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Weekly Roundup: September 15, 2023


At the Blog

On Monday, Dan Berger explained how recent charges against the Stop Copy Activists are part of a long history of using RICO to criminalize resistance movements. In the case against the Stop Cop City activists, the state alleges a criminal conspiracy among people who have distributed flyers, coordinated a bail fund, and performed legal observation of protests. These charges, while an outlandish abuse of state power, are hardly novel. Looking back at the case of Ray Luc Levasseur, who worked with Vietnam Veterans Against the War and the Statewide Correctional Alliance for Reform, Berger shows how the state uses catch-all conspiracy charges to target political dissidents. As he writes, “Conspiracy charges are a gift to prosecutors, who can use guilt-by-association to criminalize what would otherwise be constitutionally protected activity. They carry stiff penalties: Under the Georgia law, any RICO convictions carry a prison term of up to 20 years and large fines—on top of whatever sentences attend the underlying alleged conspiracy.”

On Tuesday, Jed Purdy offered a defense of theoretical pluralism. Responding to Sam Moyn’s recent call for the LPE movement to embrace deeper theoretical foundations, Purdy argues that there is good reason to doubt that any single account can adequately explain what law does. As he writes, “We can offer the competing formulations of CLS, of liberalism, of Marxism, each to a certain extent self-consistent and fiercely fortified at its boundaries. But when we put them into play, unless we have minds of especially dogmatic power (almost theological power, we might say), the world overruns them…. I am tempted to say there’s a quasi-epistemic reason for this incompleteness of theory: that in order to get our minds around the world systematically, we simply must leave out certain inconsistent phenomena, or all that seems solid in thought instead melts on us. Or maybe the reason is just that we are blown backward into the future, always contending with partly unprecedented problems because of the ways we are always remaking the world.” Finding ourselves without any Unified Field Social Theory, he argues, the appropriate response is to take seriously the pluralism of theoretical formulations.

And on Thursday, Brishen Rogers put legal theory to work, analyzing the NLRB’s recent Cemex decision from the perspectives of the liberal legalist, the progressive functionalist, and the low-key Marxist. The decision, which should discourage employers from resisting unionization and therefore make it easier for workers to gain bargaining rights, could be justified on several different grounds, and therefore offers a valuable opportunity to reflect on some alternative viewpoints within LPE scholarship. While the liberal legalist would stress that Cemex will better enact workers’ uncoerced preferences toward unionization, and the progressive functionalist would embrace the usefulness of worker organizations to counterbalance financial and business interests, the Marxist tradition, Rogers notes, “suggests a different set of questions for legal scholars. For example, it tends to view workers’ preferences as socially constructed and therefore endogenous to class and other power relations. In that sense, Cemex can be understood as a framework for encouraging class formation, rather than a means of enacting workers’ preferences.”

In LPE Land

CFP: A collaborative workshop for students and emerging scholars, “Heterodox Economics Meets Law & Political Economy: Institutions and Power,” will take place at the New School on October 21, 2023. Submit 100-350 word abstracts by October 2, 2023—full papers not required.

CFP: Though it may seem a world away, the deadline by which to submit abstracts to next summer’s Law and Society Association (LSA) Conference in Denver, is October 24, 2023.

Don’t miss our upcoming event with Bernard Harcourt, who will be discussing his new book, Cooperation: A Political, Economic, and Social Theory, which draws on extant models of cooperation across the globe to reimagine a world beyond capitalism. Sept 26, 12:10pm ET (at YLS & on zoom).

Over in Phenomenal World, Lenore Palladino explains why institutional capital is currently a hindrance to a just green transition.

In an op-ed and new paper, Lev Menand and Morgan Ricks argue that lawmakers should rebuild American banking law by recovering its public utility roots.

And for more insightful coverage of the charges against the Stop Cop City activists, make sure to check out Zohra Ahmed’s piece in The Nation, which looks at both the extraordinary charges & the quotidian machinations of criminal court, as well as Jocelyn Simonson’s piece in Slate, which makes clear that the goal of the case is to criminalize the solidarity of those who agree with the underlying political message.