Today, many in the United States will witness that rare cosmic coincidence known as a total solar eclipse. Yet even as blackness sweeps across the sky, one source of illumination will remain undiminished: the hottest forthcoming LPE and LPE-adjacent scholarship, which we’ve gathered together from the most recent submission cycle. There is, of course, more excellent work being done than any editorial staff could possibly track, so please think of what follows as merely one constellation in the vast universe of stars that await your discovery.
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Luke Herrine, “Unfairness, Reconstructed,” forthcoming in the Yale Journal on Regulation. This Article argues that consumer protection practice at federal agencies is in the midst of a paradigm shift. The long reigning consumer sovereignty framework, motivated by paranoia about overregulation and simplistic models of markets, lost ground after the Global Financial Crisis, while a more institutionalist and pluralist commitment to anti-domination has begun to take its place. (Related Blog Post: Historicizing Consumer Protection.)
Diana Reddy, “Transaction Benefits at Work: Regulating the Future of Work for the Future of Society,” forthcoming in the Columbia Law Review. This article argues that neither a transaction cost-centric analysis of employment nor one focused only on broader redistribution and equitable concerns fully conceptualizes all that is at stake in the institutional design and legal regulation of how we work. This is because there are transaction benefits, not just transaction costs, associated with the organization of work.
Elizabeth Sepper & Lindsay Wiley, “The Religious Liberty Challenges to American-Style Social Insurance,” forthcoming in the UC Davis Law Review. This Article argues that escalating religious challenges to the Affordable Care Act form a major new vector in the campaign against social insurance in the United States. Where early constitutional challenges urging a libertarian ethos of “you’re on your own” largely failed, religious claimants are succeeding with a traditionalist entitlement to “take care of your own as you see fit.” The result is discrimination against marginalized groups, coercion of workers, and loss of democratically determined rights.
Brian Highsmith, “Regulating Location Incentives,” forthcoming in the Duke Law Journal. This Article uses location incentive megadeals to explore how federal regulation could help address a classic concern of state and local governance: structural corporate power over local communities. It develops a historical, economic, and institutional case for using latent authority under the FTC Act to study the market consequences of inefficient incentive megadeals—and to regulate certain anticompetitive practices that cause cognizable harms.
Ryan Doerfler and Samuel Moyn, “After Courts: Democratizing Statutory Law,” forthcoming in the Michigan Law Review. Against progressive calls to reclaim the judiciary, this Article proposes to disempower courts exercising lawmaking authority—including when they are interpreting statutes alone. The heart of the Article offers a survey of court disempowerment strategies and tools, which are comparable to though not identical with the disempowerment mechanisms that have been proposed in the arena of constitutional reform.
Yiran Zhang, “Home as Non-Workplace,” forthcoming in the Boston University Law Review. This article shows how Judges, politicians, and other lawmakers continue to entrench an ideological intuition that characterizes home as less coercive, less productive, less visible, and, by extension, a space that the state can and should regulate less than institutional workplaces. Naming this ideology “home as non-workplace,” this Article comprehensively traces current work law’s spatial bias, challenges its validity, and envisions a framework to normalize the home workplace in work law.
Talha Syed, “Does Pharma Need Patents? The Actual Role of Patent Protection for Drugs,” forthcoming in the Yale Law Journal. The Article seeks to revisit the consensus view that pharmaceuticals are the sector most in need of strong patent protection to support a robust level of innovation. It argues that pharmaceutical innovation can, increasingly does, and entirely should proceed without any role played by patent protection. Indeed, while pharma provides a strong case for some innovation policy intervention, patents are singularly inapt as the innovation policy of choice.
Hiba Hafiz, “Towards a Progressive Labor Antitrust,” forthcoming in the Columbia Law Review. The Article explains how the New Labor Antitrust has inherited the neoclassical strictures and legacies of antitrust doctrine and enforcement methods developed outside the labor sphere to usurp a now-forgotten labor and wage policy that Congress once structured into antitrust law.
Sandeep Vaheesan, “A Revival of Nondomination in Antitrust Law,” forthcoming in the George Washington Law Review. This article argues that the FTC’s proposed ban on non-compete clauses is based, in part, on principles of nondomination and if enacted could be the start of a major reorientation of antitrust law. To carry out this project, the FTC should target other contractual methods of domination, such as exclusive dealing and most-favored nation clauses.
Helen Hershkoff & Luke Norris, “The Beleaguered Sovereign,” forthcoming the Texas Law Review. This article focuses on an emerging but overlooked trend of Article III courts cabining government lawyers in their work as public regulatory enforcers. It examines instances in which federal courts are raising procedural and jurisdictional roadblocks in lawsuits filed by government lawyers that narrow the government’s standing, the scope of its litigation interests, and its opportunities to intervene in suits, and that, at times, result in dismissal of the government’s suits. The emerging picture is one of an increasingly beleaguered Executive Branch when seeking to enforce regulatory protections in the federal courts.
Desiree LeClercq, “Labor Strife and Peace,” forthcoming in the UC Irvine Law Review. This Article examines a significant yet underexplored feature in the decline of worker power: The gradual erosion of protections under the National Labor Relations Act for workplace protest by rank-and-file, nonunion workers. Rather than protect their protest as necessary to galvanize workplace solidarity and organizing, current labor doctrine offers employers various opportunities to fire them. Focusing on nonunion workers standing up to management, this Article calls for greater doctrinal and statutory protections for nonunion workers engaged in workplace protest while clarifying when protests cross the line.
Samuel Moyn, “Reconstructing Critical Legal Studies,” forthcoming in the Yale Law Journal. This essay offers a reinterpretation of the legacy of critical theories of the law, arguing that they afford useful starting points for any radical approach, and not merely cautionary tales of how not to proceed. It revisits the critical legal studies movement in particular and imagines its reconstruction. (Related Blog Post: Does LPE Need Theory?)
Jonathan Harris, “Credentialism at Work,” forthcoming in the Georgetown Law Journal. This Article lays out the impact of the credentials arms race between workers and outlines possible responses that promote opportunity pluralism or that reduce the scarcity of quality jobs and, in turn, the tournament-like pathways to those jobs. It also argues that the meritocracy narrative supporting credentialism is a myth perpetuated by laws that encourage a private market for job training and remove the state from its prior role as creator of quality jobs.
Jeff Gordon, “Statutory Contracts,” forthcoming in the Yale Journal on Regulation. This article argues that certain spending statutes are actually contract offers, and should be interpreted as such. Recognizing that Congress can contract opens up new possibilities for durable economic planning.
Sadie Blanchard, “Contract or Prison,” forthcoming in the University of Chicago Law Review. This Article argues that many incarceration-alternative contracts fail under classical contract theory because these contracts are based on coercive background entitlements: rights to sell access to the only escape from punitive governmental measures. Governments create those coercive entitlements to leverage the criminal enforcement system to extract value from defendants and to expand the reach of criminal sanctions beyond what the state could achieve without resorting to contract.
Yochai Benkler and Talha Syed, “Reconstructing Class Analysis,” forthcoming in the Journal of Law and Political Economy. This article offers a reconceptualization of class-in-capitalism and its articulation with racialization and gender, that builds on critical strands of Marxian thought and integrates insights from the Black Radical and Feminist Socialist traditions. Its point of entry is to forego any transhistorical materialist conceptions of class simpliciter, and develop instead an historically-specific conception of class embedded within an analysis of capitalist social relations. This results in a view of class as about not the appropriation of a “material surplus” but, rather, asymmetrical social relations in both the division of labor and disposition of its fruits.
Frank Pasquale & Michael L. Cederblom, “The New Antitrust: Realizing the Promise of Law and Political Economy,” forthcoming in the The Southern California Interdisciplinary Law Journal. This article demonstrates that the New Antitrust’s intellectual foundations in the methodology of law and political economy (“LPE”) are just as strong as its political appeal. It explains the critical importance of complementing economic analysis of corporate concentration with interdisciplinary insights into questions of power (via political science), race and social dynamics (via history and sociology), and values (via philosophy).
Sandeep Vaheesan, Brian Callaci, & Daniel Hanley, “The Robinson-Patman Act as a Fair Competition Measure,” forthcoming in the Temple Law Review. This article argues that, contrary to conventional wisdom, the Robinson-Patman Act is not irrational, let alone “the Typhoid Mary of antitrust.” It is a sensible and targeted measure against buyer power and in favor of operational efficiency that remains relevant in the age of Walmart and Amazon.
Mary Ziegler, Maxine Eichner, and Naomi Cahn, “The New Law and Politics of Parental Rights,” forthcoming in the Michigan Law Review. The Article explores how recent parental rights laws attack the rights of minors as a stepping stone toward both undermining progressive cultural change and dismantling existing protections that apply more broadly. In this way, they use the tactic of “erosion by misdirection” not merely to maintain the status quo but to reverse social change, and to do so in ways that conceal a movement or politician’s underlying beliefs and objectives.
Doron Dorfman, “Third-Party Accomodations,” forthcoming in the Michigan Law Review. This article examines how the law frequently fails to protect people with disabilities from the choices and behaviors of third parties that can serve as major barriers to access yet are often considered beyond the reach of the Americans with Disabilities Act’s reasonable accommodation doctrine. Using disability studies, legal theory, and political economy analysis, this Article shows how this narrow interpretation of the reasonable accommodation mandate has failed to adapt to our modern understanding of disability as resulting from a complex interaction between the impairment and the social environment.
Sandeep Dhaliwal, “Beyond Root Causes: Criminal Law and the Instability of Racial Capitalism,” forthcoming in the UC Davis Law Review. Critiques of criminal law often note there are better ways to address the “root causes of crime.” This article argues that such critiques mistakenly treat economic conditions as analytically prior to the criminal law, while, in fact, criminal law plays a constitutive role in the ordering of our racialized political economy.
Eamon Coburn, “Supply Chain Wage Theft as Unfair Method of Competition,” forthcoming in the Yale Law Journal. This article argues that we should understand wage theft in the fissured economy as a competition problem, not just a labor problem. Specifically, it argues that the FTC should use its “unfair methods of competition” authority under Section 5 of the FTC Act to find supply chain wage theft unlawful in certain circumstances. The paper first recovers and reasserts a historical understanding of substandard wages as an unfair method of competition. It then applies this understanding to the modern fissured economy, proposes FTC action, and defends the merits of the proposal.
Mila Versteeg, Kevin Cope, and Gaurav Mukherjee, “The New Homelessness,” forthcoming in the California Law Review. This article describes the rise of a new legal-political institution (the New Homelessness) that has arisen in response to a recent series of Ninth Circuit decisions. As a legal institution, it entails the creation of the first true federal constitutional social right, in the form of a qualified license to camp on public lands unless the government makes shelter available. As a political institution, the New Homelessness has catalyzed the erection of sanctioned encampments throughout America’s urban landscapes. (Related blog post: The American Right to Sleep Under Bridges)
Luke Norris, “Procedural Political Economy,” forthcoming in the William & Mary Law Review. The Article attempts to bring civil procedure and LPE into conversation by telling the history of the Federal Rules of Civil Procedure from a political economy perspective. It also reflects on what a political economy approach to procedure might entail and on how procedure’s modern history illuminates the challenges and opportunities for LPE going forward. (Related Blog Post: Procedural Political Economy)
Lisa Washington, “Time & Punishment,” forthcoming in the Yale Law Journal. This Article introduces an underexplored layer of marginalization in the family regulation system: time. It provides an aerial view of both the abstract problem of regulating parent-child relationships through a temporal frame, as well as the concrete legal timelines, procedures, and court processes that combine to exacerbate an already conflictual relationship between the state and marginalized families.
Daniel Walters, “Tomorrow’s Climate Law, Today,” forthcoming in the UC Davis Law Review. This article explores the use of “sunrise lawmaking” to overcome persistent political roadblocks to climate regulation and pave the way for binding limits on greenhouse gas emissions. Instead of writing laws and regulations that bind in the present, legislators using a sunrise deliberately delay the onset of any consequences for a significant period of time and, in so doing, buy political flexibility to take public-regarding action.
Yuvraj Joshi, “The Law of Racial Resentment,” forthcoming in the UCLA Law Review. This article critiques the Supreme Court’s validation of racial resentment in SFFA v. Harvard, and proposes better legal and structural responses to address and counteract resentment, including measures such as UBI and union membership.
Cynthia Godsoe, “Racing and Erasing Parental Rights,” forthcoming in the Boston University Law Review. This article uses Derrick Bell’s interest convergence theory to examine the pathological politics of the carceral state, through which some traditionally conservative states have recently narrowed their state’s parental neglect laws in the name of “parental rights.” The Article also moves beyond theory to offer scholars, activists, and impacted parties, concrete steps towards change and a long-term abolitionist horizon for the family punishment system.
Gali Racabi, “Excluded But Equal,” forthcoming in the William & Mary Bill of Rights Journal. By describing the effects of equal protection doctrine on work law’s exclusions, this Article offers a path for bending the arc of equal protection doctrine toward inclusion. Doctrinal and institutional changes to how equal protection is administered can create small-scale and radical inclusive shifts in work law writ large.
Matt Lawrence, “Super Groups,” forthcoming in the Indiana Law Journal. This article argues that to address law’s tendency to empower factions who use their unnatural influence to dominate lawmaking, law should differentiate ordinary interest groups from quasi-constitutional super-groups and disrupt super-groups’ organization. In addition to mapping a normative framework and broader reform agenda, the Article demonstrates the real-world viability of this approach through a case study explaining how antitrust and labor law could be used to dislodge the American Medical Association’s capture of Medicare reimbursement policy.
Shirley Lin, “Mass Accommodations,” forthcoming in the Emory Law Journal. The article offers a new way to theorize structural exclusion, identifying the precedential value of pandemic-era “mass accommodations” and examining the difference labor-based organizational theories make in combating stratifications along the lines of disability, race, and class.
Jonathan Harris,” Economic Duress in U.S. Employment,” forthcoming in the Comparative Labor Law & Policy Journal. This article concerns the refusal of courts to expand economic duress as a defense to exploitative contracts in the U.S. workplace, despite the nominal expansion of the test from one of “no free will” to “no reasonable alternative.” It argues for a full-throated embrace of the modern “no reasonable alternative” standard, as part of an effort to rectify bargaining power asymmetries in the workplace.
Elizabeth Ford, “Alt-Legal Services: Re-Visioning Lawyers’ Role in the Fight for Worker Power,” forthcoming in the Berkeley Journal of Employment and Labor Law. This article develops a taxonomy of worker power, focusing on countervailing power (power over) and community organizing power (power with), and argues that it is possible to construct a worker-center affiliated law office that both exerts power over employers to force them to stop stealing workers’ wages and builds individual and collective power within communities of workers.
Guy A. Rub, “Reimagining Digital Libraries,” forthcoming in the Georgetown Law Journal. This Article analyzes the digital lending problem from legal, comparative, and economic and social justice perspectives. It explains why it is highly problematic to let libraries—which have always operated alongside the market—be completely subject to the publisher’s powerful commercial interests, and instead offers several alternative frameworks to balance the libraries’ role in providing access to knowledge with the publishers’ role in supporting the creation of new works.
Riccardo Fornasari, “The Legal Form of Climate Change Litigation: An Inquiry into the Transformative Potential and Limits of Private Law,” forthcoming in the Journal of Law and Political Economy. This Article analyzes the impact of climate change litigation on the form of private law and, in so doing, provides a contribution to the understanding of the transformative potential and limits of private law.
Jeremy Kessler, “Law and Historical Materialism,” forthcoming in the Duke Law Journal. This Article argues that CLS erred, and that its successors continue to err, in sidelining historical materialism as a viable framework for left-leaning legal thought. The historical materialist account of law makes better sense of three phenomena with which CLS and its successors have struggled: the tendency of legal development to reproduce existing social and economic hierarchies; the relationship between law and capitalism; and the relationship between law and the natural world.
Kathleen DeLaney Thomas, “Tax and the Myth of the Family Farm,” forthcoming in the Iowa Law Review. This Article proposes that the story of taxing the family farm is not a story about farmers at all. Rather, the family farm reflects our collective unease with the idea of taxing “paper gains”—that is, taxing the value in assets before they are sold, such as through a wealth tax or an estate tax. Arguably, no one better represents the pitfalls of taxing paper gains than a farmer holding valuable land that has been appreciating for decades.
Theodosia Stavroulaki, “The Healing Power of Antitrust,” forthcoming in the Northwestern University Law Review. This article demonstrates that hospital deserts are neither natural nor inevitable but result from several business strategies. These strategies, which include the use of non-compete agreements in the labor market, and the tactic of merging with competitors, reduce access to care for rural populations and magnify the shortage of nurses and physicians that plagues underserved areas. By unveiling these strategies, this article illustrates that the wounds hospital deserts inflict on rural communities cannot be treated adequately without the healing power of antitrust law.
Faiza Sayed, “Reimagining Affirmative Asylum,” forthcoming in the California Law Review. This article engages in a structural critique of the Biden administration’s regulatory reforms for asylum claims, arguing that we should instead be reimagining asylum adjudication from the ground up.
Nora Freeman Engstrom and James Stone, “Auto Clubs and the Lost Origins of the Access-to-Justice Crisis,” forthcoming in the Yale Law Journal. This Article recovers the lost history of America’s automobile clubs, which provided a wide range of free legal services to their members. It then describes how local bar associations decimated this system for the provision of group legal services to ordinary Americans, which consigned millions of individuals with legal problems to face them alone, or not at all.
Angelo Petrigh, “Counseling Oppression,” forthcoming in the Boston University Law Review. This Article focuses on how counseling clients in a carceral system reinforces oppression. It also argues, however, that when defenders and clients embrace the contradictions at the heart of counsel and lay it bare, they can help transform the counseling site into a location where they can collaborate, pool their knowledge, and trace back their constraints to the mechanisms that replicate systems of oppression.
Mario R. Osorio Hernandez, “Reimagining International Trade Regulation,” forthcoming in the Berkeley Journal of International Law. This Article contends that conventional thinking about the laws and institutions of trade, rather than the laws and institutions themselves, imposes the biggest constraints on international economic cooperation. It posits that international trade regulation has been conceptualized around the binaries of ‘liberalized versus restricted trade’ and ‘free trade versus protectionism,’ and that a new vocabulary is needed to navigate the current crisis.
