Tag Archives: criminal law

The Movement for Black Lives Offers an Abolitionist Approach to Police Reform

January 23, 2018 By in racial capitalism Tags: , , , , , , 1 Comment

Amna Akbar – 

For several years, I have been thinking about the rise of racial justice movements that account for political economy—specifically, those with anti-capitalist commitments. I am thinking of the Movement for Black Lives, and aspects of the immigrant justice movement. These social movements mark the revival of anti-capitalist racial justice politics in the United States in a way that we have not seen since the civil rights, Black power, and Chicano movements of the 1960s and 1970s. As these movements continue to organize in the face of growing global inequality and right-wing populism, they offer another way forward.Black_Lives_Matter_logo.svg.png

To illustrate the creative potential of studying radical social movements, consider the question of policing. The Movement for Black Lives is the leading example of a contemporary racial justice movement with an analysis of political economy and a vision to transform the state. In my forthcoming article, Toward a Radical Imagination of Law, 93 N.Y.U. L. Rev. (forthcoming 2018), I consider policing through the lens of the Movement for Black Lives policy platform, “A Vision for Black Lives: Policy Demands for Black Power, Freedom, and Justice.”

I compare the Movement’s analysis with the Department of Justice’s (DOJ) Ferguson and Baltimore reports. The Vision and DOJ reports offer alternate conceptualizations of the problem of policing and the appropriate approach to law reform. The comparison offers a study in the difference between an abolitionist approach to police reform, and a more traditional one.

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California Bans the Box, Twice

January 19, 2018 By in cross post Tags: , , ,

Noah Zatz – 

A core LPE theme is the construction of markets through political choices institutionalized in law. Those choices create an economy structured by whatever matters politically, including race. My Bailey series has been developing this theme in connection to the criminal regulation of work, in particular the use of criminal punishment to compel work. The more familiar racialized criminal justice/labor interaction concerns how the state marks individuals with criminal records, which employers then use to deny work.

Over at OnLabor, I’ve got two new posts up on some of the more technical aspects of using employment discrimination law to counter criminal records exclusions. The first one flags a familiar rules vs. standards problem in deciding when criminal record screening is permissible. The second one explores what kinds of evidence appropriately demonstrate the disparate racial impact of criminal record exclusions. In both cases, my jumping off point is innovative new regulations issued under California’s state employment discrimination law.

At some point I will share some thoughts on how these coercive and exclusionary dynamics work together.

Is “the Market” the Enemy?: Racial Exploitation in Bailey v. Alabama

January 17, 2018 By in LPE 101, racial capitalism Tags: , , , , , 1 Comment

Noah Zatz –

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“In our current moment, anticapitalism and struggles against state violence and incarceration tend to be separate movements.” So wrote renowned historian Robin D.G. Kelley recently in a new preface to his classic book Hammer and Hoe, which examines the largely Black Communists of early-mid 20th century Alabama. Kelley’s protagonists, in contrast, saw struggles against economic inequality and exploitation and also against specifically racialized state violence as “inextricably bound together.” This same milieu produced the groundbreaking 1911 case of Bailey v. Alabama. There, the Supreme Court struck down under the Thirteenth Amendment Alabama’s use of criminal law to hold Black workers in peonage.

This post extends my prior treatment of Bailey. My focus here is on Bailey as a case study in “racial capitalism”, and I want to challenge specifically the common conflation of all things “economic” with the outcomes of “markets,” even markets understood in Legal Realist fashion to be structured by laws of property and contract. Like Kelley, I do this with one eye on the contemporary, and in particular on the separation between critiques of “precarious work” in today’s labor markets and those aimed at our racialized carceral state.

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State Power and the Construction of Contractual Freedom: Labor and Coercion in Bailey v. Alabama

November 24, 2017 By in Classic Cases, LPE 101 Tags: , , , , 2 Comments

Noah Zatz – 

If forced to choose, I might pick Bailey v. Alabama as my favorite contract law case. That is, if it even counts as one. Which is pretty much my point. Decided in 1911, Bailey is a criminal case – Lonzo Bailey was convicted for fraud.  It is also a constitutional case – the Supreme Court struck down the conviction as violating the Thirteenth Amendment’s prohibition of involuntary servitude. A labor case, too – the criminal statute specifically targeted workers who took advances on wages and then later quit before paying the debt. And a race case, though the Court denied it – Alabama’s “false pretenses” statute was one cog in the wheel of Jim Crow neoslavery. But yes, also a contracts case (in a libertarian’s casebook, no less!) because the Court used the case to erect a boundary between criminal and civil consequences for breach of contract.

This overflowing of conventional doctrinal boundaries makes Bailey the perfect vehicle to deliver key insights of a Law & Political Economy approach. So much so that I will do it over multiple posts.

In this first installment, Bailey punctures the ubiquitous conceit that there is or could be an autonomous sphere of economic life – “the free market” – that stands apart from politics, from contests over whether and when to authorize the coercive exercise of governmental power. That contrast between economic freedom and political power is ubiquitous, as in the language contrasting “private” law with government “intervention” in the market (via “public” law). This conceit renders unremarkable what might seem contradictory: a ubiquitous politics that abhors government regulation (of “the economy”) yet thirsts for a state that is “tough on crime.” Continue reading →