Unlike most modern constitutions, the U.S. Constitution famously lacks any social welfare rights. At least, it did until 2018. Over the past five years, the Ninth Circuit has created a right unique in the American constitutional tradition: an effective license for homeless individuals to sleep on public lands.
Next month, the Supreme Court will decide whether it is constitutional for cities to punish unsheltered people for sleeping outside, even when the city fails to provide any safe alternative. Yet, no matter how the court rules, homeless people will still face significant threats from cities.
A ruling that tech companies don’t have to comply with neutral regulations would not just block two sloppy laws, it would put a block on politics itself. This is a moment for the Court to stand back and allow democracy to work its clumsy, painful magic.
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.
Since the early 1990s, the United States has created a scheme of laws allowing private parties to sue individuals, organizations, and foreign countries for acts of terrorism in U.S. courts. While these laws have primarily been used to target and harass Palestinians, the recent spate of violence by Israeli settlers in the West Bank presents a potential if unexpected opportunity: to turn the tables on terrorism torts.
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.
In this moment of U.S. financial imperialism, a host of “new” colonizers have emerged, including private plaintiffs holding unsatisfied civil judgments against so-called terrorists, terrorist organizations, and countries designated by the U.S. State Department as state sponsors of terrorism. And just as the colonizers of yesteryear used imperial policies to destroy and deplete the colonized’s resources, these new colonizers pillage in their own modern way, leveraging and expanding the U.S. government’s imperialist reach.
The American penal system is astonishingly vulnerable to the threat of defendant collective action. The reason is simple: the system is massively overleveraged. Major city court systems, which only have the capacity to bring to trial about 3 percent of the cases they handle, are dependent on plea bargaining to remain minimally functional. If even a tiny percentage of defendants banded together and refused to plead guilty, they would bring the administration of criminal justice to a grinding halt. What might such a plea strike look like? And should such a tactic be attempted?
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.
The D.C. Circuit appeals court heard arguments last month in a bizarre case: the Jewish National Fund is leading a lawsuit against the U.S. Campaign for Palestinian Rights, a nation-wide coalition of groups advocating for Palestinian liberation, on accusations of supporting terrorism. A look at the political economy of terrorism tort litigation shows how this lawsuit is not merely an instance of terrorism laws potentially trampling human rights; it is also an aggressive assertion of a right to colonize, and to do so in peace and quiet.
The relationship between the criminal legal system and racial subordination has been well-documented. Much less attention has been paid, however, to racial subordination perpetuated by the civil legal system. In a wide range of cases, including eviction, debt collection, and child support, civil courts routinely extract resources from poor, predominately Black communities, and transfer them to white-controlled corporations or to the state itself. Although some of this occurs through the substance of the law, how the courts interpret and implement the law plays an equally important role.
Setting aside their habit of quoting Augustine, the post-neoliberal right can at times sound surprisingly like fellow travelers in their critique of the market. So how does their vision of life after neoliberalism differ from our own? And what does their arrival on the scene mean for the LPE movement?
Subject matter jurisdiction isn’t the dry, technical topic you think it is! Two civil procedure scholars argue that jurisdiction battles are central to corporate efforts to slant litigation and enforcement in service of corporate actors.
Amy Kapczynski and Wendy Brown discuss the value of democracy, the role of the courts, and strategies for democratizing our political economy.
Two different mortal threats to democracy have been on vivid display this past year: Trump’s January 6 insurrection and the Supreme Court’s rampage through statutory and constitutional law. Considering these events on split-screen raises some uncomfortable questions about LPE analysis of democracy, law, and courts. In particular, certain law-is-just-politics views deployed to dismiss the Court seem to foreclose criticism of Trump’s attempted coup as lawless. More generally, for democratic institutions to assert and receive primacy requires some conception of law that does not just dissolve back into “politics.”
