices. It seemed beyond hope to imagine that a majority would deliver the “landmark ruling” they did, even though advocates stood on extremely solid legal ground: they persuasively applied conservative methods of statutory interpretation to Title VII.

The surprise decision has been met with much enthusiasm, and some skepticism, from supporters of LGBT justice. Make no mistake: the opinion in Bostock v. Clayton County, written by Justice Neil Gorsuch, could have been much better. It should have included language linking the LGBT movement to the broader federal civil rights framework, acknowledging the history of discrimination against LGBT people. Instead, we got a skeletal affirmation, that in formalist textual terms, means sexual orientation– and gender identity–based discrimination qualify as discrimination “because of sex.” (Courts have already ruled that the law prohibits discrimination on the basis of sexual stereotypes, but Justice Gorsuch reasoned from the meaning of the words “because of sex,” and found that discrimination against gay, lesbian, and transgender individuals is always rooted in bias about sex.)

But this is still a victory worth celebrating.

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Signing Off

Dear Readers,

When Amy Kapczynski introduces law and political economy, she often begins by describing a paradigmatic law student who arrives ready to fight injustice and is quickly sucked into an alienating vortex of efficiency-seeking and cost-benefit analyses. I was that student when I started law school, and by chance stumbled into the nascent LPE world as a 2L. My peers had already begun to work with Amy to put together a seminar on Law and Political Economy, which completely transformed my sense of how legal change might intellectually – and we hope, practically – deconstruct neoliberalism, while taking concrete steps toward a more just future.

It has been my pleasure to lead the LPE Blog through its first several years, together with Amy, Jedediah Britton-Purdy, David Grewal, Sabeel Rahman, and three generations of student editors. We set out with twin goals of developing an approach to legal thinking we could call LPE, and creating pedagogical tools to make LPE accessible to law students. Our incredible group of contributors have far exceeded expectations, rising to the challenge of putting complicated, new thinking into short essays, and gamely trying to work out how bring LPE analyses into 1L courses.

I don’t need to remind readers that the challenges in this moment are immense. The daily stream of horrors would be difficult enough to metabolize without the backdrop of brutal antagonism and calculated neglect. My hope is that participating in the blog offers at least some small bright space for readers and authors alike. It’s meant to be a place where people from different disciplines, with different methods, concepts, and relationships to legal practice, policy, and social movements can try to hash things out, asking each other hard questions about where to find racial capitalism’s weak points, what do think about the courts, and how domestic labor can confront global capital.

On a more personal note, the blog has anchored me through the (expected) vicissitudes and itineracy of JD-PhD study, and an (unexpected) major medical crisis. It’s been such a gift to build community with law faculty and students around the country, and our LPE Project team based at Yale. I’m (finally!) graduating from law school, and so now seems like the right time to hand over the day-to-day operations of the blog to the excellent Luke Herrine. When you email managingeditor@lpeblog.org, you’ll now reach him. But you won’t be able to get rid of me – I’ll be moving into a new role as part of the blog’s Editorial Board, and will stay connected to the range of LPE activities we’re all cooking up.

Thank you,

Kate

Many Neoliberalisms: Market Logic and Social Values

This post is part of our symposium on Quinn Slobodian’s Globalists: The End of Empire and the Birth of Neoliberalism. Read the rest of the symposium here. 

Kate Redburn –

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As many of the other contributors to this symposium have attested, one of the signal achievements of Globalists is the evidence that “neoliberalism” is indeed a coherent set of intellectual commitments, growing like any other ideological movement out of a particular set of historical conditions and contingencies. Fearful that the post-WWI proliferation of nation-states would obstruct the international flow of capital, a diverse set of economic thinkers converged on a new form of internationalism, intended to insulate transnational markets from democratic decision-making at the national level. Given the common suspicion that “neoliberalism” is a trendy, empty synonym for late capitalism, Slobodian’s persuasive account of substantial intellectual agreement – a real “there there” – gives historians of neoliberalism a more solid base from which to proceed.

Given the novelty of this argument, it may be somewhat surprising that I’m not focusing my response on the core agreement within the neoliberal thought collective, but on its internal division over social policy and moral preference. Contrary to accounts of neoliberalism as a hegemonic governmentality, Slobodian illuminates the differences between socially libertarian and socially conservative neoliberals from the earliest days of the neoliberal thought collective. The result points toward a more analytically specific account of American neoliberalism, one which acknowledges the uneven and contested development of actually-existing neoliberal law.

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Weekend Roundup 03.09.18

The week’s posts and the best of what we’ve been reading, for your weekend pleasure.

This week at LPE Blog, reformisms were on the chopping block. We started with the second installment of Sabeel Rahman’s series on structural equality and law, where he argued that structural problems like inequality will not be solved by “meliorist reforms” that may advance some people within a given system if the system itself produces inequality. Instead, legal solutions must tackle “the ways in which law and policy operate in the background to produce structural forms of concentrated private power, patterns of discrimination and segregation, and barriers that exclude access to foundational goods and services.” As he points out, many contemporary social movements have framed their struggles against structural inequality, rather than particular bad actors.

Will Bloom offered an example of one such movement in his piece drawing connections between the Fight for $15 and recent teacher’s strike in West Virginia. In both movements, workers are breaking out of the old model – which enabled adjudication between employers and employees in a particular firm – and organizing to challenge conditions across an entire sector. As the New Deal labor settlement crumbles, Will suggests that the labor movement has a chance to build broader solidarities, and potentially to reset the background conditions for traditional collective bargaining. Here are some more stories about the strike you might like. Ok, one more. And a tweetstorm (worth it!)

Both Sabeel and Will had me thinking about socialist theorist André Gorz’s famous concept of the “non-reformist reform,” a metric he created to help break out of the reform/revolution binary. Unlike “reformist reforms,” which don’t advance structural re-alignment, Gorz’s “non-reformist reforms” bend the arc of justice a little bit at a time. In the gradualist world of American law, it can sometimes be difficult to tell which way the wind is blowing. Are small steps capitulations to an unequal system, or openings for the momentum of larger change? The “non-reformist reform” slows down the imagined pace of change, but not the magnitude of potential transformation.

And then yesterday we published this beautiful piece by Amy Kapczynski and Jedediah Purdy on gun rights and sovereignty in neoliberal times. It’s worth a read for the summary of Reva Siegel’s article about the recent invention of an individual right to bear arms in constitutional law, if you haven’t encountered that before, but Amy and Jed really hit their stride when they draw links between the ways gun rights proponents mobilize race, constitutionalize private violence, and lobby to shield gun manufacturers from ordinary rules of liability. The piece shows the strength of the LPE frame amid an avalanche of hot takes.

There was some great LPE writing in other corners of the internet this week. In the Boston Review, Sam Moyn reviewed Mark Lilla’s The Once and Future Liberal: After Identity Politics. Rather than offer another hate-read of the book (read this one if you read any), Moyn finds something to praise in Lilla’s suggestion that the Democratic Party ditch neoliberalism for economic justice. Without giving Lilla more credit than he is due, Moyn converts the review into an elegant indictment of both liberals eager to scapegoat identity groups for the travails of the left, and the Dems for tacking right even when they had governing power. Aziz Rana also has an LPE-inflected analysis of the 2016 election in the most recent N+1. He calls it the “last election of the cold war,” and argues that the center-right and center-left consensus that has characterized elite politics since Truman has finally buckled under the weight of contemporary social and economic crises. He connects the movements that supported Bernie Sanders and Donald Trump to their historical antecedents in early 20th century American socialism and white nationalism, respectively. For LPE readers, perhaps the most incisive moments come in Rana’s prescription for “overcoming institutional paralysis in our constitutional system” by un-rigging electoral systems, promoting real workplace democracy, and running candidates to the left of the DNC’s chosen few.

Remember to send us your pitches, your questions, and tune in next week for more from LPE Blog. Rumor has it there may be an LPE podcast pending, but you didn’t hear that from me.

-KR