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 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.

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.

New Article: Fostering First-Generation Student Success in Law School

New Article: Lisa R. Pruitt & Nirav Bhardwaj, Fostering First-Generation Student Success in Law School, 75 Alabama Law Review 741 (2024). Abstract below:

This Article was written for the Alabama Law Review’s 2022-2023 symposium, “Our History, Our Future,” which marked the 150th anniversary of the University of Alabama Law School and the 50th anniversary of the institution’s first Black graduates. Authors for this symposium issue were invited to explore who is being excluded from legal education. We use this opportunity to address how law schools can better support first-generation (“first-gen”) students, typically defined as those for whom neither parent has a bachelor’s degree.

What we call the first-gen project is especially salient given the Supreme Court’s 2023 ruling in Students for Fair Admissions vs. Harvard, which held unconstitutional the use of race as a basis for affirmative action in higher education admissions. The first-gen category provides an alternative basis for assisting many students of color, as well as socioeconomically disadvantaged white students. Indeed, we see first-gen programs as opportunities to foster viewpoint diversity, while also bridging the growing cultural and ideological divides polarizing our nation. The opportunities stem from the fact that first-gen programs bring together ethnically and racially diverse students on the basis of their shared class status. The programs may thus foster cross racial coalition building as first-gen students see what they have in common.

This Article surveys first-gen programming in U.S. law schools, the broad goal of which is to retain students and help them to thrive, thereby increasing their educational and career achievement. We link this goal to extensive research on the growing challenge of upward mobility. In addition, we synthesize research by dozens of scholars from a range of disciplines who have studied first-gen students, and we do so with a view to identifying interventions that help students succeed. We also summarize what quantitative data collected by the Law School Survey of Student Engagement (LSSSE) and the National Association of Law Placement (NALP) reveal about the first-gen student population in U.S. law schools.

Lastly, we offer insights from a seminar Pruitt teaches at UC Davis. The course, created for first-gen students, draws on both scholarly literature and memoir to explore the first-gen experience. The seminar provides a space for students to surface and tell their own first-gen stories, drawing on those narratives as sources of empowerment. We reveal some of the challenges, pitfalls, and successes of this curricular offering in the context of an institution highly focused on race and racial disadvantage. We also discuss other curricular offerings that could foster a sense of belonging—and success—for first-gen law students.

New Article: Constitutional Clash: Labor, Capital, and Democracy

New Article: Kate Andrias, Constitutional Clash: Labor, Capital, and Democracy, Northwestern University Law Review, Vol. 118, No. 4, 2024. Abstract below:

In the last few years, workers have engaged in organizing and strike activity at levels not seen in decades; state and local legislators have enacted innovative workplace and social welfare legislation; and the National Labor Relations Board has advanced ambitious new interpretations of its governing statute. Viewed collectively, these efforts—“labor’s” efforts for short—seek not only to redefine the contours of labor law. They also present an incipient challenge to our constitutional order. If realized, labor’s vision would extend democratic values, including freedom of speech and association, into the putatively private domain of the workplace. It would also support the Constitution’s promise of free labor; guarantee social and economic rights to workers; expand who qualifies as an equal member of the demos; and forge a more democratic governance structure, with less power for the judiciary and more democratic control over the political economy. The potential threat has not escaped the notice of capital. Business is responding with reinvigorated arguments about the First Amendment, the Takings Clause, due process, equal protection, nondelegation, and the Dormant Commerce Clause, as well as appeals to common law concepts of managerial control and property rights.

By examining labor’s efforts and business’s response, this Article shows that contemporary fights about labor are also inherently fights about constitutional law—about the rights to which citizens and residents are entitled, about governmental powers and structure, and ultimately about how we constitute ourselves as a nation. The Article also offers lessons for how to engage in nonjuriscentric constitutionalism; highlights the importance of advancing an affirmative constitutional agenda; and, from the range of labor’s efforts, outlines a coherent substantive alternative to both business’s constitution and the post-New Deal constitutional compromise that has, in many ways, failed to guarantee a democratic and egalitarian political economy.

New Article: Law for the Rich

New Article: Alex Raskolnikov, Law for the Rich, Minnesota Law Review, Vol. 109, 2024. Abstract below:

With top incomes and wealth reaching historic highs, scholars and politicians have proposed new taxes and novel legal rules aimed at reversing the emergence of the new Gilded Age. Yet while new taxes target the rich directly by imposing greater burdens only on those with incomes or wealth above multi-million-dollar thresholds, none of the proposed legal reforms do anything of the sort. There appears to be no interest in changing property law, corporate law, antitrust law, or labor law, among others, to have special, more burdensome rules applicable only to the rich. This Essay asks: Why not? Why shy away from a separate law for the rich if one supports both progressive taxation and distributionally-informed legal rules in general?

This puzzle, it turns out, is surprisingly difficult to solve. Neither political philosophy nor economic analysis nor practical design considerations offer a plausible answer. Looking for clues outside of legal theory suggests that a separate law for the rich would be widely viewed as unfair because it imposes burdens that are obvious, highly concentrated, and possibly contrary to one of the fundamental elements of law itself. Redistribution through legal rules, it turns out, is limited in a way that redistribution through the tax law is not. So the answer to the emergence of the new Gilded Age is the same today as it was when the original Gilded Age arrived over a century ago—higher taxes.

New Article: Redefining Public Benefits

New Article: Naomi Cahn & June Carbone, Redefining Public Benefits, Rutgers University Law Review, Forthcoming. Abstract below:

This Article considers the interaction between marriage, households, and public welfare-type benefits. In light of constant cultural and media attention to “the two-parent privilege,” the article argues that the very purpose of public benefits in the modern era is up for redefinition.

The information age, much like the industrial revolution before it, has remade the preconditions for entry into the middle class and contributed to new middle-class family strategies geared to the changing labor market realities. This new era, which has increased income instability and employment insecurity, has increased economic inequality and eroded what were once secure pathways into middle-class status. This changing economy requires rethinking the purpose of public benefits and. a reexamination of the fairness and utility of tying benefits to employment or marriage. This requires reconceiving the State role from one that fills in the gaps left by private jobs’ creation and relationships to one that extends access to the preconditions for middle-class status.

This Article makes three contributions. First, it shows that marriage takes on a very different meaning in the new economy. Second, the article challenges recent exhortations to marry as a way to improve children’s futures, ensure economic stability, and increase overall happiness. Finally, the Article asks how, in the context of a post-industrial economy with constantly shifting employment needs, to assist in making the preconditions universal instead of asking how to fill in the gaps of, or supplement, a private system that no longer reliably provides lifelong employment for a large part of the population. In this venture, marriage becomes largely irrelevant to benefit design.
Part I surveys the design of the public benefits associated with relationship status as a precondition for middle-class status. Part II analyzes who actually receives the different types of marriage-based benefits. While, as Windsor pointed out, a number of federal statutes use marital status as a category, that status is not always a benefit, particularly for people who do not have a job. Part III explores why marriage remains resonant—and for whom. Finally, Part IV sketches out what a redesign of the public system might look like, analyzing how relationship status might be irrelevant to the availability of benefits.