New Op-Ed: Bryce Covert, The Deep, Uniquely American Roots of Our Affordable-Housing Crisis, The Nation, May 24, 2018.
New Op-Ed: Bryce Covert, The Deep, Uniquely American Roots of Our Affordable-Housing Crisis, The Nation, May 24, 2018.
New Book: Eric A. Posner & E. Glen Weyl, Radical Markets, Uprooting Capitalism and Democracy for a Just Society (2018). Overview below:
Revolutionary ideas on how to use markets to bring about fairness and prosperity for all
Many blame today’s economic inequality, stagnation, and political instability on the free market. The solution is to rein in the market, right? Radical Markets turns this thinking–and pretty much all conventional thinking about markets, both for and against—on its head. The book reveals bold new ways to organize markets for the good of everyone. It shows how the emancipatory force of genuinely open, free, and competitive markets can reawaken the dormant nineteenth-century spirit of liberal reform and lead to greater equality, prosperity, and cooperation.
Eric Posner and Glen Weyl demonstrate why private property is inherently monopolistic, and how we would all be better off if private ownership were converted into a public auction for public benefit. They show how the principle of one person, one vote inhibits democracy, suggesting instead an ingenious way for voters to effectively influence the issues that matter most to them. They argue that every citizen of a host country should benefit from immigration—not just migrants and their capitalist employers. They propose leveraging antitrust laws to liberate markets from the grip of institutional investors and creating a data labor movement to force digital monopolies to compensate people for their electronic data.
Only by radically expanding the scope of markets can we reduce inequality, restore robust economic growth, and resolve political conflicts. But to do that, we must replace our most sacred institutions with truly free and open competition—Radical Markets shows how.
News Coverage: Nina Totenberg, Supreme Court Decision Delivers Blow To Workers’ Rights, NPR, May 21, 2018.
New Article: Derek W. Black, The Constitutional Compromise to Guarantee Education, 70 Stan. L. Rev. 735 (2018). Abstract below:
Although the U.S. Supreme Court refused to recognize education as a fundamental right in San Antonio Independent School District v. Rodriguez, the Court in several other cases has emphasized the possibility that the Constitution might afford some protection for education. New litigation is attempting to fill that void. This litigation comes at a perfect time. Segregation, poverty, and achievement gaps are all rising, while state courts and federal agencies have recently retreated from enforcing educational equity.
New litigation, however, has yet to offer a theory of why the Constitution should protect students’ educational rights, relying instead on the fact that the Court has consistently emphasized the importance of education. Prompting a significant doctrinal shift to protect education will require more than laudatory dicta. It will require a compelling affirmative constitutional theory.
This Article offers that theory. It demonstrates that the Framers of the Fourteenth Amendment specifically intended to guarantee education as a right of state citizenship. This simple concept was obscured by the unusually complex ratification of the Amendment. First, the Amendment required the assent of Confederate states that were no longer part of the Union. Second, Congress expressly indicated that it would not readmit those states to the Union until they ratified the Fourteenth Amendment and rewrote their state constitutions. Third, education was part of the deal: Congress permitted states to retain discretion over education but expected state constitutions to affirmatively guarantee education.
Through this process, education became an implicit right of the Fourteenth Amendment’s Citizenship Clause. As a right of state citizenship and consistent with historical practices and goals, this Article argues that the Fourteenth Amendment prohibits states from partisan and other illegitimate manipulations of educational opportunity.
New Article: Danieli Evans, Socioeconomic Status Discrimination, forthcoming Virginia L. Rev. (2018). SSRN March 2018. Abstract below:
Poor people encounter illegitimate prejudice and discrimination in employment, housing, education, and all other areas where discrimination laws apply. This is a significant problem because it causes self-fulfilling cycles of poverty. Despite this, discrimination laws in the United States do not protect socioeconomic status (SES). To date, courts and scholars have largely dismissed the idea. They reason that the poor are not a social group in the same sense as other protected groups; that discrimination against the poor is usually ‘rational’ and therefore legitimate; and that prohibiting SES discrimination would be impractical, as it would implicate far too many policies.
This Article is the first sustained argument for protecting SES under the major discrimination statutes that cover public accommodations, programs receiving federal funds (including most state public school systems, transportation and environmental protection agencies), employment, housing, voting, and credit/lending. I show that the common objections to protecting the poor do not hold up to careful scrutiny. I draw from history, sociology, social psychology, and political science to demonstrate that the poor share all the characteristics that qualify a group for protection: They are a distinct social group; they have endured a long history of social prejudice; poverty is oftentimes irrelevant to capability; they face widespread, irrational discrimination; and they are politically powerless. Hence, the principles motivating discrimination law apply to protecting SES.
On top of this, there are two additional policy arguments for protecting SES: First, it would address the intersection between race and poverty in a way current law does not. Second, many policies that have been challenged in race-based disparate impact claims (e.g., voter ID laws and zoning restrictions on low income housing) adversely impact all poor people. In cases like this, framing the claim in terms of SES might broaden support for the law, and it would avoid the constitutional objections to race-based disparate impact law.
I describe how laws protecting SES could be practically administered. In so doing, I rebut the notion that protecting SES would be impractical. I show that laws protecting SES would be no more difficult to administer than laws prohibiting age discrimination and racial disparate impacts.
New Book Chapter: Mark Tushnet, The Inadequacy of Judicial Enforcement of Constitutional Rights Provisions to Rectify Economic Inequality, and the Inevitability of the Attempt, SSRN 2018. Abstract below:
This essay, to appear in a chapter in Judicial Review: Process, Power and Problems, edited by Shruti Bedi and Lokendra Malik, a festschrift for Upendra Baxi, argues that the pursuit of judicially enforced social welfare and equality rights in the modern world is bound to fail but must be pursued. The contemporary picture of judicial enforcement of social welfare rights in one in which there is a consensus that such enforcement is possible, general agreement that enforcement should be dialogic rather than coercive, and a sense that enforcement is rather less effective than is desirable. As to the last, the essay argues that the predicate for generating resources to finance the provision of social welfare rights – investment from abroad – generates economic and legal limitations that inhibit the government from accumulating those resources. The essay develops a parallel argument about judicial enforcement of substantive equality rights, referring specifically to problems associated with the horizontal effect/state action doctrine. The conclusion here is that courts have the capacity to move outcomes in the direction of substantive equality, and might not face overwhelming constraints from the domestic political system, but their ability to achieve true substantive equality is limited by economics, both domestic and international.
Yet, where constitutions are committed to substantive equality and social and economic rights, the lesson of the twentieth century is that judges will – and should – attempt to enforce those commitments. Enforcing the constitution – the entire constitution – is what democratic-minded citizens have come to expect of their courts. What is needed is a realistic understanding of what courts can accomplish – less than one might hope (the noble dream), but more than nothing (the nightmare). The attempt more than the achievement is what matters. The task then might be to develop a judicial rhetoric associated with the enforcement of these rights that effectively communicates why what the courts are doing is worth doing, why what they are doing is not enough, and why it is as much as the courts can do.
New Article: Kate Andrias, The Fortification of Inequality: Constitutional Doctrine and the Political Economy, forthcoming Indiana L.J. (SSRN 2018). Abstract below:
Judge-made constitutional doctrine, though by no means the primary cause of rising inequality, has played an important role in reinforcing and exacerbating it. This Symposium Essay examines judges’ role with particular focus on the areas of labor and education. It shows that judges have acquiesced to legislatively structured economic inequality, while also restricting the ability of legislatures to remedy it. Moreover, for several decades, even the Supreme Court’s more liberal members have offered only tepid opposition to economically regressive constitutional interpretations, sometimes helping shape them. Yet, while much constitutional law relating to the distribution of economic and political power and the nonexistence of social welfare rights now seems indisputable, sometimes even quintessentially American, regressive holdings were once hotly contested and deeply divided. Indeed, the losing side had equally strong, if not stronger, doctrinal arguments.
These descriptive observations, in turn, form the basis for three claims about the future of constitutional law. First, judges matter. Progressives ought not lose sight of their importance. Although strong arguments counsel against turning to courts as primary agents for social and economic change, courts are critical in constructing the political economy. Second, for those who object to economic inequality, mere resistance to the Trump agenda and efforts to return to the constitutional status quo ante are not enough. In particular, the liberal embrace of judicial minimalism has contributed to the fortification of economic inequality; a fundamental shift is needed. Third, such change is plausible, not utopian. Particularly if Americans begin to challenge inequality in the political and social realm, constitutional change in the courts will become not only imperative but also achievable.
New Book: Peter Gabel, The Desire for Mutual Recognition (Routledge 2018). Overview below:
The Desire for Mutual Recognition is a work of accessible social theory that seeks to make visible the desire for authentic social connection, emanating from our social nature, that animates all human relationships.
Using a social-phenomenological method that illuminates rather than explains social life, Peter Gabel shows how the legacy of social alienation that we have inherited from prior generations envelops us in a milieu of a “fear of the other,” a fear of each other. Yet because social reality is always co-constituted by the desire for authentic connection and genuine co-presence, social transformation always remains possible, and liberatory social movements are always emerging and providing us with a permanent source of hope. The great progressive social movements for workers’ rights, civil rights, and women’s and gay liberation, generated their transformative power from their capacity to transcend the reciprocal isolation that otherwise separates us. These movements at their best actually realize our fundamental longing for mutual recognition, and for that very reason they can generate immense social change and bend the moral arc of the universe toward justice.
Gabel examines the struggle between desire and alienation as it unfolds across our social world, calling for a new social-spiritual activism that can go beyond the limitations of existing progressive theory and action, intentionally foster and sustain our capacity to heal what separates us, and inspire a new kind of social movement that can transform the world.
-Thanks to Duncan Kennedy for the heads up!
New Article: Richard Delgado, The Unbearable Lightness of Alternative Dispute Resolution: Critical Thoughts on Fairness and Formality, 70 SMU L. Rev. 611 (2017). Abstract below:
Years ago, I published Fairness and Formality: Minimizing the Risk of Prejudice in Alternative Dispute Resolution in Wisconsin Law Review. Arriving in the early years of the deformalization movement, Fairness and Formality sounded a warning about the risks this conflict resolution approach poses for disempowered disputants. Coming on the heels of an article in the same vein by Owen Fiss, Fairness & Formality attracted attention in part because its message ran counter to the prevailing ideology, according to which alternative dispute resolution is superior in many respects to the in-court variety—cheaper, faster, and friendlier, particularly for the uninitiated.
Soon, however, large controlled studies showed that minorities, women, and the poor achieved better results when they took their cases to court rather than to a mediator, arbitrator, or other informal intermediary, even allowing for the higher costs of a formal proceeding. These considerations did little to slow the rush to ADR, especially mandatory arbitration, which spread rapidly via small-print clauses inserted in contracts setting up a host of relationships, including college loans, medical services, and information technology. I show how this happened, how it disadvantaged ordinary people, and why a new generation of scholarship needs to examine the risks associated with disputing mechanisms that limit one’s access to court.
New Article: Charles F. Sabel & William H. Simon, The Management Side of Due Process in the Service-Based Welfare State, in Administrative Law from the Inside Out: Essays on Themes in the Work of Jerry L. Mashaw, edited by Nicholas R. Parrillo, Cambridge University Press, 2017. Abstract below:
The American welfare state is evolving away from the model initiated during the New Deal and elaborated during the civil rights era. It increasingly aims at capacitation rather than income maintenance, and its interventions more frequently take the form of services as opposed to monetary grants. These changes entail modes of organization and legal accountability different from those associated with New Deal-civil rights era model. This paper, written for a volume honoring Jerry Mashaw, considers Mashaw’s seminal analysis of legal accountability in the welfare state in the light of the key trends of recent decades. The tension or trade-off between individualized decision-making and bureaucratic rationality that preoccupies much of Mashaw’s analysis is mitigated in novel ways in the newer programs. The new programs depend on the tailoring of services to the individual circumstances of the beneficiary. Yet, at the same time, these programs aspire to use technology and managerial techniques to hold frontline agents accountable in ways different from those Mashaw contemplated.