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Diverse Legalities: Towards a Legal Theory for a Postcapitalist Political Economy
Full text linkLaw and political economy (LPE) scholars have revived a longstanding debate over the relationship among law, capitalism, and postcapitalist possibility. Is law a creature of capitalism, destined to reproduce its dynamics of exploitation and dominance? Or are there moments of indeterminacy in law that function specifically as openings to a postcapitalist elsewhere?
We enter this debate by posing a different question. Following feminist Marxist economic geographers J.K. Gibson-Graham, we ask what questions arise for LPE scholars if we begin instead with the presumption that postcapitalist worlds are already here but have been cast into shadow by a singular economic framing that presumes capitalist dominance. Building from actually existing experiments in cooperation and solidarity, we translate conceptual questions about legal indeterminacy into processual and sociolegal inquiries about how indeterminacy works in tandem with social practices of coordination and regularization. We endeavor to make these inquiries visible by examining how people negotiate their interdependence by making decisions about needs, surplus, production, consumption, and the creation of commons, and how these decisions may create new patterns and habits (and subjects) over time. Legalities emerge in these negotiations—sometimes as the community-generated rules people work out to cooperate; sometimes through how people play with background rules of state law through direct action; and sometimes through more familiar efforts to ask judges and legislators to reform state-enforceable legal rules.
What we call diverse legalities thus combines legal pluralism, prefigurative legality, and more familiar accounts of legal instrumentalism. As an analytical intervention, diverse legalities suggests that postcapitalism, no less than capitalism, depends on legalities that find their sources of authority beyond the state. As a political intervention, diverse legalities suggests that one way to strengthen postcapitalist economies and legalities is to start by studying the moments in which people have already been successful in their local communities
Proprietary Rights and Digital Assets: A Modest Proposal from a Transnational Law Perspective
No full textJarkesy’s Stakes for the SEC
No full textThis Article examines the implications of the Supreme Court’s decision in SEC v. Jarkesy for the Securities and Exchange Commission (“SEC” or “Commission”). In Jarkesy, the Court held that Congress cannot assign the adjudication of securities antifraud violations seeking civil penalties to an administrative agency without a jury trial, for such punitive actions involve “private rights.” Although this ruling might suggest a reduction in SEC enforcement actions due to the higher costs of federal jury trials, the SEC had already adjusted its practices following Lucia v. SEC in 2018. The Commission shifted away from using administrative law judges for civil penalties, focusing instead on cases less susceptible to constitutional challenges. Jarkesy presents both immediate and long-term challenges for the SEC. Its direct impact is limited because it affects a type of case the SEC has nearly abandoned. However, it poses significant long-term risks because litigants may attempt to extend its applicability to other enforcement actions, increasing litigation and uncertainty in administrative law. The decision also affects the SEC’s enforcement and settlement practices, potentially hindering its ability to address violations efficiently and serve the public interest. Using a novel dataset, this Article explores these institutional dynamics, analyzing the SEC’s adjudication program and assessing the broader implications of Jarkesy for administrative enforcement
It’s Not So Simple: An Examination of How the Internal Revenue Code Fails to Contemplate the Economic Realities of Individuals With Disabilities and Their Families
No full textFamilies with disabled students face extra costs associated with providing their child with the same education that other students get for free. Even though these costs are spent with the explicit purpose of supporting their child’s disability-informed care and are not incurred but for their disability (“but-for costs”), some of these costs are not deductible and others are subject to unnecessary ambiguity when it comes to their deductibility. Families with disabled students are forced to reckon with arbitrary distinctions if they want to receive any favorable tax treatment on but-for costs. This is because the relevant provision in the Internal Revenue Code, Section 213, was written and consequentially interpreted during a time when disabled people were not viewed as being worth public money to educate. This status quo is unacceptable. As a starting point, the IRS should revise Treasury Regulation 1.213-1(e)(1)(v)(a) to unambiguously recognize a broader interpretation of Section 213. This revision would remove a dated regulatory distinction that pushes families towards medical institutions and away from the rest of the world to support their children’s disability-informed education. A more substantial solution would be for Congress to amend Section 529A, the section of the tax code created by the ABLE Act, to remove limits on contributions to ABLE accounts and to make those contributions tax deductible. The result would be that instead of families being forced to try and fit their costs into the arbitrary and antiquated framework of the medical expense deduction to obtain some tax relief, families could funnel all their planned spending to “qualified disability expenses” through an ABLE account and receive deductions on their contributions to the account. However, there are only small solutions to be found for special needs families in the Internal Revenue Code and it requires a broader cultural shift more than new ideas to truly give disabled students and their families access to society and access to justice. The promises to disabled students are already embedded in our law; they merely remain unvindicated
Watching the Tide Roll Away: Looking Forward After Fifty Years of the Coastal Area Management Act
No full textRisk, Death, and Well-Being: The Ethical Foundations of Fatality Risk Regulation
No full textA wide range of governmental policies characteristic of the modern state seek to reduce individuals\u27 fatality risks--risks that arise from air and water pollution, pathogens, food ingredients and contaminants, motor vehicles, infrastructure, radiation, workplace accidents, alcohol and recreational drugs, firearms, consumer products, tobacco, natural disasters, and other sources. Risk, Death, and Well-Being provides a rigorous treatment of the ethics of fatality risk regulation. It does so through the lens of welfare-consequentialism--specifically, lifetime welfarism, with a particular focus on utilitarianism and prioritarianism. The ethical ranking of possible worlds depends on the patterns of lifetime well-being in the worlds. Premature death is ethically significant insofar as it changes the lifetime well-being of the person who dies and perhaps others. At the level of policy choice, the book deploys the social-welfare-function (SWF) framework--which is the most systematic decision--procedure for implementing lifetime welfarism. It shows, in detail, how the SWF methodology can be brought to bear in assessing risk-regulation policies. Every individual faces a policy-specific lottery over lifetime well-being, as determined by their risk profile (probability of surviving the current year and future years) and attribute profile (the attributes the individual will have in the current year and each future year if alive rather than dead). In short, a policy corresponds to an array of individual risk and attribute profiles, which can then be assigned a utilitarian or prioritarian value. The SWF methodology as thus applied to risk regulation differs quite substantially from cost-benefit analysis (CBA), which is currently the dominant policy-assessment procedure in governmental practice.https://scholarship.law.duke.edu/faculty_books/1039/thumbnail.jp
Forcing Our Hand: Evaluating the Use of Force in Responses to Wrongful Detentions Abroad
No full textWrongful detentions are on the rise. Over the past ten years, U.S. nationals have increasingly found themselves detained abroad upon spurious allegations, facing trumped-up charges, and deprived of basic due process protections. Most of these detentions occur in countries hostile to the United States: Russia, Iran, North Korea, China, and Venezuela. The U.S. has opted to release rightfully detained foreigners to those nations in exchange for its wrongfully detained nationals. All of this perpetuates a “prisoner bazaar” that encourages unscrupulous nations to continue their bad-faith detentions of U.S. nationals. This Note investigates this emerging issue through a use of military force perspective. It analogizes wrongful detentions to hostage-takings, discussing a controversial theory that supports the legality of rescue missions under international law to extract hostages from imminent harm. It distinguishes most wrongful detentions from hostage situations. It notes that, although many wrongfully detained foreign nationals do not face an imminent threat of harm, some might meet this standard. But even if the U.S. were to consider forceful rescue missions to extract its wrongfully detained nationals abroad, it must carefully mind the consequences of a forceful rescue mission on national security, state-to-state relations, and the global order. A cost-benefit analysis weighs heavily against uses of force in most situations