New Article: Reconstructing Class Analysis

New Article: Yochai Benkler & Talha Syed, Reconstructing Class Analysis, 4 J. L. & Pol. Econ. 731 (2024). Abstract below:

This article offers a reconceptualization of class-in-capitalism and its articulation with racialization and gender that builds on critical strands of Marxian thought and integrates insights from Black radical and feminist socialist traditions. Rather than a transhistorical materialist conception of class simpliciter, we develop a historically-specific conception of class embedded within an analysis of capitalist social relations. The result is an account of class based not on the appropriation of a “material surplus,” but on asymmetrical social relations in the division of labor and disposition of its fruits. Developing this conception along three key axes of asymmetries—property, production, and personhood—we show how the dynamics propelled by capitalist social relations are co-constitutive with those of racialization, while both the privatization of reproduction and gender-based super-exploitation are systemic features of these dynamics. We emphasize law’s role in the history of these relations, and end with implications of our analysis for their transformation.

New Article: Survival Labor

New Article: Yvette Butler, Survival Labor, 112 Calif. L. Rev. 403 (2024). Abstract below:

This Article makes one simple, novel claim: crime is labor when it generates income, allows individuals to pursue self-sufficiency, or allows them to fulfill societal expectations of providing for or caring for dependents. When individuals engage in survival crimes, instead of seeing them as criminals, we should see them as workers engaged in survival labor.

The carceral system continues to disproportionately harm racial minorities and people living in poverty. The foundations of many laws regulating and policing racialized bodies have created a culture where Blackness, in particular, is equivalent to criminality. While a penal abolitionist framework is helpful in getting rid of the harmful criminal and civil consequences of criminal penalties, a labor framework shifts the narrative in a way required to transform the perception of crime to one of labor. This shift is particularly important given the renewed attention to penal abolitionist logic and conservative and libertarian attempts to resurrect greater protection for economic liberty through the “right to earn a living.”

In what will become a series of several pieces, this first Article proposes a narrative shift that allows us to critique and reimagine our conceptions of work. People engaged in survival crimes are often subject to the criticism that they should pursue “real work.” After reading this Article, I hope the legal community will question the continued criminalization of poverty, reconsider our understanding of work, and invest in this transformative project to protect the victims of state-sponsored oppression.

New Article: Community Responsive Public Defense

New Article: Alexis Hoag-Fordjour, Community Responsive Public Defense, forthcoming Fordham L. Rev. (SSRN Mar. 2024). Abstract below:

This colloquium Essay surfaces the work of four innovative indigent defense organizations that are engaged with and duty-bound to the communities they represent. I call this “community responsive public defense,” which is a distinct model of indigent defense whereby public defenders look to their clients and their clients’ communities to help shape advocacy, strategy, and representation. Embracing the theme of this colloquium, this Essay situates community responsive defense within the context of increased public awareness of criminal injustice and collective action against mass incarceration.

Methodologically, this Essay relies on qualitative interviews with leaders of four indigent defense organizations engaged in community responsive advocacy. These leaders represent different types of indigent defense organizations: Still She Rises Tulsa (SSRT), a privately funded nonprofit that offers indigent defense and related services to women who are mothers in North Tulsa; the Nashville Metropolitan Public Defender’s Office (Nashville Defenders), a publicly funded government agency that provides defense services to indigent people in Davidson County, Tennessee; the Black Public Defender Association (BPDA), a membership-based organization that seeks to improve the quality of indigent defense through maintaining a network of community-engaged Black public defenders; and the Neighborhood Defender Service of Detroit (NDS Detroit), a publicly funded nonprofit that secured a contract to deliver defense services to indigent people in Wayne County, Michigan.

All indigent defense providers have a duty to work with and on behalf of the communities in which they are situated. These efforts are not ancillary to individual client representation, but rather, integral to effective advocacy and critical to shrinking the carceral system and its impact on marginalized people.

New Article: Do Rural Places Matter?

Hopefully a fun photo related to the article: Your Blog Editor as a boy on an Iowa farm (his dad was a pig farmer in West Branch, his mom drove school buses at the time).

New Article: Stephen Clowney, Do Rural Places Matter?, Conn. L. Rev. (SSRN Mar. 2024). Abstract below:

Rural communities are at a crossroads. On one hand, small towns continue to receive robust support from the federal government. Congress sends billions of dollars in agricultural supports, homeownership subsidies, and infrastructure spending to rural places every year. Yet, despite ongoing federal investment, conditions in rural America have deteriorated. Economic growth, educational opportunities, and health outcomes in rural places all lag behind the rest of the country.

What has gone wrong? Why do rural communities continue to lose ground despite such significant outlays from Congress? This Article begins by highlighting one previously unexamined fault in the ongoing efforts to revitalize rural America; Proponents of rural communities—in both think tanks and government agencies—have rarely been forced to enumerate the benefits that the countryside provides. Defenders of small towns simply assume that saving rural places is worthwhile. But why? The lack of clarity matters. Rural people are suffering, at least in part, because policymakers do not have a clear view of why small towns are important or how they can compete with cities.

The bulk of this Article unpacks the confusion about the value of rural communities. It compiles the first systematic inventory of arguments in favor of ongoing government support of the countryside. There are at least six plausible reasons that rural communities matter. Rural places: (1) grow the nation’s food, (2) produce most of its energy, (3) guard a distinctive cultural inheritance, (4) protect the environment, (5) supply popular recreational amenities and, (6) suffer unique harms from federal policies. This Article assesses each of these defenses and then suggests a new framework for rural policymaking. Going forward, decisionmakers in Congress should abandon the current emphasis on agricultural subsidies and instead focus on the metagovernance of programs that aid rural regions. More specifically, the federal government should set goals for rural development but then turn resources and decisionmaking authority over to the states.

New Book: “Fair Shake: Women and the Fight to Build a Just Economy”

New Book: Naomi Cahn, June Carbone and Nancy Levit, Fair Shake: Women and the Fight to Build a Just Economy (2024). Overview below:

A stirring, comprehensive look at the state of women in the workforce—why women’s progress has stalled, how our economy fosters unproductive competition, and how we can fix the system that holds women back.

In an era of supposed great equality, women are still falling behind in the workplace. Even with more women in the workforce than in decades past, wage gaps continue to increase. It is the most educated women who have fallen the furthest behind. Blue-collar women hold the most insecure and badly paid jobs in our economy. And even as we celebrate high-profile representation—women on the board of Fortune 500 companies and our first female vice president—women have limited recourse when they experience harassment and discrimination.

Fair Shake: Women and the Fight to Build a Just Economy explains that the system that governs our economy—a winner-take-all economy—is the root cause of these myriad problems. The WTA economy self-selects for aggressive, cutthroat business tactics, which creates a feedback loop that sidelines women. The authors, three legal scholars, call this feedback loop “the triple bind”: if women don’t compete on the same terms as men, they lose; if women do compete on the same terms as men, they’re punished more harshly for their sharp elbows or actual misdeeds; and when women see that they can’t win on the same terms as men, they take themselves out of the game (if they haven’t been pushed out already). With odds like these stacked against them, it’s no wonder women feel like, no matter how hard they work, they can’t get ahead.

Fair Shake is not a “fix the woman” book; it’s a “fix the system” book. It not only diagnoses the problem of what’s wrong with the modern economy, but shows how, with awareness and collective action, we can build a truly just economy for all.

New Article: Re-Placing Property

New Article: Jessica A. Shoemaker, Re-Placing Property, 91 U. Chi. L. Rev. 811 (2024). Abstract below:

This Article analyzes the complex relationship between property and placemaking. Our most basic property and land tenure choices—including the design of the fee simple itself—shape people-place relations in powerful ways. By unearthing this important relationship between property and placemaking, this Article also reveals how pervasive—but unorganized—claims about place and place attachment already are across a range of modern land conflicts. Because property theory has not been fully transparent about many of these placemaking effects, our property choices often result in outcomes that are unequal, inconsistent, and opaque, prioritizing some existing place relations while ignoring or rejecting others. By building a more comprehensive placemaking account—with examples from Indigenous pipeline protestors to the absent and now-urban heirs of family farms and the emergence of new build-to-rent suburban housing divisions—this Article introduces a new taxonomy for evaluating the relative protection we afford to various place and place-attachment claims. This new framework separates the individual, collective, and ecological benefits of positive place relations from the risks of either overprotected place attachments (as in the case of hereditary land dynasties and exclusionary wealth) or land ownership without any attachment at all (as in the transformation of land and housing into asset classes for commodification and financialized capture).

This clearer focus on placemaking also puts property law—and land tenure—at the center of core social, economic, and climate challenges, including growing institutional and foreign investment in U.S. farmland (as rural landscapes depopulate and agriculture becomes even more industrialized) and private equity’s increasing appetite for single-family housing (as the United States’ glaring wealth gap continues to expand). It also forces us to confront property’s ongoing role in the dispossession of groups, cultures, and communities that are not (or are no longer) recognized as legal owners and our repeated failure to accommodate the access needs of individuals not born into hereditary land or wealth. Weaving together both rural and urban case studies, this Article ultimately offers novel entry points to some of property’s perennial problems, including pervasive distributional inequities, while providing new language and a fresh lens for reimagining more just and sustainable property relations for our rapidly changing world. In a final series of property-based personal stories, the article centers new forms of access rights—including some public rights over private properties—as instrumental to reconnecting and collectively reimagining the kinds of places we want to make together.

Call-for-Papers: “Poverty Law V: Building Connections”

Call-for-Papers: Poverty Law V: Building Connections.  [PDF of call here: poverty-law-cfp-2024]
Indiana University Maurer School of Law; Bloomington, Indiana; September 12-13, 2024

We are pleased to announce a call for papers for “Poverty Law: Building Connections” to be hosted by Indiana University Maurer School of Law on September 12-13, 2024. This conference is meant to be a gathering, similar to previous poverty law conferences, for all those whose work focuses on poverty, disadvantaged populations,
and inequality. Many of the sessions will include paper presentations, but we will also
have roundtable discussions. Depending on interest, the conference may conclude either the evening of the 13th or the morning of the 14th. There are three main lines to the conference:

1. Building Connections Across Regions, Disciplines, and Domains
2. Teaching Poverty Law
3. Topics in Poverty (subject matter not limited in any way)

View the proposal submission form here.
The submission deadline is June 15, 2023. Please contact Andrew Hammond or Ezra Rosser with any questions at andhamm@iu.edu and erosser@wcl.american.edu. Please note there is a $100 conference registration fee and presenters are responsible for their own travel expenses. We look forward to seeing you in September!

Andrew Hammond
andhamm@iu.edu
Ezra Rosser
erosser@wcl.american.edu

NOTE: This is a rescheduled conference because we did not realize when we were working on the prior dates that the line of total eclipse passed right through the law school, which drove hotel rates sky high (so to speak). Another such eclipse is not supposed to happen during this rescheduled conference, so we hope you can join us!

Blog Post: How Nonprofit Hospitals Deny Financial Assistance to Patients

Blog Post: Luke Messac, How Nonprofit Hospitals Deny Financial Assistance to Patients, LPE Blog, 4/2/2024.

New Book: Escaping the Housing Trap: The Strong Towns Response to the Housing Crisis

New Book: Charles Marohn & Daniel Herriges, Escaping the Housing Trap: The Strong Towns Response to the Housing Crisis (2024). Overview below:

Housing is an investment. Investment prices must go up. Housing is shelter. When the price of shelter goes up, people experience distress.

This is the housing trap. It’s time to escape. In Escaping the Housing Trap: The Strong Towns Solution to the Housing Crisis, renowned urbanists Charles (Chuck) Marohn and Daniel Herriges introduce a first-of-its-kind discussion of the tension between housing as a financial product and housing as shelter. This is the key insight that’s been missing from the Housing Crisis Conversation; and the insight that can help cities fight back against the crisis from the bottom-up.

This book offers a serious, yet accessible, history of housing policy in the United States and explains how it led us to this point in time: where we face a market that is rigged against people who, only a few decades ago, could have been homeowners or stable, long-term rentals.

Only local change, on a neighborhood or city-wide scale, can begin to restore balance to the housing market.

New Article: “Let Us All Agree to Die a Little”: TWAIL’s Unfulfilled Promise

New Article: Naz Khatoon Modirzadeh, “Let Us All Agree to Die a Little”: TWAIL’s Unfulfilled Promise, 65 Harv. Int’l L.J. 79 (2023). Abstract below:

Third World Approaches to International Law (“TWAIL”) has aspirations to transform the tools and institutions of international law—which have served for centuries to construct, enact, and extend Western exploitation and domination—into tools and institutions for Global South empowerment, agency, and freedom. Characterizing itself as an intellectual and political movement, TWAIL promises to pave a path forward through a combination of scholarship and politics to achieve radical change. In this Article, I argue that TWAIL’s promise is unfulfilled—and that, if TWAIL’s current trajectory continues, its promise is likely to be unfulfillable. I first sketch TWAIL’s origin and key successes, including bringing awareness to the colonial roots and neo-imperial present of international law. Yet I contend that TWAIL’s diverse critical insights have not led to cohesive conceptual, doctrinal, or political positions, which would serve as tools to empower Global South-based actors. I propose that this is, at least partly, due to TWAIL’s ambivalence toward the Third World state, its absence of a theory of legitimate political violence in international law, its failure to identify a methodology of representing the ‘voices’ of the Global South, and the growing influence of an academic ethos I call ‘critique-as-wellness.’ For those motivated by TWAIL’s ambitions, I suggest three possible directions to take: the construction of a grassroots-centered campaign in the service of Global South peoples; the formation of a movement focused on empowering Global South states; or a coalition originating from the Global North aimed at reshaping Western attitudes and actions toward the Global South.