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LPE Originals

Teaching Trusts & Estate as Critical Wealth Genealogy

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Step into a Trusts & Estates classroom and you’ll find the first thing most students learn is that the guiding principle in U.S. wealth transfer law is freedom of disposition. As the Restatement (Third) of Property tells us: “The organizing principle of the American law of donative transfers is freedom of disposition. Property owners have…
LPE Originals

Losing at Its Own Game: the Right Retreats from Cost-Benefit Analysis

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Over the past four decades, the right wing has painstakingly built an intellectual scheme to try to justify the weakening of regulatory public health protections on the basis of neoliberal economic theory. But a couple of decades ago, when the EPA began to figure out how—at least sometimes—to beat them at their own game, that…
LPE Originals

Zarda, Just Work, and the Limits of Antidiscrimination Law

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Today, the Supreme Court will hear oral argument on the question of whether Title VII’s prohibition on sex discrimination includes sexual orientation and gender identity discrimination. To provide context to this case, the LPE Blog asked two scholars for contributions that detail the history of sex discrimination protections and address how law should redress gender hierarchies…
LPE Originals

Looking Beyond the Law: The Movement for LGBTQ Rights at Work

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LGBTQ workers have never turned solely to the law to define or protect their rights. In years when many feminists and workers of color were narrowing their focus to pursuing individual advancement under antidiscrimination provisions like Title VII, LGBTQ workers articulated a new kind of right: to be fully oneself at work. They argued that sexuality and gender were irrelevant to job performance, as the older “homophile” gay rights movement had claimed. But they also denied that anyone could—or should—shed a piece of their identity at the office, factory, or schoolhouse door.
LPE Originals

AB5: Regulating the Gig Economy is Good for Workers and Democracy

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Poverty is not a suspect classification under our Constitution, but it is an affront to life and dignity and to democracy more broadly.  With the evisceration of the U.S. welfare state and the judiciary’s deference to political outcomes in the area of “economics and social welfare,” employment is the primary legal and political means to address economic inequality. In turn,…
LPE Originals

The Market Does Not Bind Us

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The central fallacy of the arguments against the Loan Shark Prevention Act, including Professor Fleming’s, is the limitation of regulation to merely attempting to steer the market. I argue here the purpose of regulation should instead be to carry out a democratic vision of how our society, including the economy, functions. The Loan Shark Prevention Act is an ideal start to pushing back against the decades of economic control by a select, mostly white and male, few.
LPE Originals

A Single Federal Usury Cap is Too Blunt an Instrument

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In May 2019, Senator Bernie Sanders and Representative Alexandria Ocasio-Cortez unveiled the Loan Shark Prevention Act, a bill that would cap the cost of consumer credit nationwide. Under the bill, the total cost of a loan, calculated as an annualized percentage rate (APR), could not exceed 15%. If fees and interest are capped at 15% APR, lenders cannot recoup the costs of making and servicing small-dollar, short-term loans. Only charitable or government-subsidized institutions could lend at that low rate.
LPE Originals

Reclaiming the Right to Future Tense

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By now, many of the societal, political, and distributive harms caused by large technology companies and so-called “social” media companies (Amazon, Facebook, Google, etc.) have been surfaced.  They invade our privacy, decrease market competition, erode our sense of self and, despite their euphemistic label, our sense of community.  Shoshana Zuboff’s new book—The Age of Surveillance…
LPE Originals

The Deregulatory Takings Are Coming!

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Laws take. It’s what they’re for. Taxes take dollars from some people and distribute them to other people. Traffic laws take away drivers’ opportunity to speed through intersections. Zoning restrictions take from neighbors their ability to build apartments in their backyards. Talk to me about a law’s requirements and you’ll be talking about a taking.…
LPE Originals

Teaching Penal Abolition

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In April, the New York Times ran a profile on abolitionist visionary and scholar Ruth Wilson Gilmore, and the Harvard Law Review published an entire issue on prison abolition. This fall, the University of Texas Law School Human Rights Center is hosting a conference on abolition. The new journalistic outlet The Appeal runs abolitionist pieces…
LPE Originals

In Defense of Grassroots-Powered Progressive Federalism

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Rather than serving as an obstacle to progressive change, the diffusion of power and resources across federal, state and local governments has allowed poor people’s movements to turn to federal authorities at times when local governments have been conservative and resistant and vice versa. Today, progressive federalism has allowed community-based organizations and poor people’s movements to expand the political class—making successful runs for elected office and pushing through local ordinances that become models for other city, state, and federal governments.

LPE Originals

Federalism is unlikely to save progressive politics

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American federalism is not neutral. In fact, federalism’s many venues generally disadvantage groups with comprehensive, progressive policy aims for several reasons: first, federalism does not just create political opportunities but also limits them; second, state and local governments  are poorly situated to solve national problems; third, jurisdictional boundaries can be remade in ways that disadvantage progressives; and finally, contestation itself over which level of government should perform which activities harms progressive causes.
LPE Originals

The New Trust Code

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Legal scholars who care about how law creates wealth and power cannot afford to disregard the trust. As Katharina Pistor mentions in her recent book, The Code of Capital, the trust stands out as one of Anglo-American law’s “most ingenious modules for coding capital.” Trusts are a longstanding component of the “feudal calculus” that Pistor…
LPE Originals

To Reimagine Intervention Strategies: The Political Economy of Domestic Violence

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In recent years, mainstream anti-domestic violence programs have moved away from a fixation on the criminal justice system to undertake economic justice initiatives designed to “respond to, address, and prevent financial abuse” related to domestic violence.  The shift reflects the growing realization that strategies of remedy through the penal state have tended to fracture the…