In the 2015 case Texas v. Inclusive Communities Project (2014), the Court upheld the application of a disparate impact standard for judging violations of the Fair Housing Act, enabling advocacy groups to challenge urban development policies that (re)produced patterns of racial and economic segregation. In justifying this interpretation of the statute, Justice Kennedy offered in…

In the 2007 school desegregation case, Parents Involved in Community Schools v. Seattle School District No. 1, the Supreme Court struck down the voluntary school desegregation efforts by Louisville, Kentucky, and Seattle, Washington for employing an overly aggressive mode of racial balancing. In his majority opinion, Chief Justice John Roberts argued that de jure segregation—of…

This is not the first time that a similar moment of crisis has helped spur creative new thinking about the relationships between law, capitalism, and democracy—and it won’t be the last. In this post, I want to sketch a particular aspect of this trajectory: the long legacy of legal realism and its relationship to our current debates around law and political economy.