What Makes An Administrative Agency “Democratic”?

What Makes An Administrative Agency “Democratic”?

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.

On Justice Ginsburg and the Political Economy of the Family

On Justice Ginsburg and the Political Economy of the Family

The argument that gender stereotypes structured law, and therefore shaped social identities and practices, is relatively familiar to historians and legal scholars. Less widely discussed is how gender ideologies influenced the development in the United States of what sociologist Gøsta Esping-Andersen termed a liberal welfare state. How did Ruth Bader Ginsburg’s vision of feminism fit in with other movements at the time?

Toward a Democratic Political Economy for the First Amendment

Toward a Democratic Political Economy for the First Amendment

The key to understanding the connection between rights and material conditions is a conception of democracy…. people who are suffering from certain basic forms of deprivation and disadvantage will find it impossible to exercise fundamental rights and they will be unable to participate meaningfully in the project of cooperative government. Liberties may become impossible to realize without sufficient primary goods, while membership status within the political community may be degraded by structural inequality of economic wherewithal. Such problems can be avoided, at least partially, if freedom of speech and religion are construed in ways that are sensitive to the material conditions for their meaningful exercise. Otherwise, the conditions for the cooperative project of self-government will be absent.

Countering the Neoliberal Structural Constitution

Countering the Neoliberal Structural Constitution

This post is part of our symposium on socialist constitutionalism. The Federalist Society leverages right-wing legal change by promoting constitutional originalism as a seemingly noble and neutral foundation for neoliberal political economy.  Without a comparably accessible and compelling contrary first principle, left and centrist law and politics can appear to be a diffuse agenda of contested…

Last Week’s Surprisingly Deep Victory for LGBT Workers

Last Week’s Surprisingly Deep Victory for LGBT Workers

This post was originally published at Jacobin. Last Monday, the Supreme Court ruled that employment discrimination on the basis of sexual orientation or gender identity is prohibited by Title VII of the Civil Rights Act of 1964. The decision brings employment law in line with public opinion: a majority of Americans favor employment protections for LGBT…

The Relevance of Weimar

The Relevance of Weimar

This post is part of our symposium on socialist constitutionalism. Willy Forbath’s return to the Weimar Constitution is inspiring. I will just point out of a couple of limits to turning back to it in the present — limits that strike me as difficult to overcome. First, the Weimar Constitution’s nod to worker empowerment presupposed…

Progressive Democracy and Legislative Form

Progressive Democracy and Legislative Form

Adrian Vermeule recently made a stir with his proposal for a “common-good constitutionalism.” He argued that originalism had “outlived its utility” now that the right had gained power on the federal bench. Instead it was time for a “substantively conservative approach to constitutional law and interpretation.” We got only a few peaks at the substance,…

The Constitutional Role of Economic Coordination Rights

The Constitutional Role of Economic Coordination Rights

There’s a common notion that pervades legal and policy debate—including among fairly liberal Democrats—that collective bargaining mechanisms, and even public coordination of markets through minimum wages and working conditions, distort market outcomes and are therefore inefficient (though they may be justified by countervailing considerations). This position immediately sets up a kind of presumption against labor…

A Law and Political Economy Agenda for Labor and the Constitution

A Law and Political Economy Agenda for Labor and the Constitution

This post is part of our series on the political economy of labor & the constitution. You can find all of our posts on this topic here. At the end of September, labor law scholars gathered at a conference focused on “Labor and the Constitution: Past, Present, and Future.”  There, a group of us considered…

A Political Economy the Constitution Requires

A Political Economy the Constitution Requires

Join us this week for a series on the political economy of labor & the constitution.  “Political economy” has an antique ring. More than a century ago, the field of “political economy” began to give way to what was called “economics.” By the mid-twentieth century, political economy was forgotten; economics ruled the roost. But what…

In Defense of Grassroots-Powered Progressive Federalism

In Defense of Grassroots-Powered Progressive Federalism

This piece is part of a collection on “progressive federalism,” which addresses the conditions under which American federalism advances and hinders the interests of democratic political movements. Other contributions can be found here. If you are interested in participating in the discussion, join us on Twitter at @lpeblog. Over fifty years ago, Frances Fox Piven…