In response to the likely fall of Roe, commentators have suggested that tribal lands might serve as safe harbors for abortion in conservative states. While tribes ought to possess the territorial authority to regulate reproductive healthcare as they see fit, this proposal overlooks important legal, financial, political, and ethical considerations that make the prospect of such safe harbors unlikely.
Civil procedure is the infrastructure of democracy, allowing the public to interpret, elaborate, and entrench constitutional-regulatory commitments over time. Rather than sidelining courts entirely, a revival of the democracy-of-opportunity tradition should include a progressive vision of procedure.
“It is not true that the U.S. Constitution has little to say about our economic rights and liberties – let alone our material welfare. Instead, as Fishkin and Forbath argue convincingly, the Constitution has nourished a democracy-of-opportunity tradition that places our equal social rights front-and-center in constitutional practice and politics.”
The historical high-tides for the domestic experience of democracy-of-opportunity have occurred during periods of territorial and global expansionism. A serious effort to recover this tradition entails engaging with its imperial dimensions.
In the introduction to a symposium on their new book, The Anti-Oligarchy Constitution, Joseph Fishkin and William E. Forbath make the case for reviving interest among progressives in constitutional political economy.
By studying American courts from a comparative perspective, an important truth emerges: our judiciary is not simply compositionally conservative, at particular moments in history, but structurally conservative, as an institution.
We live in a condition in which capital drives significant social reforms while also undermining their impact and longevity by leaving destabilizing matters of economic inequality unaddressed. From this perspective, current LGBTQ+ victories are built on a shoddy foundation.
Luke Herrine, Noah Zatz, Veena Dubal, Blake Emerson, Diana Reddy, Nate Holdren, and Caroline Grueskin offer their initial reactions to the Court’s decision blocking OSHA’s vaccine-or-test mandate.
In the United States, the rule of law has always had property rights as its lodestar, with private property serving as the central legal interest that requires protection. Attending to our history reveals the dangers and paradoxical nature of this property-first conception of the rule of law.
The LPE Blog asks Amy Kapczynski, Aziz Rana, and Robert Tsai how we might fix the Constitution.
Powerful monopolies have captured our core communication infrastructures, subjected them to the unbridled pursuit of advertising revenues, and generated profound social harms. Media democracy, as a political and intellectual project, seeks to provide solid theoretical foundations from which to understand and respond to this worsening crisis.
Nikolas Bowie, Veena Dubal, and Amy Kapczynski discuss the potential implications of the Cedar Point Nursery for workplace democracy, as well as legal and non-legal strategies for overcoming this concerning turn in Takings Clause jurisprudence.
The logic of the Court’s recent TransUnion decision should make it harder, perhaps impossible, for corporations to enforce various forms of so-called “intellectual property” against competitors and the public. Could and should the legal left wield TransUnion for our own purposes?
The August hit parade continues, featuring entries by Aziz Rana, Michelle Wilde Anderson, and Samuel Moyn, among others.
I thank the Law and Political Economy Project for inviting me to participate in this blog symposium on capitalism and the courts. I begin by stating the obvious: that we live in a capitalist economic system and a political system that aspires to being democratic. There is clearly considerable tension between these systems. Most capitalists…