Katharine Jackson–

One of LPE’s foundational commitments, as Sanjukta Paul reminds us, is that law constitutes markets – and that, as a result, we are free to constitute them differently. But this simply begs the question: how ought we constitute them? This is where political theory can be useful.

As Sam Bagg points out, many LPE scholars already understand that democracy must have something to do with it. We object to many of our laws because they are undemocratic, reflecting instead the power of entrenched elites. But what would count as democratic is a genus populated by a wide variety of species, from procedural, populist (left, right, and ideologically empty), republican (neo– and classical), epistemic, agonistic, discursive, representative, and participatory. Each implies different legal and institutional reforms and prioritizes different values. Moreover, if we are committed to some form of constitutionalism, we have to admit that democratic publics cannot shape the law any which way they please.

To find a way though this thicket, it is helpful to note that many of these conceptions of democracy tend to fall into two categories. Each posits a different relationship between democracy, law and justice. For some, law, if it is the outcome of democratic procedures, is inherently just or legitimate. Others value democracy instrumentally, useful as a reliable means to achieve otherwise desirable ends. Sometimes those ends include just laws. Sometimes they are more modest but no less important: anti-oligarchy, stability, peace.

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This week at the Blog…

we continued our symposium on the legal representation of poor people.

On Monday, Gregory Louis argued that critical legal practice requires a critical realist approach to law: looking everywhere, not just courts, to interfere in the political contests that structure and restructure governance regimes.

On Tuesday, Sam Allison-Natale engaged with two influential articles on the ethos of public interest lawyering, using them to launch his argument that radical lawyering must draw from an ethos of solidarity, not altruism.

On Wednesday, Jamila Michener shared some early results of her research on housing courts, reporting a surprising result that people who are repeatedly screwed by the system often find that experience motivating rather than just disempowering, and having legal assistance and, especially, organizing can turn that motivation into mobilization.

(and don’t forget the LPE Project is looking to hire a Deputy Director! and the LPE summer series continues next week!)

We also added two new editors!

Ure Obioma is a rising 3L at the University of California, Davis School of Law, where she is a member of the Black Law Students’ Association, and the Business Law Journal. She will be covering topics related to health outcomes and the criminal justice system. As a student at Cornell, she volunteered in the Ithaca Court System. After her first year of law school, she worked as a Summer Legal Associate at Morrison Mahoney in Boston, Massachusetts, where she learned the art of litigation. However, after taking a negotiations course in law school she developed a passion for drafting contracts and negotiations. Her passion is rooted in the belief that true negotiations bring two parties together. This summer she is interning at the Office of the California Governor Gavin Newsom as a Legal Fellow to the Tribal Negotiations Advisor.

Tariq El-Gabalawy (@telgabal) is a rising 3L at UC Davis School of Law, where he is a member of the Middle East North African and South Asian Law Students Association, the Black Law Students Association, and the student run Workers Rights Clinic. During law school, he has been an RA for the Aoki Center for Critical Race and Nation Studies, clerked with the E.D. of CA Federal Defender’s Office, externed with the Adolescent Defense Team at Yolo County Public Defender’s Office, and currently works with the Los Angeles County Public Defender’s. Tariq is interested in ending carceral violence and has studied the racialized nature of state violence, specifically the politically motivated targeting of Muslim communities in the wake of 9/11.

And here’s our guided tour of the internet

Tariq El-Gabalawy: As activists and communities across the country call for defunding the police, the tragic case of Sean Worsley highlights the need to reform the entire criminal justice system. As reported by the Alabama Appleseed Center for Law and Justice, Worsley, a disabled veteran of the Iraq war, was arrested for possession of marijuana while playing air guitar at an Alabama gas station, a charge which eventually left him homeless and sentenced to five years in prison. His story shows how onerous fines, fees, and probation requirements tend to punish poor people of color for being poor, and raises the question of when someone should be sent to prison for “crimes” that harmed no one.

This week Asheville North Carolina made a splash with the passage of a resolution to provide reparations to the city’s black residents. Although what reparations should look like is a topic of debate, the resolution passed by the Asheville city counsel is aimed at “increasing minority home ownership and access to other affordable housing, increasing minority business ownership and career opportunities, strategies to qrow equity and generational wealth, closing the gaps in health care, education, employment and pay, neighborhood safety and fairness within criminal justice.” Beyond these overarching goals, the city hasn’t offered many specific details so it remains to be seen how effective this resolution will be in bringing about economic justice for its black residents. 

Finally, a deeply troubling story has come out of Louisville Kentucky, where protests demanding justice for Breonna Taylor continue. A protest staged on the front lawn of Kentucky’s Attorney General Daniel Cameron led to the arrest of 87 protesters. All 87 people arrested were charged with felony “intimidation of a participant in the legal process” on the basis that chants used by the protesters constituted a threat of violence. A law meant to protect witnesses is now being weaponized to insulate an elected official from public scrutiny and those arrested face one to five years in prison despite the fact the protest was peaceful.  This blatant attempt to chill free speech is the latest use of criminal law to intimidate Black Lives Matter protesters.

Luke Herrine: As the Blog considers revisiting our 1LPE series, I have been trying to keep track of the wave of meditations on how to incorporate a racial lens into the law school curriculum that have come as a sort of aftershock to the earth-moving protests this summer. The Civil Procedure Workshop is holding an event on July 22 on teaching civil procedure with race in mind. The Contracts Blog is hosting a series of posts on critical race analysis in the contract curriculum. Just Security is hosting a “racing national security” series. Let me know if you see others!

Over at the New Inquiry, Tamara Nopper took on the trope that the suburbs are a good image of what police abolition looks like, but her account is not just a critique: it is a deep reconsideration of how we think about the relationship between police, budgets, and racial capitalism. She brings together critical geography, black radicalism, and Modern Monetary Theory to force reconsideration of the very way we understand how the social construction of disadvantage operates. Somehow she does all this in only a few hundred words!

Relatedly, Nathan Tankus’s substack–which has become a publication with a paid editor, guest contributors, and over 40k subscribers since I first mentioned it here (coincidence??)–has an amazing post from Phillip Rocco on the relationship between federal budgets and state/local budgets. It’s got history, legal analysis, institutional economics, sociology, macro-informed accounts of budgeting, and SO MUCH MORE.

At Democracy Journal, Sandeep Vaheesan takes critical analysis of Amazon took the next level by outlining a schematic for restructuring it in the public interest. The post is a masterclass in thinking through the interrelation between antitrust, public utilities, and other forms of regulation (even if you don’t agree with his ultimate solution!). And as has become his habit (perhaps it should be all of ours), Vaheesan begins his analysis by re-emphasizing the fact that law, the state, and political power are always involved in constructing the sort of “private” power that Amazon has.

Bonus: I just discovered that the Kool-Aid Man and Punchy (from Hawaiian Punch) were created when RJR Reynolds and Phillip Morris (i.e. two tobacco companies) bought up food companies when they thought their profits would be threatened by anti-smoking regulation. Apparently, tobacco executives only know how to make money by slowly killing people?

Anna Wherry: Jason DeParle’s piece in the New York Review of Books offers a fascinating look into the history of measuring “child poverty” and on child allowances as a promising policy intervention. The entire article is worth a read, but particularly interesting was his account of the politics of measuring child poverty. Since the 1960s, the Census Bureau’s “Official Poverty Measure.” has used a family’s cash income before taxes to measure levels of poverty. This way of measuring poverty, however, fails to capture the aid that poor families receive in the form of non-cash aid in the form of Medicaid, food stamps, or housing assistance, and cash aid that is distributed via the tax code. As DeParle explains, “by official standards, a family that gets $10,000 a year from food stamps and tax credits is just as poor as if it had received nothing. If hundreds of billions in anti-poverty spending doesn’t appear to be reducing poverty, that’s because the statisticians don’t count it.” This government’s blunt statistical tool, in turn, easily bolsters claims on the right that government aid doesn’t reduce poverty and, in the words of Reagan, “we fought poverty and poverty won.” 

This piece, by Cristina Nova, on how childcare disruptions hurt parents of color. Childcare was in short supply and expensive for families of color even before the pandemic. As Nova explains, “A thinner financial cushion means full-time work—and affordable child care to support parent employment—is a more urgent necessity for many families of color than it is for non-Hispanic white families. However, despite being more dependent on full-time work and child care, parents of color are more likely to experience job disruptions that affect their bottom lines in both the short and long term—a fact that makes recovering from the economic impacts of a pandemic especially challenging.” As a first step toward addressing this problem, Nova endorses the Child Care is Essential Act which would apportion $50 billion to provide grants to child care providers during the COVID-19 crisis. 

When I have a moment this weekend, I’m looking forward to listening to this recorded conversation between Maya Schenwar, Victoria Law and Mariame Kaba, on Schenwar and Law’s new book Prison by Another Name. Their book looks at how “alternatives” to jail and prisons, such as drug treatment, electronic monitoring, mandated psychiatric treatment, “actually widen the net, weaving in new strands of punishment and control, and bringing new populations, who would not otherwise have been subject to imprisonment, under physical control by the state.”

And, finally, this fantastic piece in the Boston Review on global health austerity.

Isabel Echarte: Today I’m taking you on a deep dive into everyone’s favorite subject–tax law! (Okay okay, I’ll admit, only tax nerds like me love tax law but boy do we really love it). But I can say that you’ll be interested to hear about some developments in government efforts to close international tax loopholes. 

This week, the EU general court annulled the European Commission’s case against Apple and Ireland for unpaid taxes resulting from Ireland’s “sweetheart” deals for Apple subsidiaries. “[T]he commission had calculated Apple’s outstanding tax bill on the basis of all of the company’s sales outside North and South America, including the value of its intellectual property. The judges said the commission should have shown the income represented the value of the activities carried out by the Irish subsidiaries as opposed to that relating to decisions taken and implemented elsewhere.” The case underscores how challenging it will be for countries to reign in these practices. It’s a big deal because the scale is enormous. These schemes have significantly eroded the U.S.’s ability to collect taxes from these entities: Gabriel Zucman stated “40% of multinational profits are shifted to tax havens each year globally and the United States loses about 15% of its corporate income tax revenue because of this shifting.”

The FT article (linked to above) discussing the EU case argues that the answer to this problem can be found in the OECD’s efforts to combat these practices–termed the “base erosion and profit shifting” (BEPS) project. But some scholars have questioned more than just the practices of firms and countries like Ireland. Steven Dean, for example, has pointed to the “international tax constitution” as the source of these dynamics, arguing for more than just tweaking the corners of international taxation, as BEPS seeks to do: the international tax constitution “just says we are not going to double tax. That unwritten constitution grew out of the post-World War I concerns . . . . [T]here was broad consensus among experts that . . . double taxation posed a threat to cross border ties, and in the wake of World War I, such a threat was not to be taken lightly.” That means, the tax system today favors consistently undertaking companies than risking any chance of over taxing them. 

I promise I spared you a lot of detail there. But now you know just enough to be annoyed at the EU court! And something enjoyable to reward that effort: Avatar: The Last Airbender is back on Netflix! Read the New Yorker’s take here.

Caroline Parker: In the 1990s, Steven Donziger helped direct a groundbreaking class action against Chevron on behalf of indigenous villages near the Lago Agrio oil fields in Ecuador.  This story about the legal counterattack against him is dystopian. When federal prosecutors chose not to pursue criminal contempt charges against Donzinger, a judge appointed a private law firm with deep ties to oil & gas to lead the prosecution. Law school has not yet taught me why or how that is possible…

A GAO report released Tuesday found that the Trump administration has systematically undervalued the “costs” of climate change in its “social cost of carbon” formula. If any blog readers happen to believe that federal CBAs reflect a stable scientific objectivity, surprise! 

This piece from Politico explores whether the Federal Reserve has a role in climate policy. If the Fed is really about stability, the answer has to be yes.

You have read headlines about the 15 y.o. who was sent to [in-person] juvenile detention in Michigan last in May for failing to attend online school. “Cyber truancy,” they’re calling it. This ProPublica investigation describes all the details of the Michigan case. I think this story should remind us that social workers are often a part of–not an alternative to–the carceral state.

The LPE Project is looking to hire a Deputy Director!

The Deputy Director will receive an appointment as a Research Scholar at Yale Law School, and ideally will be at the early stages of a career in legal scholarship, advocacy, or policy and will have a developed and independent set of related interests. On average over the course of the year, the Deputy Director will spend approximately 50% of their time on their own scholarly or scholarly-adjacent research and writing.

See more details here.

The 2020 Summer Academy on Law, Money and Technology: ‘Transforming Political Economy’ will run Monday-Friday, July 13-17th. It is open without registration or fees. For more about the event and useful links/instructions to join the event: http://documents.manchester.ac.uk/display.aspx?DocID=49652

The aim of the Summer Academy this year is to contribute to the growing academic community engaged in the dynamics of law and political economy. Over our five days together, we hope to continue conversations into core themes at the interface of law, money and technology, experiment with how our teaching and conversations can be informed and can refine our political/ethical commitments, and offer space for the community to continue getting to know each other and share best practices and opportunities. And in the process, to have some fun – or something close, and there are a number of breakout sessions and post session spaces for folks to have more chances to speak and listen to each other.

In Summer 2019, the Association for the Promotion of Political Economy and Law (APPEAL) and the Institute for New Economic Thought Young Scholars Initiative (INET YSI Finance, Law and Economics Working Group) organized a two day event with the University of Manchester Law School. The event brought more than 40 emerging and established scholars to spend time together in Manchester thinking about the intersection of political economy and law.

The event was part of a much broader movement taking place within academic communities across the United States, the United Kingdom and Europe to build a ‘new left’ or to ‘reimagine a new progressive era’, which is woke to the limits of past movements (e.g., gender, race), literate in finance and governance (e.g., interested to understand contemporary banking operations), and committed to structural change (e.g., not at the expense of identity based reforms, but focused on a fresh socio-economic vision for society).

This year, the Summer Academy will run a 2 hour session Monday-Friday, as well as a Virtual Happy Hour afterward on Monday and Friday. The Sessions bring together more than 25 emerging and established scholars to speak on five themes: Intellectual Community Building (‘Know Your Allies’), Algorithmic Governance, Rethinking Political Economy (‘The Money Side of Things’), Understanding the Mainstream and What to Do About It (‘Know Your Opposition’), and Cross-Disciplinary/Field Perspectives. We hope to see you there!

This week, The Blog hosted the first part of a symposium on socialist constitutionalism.

Willy Forbath kicked off the series with a two–part post revisiting the Weimar constitution and its efforts to create a structure for worker participation in multiple levels of government, including in the firm.

Sam Moyn responded with notes of skepticism about Weimar. He posits that the global economy was so different from its current structure that old attempts at economic democracy may not have much to teach and he wonders whether the socialist left should be concerned about constitutions should it take power.

Álvaro Santos introduced skepticism by examining the history of the Mexican constitution, which Forbath also held up as an example worth revisiting. He points out that the constitution hardened into a regime of corrupt single-party rule, due in part to flaws in its initial design.

These initial posts so inspired certain readers of the blog that they’re typing responses even as we type this! So stay tuned for more discussion about the relationship between socialism and constitutionalism. And let us know if you want to join the conversation: managingeditor@lpeblog.org.

If you must go elsewhere in the internet, here are some of our suggestions:

Isabel Echarte: Given that we are seem to be in the early stages of what I hope will be a long and deep racial justice movement, I wanted to share from Bayard Rustin’s reflections on the Civil Rights Movement in 1965 where he asked “What is the value of winning access to public accommodations for those who lack money to use them?” He wrote: “It is institutions-social, political, and economic institutions—which are the ultimate molders of collective sentiments. Let these institutions be reconstructed today, and let the ineluctable gradualism of history govern the formation of a new psychology. . . . A handful of Negroes, acting alone, could integrate a lunch counter by strategically locating their bodies so as directly to interrupt the operation of the proprietor’s will; their numbers were relatively unimportant…. But in arriving at a political decision, numbers and organizations are crucial, especially for the economically disenfranchised.” His discussion is far deeper than that, but there were far too many great quotes for me to reproduce my favorites here. You’ll just have to check it out yourself!

And lastly, here’s a winter 2020 conversation between Jedediah Britton-Purdy and Aziz Rana in Dissent, where they discuss, among many subjects, how to build a “transformative majority” in the U.S. Rana argues the goal of revolutionary reforms or non-reformist reforms that the left wants to put in place “is to alter the basic distribution of power in society and make it harder for an unequal social order to reproduce itself. The point is not to offer a technocratic fix to markets or institutions, but to improvise something properly democratic from within the existing system. At a time of elite fracture and rule by what amounts to a wealthy and white national minority, I see no alternative.”

Sarang: This week, I felt like it was a good idea to return to the work of E.P. Thompson to make sense of the moral economy, fair market practices, the crowd, and the rule of law. Regarding the rule of law, I often like to return to the conclusion of Thompson’s Whigs and Hunters (for those who want a PDF of just this section, feel free to e-mail me at sarang.shah@berkeley.edu), a short history of the notorious Black Act in early 18th century England. Thompson’s conclusion to the book was a response to the wave of 1970s Neo-Marxists historians who would have perhaps objected to the presentation of law in his book  as more than the mere instrument of the powerful against the powerless to the foresters and villagers at the heart of Thompson’s story. Law matters, Thompson seeks to remind us. It is itself a site of social struggle, and a forum in which even the powerless sought to formulate what was owed to them and what was just, despite the fact that the law was seldom in their favor. I don’t totally agree with Thompson’s arguments in this section, but still believe that every law student disillusioned by a typical legal education ought to read it and engage with it critically.

I also revisited Thompson’s classic “The Moral Economy of the English Crowd in the Eighteenth Century.” In this essay, Thompson reveals how the term “food riot” obscures the complexities of the crowd’s vindication of justice in light of shortages and conceals the rich and dense tissue of relationships underpinning the local production of food and the workings of village marketplaces, the failings of which cause these uprisings.Apart from a first-glance relevance to recent uprisings against police violence, Thompson’s essay also helps us explore how the “free market” is indeed a construction, one that took years to displace a more stable, long-lasting networked system of just prices and fair market practices. Per Thompson, we should be asking, as did the pre-moderns did before Adam Smith, “What ought to be men’s reciprocal duties?” rather than saying “This is the way things work, or would work if the State did not interfere.” As we continue to devise what a just economy looks like in the coming years, I believe it is important to turn our attention to these reciprocal duties and allow our thinking to be ventilated and lit by the practices of the past.

Caroline Parker: In climate justice news…

On Wednesday, Minnesota AG Keith Ellison announced that the state is suing Exxon, Koch Industries, and the American Petroleum Institute (API) for  knowingly misleading the public about fossil fuels and climate change. While several localities have already pending public nuisance claims against Exxon, Minnesota’s approach, which relies on state consumer protection laws, is novel and exciting. (Amy Westervelt explains why)

Banks, insurers, and homebuyers are beginning to respond to the specter of climate change with respect to coastal real estate. This week, the NYT analyzed of how this behavior will affect the social institution of the American mortgage. While the Times article doesn’t address demographic disparities, Black communities are often hardest-hit by coastal flooding, especially in the South. Looking ahead to hurricane season, Rev. Lennox Yearwood of Hip Hop Caucus called this “the next disaster for Black communities.”  

On a related note, Stacy Abrams think tank has released a plan for decarbonization in the South, which lags behind other regions despite its geographic vulnerability to climate change. As Dharna Noor explains, “climate inaction in the South is due in large part to fossil fuel and utility companies’ stronghold on state politics.”

And on the child welfare front…

Paul Renfro reviews a new book by feminist historian Laura Briggs new book, which examines “child taking” throughout American history. Her book situates the Trump administration’s family separation as part of a long history of family dispossession in America that includes chattel slavery, coercive apprenticiship, and child welfare.

Anna Wherry: The Movement for Family Power released a report on the foster system’s complicity in the U.S. drug war. As the movement to defund and disestablish the police continues to grow and as we work toward racial justice, we must also consider how the “child welfare” system functions as an institution of racial oppression. The report does more than diagnose the problem; it also offers recommendations to each of the actors involved in child welfare–from the courts and attorneys to hospitals and service providers–and urges the federal government to repeal ASFA and take other radical legal and policy changes. 

On father’s day, The Boston Review published several pieces on the family. I particularly enjoyed Nara Milanich’s article on the rise of the rapid paternity test market, and this piece on what we owe fathers in prison and on policies that would support their efforts to continue parenting.

And finally, this interview with Aya Gruber on her new book that examines the role of women’s liberation in mass incarceration.

Luke Herrine: This week I’m recommending articles that…[gasp]…haven’t read yet! But my aspirations can be yours.

At AMRI Summer Academy this past week, Bill Novak shouted out this article from Dalia Tsuk Mitchell on the legacy of Berle and Means. When fellow AMRI attendee Kate Jackson (who has promised us a contribution!) mentioned that this same article was the reason she quit corporate legal practice to get a PhD, I knew I had to give it a look.

Raúl Carrillo published a characteristically thoughtful article on monetary sanctions and racial taxation in Ferguson beyond that speaks to the current moment. As always (from the first pages I’ve read!), Raúl mixes sophisticated understanding of monetary plumbing with a rich knowledge of America’s history of race- and class-based exploitation to reorient thinking on seemingly arcane subjects.

Benjamin Braun released an article on “asset-manager capitalism” that attempts to reorient current understandings of how control over the social provisioning process is currently exercised. Looks like foundational work for anybody interested in anything from antitrust to corporate law to financial law to, you know, the law and political economy. Its approach reminds me of this excellent paper from Samueul Knafo and Sahil Jai Dutta rethinking the “shareholder revolution” in corporate governance–both pushing the timeline back to include conglomeratization and focusing on political struggles over control of the firm.

Oh, and speaking of articles I have read: Charlie Eaton, who has done the most interesting work on the structure of university finances I’m aware of, has an (older) op-ed on how universities should be spending down endowments during the current crisis.

Angela P. Harris and Aysha Pamukcu – 

“We’re all in this together” has become a familiar call for strengthening our sense of community and social responsibility during the COVID-19 pandemic. Although this phrase can obscure deep social inequities, this recognition of our interdependence presents an opportunity to connect economic justice and public health. COVID-19 has instilled a new public understanding that our collective health and safety is contingent on the fate of the most marginalized and least prosperous among us.

Author Anand Giridharadas has asked, “Take note today of the people who come within infecting distance of you. Are you confident they all have access to the care they need to be healthy—and keep you healthy?” We could easily expand that question: how confident are we that those around us have paid sick leave, decent working conditions, and housing where they can safely quarantine?

But even if the US strengthened its economic policies and successfully “flattened the curve” overall, we wouldn’t make a dent in the shocking disparities in mortality rates that are appearing in our daily news feeds. COVID-19 may endanger us all, but it is far more costly to some than others.

In a forthcoming article in the UCLA Law Review, we — a critical race feminist and a health justice attorney — call for a campaign by public health advocates, civil rights lawyers, and frontline communities for “the civil rights of health.” (We wish to gratefully acknowledge that this article was written with the support of Changelab Solutions and the Robert Wood Johnson Foundation.) We argue that policy should take a “targeted universalism” approach – working to address universal and particular needs at the same time by promoting policies that help everyone while providing the greatest benefit to the most marginalized. Although we wrote this article before the COVID-19 outbreak, we think its principles are fully applicable to our current plight.

Well-established literature on the social determinants of health shows us that individual choices determine our health outcomes far less than we think. The civil rights of health begin with a recognition that the cause of unjust health disparities is, quite simply, subordination. Based on the research, we identify three broad and interacting pathways through which subordination is written on the body: population, place, and power. COVID-19 has taken all three pathways in its spread across the US, resulting in unjust and racialized health outcomes.

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