With summer just around the corner, are you looking to indulge in some juicy, page-turning scholarship? As always, the Blog has you covered. So throw those Capri-Suns in a cooler, grab your favorite e-reader, and load up some of our favorite forthcoming LPE and LPE-adjacent articles for your next trip to the beach, park, or (let’s be real) library.
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Sahil Agrawal, Melissa Barber, Amy Kapczynski, and Trudel Pare, “Drug Dealing: Making Public Pharma Work,” forthcoming in the Washington University Law Review. This Article maps the primary legal and logistical issues that confront the public manufacture and distribution of medicines. It argues that in contrast to private generic manufacturers, which often struggle to enter the market and distribute cheaper alternatives, states can ensure that drugs will actually reach patients because they have unique legislative and regulatory mechanisms to counteract the concentrated power of market intermediaries.
K. Sabeel Rahman, “Anti-Domination and Administration,” forthcoming in the NYU Law Review. This paper offers a novel theorization of the administrative state, which helps crystallize the nature of the far-right’s vision of administration as well as the contours of a potential progressive counter vision. The central argument of the paper is that we should understand fights over administrative capacity as fundamentally intertwined with the commitment to and possibility of a more inclusive vision of citizenship.
Luke Herrine and Jonathan Glater, “The Student Debt Reset,” forthcoming in the California Law Review. This Article provides an account of the Biden administration’s reforms to the federal student loan system and an analysis of their vulnerability. It argues that the pre-COVID federal student aid system was incoherent, consisting of institutions focused on maximizing debt collection and minimizing cost while at the same time managing a motley mix of largely ineffectual programs intended to ease the burdens of indebtedness.
Margaret Somers, “Toward a Predistributive Democracy: Polanyi and Piketty on Capitalism, Moral Economy, and Democracy in Crisis,” forthcoming in the Journal of Law and Political Economy. This article, along with an earlier companion piece, explores the thought of Karl Polanyi and Thomas Piketty to generate the outlines of a “predistributive democracy.” Specifically, it engages Piketty’s work as it evolves from a bent toward economic naturalism to a robust institutionalism and an agenda for a participatory democratic socialism.
Raúl Carrillo, “Gaming Money,” forthcoming in the Columbia Law Review. This Article shows how video game companies like Microsoft, Sony, and Roblox are not only harming gamers but also developing unregulated, private monetary systems, much like 19th-century canal, railroad, and mining companies. As government agencies hesitate to encroach on virtual spaces of entertainment, media, and the arts, this Article offers a reality check and a legislative proposal to hold the world’s largest cultural industry accountable.
Evan D. Bernick, Paul A. Gowder, and Anthony Michael Kreis, “Birthright Citizenship and the Dunning School of Unoriginal Meanings,” forthcoming in the Cornell Law Review. This essay critically surveys the recent debate surrounding birthright citizenship in the United States. It argues that Randy Barnett and Ilan Wurman’s approach, which attempts to radically redefine the historical understanding of citizenship, is methodologically flawed and undermines core principles of constitutional law.
Marissa Jackson Sow, “Social Murder,” forthcoming in the Washington and Lee Law Review. This Article introduces the concept of social murder into the American legal lexicon, explaining how the United States employs social murder as a necropolitical governance technology, and sounding an alarm concerning the likely increase in social murders as corporate authoritarianism threatens to overtake the democratic rule of law.
Ganesh Sitaraman and Chris Serkin, “Post-Neoliberal Housing Policy,” forthcoming in the University of Pennsylvania Law Review. This Article argues that focusing exclusively, or even primarily, on loosening or eliminating zoning rules is misguided. While zoning can be a meaningful impediment to development, the obsession with zoning is conceptually flawed, descriptively problematic in that it ignores the many other causes of the affordability crisis, and potentially perverse by promoting solutions that, in some cases, may be ineffective and even harmful.
Daryl J. Levinson and David Pozen, “Disconsents,” forthcoming in the Columbia Law Review. This Article documents how the rise of neoliberalism has led to greater reliance on consent throughout U.S. law, while at the same time leading to greater doubts about its moral efficacy and empirical feasibility. Connecting and generalizing pathologies of consent that have been identified within myriad domains, the Article identifies a systemic crisis of consent that has unsettled not only regimes of private ordering but also constitutional democracy and global governance.
Yaron Covo, “The Contractualization of Disability Rights Law,” forthcoming in the University of Chicago Law Review. By closely examining the role that contract law plays in the adjudication of four disability rights statutes, this Article offers the first in-depth analysis of the contractualization of disability rights law. It reveals that there is a mismatch between the goals underlying the contract paradigm courts use to resolve disability rights disputes, on the one hand, and the normative underpinnings of disability rights law, on the other.
Yiran Zhang, “Workification,” forthcoming in the UCLA Law Review. This Article identifies and examines the socio-legal process by which non-market labor becomes work through employee classification adjudications and the broader political project of turning to work law to solve problems within non-market labor.
Jeff Gordon, “Carbon Shelters: Carbon Accounting as Tax Law,” forthcoming in the California Law Review. This Article argues that just as the income tax is susceptible to “tax shelters,” so too will firms develop “carbon shelters” that qualify for green subsidies while covertly making use of high-emission energy. Given the difficulty of anticipating every carbon shelter in advance, an anti-shelter strategy needs deliberately over-broad anti-abuse rules, including some modeled on similar rules from tax law.
William Boyd, “The Tax Struggle and Renewable Power,” forthcoming in the Tax Law Review. This Article shows how the tools of public finance have been deployed over more than forty years to promote a privatized and financialized model of renewable energy ownership in the United States and what this means for the clean energy transition. In contrast to mainstream theories of public finance, the Article develops a more critical political economy of public finance that emphasizes the conflicts and struggles that shape tax policy and the ways this has affected patterns of investment and ownership across the economy
Rohan Grey, “Digitizing the Fisc,” forthcoming in the Rutgers Law Review. This Article proposes a wholesale reimagining of the legal and technological infrastructure of the fiscal administrative state through a new digital dollar system: the ‘New Digital Fiscal Regime.’ In contrast to Trump’s vision of a ‘unitary executive fisc’, in which the President channels all federal spending through a single administrative process under their direct control, the New Digital Fiscal Regime takes a two-tier ‘centralized legislature, decentralized executive’ approach to fiscal infrastructural reform—an approach that reinforces the constitutional separation of powers.
Julie E. Cohen, “Oligarchy, State, and Cryptopia,” forthcoming in the Fordham Law Review. This article develops an account of tech oligarchy within contemporary political economy. Tech oligarchs’ power, it argues, derives partly from legal entrepreneurship related to corporate governance and partly from the infrastructural character of the functions the largest technology platform firms now perform.
Catherine L. Fisk, “Democracy and a Nonpartisan Civil Service,” forthcoming in the Arizona Law Review. This essay explores the legal basis for the ongoing challenges to the nonpartisan civil service. Drawing on two centuries of history and the empirical evidence, it argues that the Trump Administration’s new personnel actions are a radical departure from the democratic tradition and likely to undermine the efficiency and competence of government.
Samuel Moyn, “From One Crisis of Liberalism to Another,” forthcoming in Social Research. Are crises of liberalism always the same, or are they always different? Or, if it is a little of both, what is to be learned by stepping back to compare the contemporary prosecution of liberals, and their strategies of self-defense, with the configurations of prior rounds? To answer this question, this essay looks at our own time in comparison to the most recent era when political theorists clashed over whether to ditch liberalism—that of the later Cold War and shortly after.
James Fallows Tierney and Jessica Shoemaker, “Trading Acres,” forthcoming in the Yale Law Journal. This Article argues that Wall Street’s arrival at rural America’s gate is the product of deep social choices governing the accumulation of investor wealth: property, corporate, and securities law. It explores the ways in which these deep structures of our legal system—from the primacy of market logics to a range of biases that skew our spatial, temporal, and social relations—constitute the conditions for this profound transformation in the way farmland, as a basic and essential rural resource, is being integrated into the modern capital economy.
Etienne Toussaint, “The Spirit of Oligarchy in American Agriculture,” forthcoming in the Columbia Law Review. This article critically analyzes recent legislative efforts to address the historical marginalization of Black farmers, including the American Rescue Plan Act’s debt relief program and the constitutional challenges surrounding race-conscious remedies in agricultural policy.
Ann Eisenberg, “Extracting Clean Energy,” forthcoming in the UC Davis Law Review. This Article argues that rural opposition to hosting large-scale clean energy projects is both rational and justified, and that rather than address rural resistance through preemption or the often meager and uncertain compensation of community benefits, the state should pursue small-scale projects and local ownership.
Deborah N. Archer and Yuvraj Joshi, “Infrastructure Inequality,” forthcoming in the Northwestern University Law Review. This Article argues that infrastructure—the interconnected and vital system of physical structures, networks, and social institutions—should be conceptualized as foundational to racial equality, and examines the legal system’s role in advancing this effort. It also considers the complex legal landscape that advocates of infrastructure equality face, particularly following the Supreme Court’s decision in Students for Fair Admissions v. Harvard, which restricted race-conscious admissions policies in higher education and may serve as a cornerstone for further retrenchment on racial justice.
Matthew B. Lawrence and David Pozen, “Drug Scheduling as Institutional Design,” forthcoming in the Harvard Law Review. This Article reconceptualizes drug policy as a question of institutional design and develops a pragmatic theory for regulating mind-altering drugs. It identifies the Controlled Substances Act’s core design features and underlying assumptions; explains why they have led to unintended consequences; and, against the thrust of much drug scholarship and advocacy today, suggests that reformers should seek to fix rather than abandon the law’s administrative framework for deciding how to regulate particular substances.
Maybell Romero, “Unlikely Criminals: Inside the IVF Drug Grey Market,” forthcoming in the Emory Law Journal. This article explores how people wanting to undergo IVF turn to the criminalized fertility drug grey market to access necessary but prohibitively expensive fertility medications that would otherwise be out of reach. It then argues for decriminalizing the resale of IVF medications and implementing standardized insurance coverage to reduce or eliminate reliance on informal markets.
Dan Traficonte, “Government Research,” forthcoming in the Yale Law Journal. This Article provides a comprehensive analysis of government research from an innovation law perspective. It outlines the basic institutional design of government research and, using case studies of the National Institutes of Health Intramural Research Program and Lawrence Livermore National Laboratory, identifies a particular niche in which government research has clear comparative advantages: high-risk, high-reward projects that require massive scale, interdisciplinary collaboration, and long-term funding.
Genevieve Lakier, “Enforcing the First Amendment in an Era of Jawboning,” forthcoming in the University of Chicago Law Review. This Article argues that the Court’s recent reaffirmation of the categorical nature of the First Amendment rule against informal censorship has profound implications for the continued vitality and independence of the democratic public sphere. It examines the muddled state of the doctrine prior to NRA v. Vullo, explains the significance of Vullo’s intervention, and explores its doctrinal and non-doctrinal implications going forward.
Amy J. Cohen & Stephen Healy, “Diverse Legalities: Towards a Legal Theory for a Postcapitalist Political Economy,” forthcoming in Law & Contemporary Problems. Following feminist Marxist economic geographers J.K. Gibson-Graham, this article asks what questions arise for LPE scholars if we begin from the presumption “that postcapitalist worlds are already here but have been cast into shadow by a singular economic framing that presumes capitalist dominance.” Building from actually existing experiments in cooperation and solidarity, we translate conceptual questions about legal indeterminacy into processual and sociolegal inquiries about how indeterminacy works in tandem with social practices of coordination and regularization.
Chinmayi Sharma, Thomas Kadri, and Sam Adler, “Brokering Safety,” forthcoming in the California Law Review. Thanks to data brokers, abusers can now find their victims’ contact details, address, workplace, and roommates with a single search, a few clicks, and a few dollars. This Article exposes privacy law’s complicity in this phenomenon of “brokered abuse” and pitches a new regulatory regime premised on a transformative reallocation of responsibility.
Andrew Hammond, “Climate Strains and the Safety Net,” forthcoming in the Iowa Law Review. This Article critiques existing federal and state subsidies, investments, and regulations that inadequately address climate strains and, to address these shortcomings, proposes recommendations for reforming welfare programs, tax credits, and regulations. These include prioritizing cooling assistance, providing climate-focused tax credits to low-income households, and strengthening regulations to protect against utility disconnections and unsafe working conditions during extreme weather.
Sharon Yadin, “The Hidden Nature of Regulation,” forthcoming in the Harvard Negotiation Law Review. This article argues that the specific legal framework under which industries are regulated is less important than traditionally assumed, as regulation is frequently subject to negotiation and agreements with regulated firms. The conventional dichotomy between “hard” and “soft” regulatory approaches—and between rigid versus flexible rule types—is far less consequential when considering that all forms of regulation are, in essence, negotiable and thus “soft.”
Ezra Rosser, “The New Necessity,” forthcoming in the William & Mary Law Review. This Article argues that Grants Pass v. Johnson, while a significant blow to the unhoused, seemed to suggest the possibility that a new, more robust doctrine of necessity could be emerging. This Article takes such a possibility seriously, asking what would be the reach of this more robust form of necessity and how the demands of the unsheltered and hungry might unsettle property owner expectations.
Laura Portuondo, “The Myth of Equal Protection,” forthcoming in the UC Irvine Law Review. This article argues that although the Supreme Court claims to enforce the equality rights of all, it is unwilling to combat the contemporary inequality of women and people of color. Moreover, it argues, the Court relies on the fiction that it protects women and people of color to justify a broad new vision of equality for religious conservatives, which it uses to invalidate federal, state, and local laws that do real work to promote race and gender equality.
Emily Chertoff and Jessica Bulman-Pozen, “The Administrative State’s Second Face,” forthcoming in the NYU Law Review. This article delineates two faces of the administrative state: one turned toward regulation and benefits distribution, and one turned toward physical force and surveillance. It then provides a descriptive account of the second face and the distinctive administrative law that governs it.
Bijal Shah, “Presidential Administrative Discretion,” forthcoming in the NYU Law Review. This article illustrates and evaluates the extent to which presidential power influences the exercise of administrative discretion on the “front lines” across agencies, including but not limited to the immigration apparatus.
Bijal Shah, “Administrative Procedural Discretion,” forthcoming in the Cornell Law Review. This article illustrates and evaluates the extent to which legislative influence has rendered administrative processes ad hoc and unstable across agencies, including but not limited to labor and immigration.
Desiree LeClercq, “Resisting Federal Preemption,” forthcoming in the Alabama Law Review. This Article identifies and analyzes an overlooked strategy by which states resist federal preemption: persuasive resistance. States enact a bill whose primary aim is to recruit other states and even Congress to a dissenting policy view. The bill’s terms conflict with federal law, but they only go into force when other states enact the same bill, and Congress amends the preempting federal law to eliminate the conflict.
Alvin Velazquez, “The Death of Labor Law and the Resurrection of the Labor Movement,” forthcoming in the Boston College Law Review. This Article argues that the dismantling of the National Labor Relations Act could create a viable approach for the rebirth of the labor movement. By returning labor law to a more primitive state, the Supreme Court might unwittingly create the conditions for a 1930s style upsurge in labor activity, which organizers can channel toward seeking state and local collective bargaining laws.
Fred Jacob and Anne Lofaso, “Beyond Loper Bright: Iterative Construction at the National Labor Relations Board,” forthcoming in the UC Law Journal. This Article argues that the NLRB’s special alchemy of common-law-style decisionmaking — which we call “iterative construction” — falls outside of the judiciary’s de novo review. For this reason, Loper Bright does not transfer the power to develop national labor policy under the Act to the courts. Instead, it stays where Congress wanted it, and where the courts have long recognized it belongs—with experts in labor relations who understand the importance to a healthy nation of protecting worker rights and preventing labor strife.
Greg Brazeal, “Rural Mass Incarceration and the Politics of Punitiveness,” forthcoming in the Maryland Law Review. The article draws attention to the fact that rural Americans are now more likely to be incarcerated than urban Americans. In order to make sense of this, the article draws on research into authoritarian political psychology. The article proposes that ending mass incarceration in the United States will require addressing not only specifically racist ideologies but also more general punitive attitudes about crime and punishment.
Andrew Milne, “Silver Tsunami or Silver Rush? Extracting Value from Elders,” forthcoming in the Elder Law Journal. This article argues that the legal processes structuring elder care tend to widen economic inequality and divide the interests of lower-income people against each other along generational, gendered, and racialized lines. Drawing on two case narratives, it explains how lower-income elders become, effectively, commodities for health care and housing entities to extract profit from.
Liz Chen, “Forced Intimacy, Care, and Discrimination,” forthcoming in the Loyola-LA Law Review. This Article introduces the concept of forced intimacy-induced discrimination. It argues that residents in care facilities are at particular risk of discrimination among each other, and that anti-discrimination and accommodations law should account for the possibility of such discrimination more explicitly.
Kyla Tienhaara and Fergus Green, “Climate obstruction and capital accumulation by feigned victimization: TC Energy and the political economy of investor-state dispute settlement,” in Business and Politics. This article explains how the asymmetric treatment of state and investor behavior in ISDS allows investors to depict themselves as innocent victims of “unfair” and “unforeseeable” political processes, a tactic fossil fuel companies use to achieve capital accumulation and climate obstruction goals.
Alvin Velazquez, “Broke(n) Governments and Disaster’s Dollars,” forthcoming in the University of Illinois Law Review. This Article argues that when a government is broke and disaster strikes, communities, rather than creditors, should be given the benefit of economic stimulus created by federal spending. This approach, the article argues, would meet bankruptcy law’s goal of ensuring the debtor has a fresh start and minimizes the need to seek bankruptcy protection in the future.
Mike Haber, “When the Executive Accidentally Supported the Movement,” forthcoming in the Columbia Journal of Race and Law Forum. This article argues that the technologies for simultaneously funding and controlling grassroots movement groups commonly called the “non-profit industrial complex” developed out of the Johnson Administration’s 1964 Community Action Program (“CAP”), a program that aimed to use community participation to help set priorities for anti-poverty funding in order to circumvent inflexible welfare bureaucracies.
Andrew Miller, “Invisible Allies: Algorithmic Consumer Profiling and the Rise of New Group Harms,” forthcoming in the Yale Journal of Law and Technology. This Article argues that the invisible social sorting unleashed by AI tools in the consumer marketplace inflicts a democratic harm on the entire polity, robbing us of the chance to apply and update our distributive justice norms. It also proposes a reform agenda that might better enable collective action by the new harmed groups and stimulate more robust democratic deliberation on such questions.
Ben Hollander, “It’s the Same Story the Crow Told Me: Uber’s Invocation of Newness As An Old Employer Tactic,” forthcoming in the ABA Journal of Labor and Employment Law. This Article builds on existing debates regarding employment classification for gig economy workers by focusing more specifically on the newness rhetoric that gig economy employers use. It argues that although companies have been invoking this newness rhetoric for decades, the particular conceptions of technological change invoked that assume specific legal implications–and uneven economic distribution for workers–are not inevitable when workers focus on contesting who controls the technologically induced transformations.
Bijal Shah, “The Dangers of Presidential Control All the Way Down,” forthcoming in the Michigan Law Review. This review of Justice Gorsuch’s Overruled argues that supporting the unitary executive theory as the solution to an excess of administrative discretion excludes consideration of a concerning dynamic: the extent to which political and institutional control over administration in fact interferes with public wellbeing.
