Transportation Justice: from Civil Rights to the Right to the City

Kafui Attoh-

In the year 2000, the writer Joan Wypijewski visited Montgomery, Alabama, to observe the 45th anniversary of the Montgomery bus boycott. Her findings were notable: “Montgomery’s transit system isn’t segregated anymore. It barely exists.”

As Wypijewski told readers, the 1990s had not been kind to transit. After two decades of local Republican leadership, and following the elimination of federal transit operating assistance in 1996, Montgomery’s transit system had become a shadow of its former self. In 1997, the situation reached its nadir when the city decided to scrap its fixed route bus service altogether, replacing it with a cost-saving dial-a-ride service called DART. DART provided door-to-door service to local residents upon request, but required that these residents schedule their trips 24 hours in advance. As Wypijewski reported, the system was hardly popular. Not only were there dropped appointments, longer commutes, and overworked drivers, but it marked the end of what had been a “‘family of riders,’ the easy culture of transfers and [a shared] culture of urban mobility”. When Wypijewski published her exposé in 2000, Montgomery’s new Democratic leadership was already in the process of re-establishing a fixed route bus service. Even with change on the horizon, Wypijewski’s larger argument remained an important one. Here we might quote her directly:

“Today’s system is a spawn of the New South, which is not so much new or distinctly southern as it is an accommodation to the all-American way of racism—bigotry muffled for the sake of business, white privilege wrapped in the language of investment. As elsewhere across the country, whites in Montgomery abandoned the urban center and its services. With budgets shrinking, neglect of city schools, hospitals and transit could proceed as a ‘cost benefits decision.’”
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Killing Antitrust Softly (Through Procedure)

Sandeep Vaheesan – 

The Supreme Court has waged a multi-decade war on private rights of action. It has subverted the rights of consumers, workers, small businesses, and others to hold corporations accountable for wrongdoing through lawsuits. The Federal Arbitration Act (FAA) has been a preferred tool of the Court. Since the 1980s, it has reinvented this modest statute, converting the FAA into a quasi-constitutional sledgehammer for corporations to wield against private lawsuits, especially class actions. And the evisceration of private enforcement of law goes beyond arbitration. The Court has rewritten class certification, pleading, and summary judgment standards to help businesses ward off private lawsuits and accountability.

On top of these general procedural hurdles, the Supreme Court has imposed special burdens on parties seeking to vindicate their rights under the federal antitrust laws. Congress enacted an expansive private remedy originally in the Sherman Act and subsequently in the Clayton Act. Section 4 of the Clayton Act grants “any person” injured by an antitrust violation the right to recover treble damages and legal fees from the violator. Since the 1970s, however, the Supreme Court has effectively rewritten this text. While once recognizing that Section 4 “is comprehensive in its terms and coverage, protecting all who are made victims of the forbidden practices by whomever they may be perpetrated[,]” the Court has severely restricted who can enforce the antitrust laws. Two doctrines deserve special consideration. First, the Court held that, in general, only parties who purchased a good or service directly from the antitrust violator can obtain damages for overcharges. Second, it created the amorphous “antitrust injury” doctrine and granted the lower courts the power to dismiss disfavored substantive claims on supposedly procedural bases.

These procedural changes raise the age-old question: what good is substantive law if it cannot be enforced? The described procedural changes have not affected the substantive law (though the courts have done that too in certain areas) but it has prevented some of the most motivated parties from enforcing the law. Consumers and businesses injured by antitrust violations have long been the lead enforcers of the antitrust laws. Their role is only accentuated by the Department of Justice and Federal Trade Commission’s unwillingness to enforce multiple areas of antitrust law. This combination of judicial hostility to private cases and bureaucratic lethargy has turned much of the substantive law into a dead letter.

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Radical Skepticism About Information Fiduciaries

NB: This post is part of the “Skepticism About Information Fiduciaries” symposium. Other contributions can be found here.

Tamara Piety – 

fbookI was delighted to read Lina M. Khan and David E. Pozen’s recent article, A Skeptical View of Information Fiduciaries describing the reasons to be skeptical of the “information fiduciary” concept as a promising one for solving the problems posed by giant companies like Facebook. As Khan and Pozen point out, its proponents are a bit fuzzy about the details of how to reconcile these for-profit companies’ existing duties to shareholders, with some kind of fiduciary duty to users. The users’ attention is what these companies are selling. Khan and Pozen are skeptical that such a fundamental conflict can be resolved and I agree.

I only have a couple of additional points:

(1) Before looking to import the concept of a “fiduciary” to this new application, we might ask how well that concept has worked, as a means to check anti-social behavior, in the areas in which it has traditionally applied. If that area is corporate law where officers and directors are said to have fiduciary duties to the corporation and its shareholders, the answer is “Not very well.” It does not seem to have deterred much corporate misconduct.

(2) Although Khan and Pozen rightly observe that Facebook does more than sell passive viewers to its advertisers, it uses the data it collects from those users to construct or identify vulnerabilities that go far beyond the information asymmetry as it conventionally is understood in the fiduciary concept, in their discussion of the problems that the information fiduciary concept is meant to solve, they note (18-19) that many of these problems are already “proscribed by existing consumer protection laws,” they may not be confronting the degree to which Balkin, et al. may be attempting to offer alternative rationales for that existing consumer protection law given that it is no longer resting on as firm a foundation as in the past. However, the Supreme Court has been increasingly hostile to the government’s attempt to regulate any speech at all and increasingly willing to use the First Amendment as a weapon of deregulation. As Khan and Pozen note, to the extent that other arguments for special status or duties as a way to end run the Court’s more aggressive, the Supreme Court has not signaled much receptiveness to this approach.

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Financial Regulation and Social Reproduction

Financial Regulation and Social Reproduction

NB: This post is part of the “Piercing the Monetary Veil” symposium. Other contributions can be found here.

Donatella Alessandrini —

Even amongst critical scholars, there is a tendency to treat international regulation of money and finance as “strictly economic”, distinct from the “social” domains of labor, the environment, and socio-economic rights. This conceptual separation cedes the realm of finance to the “neutral” neoliberal technocracy while occluding interrelationships between finance, production, and social reproduction. Placing social reproduction at the center of our analysis forces us to overcome these false dichotomies and confront finance’s role in the shaping of the “social”.

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Piercing the Monetary Veil

Piercing the Monetary Veil

NB: This post is part of the “Piercing the Monetary Veil” symposium. Other contributions can be found here.

Luke Herrine —

This blog has already hosted several examples of re-thinkings of the nature of money and its relationship to law and power, most recently in a symposium on LPE Contributor Mehrsa Baradaran’s book on money and Black capitalism. This may seem like a niche project that those without an interest in finance can afford to ignore or leave to others. But that would be to ignore a fundamental principle: cash rules everything around us. Especially in capitalist societies, power is channeled through money and vice versa.

And justifications of power rely on mystification about money. If anything can be called the core of the neoliberal project it is the proposition that cash should rule us. Hayek’s foundational argument, after all, is that allocation via the price mechanism is the essence self governance. Making all resources and activities interchangeable with money enables each person to pursue her own version of the good life in a way that interferes with others’ only as much as they consent to while simultaneously directing resources towards their most valuable use (see here for instance). Payment of money is how we each individually express how much we value different resources and how much of others’ interference we are willing to bear. Price is the aggregation of those individual valuations. Money thus serves as the common currency that enables us to commensurate our processes of valuation without deliberating and without forcing anything on anybody else.

But that’s not how money works. Treating money as a neutral arbiter of values that the legal system can simply take for granted is a classic example of “transcendental nonsense“. As with any form of such nonsense, explaining why requires a careful analysis of how law structures money, tracing who has the power to shape that law, and exploring the dialectic relationship between the law, money, and the markets they coordinate. A small but growing group of scholars has been undertaking this task. Many of these scholars have begun to converge in a new international network called the Law and Money Initiative. An overlapping group will also be launching a new site at just-money.org.

Over the next two weeks, we will host a symposium on how close attention to the role of money in law and political economy changes one’s analysis of a whole range of areas of society, with a particular focus on how the legal infrastructure of money shapes areas of non-financial law. The idea is to open up conversations about how power shapes law to conversations about how money and law shape each other, and vice versa.

Join us!

Luke Herrine is a PhD Student at Yale Law School.

Law and Politics in Employee Classification

Benjamin Sachs – 

As has been widely reported, the U.S. Department of Labor issued an “opinion letter” yesterday concluding that an unnamed “virtual marketplace company” does not employ the workers who make the company viable. Instead, the letter finds that these workers are independent contractors. The letter is flawed in multiple ways. As Sharon will explain, deciding a major issue of employment law – maybe the major contemporary issue of employment law – through an informal process that allows one party to present all the facts is decidedly inappropriate. There are also multiple substantive problems: as Charlotte pointed out, the letter considers relevant to the control inquiry the fact that this VMC’s workers can also work for other VMCs. I suppose the fact that Wal-Mart workers can also work for Target suggests that Wal-Mart workers are independent contractors of Wal-Mart. Generalizing, I suppose if low wage workers must rely on multiple jobs to make ends meet this should incline decisionmakers to conclude that those workers are all independent contractors.

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Institutions of the Solidarity Economy

Geoff Gilbert –

In my first post, I introduced the framework for solidarity economy political economy power that grassroots social justice movements are building around the world and in the US. This post will elaborate how solidarity economies actually work.

Democratic Land

Community land trusts (CLTs) facilitate community ownership and control of land, and land banks allow communities to democratically redistribute land. Movement groups are hard at work building CLTs and land banks, which, when combined with broader changes to property rights associated with land, like the creation of a land value sales tax, help us imagine the beginnings of a land system designed for human use, as opposed to the status quo design for financial profit.

Community land trusts are nonprofit corporations that: 1) enter into covenants to not sell land for a specified period of time, typically up to 99 years; and 2) are controlled by boards comprised of members who use or live near land. By covenanting to not sell the land for a long period of time, CLTs tie the cost of using the land to the cost of purchasing and maintaining the land and the structures it contains, and thereby divorce the cost of using the land from the ever-increasing market price of the land. Detaching the land from its market price can insulate land from the gentrifying forces – such as rising rents, rising property taxes and irresistible offers to individuals to sell land to the highest bidder – that are displacing working class people, and disproportionately people of color, in cities throughout the world. Democratic governance of the CLT by members who live on, use, and/ or live near the land facilitates democratic land use decision-making.

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The Solidarity Economy and Economic Democracy

Geoff Gilbert 

Even though humanity possesses the wealth necessary for every person to have everything they require in order to live with material freedom and dignity, current property regimes allow for 26 billionaires to own as much wealth as 3.8 billion people around the world while billions of people around the world, including in the US, live without access to food, water, adequate shelter and clothing, health care, education, transportation, the information and communication capacities made possible by digital technology, leisure time, and other aspects of material freedom and dignity. Many grassroots movements are trying to change this by imagining and building democratic political economy planning capacity throughsolidarity economy institutions premised on transforming the legal and institutional forms through which humans can coordinate to produce, exchange, and distribute, everything that we need in order to live.

Solidarity economies are rooted in direct democracy, community power, and local control of economic institutions. They include and build upon many of the ideas in the Movement for Black Lives’ ‘A Vision for Black Lives’ and the Black Youth project 100’s ‘Agenda to Build Black Futures.’ More specifically, solidarity economies are built around local and democratically controlled institutions that own and control land, labor, and money. Land banks allow communities to democratically (re)distribute land, and community land trusts facilitate community ownership and control of land. Cooperatives create democratic ownership and control of productive capital and workspaces. And public, city-owned banks can coordinate with one another to produce the money needed to finance production for human need. Movements around the world – the Zapatistas in Mexico; the municipalists in cities like Barcelona and Jackson, Mississippi; and the democratic confederalists of Rojava– are leading the way on building local solidarity economies that prioritize production for human need over profit.

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