No one — not the pollsters, the gamblers, nor that World Cup-predicting octopus — can tell you with any confidence what tomorrow will bring. We can, however, pass along one certainty about the year ahead: it will be replete with excellent LPE scholarship. So stop doom-scrolling and close the cross-tabs. Instead, enjoy this brief exit poll of the fall submission cycle, which contains some of our favorite forthcoming LPE and LPE-adjacent articles. (And if you grow tired of thinking about the United States, make sure to check out our recent Global LPE scholarship roundup).
***
Luke Herrine, “Cutthroat Business,” forthcoming in the North Carolina Law Review. This article offers an extended analysis of the Stockyards Act of 1921 and explores how this century-old regulatory effort might be extended into a broader effort at rebalancing power in today’s meatpacking industry.
Brian Highsmith, “Governing the Company Town,” forthcoming in the Stanford Law Review. This article reframes the “company town” as an enduring democratic phenomenon: a form of governing control within a territorial domain that can be achieved by commandeering public institutions or, alternatively, by displacing their typical role in structuring community life.
Cristina Rodriguez and Anya Bernstein, “Working with Statutes,” forthcoming in the Texas Law Review. Drawing on interviews with dozens of agency officials across the administrative state, this article argues that agencies are a primary way that our system resolves the dead-hand problems of democratic governance, balancing the need for stability and continuity with the need for adaptation and change, and that neither courts nor Congress can match agencies’ capacity to make long-term, pluralistic, informed, and accountable policies about specific issues.
Veena Dubal, “Data Laws at Work,” forthcoming in the Yale Law Journal Forum. This article argues that current EU digital rights protections for workers, which treat workers as akin to consumers, are insufficient to impede the harms produced by automated labor management because they fail to take into account that workers are legally subordinated to the firms for which they labor. Future data laws, it argues, should be modeled on older approaches to workplace regulation: rather than merely seeking to make transparent the processes firms use, these laws should aim to proscribe the use of harmful processes.
Nikhil Menezes and David Pozen, “Looking for the Public in Public Law,” forthcoming in the University of Chicago Law Review. This Article seeks to identify and call attention to the disconnect between constant invocations of the “public” in public law and the dearth of serious attempts to identify a relevant public; to clarify the normative contours and intellectual history of this disconnect; and to propose a pragmatic response—grounded in the recovery of the public’s role as an author and not just a monitor of public law.
Vijay Raghavan, “The Radical Potential of Consumer Financial Protection,” forthcoming in the Boston College law review. This Article recasts consumer financial protection as a response to market domination facilitated by the legal and institutional design of our financial system and traces the various legal and institutional forms this response took over the course of the twentieth century. Consumer financial protection, it argues, is justified and best functions as a counterweight to our regressive and antidemocratic institutional arrangements around money and banking.
Zohra Ahmed, “Criminal Court’s Disability,” forthcoming in the Columbia Law Review. This article argues that in competency to stand trial proceedings, criminal court actors offer a narrow vision of psychiatric disability that excludes many defendants and systematically denies recognition to one group of diagnoses: personality disorders. In these proceedings, it argues, courts are primarily preoccupied with determining responsibility rather than due process and, as a result, courts selectively apply the competency standard.
Alexis Hoag-Fordjour, “Universal Public Defense,” forthcoming in the Harvard Civil Rights-Civil Liberties Law Review. This article invites us to consider a system of state funded counsel for all people facing criminal charges, even defendants who could otherwise afford representation, and reflects on how this new defense model might impact the criminal adjudication system and the actors within it.
G. Alex Sinha and Janani Umamaheswar, “Hidden Takings and the Communal Burden of Punishment,” forthcoming in the Harvard Civil Rights-Civil Liberties Law Review. This Article argues that harsh conditions of confinement in the American criminal legal system may violate the constitutional rights of free people in the community—namely, the families of incarcerated people. It argues that, in the face of governmental neglect of imprisoned populations, family members experience genuine coercion to provide their incarcerated loved ones with access to basic necessities, such as nutrition, physical safety, and post-release housing, and that these family members are experiencing takings that should be cognizable under the Fifth Amendment’s Takings Clause.
Anna Arons, “Family Regulation’s Consent Problem,” forthcoming in the Columbia Law Review. This article identifies the coercive forces that drive parents to consent to home searches by the state. Reformers, it argues, ought to reject the consent paradigm and focus their efforts on state legislation aimed directly at cabining searches in family regulation investigations.
Matthew Jinoo Buck, “Reevaluating Railroad Deregulation,” forthcoming in the Yale Law Journal. This Note argues that the multiple failures of the railroad industry to consumers, workers, communities, and the climate—as well as the industry’s simultaneous financial success–are legacies of the industry’s deregulation in the 1970s and 1980s. Whereas the regulated paradigm advanced plural values, including fairness and equality, the deregulated approach narrowed the law’s focus and prioritized profit and competition as seen through the industry’s recent implementation of “precision scheduled railroading.”
Brian Callaci, Matthew Gibson, Sérgio Pinto, Marshall Steinbaum, & Matt Walsh, “The Effect of Franchise No-poaching Restrictions on Worker Earnings,” forthcoming in the Review of Economics and Statistics. This article evaluates the nationwide impact of the Washington State Attorney General’s 2018-20 enforcement campaign against no-poach clauses in franchising contracts, which prohibited worker movement across locations within a chain. Implementing a staggered difference-in-differences research design using Burning Glass Technologies job vacancies and Glassdoor salary reports from numerous industries, it estimates a 6% increase in posted annual earnings from the job vacancy data and a 4% increase in worker-reported earnings.
Eamon Coburn, “Intertemporal Collective Action Problems in Graduate Worker Organizing,” forthcoming in the Yale Law & Policy Review. This paper explores a recent paradox in graduate worker union organizing. While graduate workers have displayed virtual unanimity in choosing to unionize in a string of recent victories, many of these workers will graduate or finish working before their unions can negotiate a first contract. Conversely, some early-year students who stand to benefit the most from unionization as future employees do not yet work and are consequently ineligible to vote. The paper identifies this “intertemporal collective action problem” in graduate organizing, proposes a legal solution, and explores its broader implications for the labor movement.
Todd Phillips, “Loper Bright and Restoring the Banking Laws’ Progressive Values,” forthcoming in the Berkeley Business Law Journal. This article argues that while progressives used Chevron to notch environmental and other wins, banking regulators used the doctrine to systematically undermine progressive banking laws. It explains Congress’s progressive intentions with its banking statutes, how courts gave Chevron deference to agency interpretations at odds with Congressional intent, and how Loper Bright provides an opportunity to restore progressive values in banking.
James Stone, “The Prison Discovery Crisis,” forthcoming in the Yale Law Journal. This article explores how the discovery process fails self-represented prisoners pursuing civil rights claims against their jailers, betraying both a crisis in prison litigation and a failure of our procedural regime.
Beau Baumann, “Resurrecting the Trinity of Legislative Constitutionalism,” forthcoming in the Yale Law Journal. This article shows that Congress had something like a congressional OLC from 1919 to 1969, unpacks the implications of this opinions-drafting practice for constitutional law, administrative law, the separation of powers, and legislation, and shows how it was part of a broader Progressives vision for Congress.
Leah Samuel and Kate M. Conlow, “Private Equity and Antitrust,” forthcoming in the Berkeley Business Law Journal. This article offers a framework through which to understand private equity transactions and business models that predictably lead to anticompetitive outcomes.
Josh Chafetz, “Corruption and the Supreme Court,” forthcoming in the Yale Journal of Law and the Humanities. This Article argues that consistently, across doctrinal issues and issues of Court administration, the justices discuss corruption in a manner that simultaneously reinforces a narrative of their own trustworthiness and undermines the trustworthiness of other institutions and actors. As a result, this rhetoric serves to aggrandize judicial power—which perhaps explains why there has been more consensus across party lines about corruption than about many other hot-button issues at the Court.
Chris Havasy, “Social Justice Conflicts in Public Law” forthcoming in the California Law Review. The Article describes the problem of “justice conflicts,” which occur when different applied social justice claims conflict with each other during policymaking. It argues that one way to mitigate the problems raised by justice conflicts is for political institutions to adopt mid-level justice principles, and that Supreme Court’s assertion of its institutional primacy to decide social justice conflicts should be resisted on democratic and epistemic grounds.
Greg Baltz, “Tenant Union Law,” forthcoming in the Yale Law & Policy Review. This article argues that although there is no overarching statutory or regulatory framework detailing the rights and obligations of tenant unions, a web of intersecting laws govern the relationships among tenants, their unions, landlords, lenders, developers, and government. This article identifies these laws as tenant union law and illustrates how tenant unions organize in the shadow of these laws through an analysis of ten modern tenant union campaigns from across the United States.
Daniel Aaron, “The Deregulation of Cancer,” forthcoming in the Texas A&M Law Review. This article argues that the framework adopted by Congress that aimed at regulating carcinogens out of our world—the Cancer Framework—has been deregulated. The result is legions of unnecessary cancer cases, including cancer rates that are now increasing with each successive generation, most prominently among people under 40.
Alvin Velazquez, “Revisiting Religion in the Struggle for Workplace Justice,” forthcoming in the The Saint Louis University Law Journal. This article argues for a third way between a naked public square in LPE theory and Christian nationalism. Specifically, it argues that the Christian intellectual tradition, and especially Catholic Social Teaching and Liberation Theology, offer much intellectual grist for Law and Political Economy legal theorists as well as labor scholars.
