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Southern Lessons for Constitutional Law : Proceedings of the 39th Congress of the Society of Comparative Law in Berlin, September 12 to 14, 2024.
No full textSocial Justice Conflicts in Public Law
No full text“Social justice” is everywhere in public law. Scholars and activists are calling for racial justice, climate justice, and health justice, among other claims. When commentators speak about multiple different social justice claims, it is often through an intersectional lens that views these claims as co-constitutive with one another, such as, “There is no climate justice without racial justice.” These justice claims are important and long overdue. But conflicts between different social justice claims—what this Article calls “justice conflicts”—are inevitable in policymaking. Justice conflicts occur when the multiple social justice claims involved in a policy issue point to opposing outcomes. The Biden Administration prioritized social justice and began to address how agencies should evaluate various social justice claims in policymaking. While an exciting first step, its initial actions did not give clear guidance to agencies and other institutions. As a result, political institutions often resolve justice conflicts through nontransparent political decisions, which ultimately harm affected political communities. This Article argues that political institutions should embrace “mid-level justice principles” to analyze justice conflicts. Mid-level justice principles are justice principles that apply across different policy areas and provide standing moral reasons to justify certain policy outcomes. Until now, public law has mostly embraced only procedural justice principles, such as consultation requirements and regulatory impact analyses. While helpful, these procedural measures do not provide substantive guidance about how to actually resolve justice conflicts. Mid-level justice principles fill this gap.While political institutions have implicitly adopted some midlevel justice principles in an uneven fashion, this Article provides avenues for Congress, the President, and agencies to explicitly and consistently institutionalize mid-level justice principles. These proposals will improve policymaking and provide a mechanism to transparently analyze nonquantifiable normative values, which has thus far perplexed regulators, as well as both proponents and skeptics of costbenefit analysis. While the Supreme Court has increasingly inserted itself as the institutional arbiter of social justice claims, the Court’s assertion of its primacy to evaluate justice conflicts should be resisted on democratic and epistemic grounds. Instead, “democratic policymaking,” which occurs via Congress, the President, and administrative agencies, should be the primary site to resolve justice conflicts in our society. </p
Investment protection and environmental governance ::the EU-Vietnam IPA in light of emerging economies /
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