New Article: K. Sabeel Rahman, Constructing Citizenship: Exclusion and Inclusion Through the Governance of Basic Necessities, Columbia L. Rev. Vol. 119, Forthcoming (2018). Abstract below:
While income inequality has become an increasingly central focal point for public policy debate and public law scholarship, systemic inequality and exclusion are produced not just by disparities in income but rather by more hidden and pernicious background rules that systematically disadvantage and subordinate constituencies. This paper focuses on a particularly crucial — and often underappreciated — site for the construction and contestation of systemic inequality and exclusion: the provision of, and terms of access to, basic necessities like water, housing, or healthcare. We can think of these necessities as “public goods” in a broader moral and political sense: these are foundational goods and services that make other forms of social, economic, or political activity possible, and thus carry a greater moral and political importance. This paper argues that the way in which we administer these essential public goods represents one of the major ways in which law and public policy constructs systemic forms of inequality and exclusion. Conversely, the paper also argues that promoting equality and inclusion requires a more inclusionary approach to the administration of these public goods.
In Part I the paper develops the central theoretical argument that the provision of and access to basic necessities constitutes a central vector for structural inequality and exclusion — and more broadly, for the moral ideals of inclusion, equality, and citizenship itself. The importance of these public goods makes communities subordinate and vulnerable to those actors that can exert control over these goods. This normative critique parallels historical efforts to secure greater economic and social citizenship in part by contesting the power of actors that control infrastructure, from the Progressive Era fights over public utilities to civil rights battles over public accommodations. Part II then identifies three specific patterns of structural exclusion produced through the maladministration of these public goods: bureaucratic exclusion, fragmentation, and privatization. These three strategies are more subtle than direct denial of access; they represent a kind of “second-order” exclusion operating through background rules of governance and administration. Part III then imagines what a more inclusionary governance regime built to prevent these more subtle forms of exclusion would look like. Here the paper identifies three particular strategies for inclusionary administration of public goods: expanded enforcement authority; greater governmental accountability; and direct public provision.
Finally, Part IV of the paper links this exploration of structural inequality, exclusion, and public goods to broader debates in public law scholarship. First, this focus on public goods represents an important application and extension of the recently renewed interest in inequality and “constitutional political economy,” suggesting a concrete legal and institutional context in which the normative ideas and historical narratives developed in this literature can have purchase. Second, the focus on public goods also provides greater weight and context to current debates over the “deconstruction” of administrative agencies, particularly in context of economic inequality and racial and gender exclusion.
Posted in Access to Justice, Articles, Consumption / Consumer Protection, Criminalization of Poverty, deserving/undeserving, Development (and Law), Health, housing, Inequality, Legal Academia, Measuring Poverty, Socio-Economic Rights
New Article: Hanoch Dagan, Why Markets? Welfare, Autonomy, and the Just Society, Michigan Law Review, Forthcoming (2018). Abstract below:
Eric Posner & Glen Weyl’s “Radical Markets: Uprooting Capitalism and Democracy for A Just Society” is an enormously ambitious new book, one that challenges conventional wisdom and advances bold reform programs. They argue that the causes of most pitfalls of existing markets and political systems are, respectively, property and the principle of one person one vote. The former is the ultimate basis of illegitimate market power; the latter distorts politics by obscuring the intensity of people’s preferences. Posner & Weyl argue that uprooting private property and reconstructing electoral systems so that they register these intensities would revitalize the vision of the Philosophical Radicals by pushing the ideal of the market to its logical institutional conclusions.
This Book Review celebrates many of Posner and Weyl’s innovative ideas. It also concurs with their insistence that our challenging moment requires rethinking and may justify radical reconstruction of both the market’s rules of the game and its jurisdiction based on the market’s ultimate normative foundation. Posner and Weyl, however, also subscribe to a welfarist foundation and investigate some implications of taking it seriously: the creation of a radical labor market, which eliminates people’s authority to withhold their services, and a fully monetized electoral system. This Review criticizes both these implications and the welfarist foundation that motivates them. Taken to its logical extension, I argue, welfarist foundationalism threatens our endowments, citizenship, and, ultimately, our agency. I do not deny that devising measures that would further extend the ways markets facilitate people’s preference satisfaction and their welfare is a worthy endeavor. But because people’s autonomy — and not the satisfaction of their preferences or their welfare — is the ultimate value of all the major institutions of a well-ordered society, these measures cannot be acceptable if they subvert people’s self-determination.
Moreover, getting to the root of the matter, as Posner and Weyl invite us to do, requires us to appreciate the ways in which markets are conducive to people’s autonomy and redesign them accordingly. Radicalizing markets along these lines indeed implies, as Posner and Weyl claim, creating true competitive, open, and free markets. But unlike the ideal markets advocated in “Radical Markets”, the configuration of these markets starts with freedom (as autonomy) and thus inclusion, rather than with competitiveness. A proper view of the market, therefore, needs to be both careful not to facilitate autonomy-reducing transactions and mindful of the necessary role of non-market mechanisms in securing the minimal social and economic conditions required for the market to properly comply with its autonomy-enhancing telos.
New Article: Anthony Victor Alfieri, Inner-City Anti Poverty Campaigns, UCLA L. Rev. 64 (2017), University of Miami Legal Studies Research Paper No. 17-16. Abstract below:
This Article offers a defense of outsider, legal-political intervention and community triage in inner-city anti-poverty campaigns under circumstances of widespread urban social disorganization, public and private sector neglect, and nonprofit resource scarcity. In mounting this defense, the Article revisits the roles of lawyers, nonprofit legal services organizations, and university-housed law school clinics in contemporary anti-poverty, civil rights, and social justice movements, in part by chronicling the emergence of a faith-based municipal equity movement in Miami, Florida. The Article proceeds in four parts. Part I introduces the notion of community triage as a means of addressing the impoverished and segregated aftermath of urban development in a cluster of postindustrial inner cities. Part II examines the First Wave of antipoverty campaigns launched by pioneering legal services and public interest lawyers and their evolving community triage models. Part III surveys the Second Wave of anti-poverty campaigns pressed by more client- and community-centered legal services and public interest lawyers and their alternative community triage paradigms. Part IV appraises the Third Wave of anti-poverty campaigns kindled by a new generation of legal services and public interest lawyers and their site-specific community triage approaches in the fields of community economic development, environmental justice, low-wage labor, immigration, and municipal equity in order to discern legal-political lessons of inner-city advocacy and organizing. Taken together, the four parts forge a larger legal-political vision imagined and reimagined daily by a new generation of social movement activists and scholars — a renewed vision of theory-driven, clinical practice tied to empirical research and experiential reflection about law and lawyers in action.
New Article: Shelley Cavalieri, Back to the Basics: Lessons from U.S. Property Law for Land Reform, Denver Law Review, Vol. 95:1, 2017. Abstract below:
Redistributive land reform programs are a central development approach in nations of the global south. For proponents of land reform, land redistribution is an obvious strategy, designed to reduce hunger and poverty, to bolster citizens’ ability to support themselves and their families, and to shape the future of burgeoning democracies worldwide. But for land reform skeptics and opponents, land reform is something of a puzzle. While states routinely redistribute money, the choice to distribute land seems somewhat peculiar. On its face, it is not obvious why land is worthy of a separate, strange approach, when this is not how nations consider the allocation of many other crucial non-monetary resources. To invest money in reducing the concentration of land by purchasing from some in order to give or sell land to others seems far more complex than simply redistributing financial resources. Yet those who think about property know that land is different—land is unique and culturally important. It therefore warrants specific consideration as nations contemplate how to create the good society.
Essential theoretical insights about property should form the foundation of land reform efforts, but these too often go unstated, leaving land reform efforts’ theoretical underpinnings unexplored. This Article serves to fill this gap, grounding market-compatible land reform in property’s animating principles. The Article considers five different sources of lessons that property theorists can teach those implementing land reform. First, it observes that land is unique and therefore worthy of special treatment as a social good due to its rivalrous and nonfungible character. Second, it argues that land reform must recognize the shifting nature of land as a contextual, contingent resource that bears separate meanings in different communities, social classes, and nations. Third, it recognizes that land reformers must understand the role of land in constituting individual identity and personhood. Fourth, the Article examines the historical role of land in constructing social status and creating wealth. Fifth, the Article considers how land constitutes citizenship, both by shaping the individual and the relationship of the individual to the nation. The Article then makes two key arguments about how these lessons are useful in the context of land reform. First, the Article argues that these property lessons can explain why redistributive land reform matters. Second, the Article leverages these property lessons to make land reform more effective. The Article concludes by observing that these lessons about land will fundamentally alter the way land reform is undertaken, contributing essential knowledge to those eager to enact redistributive land reform initiatives.
New Book: From Extraction to Emancipation: Development Reimagined (Raquel Aldana & Steven W. Bender eds., 2018). Overview below:
With a distinguished and diverse group of contributors, this edited volume uses Guatemala as a case study to examine broad global themes arising from development practices in emerging economies. It offers important lessons to investors and policy makers on strategies to improve distributional justice and respect for the rule of law, including human rights and environmental norms. The book examines global themes such as climate change, extractive industries, labor regimes, and forced migration, all of which have transborder implications and across-border commonalities. Moving beyond identifying problems, the contributors focus on creative solutions to help developing nations and corporations engage in more sustainable business practices.
New Article: Martha F. Davis & Natasha Ryan, Inconvenient Human Rights: Water and Sanitation in Sweden’s Informal Roma Settlements, Health and Human Rights Journal, Vol. 19, No. 2, pp. 61-72 (2017). Abstract below:
Following an increase in Roma migration under the European “freedom of movement” laws, Swedish municipalities initiated more than 80 evictions of informal Roma settlements on the grounds of poor sanitation between 2013 and 2016. These evictions echo policies from earlier in the 20th century, when Roma living in Sweden were often marginalized through the denial of access to water and sanitation facilities. The recent Swedish evictions also follow similar government actions across Europe, where Roma settlements are controlled through the denial of access to water and sanitation. However, access to water and sanitation — central aspects of human health — are universal human rights that must be available to all people present in a jurisdiction, regardless of their legal status. The evictions described here violated Sweden’s obligations under both European and international human rights law. More positive government responses are required, such as providing shelters or camping sites, setting up temporary facilities, and directly engaging with communities to address water and sanitation issues. The authors conclude by providing guidance on how states and municipalities can meet their human rights obligations with respect to water and sanitation for vulnerable Roma individuals and informal settlements in their communities.
David Singh Grewal and Jedediah Purdy, Law & Neoliberalism, Law and Political Economy, November 6, 2017. [What does Neoliberalism really mean?]
Allison Arief, Designing a More Inclusive City, New York Times, October, 20, 2017. [“City Center Plaza, like so many urban plazas everywhere, gives the appearance of public space while simultaneously restricting access to it.”]
Article: Bethany Y. Li, Now is the Time: Challenging Resegregation and Displacement in the Age of Hypergentrification, 85 Fordham L. Rev. 1189 (2016).
Gentrification is reaching a tipping point of resegregating urban space in global cities like New York and San Francisco, often spurred by seemingly neutral government policies. The displacement resulting from gentrification forces low-income people from their homes into areas of concentrated poverty. Low-income communities consequently lose space, place, social capital, and cultural wealth that residents and small businesses have spent decades building up. This Article argues that communities at this tipping point must integrate litigation strategies directly aimed at stemming the adverse impacts of gentrification. Community organizing is integral to antidisplacement efforts, but litigation—and its injunctive powers—should play a larger role in protecting residents in hypergentrified neighborhoods. Using a rezoning that spurred gentrification in New York City’s Chinatown and Lower East Side as a case study, this Article considers how the Fair Housing Act, state constitutions, and a new vision of property law could counter the negative and often racially discriminatory effects of gentrification on low-income communities.
Sandra G. Mayson, Dangerous Defendants, University of Pennsylvania Law School, Public Law Research Paper No. 16-30 (2016).
Bail reform is underway — but it is proceeding on shaky ground. The reform model, which deploys actuarial risk assessment to identify “high-risk” defendants, assumes that the state has the prerogative to detain or control dangerous defendants. This assumption is not new. But it is anomalous. In general, we do not permit the state to restrain sane, responsible adults solely to stop them from committing hypothetical future crimes, even those who are high-risk. The reform movement’s focus on danger thus crystallizes a fundamental question about pretrial policy: What justifies the state in restraining defendants for dangerousness before trial if we would prohibit the same restraint for equally dangerous members of the public? Although there is an extensive literature on preventive detention, neither the Supreme Court nor prior scholarship has focused on this comparative question. This Article endeavors to answer it. It makes the first effort to articulate and evaluate potential justifications for subjecting defendants to restraint that we would forbid for non-defendants who pose an equal risk. The Article explores doctrinal, deontological and instrumentalist justifications, but ultimately rejects them. It contends that pretrial restraint for dangerousness can only be justified at the risk threshold where we would authorize equivalent restraint of a member of the population at large. Communities, policymakers and courts should therefore determine what they believe this threshold to be, then ensure that pretrial risk assessment and management are tailored to it.