Looking Beyond the Law: The Movement for LGBTQ Rights at Work

Tomorrow, the Supreme Court will hear oral argument on the question of whether Title VII’s prohibition on sex discrimination includes sexual orientation and gender identity discrimination. LPE Blog is hosting contributions from scholars that detail the history of sex discrimination protections and address how law should redress gender hierarchies and disparities in economic power. Find all the posts in the series here.

Katherine Turk –

LGBTQ workers have never turned solely to the law to define or protect their rights. In years when many feminists and workers of color were narrowing their focus to pursuing individual advancement under antidiscrimination provisions like Title VII, LGBTQ workers articulated a new kind of right: to be fully oneself at work. They argued that sexuality and gender were irrelevant to job performance, as the older “homophile” gay rights movement had claimed. But they also denied that anyone could—or should—shed a piece of their identity at the office, factory, or schoolhouse door. Realizing this right, they argued, required altering the nature of work itself, This was a transformative vision that demanded change beyond the limited jurisdiction of the Supreme Court. However the Supreme Court rules on LGBTQ rights at work, today’s movements for workplace justice should not pin their hopes on the technical adjudication of the antidiscrimination principle. As activists demonstrated in the 1970s, sweeping reforms are possible — even in the absence of legal victories — with creative tactics that pressure employers directly.

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Democratizing Administrative Governance: How the Civil Rights Movement Shaped Medicare’s Implementation

This post is part of our symposium on democratizing administrative law. You can find all the posts in the series here.

David Barton Smith –

In January 1966, the Johnson administration faced a regulatory battle between a risk-averse federal executive branch and the demands of a grassroots social movement.  Starting on July 1, 1966, federal Medicare funds would begin to account for more than 25% of the revenue of the nation’s 6,000 private acute care hospitals. Medicare would serve as the first real test of Title VI of the 1964 Civil Rights Act, which banned the allocation of any federal funds to entities that discriminated on the basis of race. The success of Title VI would depend on forging a strong relationship between officials administering the program and the civil rights movement. The change that ultimately resulted from this collaboration offers a concrete example of how democratic movements can leverage grassroots pressure, public enforcement and government spending power to transform sectors of the economy.

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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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Social Movements in the Struggle for Redistribution

NB: This post is part of an ongoing series on LPE & Social Movements. For the framing pieces, see here and here

Aziza Ahmed – 

social-movementsIn their recent and compelling contribution to the LPE blog, Amna Akbar, Sameer Ashar, and Jocelyn Simonson push us to consider how a left political agenda ought to be crafted. They aim to give specific content to Jedediah’s Purdy’s observation that the Constitution’s core principles have been interpreted to entrench current power structures, thus undermining progressive efforts at redistribution. And, they seek to provide a path for those who agree when Sam Moyn claims that it is not courts but legislatures that will help realize a progressive vision. But how? The answer, they argue lies in turning to social movements. A left legal agenda must, they argue, “be grounded in solidarities with social movement and left organizations, largely outside of formal legal and elite academic spaces.”

The idea that social movements should be central to progressive agendas is appealing, I respond with two questions that aim push this discussion further. First, it is important to explicitly consider what constitutes a social movement – which voices rise to the top, who sets the agenda, and who garners resources? These questions emerge from my own work on legal reform efforts by feminist social movements where the question of who can speak for women, how left legal activism ought to take shape, and what redistributive goals should take priority over others has splintered feminist organizations and has had material consequences, often negative, on the lives of very girls and women they purport to support. Second, and relatedly, legal realism teaches us that law exists in the foreground and background to shape our capacity to bargain, strategize, and organize. I wonder how lawyers and legal strategy constitute the redistributive imagination of left organizations?

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Coming of Age at the End of History

NB: This post is part of an ongoing series on LPE & Social Movements. For the framing pieces, see here and here

John Whitlow – 

social-movementsIn 1989, in the midst of the collapse of the Soviet Union and just before the fall of the Berlin Wall, Francis Fukuyama argued, famously, that we had reached “the End of History.’ Echoing Margaret Thatcher’s dictum that ‘there is no alternative’ to neoliberal capitalism, Fukuyama averred that the triad of free markets, liberal democracy, and consumerist culture had become universal, enveloping the planet so thoroughly as to flatten historical time. There would be no more revolutionary upheaval, no more transformative social change. An ever-expanding capitalism, governed by some variant of representative democracy, was the only game in town, and it was here to stay.

I was fifteen when Fukuyama penned “The End of History,” and – as much as I am loathe to admit it – I am a child of neoliberalism. I was born at the end of 1974, just as New York City entered its fateful descent into fiscal crisis. I grew up in Baltimore during the Reagan years, a witness to the ways in which racial capitalism eviscerated the city’s black and white working class, leaving many of my friends and their families adrift in an economy and a place that had been structurally abandoned. All the while, I was indoctrinated into a public policy common sense of austerity, privatization, and an expanding carceral state; as well as a hollowed-out notion of citizenship in which our subjectivities are constructed primarily through individual-entrepreneurial, rather than solidaristic-democratic, terms.

Looking back, I am struck by how much of this I’ve imbibed, how much it has ordered what I’ve regarded as accepted knowledge, even as I’ve attempted to resist it. For most of my adult life, I’ve been a poverty lawyer/movement lawyer/community lawyer (the terminological distinctions matter, but not so much for the purposes of this essay), and, at times (especially recently) I have found myself questioning how I’ve gone about my work. Of course I knew that the pronouncements of Fukuyama and Thatcher were bankrupt – that they were the product of a politicized theology – but to what extent have my own political, intellectual, and professional horizons been limited by an unwitting, silent acceptance of that same theology?

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Movement Visions for a Renewed Left Legalism

Amna Akbar, Sameer Ashar, and Jocelyn Simonson –

In this moment of crisis for the rule of law, a number of thinkers on the left have prescribed new strategies for progressives to shift reigning ideas about constitutionalism and the law. Jedediah Purdy, for example, has argued that part of the answer is to “reclaim the Constitution” by articulating visions of how constitutional rules can promote true democracy. In Purdy’s view, strengthening voting rights and the rights of non-citizens, promoting economic citizenship, and reforming the criminal legal system should be central to a left vision of the Constitution. He argues these substantive ideas pose a challenge to the status quo distribution of power, resources, and life chances. Eyeing a different branch of government, Samuel Moyn has urged progressives to resist the “juristocracy” and to shift our vision for change away from the courts and towards legislators at all levels. Moyn bases his analysis on the idea that in the short term, legislatures will be more likely than Trump-appointed judges to enact laws that reduce inequality.

Purdy and Moyn generate important insights for left lawyers and social justice activists. But neither identifies where we should look for the substance of left legalist vision, or the process by which we should derive one. How is it that we, as progressives, should generate and evaluate the desired ends of constitutional doctrine or legislative change? Addressing this question is essential for a renewed left legalism of the sort this blog and its community hope to provoke.

As we suggested in our prior piece, we believe a left political agenda must be grounded in solidarities with social movement and left organizations, largely outside of formal legal and elite academic spaces. (Willie Forbath, too, recently gestured on this blog at the relationship between social movements, labor, and left legalism.) The prevailing underlying presumption of much legal discourse is that the formulation and interpretation of legal doctrine requires specialized expertise. Past waves of left legalist critique, such as Critical Legal Studies, reflected this traditionally elitist approach to law by remaining confined within elite institutions and purveyed by law professors, sometimes in impenetrable language. Like Purdy and Moyn, we care deeply about democratic engagement, but we believe that the institutional choice between courts and legislatures misses the bigger picture: that a new left legalism should be derived from social movements fighting for justice on the ground.

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Movement Visions for a Renewed Left Politics

Amna Akbar, Sameer Ashar, and Jocelyn Simonson – 

sunriseWhen members of the Sunrise Movement confronted Senator Dianne Feinstein ten days ago, they demonstrated the renewed vitality of an old force in democratic politics: organized young people bringing bold new visions to complex social problems. In the video, we see the power of movement participants to transform how we think and dream. In times of peril and possibility, radical visions—where the scale of the vision matches the scale of the problems we face—can capture our imagination and change what we think is possible.  In this way, social movements galvanize a different kind of force in politics, one of hope and collective action rather than cynicism and alienation.  

Left social movements are both a fount of creative law-making and a means by which to hold politicians to account. From the lunch counter sit-ins of the Civil Rights Movement to the Black Panther Party’s and Young Lord Party’s Ten and Thirteen Point Programs, activists have a long history of altering our sense of what is possible, as Aziz Rana recently laid out on this blog. When we pay attention to collective forms of struggle, as Kate Andrias argues, we see how power-shifting and law-making happen from the ground up.

As Bob Hockett recently explained, the Green New Deal is the product of the Sunrise Movement’s recognition that economic injustice and environmental disaster are existential threats to our well-being. By linking issues that are typically seen in policy-making spaces as distinct, the Green New Deal reckons with the clash between human needs and capitalism’s rapacious hunger for land, labor, and resources. Rather than shrink in the face of an immense set of challenges, the Green New Deal rises. It places the transformation of our social, economic, and political order into the realm of possibility.

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Moving Environmental Politics Out of the Courts

Alyssa Battistoni— 

On the campaign trail in 2016, Donald Trump took aim at Barack Obama’s signature climate change policy, the Clean Power Plan, as a “job-killing regulation.” Trump vowed to tackle regulations “on Day One.” By March 2017, he had signed an executive order directing EPA head Scott Pruitt to review the policy.

But even before Trump was elected, over half the states in the country joined oil and gas companies in suing to overturn the Clean Power Plan in 2016, accusing the EPA of “regulatory overreach.” Now that Trump is trying to roll back the CPP, a group of seventeen different states is suing the EPA to stop it from delaying implementation of the plan. The courts may save the Obama policy yet. But the ongoing litigation battles illustrate how court-centric environmental politics have become, and the limits of legal strategies in achieving political victories.

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

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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