Teaching Penal Abolition

Amna Akbar –

In April, the New York Times ran a profile on abolitionist visionary and scholar Ruth Wilson Gilmore, and the Harvard Law Review published an entire issue on prison abolition. This fall, the University of Texas Law School Human Rights Center is hosting a conference on abolition. The new journalistic outlet The Appeal runs abolitionist pieces as a matter of course, and outlets like Rolling Stone, The Nation, and Jacobin have too. Podcasts like Chris Hayes’s Why Is This Happening, The Appeal’s Justice in America, and Beyond Prisons have featured probing conversations on abolition with leading organizer-intellectuals Rachel Herzing and Mariame Kaba. And behind it all is a growing movement of abolitionist organizing and campaigns, calling to defund and delegitimize police and prisons, shift resources towards the social wage, and build alternative methods to dealing with the pains and crises of capitalism, white supremacy, and patriarchy that prisons and police now deflect and exacerbate: Critical Resistance, BYP100No New Jails Seattle, Mijente, Survived and Punished, INCITE, and more.  

Like the movements abolitionist ideas emerge from and are circulating in, abolitionist praxis is shaping the urgency and discourse around criminal law reform. A primary difference between abolitionists and mainstream reformers is the end goal: Abolitionists work toward eliminating prisons and police, and building an alternate and varied set of political, economic, and social arrangements or institutions to respond to many of the social ills to which prison and police now respond. Importantly, abolitionists see their struggle as part of the unfinished work of transforming  the afterlives of slavery in economic, political, and social life.

Abolitionist thinking is central to contemporary debates over how to interpret the meaning of the criminal law and our criminal processes and enforcement mechanisms: it is literally part of the subject of “criminal law” today. We should teach it that way. More broadly law scholars teaching any course touching on criminal law and procedure, police and prisons, borders and border enforcement, should teach abolition. I have written before, including with Jocelyn Simonson, about how to teach criminal law differently, in this movement moment, and attune to the centrality of racialized and anti-black violence to our criminal legal system. Here, I share some notes and resources on teaching abolition. In my experience, teaching abolition requires study, but the study and teaching are more fruitful than I can say in this brief post. Teaching and learning abolition has deepened my study of the history of the United States and the unfinished social movements that define its shape, expanded my imagination of the future, and profoundly reshaped my sense of the work ahead. 

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In Defense of Grassroots-Powered Progressive Federalism

This piece is part of a collection on “progressive federalism,” which addresses the conditions under which American federalism advances and hinders the interests of democratic political movements. Other contributions can be found here. If you are interested in participating in the discussion, join us on Twitter at @lpeblog.

Annelise Orleck –

Over fifty years ago, Frances Fox Piven and Richard Cloward suggested that poor people’s movements take to the streets as their only lever for influencing public policy. But as the 1960s welfare rights movement they were advising soon showed, and as the modern living wage and labor movements have demonstrated, “progressive federalism” can enhance the power of poor and working people. Rather than serving as an obstacle to progressive change, the diffusion of power and resources across federal, state and local governments has allowed poor people’s movements to turn to federal authorities at times when local governments have been conservative and resistant and vice versa. Today, progressive federalism has allowed community-based organizations and poor people’s movements to expand the political class—making successful runs for elected office and pushing through local ordinances that become models for other city, state, and federal governments.

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Federalism is unlikely to save progressive politics

This piece is part of a collection on “progressive federalism,” which addresses the conditions under which American federalism advances and hinders the interests of democratic political movements. Other contributions can be found here. If you are interested in participating in the discussion, join us on Twitter at @lpeblog.

Lisa L. Miller–

Can federalism work for progressives? Since the election of Donald Trump, left-leaning scholars and political activists have increased their focus on state and local governments as potential venues for progressive policies. Legal scholars Heather Gerken and Joshua Revesz championed the use of federalism’s multi-layered venues as an opportunity for progressives to “resist Washington overreach, shape national policies, and force the Republicans to compromise.” Because state and local governments are often “led by dissenters and racial minorities,” they argue, progressives have little to fear from the old days when white supremacists used state and local governments to oppose civil rights. In their view, “This is not your father’s federalism.

The problem with this argument is that it lacks any account of power, that is, how the structure of American federalism shapes and channels political activities in ways that are more advantageous to some interests than to others. American federalism is not neutral. In fact, federalism’s many venues generally disadvantage groups with comprehensive, progressive policy aims for several reasons: first, federalism does not just create political opportunities but also limits them; second, state and local governments  are poorly situated to solve national problems; third, jurisdictional boundaries can be remade in ways that disadvantage progressives; and finally, contestation itself over which level of government should perform which activities harms progressive causes.

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The Tensions in Democracy: Interview with Astra Taylor

Astra Taylor is an independent writer, documentarian, activist, organizer, and musician. She recently completed a project on the concept of democracy, which produced both a movie–What is Democracy?–and a book–Democracy May Not Exist, but We’ll Miss it When It’s Gone. Both treat democracy as a paradoxical and tension-filled ideal that nevertheless must be fought for. Both have many insights that can help left lawyers as we think through the thorny questions that come with the institutionalization of equality and self-governance. Taylor shares some of them in this interview.

LPE: In a recent post for this blog, Samuel Bagg argues that democracy is best understood in terms of what it’s not, or rather, what it’s against. Do you agree? How do you think about arguing for the value of democracy without having an easily articulated concept of what it is? Is history more valuable than philosophy here?

I see democracy as a kind of moving target, something that we can never define definitively and close the case on. But I do think having a minimal definition helps, and I’m happy to start here: the people (demos) rule or hold power (kratos). The problem is that who the people are and how they rule is always open to debate.

Bagg’s approach reminds me of a scene in What Is Democracy? where I’m talking to the political theorist Wendy Brown and I tell her that I really wrestled with making democracy the theme of the film. And it’s true, initially I was open to the idea of jettisoning the word since it’s been so corrupted. But the more reading and thinking I did, the more my perspective shifted. I began to see democracy’s disorienting vagueness as a source of strength, in that the concept can always be contested and reimagined. Researching the book also just drove home the fact that elites have always hated democracy, even as they have attempted to co-opt and contain it—which means there must be something to it. Elites don’t care for democracy because it implies the leveling of hierarchy, including hierarchies of wealth. (Here, I’m also partial to Aristotle’s definition of democracy as rule of the poor, since the poor always outnumber the rich. In my view, even a very minimal definition has a material or class dimension.)

In any case, during the interview Wendy empathized with my plight. We keep coming back to democracy, she says, because the alternatives—or in Bagg’s terminology, all the things democracy is not—are worse. The alternatives to ruling ourselves are pretty unappealing: we could be a ruled by a tyrant, an aristocracy, an oligarchy, a technocracy, and so on. Which is why, as Wendy says, we keep coming back to the word democracy, to the idea of ruling ourselves.

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The New Trust Code

Allison Tait–

Legal scholars who care about how law creates wealth and power cannot afford to disregard the trust. As Katharina Pistor mentions in her recent book, The Code of Capital, the trust stands out as one of Anglo-American law’s “most ingenious modules for coding capital.” Trusts are a longstanding component of the “feudal calculus” that Pistor shows us is still “alive and kicking” in our financial regulation. Since their inception in the early eleventh-century in England, trusts have been essential instruments in the great and continuing quest to preserve and protect family wealth.

Trusts have always played a central role because they partition assets, thereby confusing the question of true ownership. That is to say, because trusts divide legal and equitable ownership, the real owner of the assets – the beneficiary – doesn’t have legal title to the assets and the legal owner – the trustee – doesn’t have any real rights to the property. In this way, trusts magically code their managed wealth as obscure and unavailable, without a true owner who can be held accountable for debts and obligations. As Roger Cotterrell pointed out some thirty years ago, “[t]he trust provides a way of freeing the property owner from constraints which the ideology of property otherwise imposes on her or him through its logic.” Accordingly, trusts have helped high-wealth families avoid unwanted taxation, shelter assets from surviving spouses, circumvent all manner of creditors, and protect family fortunes from spendthrift children.

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Privacy Legislation, not Common Law Duties

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

Harold Feld–

The United States has the distinction among developed nations of lacking a comprehensive consumer privacy protection law. To fill this gap, Professor Jack Balkin proposes the creation of a new class of common law fiduciaries subject to a heightened duty of care when entrusted with a party’s personal information. In addition to providing an answer to possible First Amendment problems that could arise from limiting the ability of businesses to collect personal information and use the collected information for targeted advertising, Balkin argues that courts may expand traditional fiduciary duties to this new class of “information fiduciaries” in the accordance with traditional common law principles. This would overcome the current failure of Congress and nearly all state legislatures to address the increasingly urgent problem of personal privacy in the digital economy.

Balkin’s information fiduciary proposal, while attractive in addressing some businesses that rely on collection of personal information for targeted advertising, does not do nearly enough to protect personal privacy given the unavoidable size of our information footprint. Further, an examination of existing First Amendment case law shows no clear advantage for identification of a new common law fiduciary relationship over privacy legislation. Finally, the recent passage of the California Consumer Privacy Act (CCPA) has galvanized interest in passing comprehensive privacy legislation both on a federal level and among the other states – whereas no court has yet to identify an “information fiduciary” under the common law.

The value of Balkin’s fiduciary framework, I argue, resides not in providing an enforceable legal relationship but providing a framework for privacy legislation. The existing frameworks – the Privacy Principles adopted by the Organization for Economic Co-operation and Development (OECD) in 1980 which rely heavily on notice and consent and the property framework introduced by Louis Brandies in “The Right To Privacy” (both of which I discuss in this privacy white paper) – have significant limitations. Balkin’s proposed fiduciary framework provides a model for legislation that recognizes that the nature of the relationship between information collectors and aggregators requires imposing additional duties and restrictions to adequately protect consumers, while still enabling commerce and facilitating competition.

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To Reimagine Intervention Strategies: The Political Economy of Domestic Violence

Deborah Weissman

In recent years, mainstream anti-domestic violence programs have moved away from a fixation on the criminal justice system to undertake economic justice initiatives designed to “respond to, address, and prevent financial abuse” related to domestic violence.  The shift reflects the growing realization that strategies of remedy through the penal state have tended to fracture the domestic violence movement and marginalize disenfranchised populations, particularly poor communities and communities of color.  As programs have endeavored to refocus their efforts, advocates have properly identified consumer credit as a critical issue to address, as credit problems are a frequent, if underappreciated, effect of domestic violence. Indeed, as consumer debt has become a way of life, credit problems affect a victim’s chances of purchasing or renting a home, obtaining utilities, finding affordable car and home insurance rates, and accessing employment opportunities. The solution to these economic challenges lies within the realm of political economy. An LPE approach would conceptualize how current political and economic arrangements affect victims—as well as abusive partners—and thereby to assess justice strategies in relation to structural capitalist economic modalities.

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The Uber/Lyft Drivers’ Association, Unionization, and Labor Law Reform

N.B.: Sharon Block and Benjamin Sachs posted a response to Part II of Veena Dubal’s pieces (here’s Part I) comparing solidarity unionism with company unions. In the spirit of debate, we’re cross-posting from On Labor. 

Sharon Block and Benjamin Sachs –

In her second post on the Uber/Lyft drivers’ association, Veena Dubal rightly celebrates the success of the recent Uber/Lyft work stoppages.  The example of workers, who have no labor or employment law rights, engaging in the kind of collective action that she describes is inspirational.  Dubal also raises some important criticisms of the IDG, criticisms we take very seriously.

As Dubal recognizes, however, none of the actions by Uber and Lyft drivers have yielded collective bargaining rights, yet. So the question is what is the best path forward toward the securing of those rights. We agree with Dubal that winning union status and collective bargaining power at Uber and Lyft will depend critically on the continuation of the kind of solidarity actions that Dubal describes. But, in our view, a fundamental reshaping of labor law (at the state or federal level) will also be necessary. Unfortunately, even if an “uncompromised” version of California AB 5 passes, that won’t get us there.  Although that bill would constitute enormous progress, it would not on its own equip Uber and Lyft drivers to organize and bargain collectively.

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Innovation for Who? Reclaiming Public Purpose in the Urban Transportation Pilot

Arielle Fleisher and Chris Chou

Hidden beneath the buzz about how technology is transforming urban transit is a quiet revolution in the way that cities approach the management of their streets. In the face of rapid change, cities and transit agencies are increasingly relying on pilot programs to manage the introduction of new modes of transportation and new uses of the right of way. Pilot approaches have spread through all regions of the country and are utilized by cities of all sizes and for numerous applications including dockless bike share, autonomous buses, micro-transit, delivery robots, and smart streetlights.

It’s important to appreciate how the pilot approach departs from how cities typically regulate and manage urban transportation problems. The public sector often makes slow decisions and avoids risks. But that stability can be a disadvantage if it ossifies and can’t accommodate changes to the system. Without compromising cities’ ability to use public funding, exercise regulatory authority, and pursue the public’s interest, pilots provide cities and transit agencies with flexibility. They give cities a safe space to try new approaches while managing the potential chaos of new technologies.

Yet pilots today are too often centered around technology alone. Continue reading

Riding the Bus to a Green New Deal

Riding the Bus to a Green New Deal

Richard A. Marcantonio –

In a recent video, “A Message From the Future,” Rep. Alexandria Ocasio-Cortez’s voiceover imagines a time when climate collapse has been averted. Now a seasoned member of Congress, she rides the bullet train to the Capitol. It’s a whimsical opening to a compelling narration. But it raises two important questions: first, will the Green New Deal (GND) come all at once? And second, will it come riding high-speed rail or the lowly city bus?

The two questions, it turns out, are connected.

Ocasio-Cortez’s Green New Deal resolution is structured around five goals: (A) carbon neutrality and a just transition, (B) creation of millions of good-paying jobs, (C) investment in sustainable infrastructure, (D) achievement of a healthy and sustainable environment, and (E) “stopping current, preventing future, and repairing historic oppression” of “frontline and vulnerable communities.” 

The first thing to say about the logic of these goals is that every dollar of massive new public investment spent under a GND policy framework, whether at the federal level or at smaller geographic scales, would deliver public infrastructure or services, while simultaneously creating good-paying jobs, cutting carbon pollution, and addressing historic oppression of “frontline and vulnerable communities.” (I’ve written separately about the significance of the resolution’s definition of “frontline and vulnerable communities,” and a framework for addressing their historic oppression in the context of a GND).

These principles should apply to local investment as much as to federal funding. Indeed, the GND resolution should be understood not only as a comprehensive federal program, but more immediately as a policy template that working people, through struggle, can strive to apply to any large source of funding. 

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