This morning, the Supreme Court will hear arguments in the most anticipated cases of the year for the future of regulating tech platforms. While much of the debate will focus on whether the platforms are best analogized to publishers, there is another important argument that the Supreme Court will confront: whether platforms are “common carriers.”
From Afro-Diasporic laborers building the Panama Canal to contemporary Micronesians trafficked to work in Iowa’s pork industry, the labors of “territorial peoples” have been central to America’s economic rise. This often overlooked history is both an indictment of our constitutional tradition and a harbinger of the tactics of legal disempowerment deployed against labor writ large.
Here’s the terrifying reality: our power-hungry, ultra-conservative Supreme Court will stifle attempts by the government to address climate change, gun violence, racial inequality, and many other pressing problems. Democrats, meanwhile, are unlikely to win back control of the Court until 2065. Given this, it’s past time to take seriously the following question: what to do about the courts? Thankfully, we have just the open course for you.
Twelve titles that the Blog’s editors can’t wait to read in the months to come.
In late October, Florida banned chapters of Students for Justice in Palestine from operating on state university campuses. This ban, which alleges that the national organization provided material support to designated terrorist organizations, is unlikely to survive judicial scrutiny. Nevertheless, it represents a dangerous escalation of recent efforts to restrict the speech of pro-Palestine advocates, while providing a blueprint for the future repression of other disfavored groups.
Private equity firms, cloaked under protective securities laws, have increasingly acquired companies that provide goods and services in U.S. jails and prisons. But it is the legal construction of prisoners’ rights that has enabled this market to take the particular form that it has, turning community ties into steady payment streams. In particular, Eighth Amendment jurisprudence, which has affirmed the constitutionality of pay-to-stay fees, has transformed the prohibition against cruel and unusual punishment into a (subordinating) right to credit.
This past year, Jackson has been the site of two separate yet related crises: a failed water system that has left approximately 150,000 residents without access to safe drinking water, and the takeover of the city’s police and court functions by white officials in the state government. Assessed together, these two episodes offer lessons about the challenges of local self-governance in a country awash with material inequality and the importance of pursuing political equality across as well as within jurisdictions.
Louise Seamster, Blake Emerson, Marshall Steinbaum, Ryann Liebenthal, Jonathan Glater, Persis Yu, and Luke Herrine offer their initial reactions to the Supreme Court’s invalidation of the Biden administration’s student debt cancellation program.
Next week, the Supreme Court will hear arguments in a case that may allow some employees to foist the cost of their religious exercise onto their co-workers. Such an outcome, beyond its obvious unfairness, threatens to reduce collective labor power. Workplaces and unions rely on a sense of reciprocity, mutual support, and solidarity. But if employers are required to inflict the burdens of one religious worker’s accommodation on their fellow employees, workers may come to see themselves as competitors, rather than allies. By pitting workers against each other, the Court threatens to dissolve workplace solidarity and sabotage workers’ ability to act collectively.
An alliance between religious and economic conservatives is playing a central yet overlooked role in the resurgence of concentrated economic power in America, resulting in the transfer of public funds, services, and decision-making away from more democratic institutions. Nowhere is this more evident than in the rise of “government-religious hospitals”: these hospitals are state owned, yet religion permeates their halls, and faith dictates the care they offer. To mitigate the risk that these arrangements pose, we must make innovative use of LPE’s tools, including antitrust, public utility regulation, and public options.
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.
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.
William Novak responds to the recent symposium held on his New Democracy: The Creation of the Modern American State.
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.
As recent Supreme Court cases make clear, the libertarian and Christian wings of the conservative legal movement have orchestrated a two-step process to shift the allocation of public resources to private religious power. First, privatize public goods and services. Second, eliminate the distinction between religious and secular in the newly empowered private sphere. Their objective is to replace the New Deal settlement not with a libertarian vision of market freedom, but rather an arrangement in which the market is embedded in a conservative Christian social vision.
