Two different mortal threats to democracy have been on vivid display this past year: Trump’s January 6 insurrection and the Supreme Court’s rampage through statutory and constitutional law. Considering these events on split-screen raises some uncomfortable questions about LPE analysis of democracy, law, and courts. In particular, certain law-is-just-politics views deployed to dismiss the Court seem to foreclose criticism of Trump’s attempted coup as lawless. More generally, for democratic institutions to assert and receive primacy requires some conception of law that does not just dissolve back into “politics.”
Over the past forty years, the Supreme Court has increasingly recognized the rights of defendants in criminal proceedings to exert autonomy over their own representation, including dispensing with counsel. Analyzing these developments in Sixth Amendment jurisprudence, this post argues that encoding defendant choice into constitutional rules will likely deepen, rather than mitigate, the structural inequalities at the heart of the criminal legal system.
Running through the fields of employment law, philosophy, political science, and economics is the pervasive assumption that employers and employees share equal power. A special issue of the Journal of Law and Political Economy elaborates the destructive role that this assumption plays in law and policy and provides new evidence challenging it.
The concept of reasonable accommodations at the heart of the ADA severely undercuts the efficacy of the law. Employers, public entities, and private businesses are allowed to ignore the inaccessible nature of their programs or activities until an individual with a disability seeks (or begs) for access. This reactive, individualized model does little to prevent mass-produced inaccessibility.
Beatrice Adler-Bolton, Artie Vierkant, and Karen Tani blow the doors off a new symposium on Marta Russell and the Political Economy of Disability, while Rick Weinmeyer calls attention to our public reliance on privately owned toilets. Plus, a new issue of the JLPE, as well as articles by Aziz Rana, Sanjukta Paul, and about the noble work that Sabeel Rahman and others are doing at OIRA.
When most people consider the crisis of American infrastructure, they imagine crumbling roads and bridges, decrepit schools and hospitals, or dysfunctional railways and power grids. This post calls attention to a different, often overlooked component of American infrastructure — public restrooms. Specifically, it argues for a constitutional right to public restroom access, grounded in state constitutional provisions dedicated to public health.
The modern disability rights movement has been primarily oriented around seeking labor inclusion through the expansion of civil rights statutes. Despite this, few disability theorists have approached the study of disability from an explicitly political economic perspective. Marta Russell, the author of several groundbreaking but lesser-known works on disability and capitalism, is one of the rare exceptions. This symposium celebrates her work and encourages the rediscovery of the political economy of disability.
Luke Herrine discusses student debt cancellation and the politics of legal interpretation, Lisa Heinzerling reflects on the persistence of the economic style in regulatory policy, and Erik Peinert argues that the economic style has provided cover for fundamentally reactionary arguments. Plus, a forthcoming event with Sara Nelson & Amy Kapczynski!
For fifty years, presidents of both parties have offered a vision of regulatory policy that takes the economic style of reasoning as its North Star. Republican and Democratic presidents have differed, however, in their willingness to sacrifice economic purity when it disrupts their larger policy agendas. While Republican administrations have tended to ignore this criterion when it doesn’t align with their political priorities, Democratic presidents have been more foolishly consistent.
Even as the Supreme Court seeks to squelch legal creativity in support of progressive causes, their power to do so only extends so far. We cannot let them define the terms of the debate.
Frank Pasquale considers what could replace the “economic style,” Landon Storrs tells the darker history behind the rise of the “economic style,” and Alvin Velazquez explains why the NLRB needs to adopt a more protective joint employer standard. Plus, an LPE event on torts you won’t want to miss!
The prevailing joint employer standard requires a showing of greater control than state-based corporate law requires when applying traditional concepts of agency law to parent-subsidiary and franchisor-franchisee relationships. As a result, the current standard leaves millions of workers without meaningful collective bargaining rights because companies that “call the shots” avoid getting called to the bargaining table. Thankfully, this past week, the Board issued a notice of proposed rulemaking that signals the NLRB’s desire to return to a more protective standard.
In charting economists’ pernicious influence on public policy, Beth Popp Berman contrasts an “economic style,” which focuses on efficiency, choice, and competition, with an alternative approach that favors equality, stability, and democratic participation. But that framing is not faithful to the actual debates that took place, out of which the economic style achieved its dominance, because it gives no account of the alternative economic views and theories that were displaced.
William Novak’s New Democracy demonstrates that the long progressive era was devoted to a reconfiguration of the very nature of modern American capitalism. Yet we must not lose sight of the different visions of state, economy, and democracy that comprised the progressive project.
