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LPE Originals

Democratizing Governance to Advance Health Justice and Economic Democracy

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The inequities and exclusions of the U.S. health care system are well known, but the two prevailing strategies in health law and policy—privatization and technocracy—both fail to address disparities in power that produce health injustices. To advance health justice, we need multiple pathways through which everyday people—acting both as individuals and also as member-led associations of patients, families, health care workers, and members of the public—can meaningfully shape governance and advance accountability by contesting over real levers of power. Many possible legal mechanisms incorporate empowered participatory decision-making and accountability into health governance. Here, I explore five mechanisms that hold especially exciting potential.

LPE Originals

Critiquing Legal Futurism and Imagining a Radical, Emancipatory Legal Liberalism

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The exact trajectory predictive legal analytics will take in the coming years is really anyone’s guess, but we can be fairly sure that the discourse of cost cutting and increased rationality via technology will be coming for the legal system, piece by piece. As such, it is worthwhile for left legal theory to take legal futurism, and even the idea of a legal singularity, seriously. Doing so, even for critics of liberalism, requires revisiting the liberal principle of the rule of law.
LPE Originals

Overrating Under-determination; Underrating Capitalism (A Reply to Karl Klare)

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Klare speaks to the virtues of post- and non-marxist social theory. My impression is that these literatures are long on the kind of disaggregation that the theory of underdetermination permits. Marxist critical theory tends to place more emphasis on aggregating, finding patterns. That kind of thought and past socialists who held to only minimally appear in Klare’s text and do so largely as foils. I would like to suggest that marxist social theory and the identification of patterns that persist over time – such as structural domination – is at least equally valid for left purposes and for understanding the relationship between law and political economy.
LPE Originals

What Makes An Administrative Agency “Democratic”?

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Scholarship thus far has not reconciled the relationship between democratized agency policymaking and the regular lawmaking done by Congress. To ameliorate the inexorable agency costs, theorists generally pose two different solutions: (1) a democratization of agency discretion, e.g., by making notice and comment procedures more robust; or (2) forcing Congress to elaborate their intent in fine-grained detail or undertake more robust oversight. Both moves inadvertently replicate a conceptual mistake committed by many anti-administrativists. This essay will rectify this mistake.

LPE Originals

On Socialism and Critical Legal Theory

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A recent workshop on the “Jurisprudence of Distribution” invited the opening panelists each to provide a five-minute overview of what a contemporary approach within left legal theory might offer. Other speakers covered Critical Race Theory, Feminism, Vulnerability Theory, left political economy, and so on. I took socialism and critical legal theory. Here are my five minutes (with some slight modifications for bloggability).
LPE Originals

A Tribute to David Graeber

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The importance of Graeber’s work goes well beyond money and debt. In my view, anybody interested in building up a renewed legal realism that can stand up to not just law-and-economics but also the updated formalism of liberal analytic moral/legal theory would be well served to familiarize themselves with his writings.
LPE Originals

Situating the Role of Democracy in LPE

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One of LPE’s foundational commitments, as Sanjukta Paul reminds us, is that law constitutes markets – and that, as a result, we are free to constitute them differently. But this simply begs the question: how ought we constitute them? This is where political theory can be useful. As Sam Bagg points out, many LPE scholars already understand that democracy must have something…
LPE Originals

Socialism Past and Future (Part II of II)

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In my last post, I began a discussion of the Weimar Constitution as one of the first constitutions containing provisions for social and economic rights (SER), and perhaps the very first one, in which socialists had an important hand drafting and expounding. The literature on constitutional SER misses a great deal when it casts the Weimar Constitution as a weak, infant version of later SER constitutions, which grew stronger over time.
LPE Originals

The Institutional Design of Community Control

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As the COVID19 pandemic and economic crises continue to ravage the country, it is increasingly clear that the virus is not just a public health challenge: it is also exposing deep systemic failures of governance, and disparities of political power. Black and brown Americans are the most likely to die from this virus, a reflection…