Each year, the Supreme Court hears roughly 65 merits cases. The administrative state, meanwhile, issues thousands of rules. Given this institutional reality, along with the inherent vagueness of the so-called major questions doctrine, the worst mistake an agency can make is to clip its own wings.
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.
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.
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, Caroline Grueskin, and Charlotte Garden offer their initial reactions to the Court’s decision blocking OSHA’s vaccine-or-test mandate.
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?
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.
