1LPE Round-up

Earlier this fall, the LPE blog launched 1LPE, which aimed to provide a critical countervailing perspective on the doctrinal areas traditionally constituting the 1L curriculum. Take a look at what we’ve published – and get ready for more posts after the break!

Criminal Law




Constitutional Law

1LPE: Mullane, Financialization, and Procedural Pliability

Emily Villano —

Few cases were as difficult for me to initially grasp as Mullane v. Central Hanover Bank & Trust Co. (1950), a common case in first-year civil procedure courses. The appellant was a guardian ad litem, the opinion parsed the differences between jurisdiction in personam and in rem, and I woefully had never taken Latin.

My confusion also stemmed from the case’s many reversals of expectations. Mullane can be thought of as a proto-class-action lawsuit: it involved the aggregation and binding of multiple claimants to the judgment of a court—despite the fact that not everyone actively participated in (or even had awareness of) the lawsuit. Today, class actions are paradigmatic tools for making power accountable to people: such as when consumers band together to sue corporations, or prisoners seek reform of prison conditions.

Yet in Mullane, the original plaintiff was a bank. And rather than resisting the aggregation of claims, the bank sought the Court’s blessing for a procedural mechanism to bind absent parties. Herein lies Mullane’s special fascination: the Supreme Court first relaxed constitutional due process requirements in order to aggregate claims—bending central concepts like “notice” and the “opportunity to be heard”—to feed New York’s growing mid-century financial sector.

The story behind Mullane reveals a great deal about civil procedure: such as its role in shaping our political and economic landscape and its chameleon-like capacity for good and ill. Mullane, therefore, particularly lends itself to an LPE approach. Continue reading

Constitutional Law 101: A Primer for the Law and Political Economy Blog

K. Sabeel Rahman-

Part Three: The Substantive Constitution

Reconstruction, Freedom, and Nullification: The Battles over the Fourteenth Amendment

In 1872, newly-emancipated and enfranchised black Republicans won a wave of elections throughout the country, including in Grant Parish, Louisiana. The election was disputed and the conflict quickly escalated into an armed standoff battle between black Republicans, who occupied the courthouse in an effort to certify the elections, and white supremacist Democrats. This standoff culminated in an all-out assault by the former Confederates in 1873, resulting in the Colfax massacre, the slaughter of dozens of African-American defenders by William Cruikshank and his co-conspirators. Under the 1870 and 1871 Enforcement Acts—passed under Congress’ newfound authority under the Fourteenth Amendment—Cruikshank was prosecuted for conspiracy to violate the civil and political rights of African American citizens. But in 1876 the Supreme Court dismissed the convictions. United States v. Cruikshank effectively ended the aspirations for black political power, provided judicial sanction for the wave of white terror and violent suppression of communities of color, and in turn ushered in the collapse from the dream of Reconstruction to the terror of Jim Crow. The Court did so, not only by creatively (and incoherently) reading substantive limits into the Fourteenth Amendment—anticipating future doctrinal developments like state action, incorporation, the defense of states’ rights—but also by weakening Congress’ structural power to pass legislation enforcing the Fourteenth Amendment’s promise under its Section 5 powers.

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Constitutional Law 101: A Primer for the Law and Political Economy blog

K. Sabeel Rahman-

Part Two: The Structural Constitution

The Basic Structure

Suggested readings:

  • Federalist 10, 51
  • Marbury v. Madison, 5 U.S. 137 (1803)
  • McCulloch v. Maryland, 17 U.S. 316 (1819)
  • Mark Tushnet, Constitutional Hardball, 37 J. Marshall L. Rev. 523, 523-26, 528-29, 535-36, 538-43 (2004)
  • Jack Balkin & Sanford Levinson, Constitutional Crises, 157 U. Penn. L. Rev. 707, 708-9, 711-15, 720-22, 728-32, 736-39 (2009)

One of the central functions of the Constitution is to structure the core institutions of government. In our constitutional system, this means the allocation of power between federal and state governments (“federalism”), and the division of powers between the federal branches: legislative, executive, and judicial (“separation of powers”).  Taken together, federalism and the separation of powers comprise our basic constitutional structure.

For starters, the Federalist Papers offer a distillation of the political theory animating this basic structure. Pay close attention to how Madison describes the dynamics of power, ambition, and the purposes of institutional design. This is not a government designed to rely on or even encourage civic virtue; rather what we see here is an emphasis on politics as conflict and contestation. The task of institutional design is to contain and channel that contestation into productive ends. This idea of productive contestation is central to a particular strand of republican political thought, and a key to the basic structure. Through contestation, faction can check faction, corruption can be prevented, and ultimately government can be harnessed for the common good. We also see here a deep concern with concentrated power. A key part of the design is to diffuse political power, preventing domination by distributing power across different governmental bodies.

As Madison suggests, however, these institutional designs do not come into being simply from being put on paper. The Marshall court’s foundational rulings in Marbury and McCulloch were arguably nearly as crucial to the founding of the Constitution as the drafting itself. As the Levinson, Balkin, and Tushnet readings highlight, these foundational cases were decided not just on the basis of deep principle and reasoning, but also in the heat of the political moment, with very real partisan and power-politics debates at play. These historical backstories are vital reminders that the Founding was not some era of “pure virtuous” politics, and that constitutional law is often forged in the fires of partisan and political conflict. Indeed, this reality is one reason why Marshall’s reasoning in both of these cases are so deeply “structural”; note how Marshall’s approach to constitutional reasoning combines text, and history but focuses on the structural and long-term institutional implications of potential rulings. Marshall (like Madison) sought not only to assure checks and balances, but also to assure an effective government. That meant in turn assuring that the federal government has basic capacities to act.

This basic tension—between assuring checks and balances and accountability against arbitrary political power on the one hand, and assuring a powerful and efficacious government on the other—runs through the first half of most Con Law courses, encompassing units on the Commerce Power, federalism, and the separation of Powers. The next few sections extend these themes in context of traditional Con Law reading assignments.

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Constitutional Law 101: A Primer for the Law and Political Economy Blog

K. Sabeel Rahman-

Part I: Constitutional Law as a Political Economic Battleground

For students and scholars interested in questions of political economy, inequality, exclusion, and power, conventional black letter law classes can often be daunting. The volume of case law and the compressed time of the semester can often squeeze out more thematic and critical discussion of these themes. Furthermore, the selection of cases covered and the focus on current legal doctrine may not always highlight fully the contingencies, roads not taken, and the normative and structural stakes of these legal debates. This page, like others in the “Law and Political Economy 101” series, offers a primer on constitutional law from the perspective of political economy. There are of course many different ways to approach a constitutional law curriculum centered on LPE themes; this series represents one possible approach.

This primer is designed to be a companion to a standard semester-long class on Constitutional Law covering Federalism, the Separation of Powers, and the Fourteenth Amendment. Beyond the doctrinal developments and case law, any constitutional law course raises several key overarching themes. Note that this primer does not address issues around First Amendment doctrine and courses focusing on speech and religion questions. This first post of three highlights themes that I explore in subsequent posts.

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Toward a Law and Political Economy of Gender Violence

Martha T. McCluskey –

What does political economy have to do with the issue of gender violence that roiled Kavanaugh’s Supreme Court confirmation?  One answer is that law should not separate economics from the social inequalities that mediate power.  Violent enforcement of social hierarchies has long been a core capitalist strategy for securing selective economic advantage, as Angela Harris and Frank Pasquale have written in this blog.

The recent #Metoo movement suggests the strong arm and insidious shadow of physical force is common, not marginal, to the everyday economic lives of many women, a factor to bargain with in the process of securing opportunities for education or work, housing or health care.  Conventional law and economics tends to assume a background of private voluntary exchange that belies continuing contests over the power to gain through violence. In contrast, a political economy perspective recognizes that government does not monopolize force. Instead, government enables and distributes private force by how law defines, punishes, monetizes, and immunizes private acts of violence.  Neither formal law nor social norms have firmly settled the questions of what forcible acts and impacts count as normal, excusable, trivial, implausible, or invisible.

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A Torts Course for the Actually Existing World

John Fabian Witt –

The torts classroom is like a dystopian historical fantasy.

Or maybe a kind of morbid historical science fiction. Students and teachers gather to rehearse time-honored rituals around the Great Cases of human tragedy: Scott v. Shephard, Brown v. Kendall, Rylands v. Fletcher, Vosburg v. Putney, Leroy Fibre v. Chicago, Milwaukee, & St. Paul Railway, MacPherson v. Buick, Murphy v. Steeplechase Amusement Co., Palsgraf v. Long Island Railroad, and more. The cases tend to be old. They tend to involve railroads. We conjure up a bygone world on the rails or at old-school amusement parks, in coal mines or at small-town markets. We conjure a world of judges, juries and appellate opinions, too. But in the actual world outside the torts classroom, railroads have been in decline for a half-century and more. Amusement parks, too, though that’s a story for a different day. More importantly here: so have judges, juries, and appellate opinions. The spread of waivers, the rise of arbitration, the disappearance of the trial, and the prevalence of settlement have made the Great Cases almost literally things of the past.

What would it mean to bring the torts class into the twenty-first-century and connect it to actually existing problems?

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American Tort Law Tells Us How It Really Feels About Law and Economics

Anita Bernstein —

Funny thing about the intersection of tort and law and economics. For decades this school of thought has been ascendant in scholarship and intellectual understandings of this field, as it has throughout private law generally. No one can teach or write competently about torts without giving thought to law and economics fundamentals like cost-benefit analysis, cost as a social problem, the cheapest cost avoider, default rules, incentives, and wealth maximization.  On the one hand.

On the other hand, American tort law as practiced will stick a thumb in the eye of law and economics. Rather than defer to familiar microeconomics tenets taught in classrooms and quoted for truth in law reviews, it often refuses to learn the curriculum, disrupts order, and even refutes a few basics by not cooperating with their premises. It is worth cataloguing a few examples of these resistances:

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Torts: A Law and Political Economy CounterSyllabus

This syllabus is, in conjunction with the framing post on the Law & Political Economy Blog, a starting point for understanding the law and political economy approach to torts. The initial readings introduce both the law and economics perspective and the competing law and political economy perspective on tort. Subsequent portions of the syllabus use existing literature to apply the law and political economy perspective to concepts featured in tort classes, such as injury, proximate cause, and negligence. Given the newness of the law and political economy perspective, this syllabus is a work-in-progress: email any suggested readings to Conor Dwyer Reynolds at conor.reynolds@yale.edu. Download the full syllabus here.

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Rules of Power & Wrongs: A Law & Political Economy Approach to Tort Law

Conor Dwyer Reynolds —

The law and political economy perspective is defined by its focus on power, the ability to control and change things (especially people). From the vantage point of law and political economy, courts, markets, legislatures, and all other institutions can and must be assessed in terms of how they create and distribute power. Because power exists within and among people, the function of an institution cannot be grasped by simply looking at its formal structure, the words that define its constitutive rules. This is why, as Michael A. Wilkinson and Hjalte Lokdam have noted, the law and political economy perspective demands that institutions be seen through “a historical, conceptual and interdisciplinary lens.”

That lens may help students running through the confusing maze that is many first-year torts classes. Tort law is made up of a hodgepodge of liability rules, running from the apparently criminal (false imprisonment) to the vague (nuisance) to the obscure (abnormally dangerous activity) to a dog’s name with a t on the front (trover). The judicial opinions assigned to illuminate these rules are often written in dense, arcane legalese. If students manage to distill a judge’s reasoning from these opinions, what they often discover are idiosyncratic justifications that do not seem to hang together as a cohesive, intelligible whole.

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