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LPE Originals

Democracy Without Law?

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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.”
LPE Originals

The Right to Counsel in a Neoliberal Age

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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.
LPE Originals

The Law and Political Economy of Religious Freedom

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As recent Supreme Court cases make clear, the conservative legal movement seeks 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.
LPE Originals

How Civil Probation is Rewriting Eviction Law

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When tenants head to eviction court, they often sign settlements that allow them to remain in their home so long as they abide by certain conditions. If they violate any of the conditions, they can be evicted through an expedited, alternative legal process, in which they have few procedural or substantive rights. This system of “civil probation,” overlooked in both public and scholarly debate, is effectively rewriting eviction law in favor of landlords.
LPE Originals

The Indian Country Abortion Safe Harbor Fallacy

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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.
LPE Originals

Last Week’s Surprisingly Deep Victory for LGBT Workers

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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…
LPE Originals

Zarda, Just Work, and the Limits of Antidiscrimination Law

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Today, the Supreme Court will hear oral argument on the question of whether Title VII’s prohibition on sex discrimination includes sexual orientation and gender identity discrimination. To provide context to this case, the LPE Blog asked two scholars for contributions that detail the history of sex discrimination protections and address how law should redress gender hierarchies…
LPE Originals

Looking Beyond the Law: The Movement for LGBTQ Rights at Work

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LGBTQ workers have never turned solely to the law to define or protect their rights. In years when many feminists and workers of color were narrowing their focus to pursuing individual advancement under antidiscrimination provisions like Title VII, LGBTQ workers articulated a new kind of right: to be fully oneself at work. They argued that sexuality and gender were irrelevant to job performance, as the older “homophile” gay rights movement had claimed. But they also denied that anyone could—or should—shed a piece of their identity at the office, factory, or schoolhouse door.
LPE Originals

Critics of the Administrative State Have a History Problem

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For the first time in nearly a century, the conservative scholars, judges, lawyers, and advocacy groups challenging the constitutional foundations of the modern administrative state have reached a critical mass. However, by relying on originalist foundations, these critics may be inviting in a Trojan Horse. As I argue in a forthcoming article, returning to 19th century administrative law would smuggle in an unwelcome consequence: largely eliminating judicial review of the constitutionality of agency action. As a result, they may have to choose between their originalist attack on the modern administrative state and preserving a type of court review they value highly.