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?
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…
If history is any guide, the long-term solution when the courts are aligned against liberal and progressive causes is not to “reform” the politics out of the courts, but, rather, to confront the courts through politics itself.
In my new article, Monopolizing Whiteness, I examine the causes and consequences of “white island districts,” i.e. those that enroll predominantly white and affluent student bodies, despite being in racially and economically diverse metropolitan areas. I theorize that white student segregation in districts like GPSD is a product of (what sociologists refer to as) social closure— a process of subordination whereby an in-group works to curtail an out-group from accessing resources constructed as scarce. I suggest that the “essential facilities” framework of antitrust law can help to illustrate what a legal framework looks like that could appropriately recognize and address the process and harms of social closure.
In liberal-leftist discourses, both Zionist and otherwise, the pivotal year for what is called the Israeli-Palestinian conflict is 1967. Israel’s control over all aspects of Palestinians’ lives, both those who live within the ‘Jewish state’ and those who reside in the Occupied Territories, renders the 1967 paradigm not only unpersuasive, but ridiculous.
If political morality is to inform our analysis of legal institutions, it must account for the way that these institutions construct coalitions and endow them unequally with power. Theories that focus on fairness or political equality do not sufficiently account for these dynamic and iterative aspects of institutions. What is needed is a democratic morality of empowering the disempowered.
More so than blind faith in the market, U.S. family policy embraces the principle that government should not intrude into parents’ choices on whether and how to raise children.
Are social media platforms more like common carriers or newspapers? The answer is neither. And that answer has significant implications for how Courts should treat regulation of content moderation.
This weekend, Chileans will elect a Constitutional Convention. This Constitution will finally replace that which Pinochet’s junta put into place, in one of the first victories of neoliberalism. Why is this Convention happening now? And what are its prospects?
In a previous post, one of us described why we need global cooperation to achieve massively scaled up production of COVID vaccines. The United States must play a key role in this process, because it has the ability to mobilize resources, and powerful leverage over companies that have so far resisted serious participation in global efforts – especially Moderna, Pfizer, and J&J. Some commentators question whether the US has the power to compel this cooperation. Others have doubted the relevance of the demand coming from developing countries to temporarily waive the requirements of the World Trade Organization’s TRIPS Agreement to facilitate more manufacturing. In this post, we explain why existing US law gives the Biden Administration the power to mandate sharing and overcome IP barriers, and how the TRIPS waiver can contribute importantly to efforts to scale up production at a global scale.
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.
