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


Property

Torts

 

Constitutional Law

Teaching Civil Procedure with Political Economy in Mind

Helen Hershkoff–

Over a decade ago I wrote a short piece called “Poverty Law and Civil Procedure: Rethinking the First-Year Course [Poverty],” published as part of a symposium issue of the Fordham Urban Law Journal on the place of poverty in the law school curriculum. Reginald Heber Smith’s statement from 1919 was the epigraph: “The administration of American justice is not impartial, the rich and the poor do not stand on an equality before the law, the traditional method of providing justice has operated to close the doors of the courts to the poor, and has caused a gross denial of justice in all parts of the country to millions of persons.”

Poverty was practical and concrete, conceived almost in the style of Teacher’s Manual (indeed, it was geared to the casebook I know best, Friedenthal, Miller, Sexton & Hershkoff, Civil Procedure: Cases and Materials). I took inspiration from Kevin Johnson’s earlier article on introducing race into the 1L curriculum. Re-reading Poverty, it’s clear that the pedagogic suggestions are allied with the theoretical premises identified in this blog’s (near-)manifesto—(1) that politics and the economy “cannot be separated,” i.e. politics affects the distribution of economic resources and wealth affects the distribution of political power; and (2) that law constitutes, creates, promotes, and reshapes politics and the economy and is, in turn, affected by both. Here I sketch out some of Political Economy’s more important themes that relate to 1L Civil Procedure and begin to update the teaching approach in light of a few doctrinal developments. The goal is not a mechanical add-on of ideas associated with Political Economy, but rather to encourage a space in the 1L curriculum where suppressed issues about law and  power, both political and economic, can be raised and explored at an early stage in the students’ legal education. Continue reading

LPE of Civil Procedure: Equality Inside and Outside the Courts

Daniel Wilf-Townsend

What does civil procedure have to do with LPE? On the one hand, you might think of procedural rules as only instrumentally important. They don’t dictate our obligations, like tort law or criminal law, or define the terms of economic organization, like property law. But anyone wondering why procedure gets a prime place in the first-year law curriculum should consider the famous warning of Congressman John Dingell, who was heavily involved in landmark accomplishments of substantive policymaking like Medicare, the Endangered Species Act, and the Clean Air Act. In Dingell’s words, “If I let you write the substance and you let me write the procedure, I’ll screw you every time.”

In other words, procedure is power. Procedural rules are at the root of how legal institutions make decisions: who gets into court, what burden they must meet to prove their claims, what information they can find out, who decides which party is right, what remedies may be on the table, and more. This means that the set of procedures the law employs heavily influences the ultimate outcomes of any policy choice. Because legal procedures play such an important mediating role between political choices and actual outcomes, understanding those procedures is a key component of the study of law and political economy.

This post focuses on just one aspect of legal procedure—the idea of formal equality in legal proceedings. I’ll explain how the notion of “procedural equality” stands in tension with inequalities that exist outside of legal institutions and provide a few quick examples of this tension in contemporary doctrinal debates. Finally, I suggest two approaches that students of LPE can take to these kind of debates: one with an eye toward understanding what the law does in the world, and the other with an eye toward considering how the law can be used and improved.

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Who are “the People” in Criminal Procedure?

Jocelyn Simonson-

The customary case caption in criminal court, “The People v. Defendant,” pits the community against one lone person in an act of collective condemnation. When I was a public defender in New York City, it was common for judges, clerks, and other courtroom players to refer to individual Assistant District Attorneys as “the People,” as in, “Do the people have an offer?,” “Would the people like to request a lunch break?,” or, if an ADA was not visible in the courtroom, “Are the People in the bathroom?” Calling an individual prosecutor “the People” sends a powerful message to courtrooms full of defendants and their supporters waiting for their cases to be called: a message that they are not part of “the People,” are not part of the public that matters. Even in jurisdictions in which the prosecution calls itself the “State,” “Government,” or “Commonwealth,” this idea—that the prosecutor is the People’s representative in the courtroom—pervades how we think and talk about prosecution and criminal procedure.

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Student Debt Cancellation: It’s Actually Good

Luke Herrine-

Whenever talk of student debt cancellation, or even of a “student debt crisis,” gets too loud, there is a bevy of pundits ready to tut-tut. Don’t you so-called progressives know that most student debt is held by young professionals? That the young professionals with the biggest debt loads are unlikely to default on their debt because they have leveraged their education into high-paying jobs (or at least have well-off family who can pitch in)? And so don’t you see that cancelling student debt would mostly just be a subsidy to already comfortable people? And you call yourself progressive? Shame! Go think about what you’ve done. Let the professionals take care of the policymaking.

Now that the Levy Institute has published a report on the likely macroeconomic effects of student debt cancellation and some left politicians have taken up the idea, David Leonhardt at the New York Times saw fit to rehearse the arguments he and others have made multiple times before (apparently not having read the arguments against his position in that selfsame report). Here’s why he’s wrong again.

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Lawyering and Political Economy: The Clinical Wing of LPE

Charles Du-

What does an LPE perspective imply for the practice of law? In other words, what is the “clinical wing” of LPE? My recently published essay, “Securing Public Interest Law’s Commitment to Left Politics,” seeks to denaturalize and politicize “public interest law,” arguing for a public interest law focused chiefly on building left political power by supporting movements and organizing. In its current popular usage, public interest law mostly refers to the wide variety of legal practices that are motivated by “progressive” political commitments on the part of the lawyer. (It also increasingly includes conservative causes, especially in the official, institutional definitions of some law schools, which serve as a sort of concession to right-wing students in the name of “intellectual diversity.”) Yet despite its vagueness, public interest law is highly institutionalized, with curricular offerings, scholarships, and fellowships devoted to it. The set of opportunities for each new cohort of progressive lawyers is essentially identical to the contemporary institutional forms of public interest law. This, at bottom, is why it matters to contest the meaning of the term.

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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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Racism is at the Heart of the Platform Economy

Daria Roithmayr –

This post argues that race and racism are segmenting the new “on demand” labor markets, in ways that facilitate the transition to this new sector of the economy.  Scholars of racial capitalism have argued that modern capitalism could never have gotten off the ground without the violence of slave labor in the cotton economy. Violent racism operated to segment plantation workers into free and unfree labor, and unfree labor made cultivating cotton in bulk possible, facilitating the transition to industrialized cotton production and then to industrialization more generally.

Likewise, I argue here that race and racism are segmenting the new labor markets into more free and less free labor, and that this segmentation plays a central role in the transition to the new economy.  Platform-based “on demand” service firms like Amazon and Instacart rely for their flexibility on a core of so-called “motivated” gig workers—workers whose economic survival depend on gig work. As it turns out, these workers are “motivated” because they are workers of color who are less free to turn down unstable work, or to bargain for a wage premium for doing risky, back-breaking or otherwise odious work. As we’ll see, race does very important work in constituting this segment of the workforce, and in keeping this core of workers “motivated.”

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Job Announcement: Executive Director of the Law and Political Economy Project

We are thrilled to announce our search for the inaugural Executive Director of the Law and Political Economy Project. Details below, and please share widely. Download the announcement here. We also welcome applications for the part-time blog editor position, posted here.

The Law and Political Economy (LPE) project at Yale Law School seeks a full-time Executive Director (ED). The ideal ED will play both a scholarly and organizational role.

The LPE project is a network of scholars, practitioners, and students working to develop innovative methods at the intersections of legal, political, and economic ordering, with special attention to democracy, economic inequality and power, and racialized and gendered inequality. We seek to make our work relevant to judging, advocacy, policy, and politics as well as scholarship more traditionally understood, and see our initiative as, in part, a response to the fraught political moment and an attempt to understand and address the longer-running problems that have contributed to it. This grant-funded initiative is housed at Yale Law School, and will coordinate closely with other key hubs of legal scholarship and advocacy, including Columbia Law School, Demos, and others.

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