This week at the Blog…
we continued our symposium on the legal representation of poor people.
On Monday, Gregory Louis argued that critical legal practice requires a critical realist approach to law: looking everywhere, not just courts, to interfere in the political contests that structure and restructure governance regimes.
On Tuesday, Sam Allison-Natale engaged with two influential articles on the ethos of public interest lawyering, using them to launch his argument that radical lawyering must draw from an ethos of solidarity, not altruism.
On Wednesday, Jamila Michener shared some early results of her research on housing courts, reporting a surprising result that people who are repeatedly screwed by the system often find that experience motivating rather than just disempowering, and having legal assistance and, especially, organizing can turn that motivation into mobilization.
We also added two new editors!
Ure Obioma is a rising 3L at the University of California, Davis School of Law, where she is a member of the Black Law Students’ Association, and the Business Law Journal. She will be covering topics related to health outcomes and the criminal justice system. As a student at Cornell, she volunteered in the Ithaca Court System. After her first year of law school, she worked as a Summer Legal Associate at Morrison Mahoney in Boston, Massachusetts, where she learned the art of litigation. However, after taking a negotiations course in law school she developed a passion for drafting contracts and negotiations. Her passion is rooted in the belief that true negotiations bring two parties together. This summer she is interning at the Office of the California Governor Gavin Newsom as a Legal Fellow to the Tribal Negotiations Advisor.
Tariq El-Gabalawy (@telgabal) is a rising 3L at UC Davis School of Law, where he is a member of the Middle East North African and South Asian Law Students Association, the Black Law Students Association, and the student run Workers Rights Clinic. During law school, he has been an RA for the Aoki Center for Critical Race and Nation Studies, clerked with the E.D. of CA Federal Defender’s Office, externed with the Adolescent Defense Team at Yolo County Public Defender’s Office, and currently works with the Los Angeles County Public Defender’s. Tariq is interested in ending carceral violence and has studied the racialized nature of state violence, specifically the politically motivated targeting of Muslim communities in the wake of 9/11.
And here’s our guided tour of the internet
Tariq El-Gabalawy: As activists and communities across the country call for defunding the police, the tragic case of Sean Worsley highlights the need to reform the entire criminal justice system. As reported by the Alabama Appleseed Center for Law and Justice, Worsley, a disabled veteran of the Iraq war, was arrested for possession of marijuana while playing air guitar at an Alabama gas station, a charge which eventually left him homeless and sentenced to five years in prison. His story shows how onerous fines, fees, and probation requirements tend to punish poor people of color for being poor, and raises the question of when someone should be sent to prison for “crimes” that harmed no one.
This week Asheville North Carolina made a splash with the passage of a resolution to provide reparations to the city’s black residents. Although what reparations should look like is a topic of debate, the resolution passed by the Asheville city counsel is aimed at “increasing minority home ownership and access to other affordable housing, increasing minority business ownership and career opportunities, strategies to qrow equity and generational wealth, closing the gaps in health care, education, employment and pay, neighborhood safety and fairness within criminal justice.” Beyond these overarching goals, the city hasn’t offered many specific details so it remains to be seen how effective this resolution will be in bringing about economic justice for its black residents.
Finally, a deeply troubling story has come out of Louisville Kentucky, where protests demanding justice for Breonna Taylor continue. A protest staged on the front lawn of Kentucky’s Attorney General Daniel Cameron led to the arrest of 87 protesters. All 87 people arrested were charged with felony “intimidation of a participant in the legal process” on the basis that chants used by the protesters constituted a threat of violence. A law meant to protect witnesses is now being weaponized to insulate an elected official from public scrutiny and those arrested face one to five years in prison despite the fact the protest was peaceful. This blatant attempt to chill free speech is the latest use of criminal law to intimidate Black Lives Matter protesters.
Luke Herrine: As the Blog considers revisiting our 1LPE series, I have been trying to keep track of the wave of meditations on how to incorporate a racial lens into the law school curriculum that have come as a sort of aftershock to the earth-moving protests this summer. The Civil Procedure Workshop is holding an event on July 22 on teaching civil procedure with race in mind. The Contracts Blog is hosting a series of posts on critical race analysis in the contract curriculum. Just Security is hosting a “racing national security” series. Let me know if you see others!
Over at the New Inquiry, Tamara Nopper took on the trope that the suburbs are a good image of what police abolition looks like, but her account is not just a critique: it is a deep reconsideration of how we think about the relationship between police, budgets, and racial capitalism. She brings together critical geography, black radicalism, and Modern Monetary Theory to force reconsideration of the very way we understand how the social construction of disadvantage operates. Somehow she does all this in only a few hundred words!
Relatedly, Nathan Tankus’s substack–which has become a publication with a paid editor, guest contributors, and over 40k subscribers since I first mentioned it here (coincidence??)–has an amazing post from Phillip Rocco on the relationship between federal budgets and state/local budgets. It’s got history, legal analysis, institutional economics, sociology, macro-informed accounts of budgeting, and SO MUCH MORE.
At Democracy Journal, Sandeep Vaheesan takes critical analysis of Amazon took the next level by outlining a schematic for restructuring it in the public interest. The post is a masterclass in thinking through the interrelation between antitrust, public utilities, and other forms of regulation (even if you don’t agree with his ultimate solution!). And as has become his habit (perhaps it should be all of ours), Vaheesan begins his analysis by re-emphasizing the fact that law, the state, and political power are always involved in constructing the sort of “private” power that Amazon has.
Bonus: I just discovered that the Kool-Aid Man and Punchy (from Hawaiian Punch) were created when RJR Reynolds and Phillip Morris (i.e. two tobacco companies) bought up food companies when they thought their profits would be threatened by anti-smoking regulation. Apparently, tobacco executives only know how to make money by slowly killing people?
Anna Wherry: Jason DeParle’s piece in the New York Review of Books offers a fascinating look into the history of measuring “child poverty” and on child allowances as a promising policy intervention. The entire article is worth a read, but particularly interesting was his account of the politics of measuring child poverty. Since the 1960s, the Census Bureau’s “Official Poverty Measure.” has used a family’s cash income before taxes to measure levels of poverty. This way of measuring poverty, however, fails to capture the aid that poor families receive in the form of non-cash aid in the form of Medicaid, food stamps, or housing assistance, and cash aid that is distributed via the tax code. As DeParle explains, “by official standards, a family that gets $10,000 a year from food stamps and tax credits is just as poor as if it had received nothing. If hundreds of billions in anti-poverty spending doesn’t appear to be reducing poverty, that’s because the statisticians don’t count it.” This government’s blunt statistical tool, in turn, easily bolsters claims on the right that government aid doesn’t reduce poverty and, in the words of Reagan, “we fought poverty and poverty won.”
This piece, by Cristina Nova, on how childcare disruptions hurt parents of color. Childcare was in short supply and expensive for families of color even before the pandemic. As Nova explains, “A thinner financial cushion means full-time work—and affordable child care to support parent employment—is a more urgent necessity for many families of color than it is for non-Hispanic white families. However, despite being more dependent on full-time work and child care, parents of color are more likely to experience job disruptions that affect their bottom lines in both the short and long term—a fact that makes recovering from the economic impacts of a pandemic especially challenging.” As a first step toward addressing this problem, Nova endorses the Child Care is Essential Act which would apportion $50 billion to provide grants to child care providers during the COVID-19 crisis.
When I have a moment this weekend, I’m looking forward to listening to this recorded conversation between Maya Schenwar, Victoria Law and Mariame Kaba, on Schenwar and Law’s new book Prison by Another Name. Their book looks at how “alternatives” to jail and prisons, such as drug treatment, electronic monitoring, mandated psychiatric treatment, “actually widen the net, weaving in new strands of punishment and control, and bringing new populations, who would not otherwise have been subject to imprisonment, under physical control by the state.”
And, finally, this fantastic piece in the Boston Review on global health austerity.
Isabel Echarte: Today I’m taking you on a deep dive into everyone’s favorite subject–tax law! (Okay okay, I’ll admit, only tax nerds like me love tax law but boy do we really love it). But I can say that you’ll be interested to hear about some developments in government efforts to close international tax loopholes.
This week, the EU general court annulled the European Commission’s case against Apple and Ireland for unpaid taxes resulting from Ireland’s “sweetheart” deals for Apple subsidiaries. “[T]he commission had calculated Apple’s outstanding tax bill on the basis of all of the company’s sales outside North and South America, including the value of its intellectual property. The judges said the commission should have shown the income represented the value of the activities carried out by the Irish subsidiaries as opposed to that relating to decisions taken and implemented elsewhere.” The case underscores how challenging it will be for countries to reign in these practices. It’s a big deal because the scale is enormous. These schemes have significantly eroded the U.S.’s ability to collect taxes from these entities: Gabriel Zucman stated “40% of multinational profits are shifted to tax havens each year globally and the United States loses about 15% of its corporate income tax revenue because of this shifting.”
The FT article (linked to above) discussing the EU case argues that the answer to this problem can be found in the OECD’s efforts to combat these practices–termed the “base erosion and profit shifting” (BEPS) project. But some scholars have questioned more than just the practices of firms and countries like Ireland. Steven Dean, for example, has pointed to the “international tax constitution” as the source of these dynamics, arguing for more than just tweaking the corners of international taxation, as BEPS seeks to do: the international tax constitution “just says we are not going to double tax. That unwritten constitution grew out of the post-World War I concerns . . . . [T]here was broad consensus among experts that . . . double taxation posed a threat to cross border ties, and in the wake of World War I, such a threat was not to be taken lightly.” That means, the tax system today favors consistently undertaking companies than risking any chance of over taxing them.
I promise I spared you a lot of detail there. But now you know just enough to be annoyed at the EU court! And something enjoyable to reward that effort: Avatar: The Last Airbender is back on Netflix! Read the New Yorker’s take here.
Caroline Parker: In the 1990s, Steven Donziger helped direct a groundbreaking class action against Chevron on behalf of indigenous villages near the Lago Agrio oil fields in Ecuador. This story about the legal counterattack against him is dystopian. When federal prosecutors chose not to pursue criminal contempt charges against Donzinger, a judge appointed a private law firm with deep ties to oil & gas to lead the prosecution. Law school has not yet taught me why or how that is possible…
A GAO report released Tuesday found that the Trump administration has systematically undervalued the “costs” of climate change in its “social cost of carbon” formula. If any blog readers happen to believe that federal CBAs reflect a stable scientific objectivity, surprise!
This piece from Politico explores whether the Federal Reserve has a role in climate policy. If the Fed is really about stability, the answer has to be yes.
You have read headlines about the 15 y.o. who was sent to [in-person] juvenile detention in Michigan last in May for failing to attend online school. “Cyber truancy,” they’re calling it. This ProPublica investigation describes all the details of the Michigan case. I think this story should remind us that social workers are often a part of–not an alternative to–the carceral state.