Would reconsidering the state/private action divide in First Amendment jurisprudence just unleash a torrent of endlessly abusive communications and misinformation of all kinds? Can antitrust categories help to solve the problem?
The touchstone of contemporary disability law, the Americans with Disabilities Act of 1990, was a victory of the militant disability rights movement, and was drafted with the social model in mind. However, Congress essentially delegated the design for this mandate to the Reagan-era EEOC, which in turn operationalized accommodations through private exchanges between employees and employers. Market logic further limited its redistributive work and society’s ability to critique its effectiveness.
Readers of this blog need no reminder of the pervasive inequalities that define American society. Nor do readers need to be convinced that a perverse concentration of wealth has had profoundly corrosive effects on the viability of American democracy. In a recent article published in the Yale Law Journal, we argue that the traditional approaches to combatting political inequality—campaign finance reform, voting rights, participatory governance—do not go far enough, and we ask what else might be done to redress the fundamental power imbalances that define our politics. We argue that the key lies in building countervailing power among poor and working-class people, and that law can and should be used to facilitate organizing by the poor and working class: not only as workers, but also as tenants, debtors, welfare beneficiaries and others.
The relevance of LPE for Europe might not be instantly obvious. LPE in the U.S. gets part of its conceptual thrust from its opposition to the dominance of Law and Economics, a framework that never achieved the same kind of intellectual hegemony in Europe. But there is a European parallel that could ground critique: the guiding role that ordoliberalism has played in the structuring of the supranational economy. But to get a grip on what LPE has to offer in a critique of ordoliberalism, we must first explore how left legal thought in Europe has engaged with ordoliberalism so far.
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.
In celebration of the tenth anniversary of its publication, Henry Brooks interviews Aziz Rana on his influential book and what it might teach us about the legacies of populism.
In celebration of the tenth anniversary of its publication, Henry Brooks interviews Aziz Rana on his influential book and what it might teach us about the legacies of populism.
In celebration of the tenth anniversary of its publication, Henry Brooks interviews Aziz Rana on his influential book and what it might teach us about the legacies of populism.
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 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?
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.
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…
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…
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…
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,…