Some people head to the pumpkin patch. Others drink from the unholy fountain of the pumpkin spice latte. But here at the blog, our favorite autumnal activity is decidedly less gourd-based: we scour the internet for the most exciting forthcoming LPE and LPE-adjacent articles. As always, there is more excellent work being done by the LPE community than any editorial staff could possibly track, so please think of what follows as merely the first handful of the many LPE treats that await you tricksters in the year ahead.
Amy Kapczynski and Joel Michaels, “Industrial Policy as Democratic Practice,” forthcoming in the Harvard Law and Policy Review. This article argues that we should view industrial policy as a developmental practice that responds to values of democracy itself, rather than values of narrow efficiency or national competitiveness, and offers an account of what “democracy” in this context requires: building administrative power sufficient to enable effective governance of the economy, and building countervailing power to allow disorganized and marginalized groups to hold both government and private sector entities to account.
Gali Racabi, “At Will as Taking,” forthcoming in the Yale Law Journal. This article argues that at-will rules strip workers’ job security and thus are unconstitutional takings of workers’ property, and offers two ways that this claim can be used in the private and public sectors. As a sword, this claim can be raised against the prevailing termination regimes in forty-nine states. As a shield, at-will-as-takings claims can protect workers against the restructuring of federal, state, and local public services.
Benjamin Levin and Kate Levine, “Redistributing Justice,” forthcoming in the Columbia Law Review. This article offers a novel theory for what animates the seemingly conflicted attitude among progressives toward criminal punishment: the hope that the criminal system can be used to redistribute power and privilege. Examining this redistributive theory of punishment via a series of case studies—police violence, economic crimes, hate crimes, and crimes of gender subordination—it argues that the criminal system can’t redistribute in the egalitarian ways that some commentators imagine.
Kate Redburn, “The Equal Right to Exclude: Compelled Expressive Commercial Conduct and the Road to 303 Creative v. Elenis,” forthcoming in the California Law Review. This article explains how speech became the constitutional vehicle for the right to discriminate on religious grounds. Using extensive original archival research, case materials, and little-known accounts of key figures, the article constructs a novel history of the arm of the conservative legal movement that uses free speech and association arguments not to deregulate for its own sake, but to empower conservative religious communities who understand themselves as victims of regulatory discrimination.
Emily Chertoff, “Violence in the Administrative State,” forthcoming in the California Law Review. This article identifies a fundamental mismatch between conventional administrative law, which is designed for bureaucratic organizations, and the organizational form and norms of administrative agencies that underwrite the laws through the use or threat of force.
Fred Jacob, “The National Labor Relations Act, the Major Questions Doctrine, and Labor Peace in the Modern Workplace,” forthcoming in the Boston College Law Review. This article proposes that the major questions doctrine should be applied to federal agencies modestly and should apply to the NLRB rarely, if at all. The NLRB’s distinct history, adjudicative structure, and statutory entitlement to judicial deference demand that the courts respect the Board’s policymaking, even if it implicates so-called major questions.
Sarah Lorr, “Disabling Families,” forthcoming in the Stanford Law Review. This article argues that the family regulation system not only discriminates against disabled parents, but also constructs, creates, and reinscribes disability. It constructs the social category of disability by assuming parents bearing a disability label are unfit and subsequently stigmatizing and separating these families; it creates disability by causing or exacerbating impairments that render parents and their families disabled or more likely to become disabled; and it reinscribes disability by failing to provide appropriate services or accommodations to disabled parents and then blaming a parent’s disability—rather than the lack of services—when a termination of parental rights occurs.
Brandon Magner, “Whither the Wagner Act: On the Waning View of Labor Law and Leviathan,” forthcoming in the Employee Rights and Employment Policy Journal. This article argues, against recent skeptics, that Senator Robert Wagner was justified in crafting a national labor policy from the barbaric conditions which accompanied pre-New Deal union organizing. Wagner’s crusade to convert the state from an impediment to a facilitator of collective bargaining represents the rare instance where a political elite pursued an ambitious economic agenda on behalf of labor and succeeded in the teeth of ferocious internal and industrial opposition.
Kathryn Miller, “The Antisubordination Eighth Amendment,” forthcoming in the California Law review. This article argues for a constitutional response to one of the worst structural harms of the criminal legal system: the perpetuation of racial subordination. Through an examination of the history, structure, jurisprudence, and theory of both the Eighth and Fourteenth Amendments, the article concludes that because criminal punishment perpetuates and entrenches America’s racial caste system, courts must strictly scrutinize punishments that disproportionately impact Black people and other historically subordinated groups.
Amanda Parsons & Salome Viljoen, “Valuing Social Data,” forthcoming in the Columbia Law review. This article disambiguates data’s ‘market’ or ‘exchange value’ from its use value, and explores how two legal regimes—information privacy law and tax law—struggle with the messy and imperfect processes by which companies go about cultivating data’s prediction value and converting it into wealth and power. (Related Blog Post: Towards a Legal Understanding of Social Data).
Elizabeth Gyori, “Commodifying Public Housing,” forthcoming in the NYU Review of Law and Social Change. This article argues that New York City Housing Authority’s implementation of Rental Assistance Demonstration (RAD) and a similar program, the Blueprint for Change, prioritizes profit over tenants. Such programs facilitate capital accumulation for the economic elite by financializing a public good, using the apparatus of the government to facilitate privatization, and redistributing wealth from the poorest (public housing tenants) to the wealthiest (real estate developers/landlords).
Sandeep Vaheesan “Money as an Instrument for Justice” forthcoming in the UCLA Law Review Discourse. This review of Destin Jenkins’ The Bonds of Inequality and Jakob Feinig’s Moral Economies of Money argues that, in contrast to the harmful and widely accepted conception of money as a scarce, private commodity, money should be understood as an elastic public instrument for structuring economic life. (Related Blog Posts: Bonds of Inequality Symposium.)
Dan Rohde and Nicolás Parra-Herrera, “Law as Architecture: Mapping Contingency and Autonomy in Twentieth-Century Legal Historiography,” out now in the Journal of Law and Political Economy. This article charts a rich debate about law’s autonomy held over the course of the twentieth century, and then sketches an alternative view, where the law is seen as an “architecture”—a set of tools with which we build our society. On this view, law’s autonomy lies in the way that it facilitates specific forms of societal ordering at the expense of others.
Bijal Shah, “Administrative Subordination,” forthcoming in the University of Chicago Law Review. This article argues that administrative agencies subordinate minority interests to the ends of administrative competence and self-preservation. A healthy federal bureaucracy is maintained by administrative efforts to reduce institutional burdens, improve efficiency, conserve resources, and preserve the structures underlying the agency’s power to regulate. However, as this article shows, agencies harm marginalized communities in order to pursue these institutional virtues.
Christopher Morton, Gabriel Nicholas, & Salome Viljoen, “Researcher Access to Social Media Data: Lessons from Clinical Trial Data Sharing,” forthcoming in the Berkeley Technology Law Journal. This article makes the case for granting researcher access to social media platforms, drawing on lessons from the history of how independent access to clinical trial data was won and secured. It also emphasizes the importance of legal reforms that empower counter-institutions to platforms to ensure researcher access is independent, and that empower researchers and civic activist groups to keep both regulators and social media companies accountable.
Anna Saunders, Gráinne de Búrca, Babatunde Fagbayibo, Michele Krech, Gaurav Mukherjee, Hannah Birkenkötter, Bojan Bugarič, David Dyzenhaus, Symposium on “Constitution-Making as a Technique of International Law: Reconsidering the Post-War Inheritance,” out now in the American Journal of International Law. This symposium gathers several responses to a recent article by Anna Saunders, in which she critiques the dominant approach to constitution-making for its emphasis on certain formal, procedural questions to the neglect of an open engagement with material issues and underlying economic structures.
Rachel Griffin, “The Law and Political Economy of Online Visibility: Market Justice in the Digital Services Act,” forthcoming in Technology & Regulation. The article critically assesses the regulation of social media recommendations in the EU’s 2022 Digital Services Act (DSA). It argues that the DSA primarily aims to enhance the functioning of the marketised ‘economies of visibility’ created by corporate platforms, ultimately reinforcing a system in which online visibility is allocated in highly unequal ways based on commercial value.
Emily Stolzenberg, “Tribes, States, and Sovereigns’ Interest in Children,” forthcoming in the North Carolina Law Review. This Article takes opposition to the Indian Child Welfare Act (ICWA) as an opportunity to scrutinize the nature and permissible scope of political communities’ interests in children. Acknowledging that all sovereigns pursue their political communities’ interests in children—as ICWA forces us to do—this article outlines a four-part normative framework for assessing political communities’ attempts to influence their youngest members’ development.
Emily Jones and Eliana Cusato, “The ‘Imbroglio’ of Ecocide: A Political Economic Analysis,” forthcoming in the Leiden Journal of International Law. This article adopts a political economic lens to analyse the revival of the concept of ecocide in present international legal scholarship and practice. Drawing on critiques of sustainable development and of business and human rights discourse, it argues that the ‘imbroglio’ of ecocide, in its current legal definition, lies in presenting ecological preservation and devastation as simultaneously legitimate aims.
Chris Havasy, “Radical Administrative Law,” forthcoming in the Vanderbilt Law Review. This article draws upon unlikely group of 19th-century legal and political theorists to illuminate how agencies can improve their democratic credentials to justify agency powers over the citizenry. Instead of stripping agencies of their powers, as contemporary critics propose, these administrative “radicals” had a much bolder proposal – democratizing the administrative state so the citizenry could instill direct democratic accountability over the agencies that coerced them.
Kate Conlow, “Financial Conflicts of Interest and Academic Economists in Law and Policymaking,” forthcoming in the Arizona State Law Journal. Federal regulators, judges, and elected officials rely on opinions from academic economists, who often have close ties to regulated private industry—for example, serving as highly paid consultants for firms or receiving private research grants. Despite this, economics has no code of ethics or rules that proscribe conflicts of interest or require their disclosure. This Article explores the role of academic economists in federal government and the issues that arise when their financial conflicts of interest are not disclosed.