We do not want to have to choose between John Roberts and Mark Zuckerberg as the guardians of democracy, though that is what current doctrine seems to require. Luckily, the contemporary framework is not the only one available to us.
To understand what’s at stake in the fight for rent cancellation, we first need to understand the significance of rent. In the US, rent is the vehicle for a wealth transfer from the poorest third of the population to a mere 7% of US residents and a relatively small number of corporate entities. The mom-and-pop landlords that make up that 7% face more precarity than their corporate counterparts, underlining the importance of COVID-19 mortgage cancellation. But many tenants live one paycheck away from homelessness, representing a far greater and more vulnerable segment of the population.
Once we recognize (yet again) that price making cannot be understood in neutral, functionalist terms, efforts to design new markets become impossible to separate from politics and political economy. Viewed in this way, prices are not simply signals or pieces of information that emerge from markets, but also objects of struggle—an insight that one can find in Max Weber’s understanding of markets and prices, in Joan Robinson’s vigorous mid-century critique of mainstream economics, as well as in the work of institutional economists and legal realists, such as John Commons and Robert Lee Hale who viewed prices and price relationships in the context of a broader economy of mutual coercion structured by shifting sets of background entitlements.
This year the Supreme Court will hear Cedar Points Nursery v. Hassid, a case out of California which challenges a forty-five-year-old farm labor regulation. The petitioners are alleging that this regulation, which grants farm labor unions a limited right of access to an employer’s property, is unconstitutional on the grounds that it amounts to the government taking their property rights without compensation. This case potentially represents the culmination of a decades-long reactionary campaign against the ability of unions to access an employer’s property. It’s another legal gut-punch to the labor movement and part of a long history of judicial antagonism against workers.
The staggeringly disproportionate ravages of the COVID-19 pandemic among people of color, juxtaposed with the summer’s wave of protest against police violence against Black people in the United States, make clear that population health is bound up with existing patterns of social subordination. This reality transcends presidencies and pandemics—even in “normal” times, race, gender, and income play outsize roles in predicting health outcomes in this country. Yet, while the health system is a profoundly important social institution that often determines who lives and who dies, it has rarely been subject to the same level of scrutiny that has been directed at other systems we consider integral to how our democracy functions, such as the justice and electoral systems. In our recent piece, “Democracy and Health: Situating Health Rights within a Republic of Reasons,” we set out the contours of a health system that is grounded in an understanding of entitlements to health (public health and care) as assets of social citizenship. These contours include (1) public participation; (2) fair financing; (3) transparent and fair priority-setting processes; (4) universally acceptable, accessible, and adequate care; and (5) enforceable rights.
The exact trajectory predictive legal analytics will take in the coming years is really anyone’s guess, but we can be fairly sure that the discourse of cost cutting and increased rationality via technology will be coming for the legal system, piece by piece. As such, it is worthwhile for left legal theory to take legal futurism, and even the idea of a legal singularity, seriously. Doing so, even for critics of liberalism, requires revisiting the liberal principle of the rule of law.
The Bristol Rent Strike, which now has over 1900 students pledging to withhold rent, is one of the many ongoing student strikes across the UK. Over the past few months, students at roughly 20 universities including Manchester, Oxford, and Cambridge have organized mass rent strikes, demanding overall reductions in rent, no-penalty contract releases, and better accommodation conditions. But one significant obstacle stands in their way: Many of these students live in financialized student housing—in buildings owned not by universities but by multi-million-dollar corporations. The financialization of student housing has fundamentally altered the relationship between universities and students and, in so doing, has complicated student resistance against housing injustice.
You hear it everywhere: we need more “affordable housing.” It’s a seemingly uncontroversial call, and yet… a group of members of the LA Tenants Union were compelled to document the many and profound problems with the dominant model of privatized “affordable housing” in the United States.
Klare speaks to the virtues of post- and non-marxist social theory. My impression is that these literatures are long on the kind of disaggregation that the theory of underdetermination permits. Marxist critical theory tends to place more emphasis on aggregating, finding patterns. That kind of thought and past socialists who held to only minimally appear in Klare’s text and do so largely as foils. I would like to suggest that marxist social theory and the identification of patterns that persist over time – such as structural domination – is at least equally valid for left purposes and for understanding the relationship between law and political economy.
Throughout this pandemic, transnational corporations and white parents alike have been sounding the “achievement gap” alarm under the guise of concern for “voiceless” Black and Brown children, but in service of their own neoliberal agendas. The students they speak of, however, can speak for themselves — and as they struggle through this time, with a fierce resilience that no young person should be forced to cultivate, their realities and their words call for more radical solutions.
In today’s post I explore how the success of those encampments presents a vision of contracting that counters the traditional Lochner-esque “freedom of contract” through the occupation and democratization of the right to contract which, under a commodified housing system, ultimately enlivens the right to housing.
This summer, in the wake of the murder of George Floyd and the corresponding racial justice uprising, a coalition of unhoused people and organizers with the Black and Brown Workers Cooperative and the Workers Revolutionary Collective quietly hitched some tents in a park just off the Benjamin Franklin Parkway in downtown Philadelphia.
Scholarship thus far has not reconciled the relationship between democratized agency policymaking and the regular lawmaking done by Congress. To ameliorate the inexorable agency costs, theorists generally pose two different solutions: (1) a democratization of agency discretion, e.g., by making notice and comment procedures more robust; or (2) forcing Congress to elaborate their intent in fine-grained detail or undertake more robust oversight. Both moves inadvertently replicate a conceptual mistake committed by many anti-administrativists. This essay will rectify this mistake.
The end of European empires during the mid-twentieth century and the independence of former colonies was many things: an oft-violent conflict between unequal opponents, a clash of ideas and ideologies, a struggle over rights and self-determination. Less frequently considered is that decolonization involved a dramatic movement of money and a legal reorganization of access to assets and investments. Having tracked these movements, I have found a surprising connection between decolonization and the expansion of tax havens and tax haven business during the 1950s and 1960s.
A recent workshop on the “Jurisprudence of Distribution” invited the opening panelists each to provide a five-minute overview of what a contemporary approach within left legal theory might offer. Other speakers covered Critical Race Theory, Feminism, Vulnerability Theory, left political economy, and so on. I took socialism and critical legal theory. Here are my five minutes (with some slight modifications for bloggability).
