Now showing items 21-40 of 18133

    • The Partisan Transformation of American Public Health Law, 1918 to 2020.

      Witt, John (American Journal of Public Health, 2021)
      In “Politics, Pushback, and Pandemics: Challenges to Public Health Orders in the 1918 Influenza Pandemic” (p. 416), Navarro and Markel clear away an influential but incorrect impression about epidemic policy in US history. Figures like Associate Justice Samuel Alito of the US Supreme Court have asserted that the pandemic regulations of 2020 and 2021 are like nothing the country has seen before. Navarro and Markel, however, identify powerful continuities between state governments’ efforts to contain infection today and such efforts in 1918. The authors document, moreover, parallel cultures of protest a century ago and today against mask mandates, business closures, and school closures. The article particularly focuses on a distinctive new element in our 21st-century pandemic: the rise of novel partisan dimensions in the opposition to regulatory interventions. Navarro and Markel, however, mostly omit a vital new part of the story that supports and extends their basic argument. In the 21st-century epidemic, the United States is witnessing almost entirely unprecedented partisan pushback against public health measures by the courts. The partisan transformation of the courts is indispensable for anyone aiming to understand the similarities and differences between 1918 and 2020. The influenza pandemic of 1918 produced an outpouring of regulations designed to slow the spread of infection—and protest followed. Crowds inveighed against business closures. Local politicians spluttered against costly closure orders. Lawsuits followed, as they have today. But there is a crucial difference between the lawsuits of 1918 and those of 2020. A century ago, such challengers sued to force officials to carry out their authority appropriately. Today, legal challengers sue to assert that officials have no authority at all. Plaintiffs in the courts during the 1918 influenza contended that regulations were unfair, that they violated public health law, or that they otherwise exceeded the authority of the actor making the regulation. Sometimes they won. The Supreme Court of New Jersey set aside the conviction of a saloonkeeper in Paterson on the ground that the violation charged was not actually a violation of the relevant statute against public nuisances (Board of Health v. Clayton, 106 A. 813, N.J., 1919). Such victories sent public health officials back to the drawing board to come up with regulatory interventions anew. But mostly courts rebuffed such challenges (e.g., Globe School Dist. No. 1 v. Board of Health, 179, Ariz., 1919, p. 55). Courts were loath to override public health measures when their own expertise was lacking. As the Supreme Court of Kansas put it in 1919, it was “indispensable to preservation of the public health that some administrative officer or board should be clothed with authority to make adequate rules which have the force of law” (Ex Parte McGee, 185, Kan., 1919, p. 14).
    • The Historical Logics of Work Accident Law: Nate Holdren, Injury Impoverished: Workplace Accidents, Capitalism, and the Law in the Progressive Era.

      Witt, John (American Journal of Legal History, 2020)
      If reading books like Nate Holdren’s new Injury Impoverished is what happens to mid-career scholars, then I’m all for aging. Holdren has written a brilliant, impassioned, and intellectually stimulating book on the legal history of industrial accidents. He has a live mind, which is animated by his ambitious analytic project to make sense of the law governing the risk of bodily injury for those in the labor market around the turn of the twentieth century. According to Holdren, work accidents were (and are) at their core a form of labor exploitation that reveals the injustices of capitalist labor markets. He describes the law of work accidents as a machinery of injustice that bolstered the legitimacy of a violent and inhuman capitalist system. He fiercely critiques the workers’ compensation reforms enacted by progressive reformers a century ago as legitimating the mass violence of labor exploitation. He insists on recognizing and attending to the dignity of each accident victim, both in the content of his argument and as a matter of literary form. Injury Impoverished is a welcome if unsettling rebuke to complacent accounts of the field, perhaps my own among them.1 But Holdren’s analysis also raises many questions. Holdren identifies new forms of power in the law of work accidents – but he attributes little value to the dramatically safer workplaces of the middle of the twentieth century. His cautious admiration for the litigation system of the years before workers’ compensation rests on a fantastical conception of the way tort law actually worked. He calls for impossibly demanding forms of justice from the law, including forms of personal recognition that are beyond the capacity of human systems to achieve. He misses the ways in which workers coopted new forms of accident law and turned them to their own interests. And his single-minded Marxian focus on commodification and the point of production leads him to discount the surrounding political and legal institutions that shaped the social meaning of work accidents. None of this is to gainsay the significance of Holdren’s contributions, which are many and which demand attention in the literature. The analytic ambition and the successes of the book make it a work warranting serious engagement. In what follows I describe the scholarly context for Holdren’s intervention and set out the structure of his book’s important arguments. I then elaborate what I see as the limits of those arguments. I end with a note on the personal dimensions of the book for its author and on where the literature should go from here. Holdren is a work accident victim himself. The engine of his own experience propels the book forward. Its energy may press the field forward, too.
    • Movement Capture or Movement Strategy? A Critical Race History Exchange on the Beginnings of Brown v. Board.

      Witt, John (Yale Journal of Law & the Humanities, 2021)
      In 2019, Megan Ming Francis published a path-breaking article challenging the conventional wisdom in the field on a core piece of civil rights history: the role of a philanthropic foundation called the American Fund for Public Service, also known as the Garland Fund, in working alongside the NAACP to produce the organization's famous litigation campaign leading to Brown v. Board of Education. Starting in the late 1920s and early 1930s, education came to occupy a central place in the NAACP's agenda, and education desegregation became the focus of its efforts to break the back ofJim Crow. In Francis'sp rovocative account, the predominantly white Garland Fund captured the agenda of the civil rights organization through its financial influence, shifting the organization's central focus from racial violence toward education equality. An organization that had been focused on protecting Black lives from white violence reoriented its attention to a new campaign, which siphoned off resources from other projects, such as workers' economic rights and Black labor concerns. In this exchange, Francis and legal historian John Fabian Witt debate exactly who captured whom in the relationship between the NAACP and the Garland Fund. Their exchange engages method and substance in the history of civil rights. Among other things, Witt contends that the NAACP's leadership also subtly coopted the Garland Fund's resources and turned them toward the civil rights organization's preexisting objectives rather than vice versa. In Witt's account, the NAACP figured out how to advance its agenda through the Garland Fund, and the efforts of the two organizations became co-joined. The Francis-Witt debate has important implications for our understanding of the paths taken and not taken during the civil rights movement, how social mobilization came to focus on formal legal doctrine rather than concrete social or political ends, and whether the law can truly be turned against systems of oppression. Whichever account is correct, the aftereffects of the NAACP-Garland Fund relationship still reverberate today. The exchange proceeds with an opening statement by Francis, and reply by Witt, and a surreply by Francis, and a closing note from Witt.
    • Scrambling the New Sanitationist Synthesis: Civil Liberties and Public Health in the Age of COVID-19.

      Witt, John (University of Chicago Legal Forum, 2021)
      For much of the nineteenth and twentieth centuries, the model of public health law was what Professor Wendy Parmet has called the "tragic view" of the law of public health.1 On this account, public health and civil liberties inevitably conflict. Legislators and judges need to make hard choices balancing one against the other. Sacrifices of important values are inevitable. The leading case of Jacobson v. Massachusetts,2 decided in 1905, serves as the paradigmatic expression of the tragic view. In Jacobson, the Supreme Court upheld by a vote of seven-to-two a Massachusetts mandatory vaccination program for smallpox. Individual rights gave way to collective imperatives under the heading of the police power. Salus populi suprema lex, as the old Ciceronian dictum had it. The health of the people was supreme. At the end of the twentieth century, public health law made a new turn. In a novel departure, a generation of lawyers and public health advocates began to argue that public health and civil liberties were not in conflict but aligned. Beginning in the 1980s, and inspired by the imperatives of the fight against HIV/AIDS, the new model asserted that nurturing the trust and eliciting the cooperation of vulnerable populations was crucial to the protection of public health and far more effective than harsh mandates and quarantines. Progressive public health leaders asserted that a synthesis of civil liberties and public health would not only protect rights, but that it was also crucial to the successful management of epidemics. 6 Protecting people's rights would enable the protection of public health; restricting those rights would only drive the sick and the vulnerable underground and make epidemic management more difficult. Public health and individual rights, it seemed, might run together because protecting rights would prompt widespread confidence in and cooperation with public health measures.
    • Building Popular Legitimacy with Reconciliatory Gestures and Participation: A Community-Level Model of Authority

      Tyler, Tom; Meares, Tracey (Regulation and Governance, 2020)
      The research tests a model of reconciliation between authorities and communities. It expands past models of legitimacy to an intergroup dynamic model by identifying two community-level actions that legal authorities can undertake to build their popular legitimacy and promote cooperation. One type of action is a community-level reconciliatory gesture: an initiative that authorities make to communities to build trust by recognizing and trying to move beyond prior negative experiences. A second involves community-level opportunities for participating in decisions about how to manage social order. The results of this study with residents from a large metropolitan city suggest that both types of community-level gestures can make distinct contributions to building trust in and cooperation with the police.
    • Decolonization: Treaties, Resource Use, and Environmental Conservation

      Torres, Gerald (University of Colorado Law Review, 2020)
      Since the 1970s, Indian policy has been guided by a federal commitment to tribal self-governance. The exact contours of this policy differ, but at a minimum, it is supposed to guide the approach of the federal government in its relations to tribes. Where state and private interests collide with tribal interests, the role of the federal government is often as a mediator of competing claims. In a sensitive and insightful piece, Professor Charles Wilkinson illustrates the way collaboration is supposed to work. He describes the process through which the tribes and the federal government negotiated the creation of what he calls "the first native national monument."I That description reflects what Professor Wilkinson believes is a turning point in the relationship among tribes, states, federal agencies, and private stakeholders in untangling the historically constituted web of interests that bedevil a fair adjustment of interests in land and resource management. U.S. colonial expansion into Indian Country meant that non-native expectations had priority in disputes over policy and law. The western movement was accompanied by presumptions about rightful claims to land and resources that are attendant to the American expression of settler colonialism. Professor Wilkinson illustrates that the physical landscape and the legal relations in which that landscape is embedded require careful attention to the mutual dependence of sacred relations and the more secularly denominated ecosystemic services. Co-management agreements can create a legal space where the various competing interests can be accommodated in a way that reduces the cost of conflict. The congeries of legal sources available for directing any specific action complicates using law as a guide for refraining relations between the tribes and their prior antagonists. The sources of law range from treaties to foundational statutes like the Northwest Ordinance or the Non-Intercourse Act.3 As illustrated by Professor Wilkinson, the Antiquities Act4 provided the legal foundation for the creation of Bears Ears National Monument, but it was the cooperation of the tribes, who shared a long and deep connection to the area, that proved essential for providing the substance necessary for the shaping of the monument. These tribes included the Hopi, Zuni, Ute Mountain Ute, Uintah and Ouray Mountain Ute, and the Navajo nations, who together created the Inter-Tribal Coalition, which provided early leadership during the creation of the monument. The shaping was as much conceptual as physical. By combining the traditional knowledge of the tribes with federal land management practices, the creation of the monument demonstrated how federal land and resource management in the West ought to proceed.
    • Weinstein on Sentencing (2021)

      Stith, Kate (Federal Sentencing Reporter, 2021)
      Has Judge Weinstein, over the course of decades, fundamentally changed the contours of federal law and practice in criminal sentencing? I think he would say “not enough.” But that’s not for lack of trying. In addition to many law review articles and speeches,1 he has written scores of sentencing opinions that exceed the standards of the most exacting academic—thorough, analytically impregnable, and heavily footnoted—attempting to get the Second Circuit, the Supreme Court, and Congress to remake sentencing law. He has not waged these battles alone—but more than any judge I can think of, he has waged them continually and on every front, with powerful intelligence and humanity. In these ways, he is one of the creators of today’s new sentencing landscape, in which judges are allowed to consider not just what the Sentencing Commission proclaims, but what justice requires. Never content to rest on his laurels, Judge Weinstein has, in the years since United States v. Booker2 and its progeny, turned his sights primarily on the Federal Sentencing Guidelines’ (“guidelines”) tough cousin, mandatory minimums. And, never shy about stirring up a little controversy, he’s taken on sentencing in terrorism and child pornography cases.
    • Sanctuary Cities and the Power of the Purse: An Executive Dole Test

      Spencer, Douglas (Iowa Law Review, 2021)
      A constitutional clash is brewing. Cities and counties are flexing their muscles to frustrate national immigration policy while the federal Executive is threatening to interfere with local law enforcement decision making and funding. Although the federal government generally has plenary authority over immigration law, the Constitution forbids the commandeering of state and local officials to enforce federal law against their will. One exception to this anti-commandeering principle is the Spending Clause of Article I that permits Congress to condition the receipt of federal funds on compliance with federal law. These conditions, according to more than 30 years of Supreme Court precedent since South Dakota v. Dole, must be clearly articulated in advance, related to the underlying purpose of the federal funds, and not deemed coercive by the courts. The Attorney General recently announced conditions on federal law enforcement grants that would defund police departments who do not cooperate with federal immigration officials. These new funding conditions triggered legal challenges by a dozen jurisdictions under the Spending Clause. While the case law is clear that Congress may delegate its authority to add conditions on federal grants, two important questions remain unresolved: (z) does the authority to add conditions on spending inherently attach to delegations to implement federal grant programs or must that authority be delegated separately and unambiguously? and (2) are executive conditions subject to the same standards of clarity, germaneness, and non-coercion? Recent threats by President Trump to withhold funding for elections, education, and public parks amplify the need for clarity on these questions. In this Article, I argue that executive conditions on federal spending are unquestionably appropriate, but only when Congress has unambiguously delegated the authority to add conditions. This delegation should not act as a loophole in the Dole doctrine. In fact, because the central constitutional concern in Spending Clause cases is the undue aggrandizement of federal power at the (literal) expense of the states, I argue that executive conditions on federal spending should be subject to stricter limits than conditions imposed by Congress; inter-branch coordination poses a greater threat to state sovereignty than either Congress or the Executive acting alone. The upshot of stricter executive limits is that conditions on federal spending will likely shift away from the Executive to Congress, which may be desirable on accountability grounds. Finally, the recent appointment of Justices Gorsuch and Kavanaugh to the Supreme Court have raised the stakes of this particular debate. Both of the new Justices have publicly articulated concerns about expanding federal power and federal administrative power in particular. The question of sua sponte executive conditions on federal grants-in-aid thus poses a ripe opportunity for skeptics of the administrative state to rein in the regulatory state while also narrowing the scope of the Spending Clause more generally.
    • Innovation Incentives in a Pandemic

      Scott Morton, Fiona (Journal of Antitrust Enforcement, 2020)
      The current pandemic has exposed the skewed nature of innovation incentives in American healthcare. Consider the case of a company that makes a medical device like a ventilator. The demands of its customers shape its incentives to innovate. The end consumers are patients who do not themselves pay for the device, whether they are insured or not (an uninsured patient is likely to receive free care or a large discount). The device maker will not increase sales to these customers by choosing a lower price. Purchase decision-makers are often physicians who are unaware of the price of the device (and regulations in the USA prevent the salesperson from telling the doctor the price, as that would be an inappropriate inducement). What will get the physician’s attention—and can be easily marketed—is additional quality or features of the device. These will also appeal to technicians or skilled nurses who work with the device; they are not responsible for budgets either. The fancy features might involve more convenience in terms of connecting inputs or positioning the patient, a better screen for observing measurements and settings, a greater choice of settings for pressure, oxygen, drug levels, and so forth. The hospital purchasing department may have some input into which device is chosen—and advocate for cost-effective choices—but at the end of the day, if a physician is convinced a device will provide better care, that device is likely to be chosen regardless of price. Therefore, the device manufacturer is incentivized to invent it. These incremental quality improvements to the device may hold value for patients and caregivers, but the US medical purchasing process often has so many decision makers spending other people’s money that there is no reason to imagine that price is tightly connected to value. A consumer spending her own money on a product she consumes herself, for example, a loaf of bread, sees the nicer bag around the bread and can determine if that is worth a 10 percent price increase. A physician in a hospital is likely to ask if the new feature is an improvement or not, and then want to purchase the device if it has an improvement. Price may not part of that decision. The physician likely does not know how much the device costs, is not spending her own money, and understands that she is not spending her insured patients’ money either. Therefore, the manufacturer markets the improved features to physicians, as do its competitors, and competition takes place almost entirely on the basis of quality. This leads to expensive machines that have high levels of quality without regard for whether the value of those last units of quality is high for everyone, for a minority of patients, or for no patients. In the absence of disruptive technology, a better device requires higher costs. In the world described above, the device maker only undertakes one kind of innovation: an improved machine at a higher cost. Over time, ventilators go from $7000 per machine to $10,000, to $25,000. Suppose a ‘standard’ ventilator has a price of $25,000. A manufacturer with an idea for how to make a $10,000 ventilator that is a very little bit worse than the $25,000 ventilator will have no customers. What physician would recommend purchasing the cheaper machine without all the settings and options of the best machine? Consider how different that is from a more functional market such as automobiles. Suppose a new auto maker found a way to make a BMW equivalent car but without the leather seats at half the price. There would likely be a huge demand for that vehicle.
    • Addictive Technology and Its Implications for Antitrust Enforcement

      Scott Morton, Fiona (North Carolina Law Review, 2022)
      The advent of mobile devices and digital media platforms in the past decade represents the biggest shock to cognition in human history. Robust medical evidence is emerging that digital media platforms are addictive and, when used in excess, harmful to users’ mental health. Other types of addictive products, like tobacco and prescription drugs, are heavily regulated to protect consumers. Currently, there is no regulatory structure protecting digital media users from these harms. Antitrust enforcement and regulation that lowers entry barriers could help consumers of social media by increasing competition. Economic theory tells us that more choice in digital media will increase the likelihood that some firms will vie to offer higher-quality and safer platforms. For this reason, evaluating harm to innovation (especially safety innovation) and product variety may be particularly important in social media merger and conduct cases. Another critical element to antitrust enforcement in this space is a correct accounting of social media’s addictive qualities. Standard antitrust analysis seeks to prohibit conduct that harms consumer welfare. Economists have taught the antitrust bar that the output of a product or service is a reliable proxy for consumer welfare. However, output and welfare do not have this relationship when a product is addictive. Indeed, in social media markets, increased output is often harmful. We argue that antitrust analysis must reject the output proxy and return to a focus on consumer welfare itself in cases involving addictive social media platforms. In particular, courts should reject defenses that rely only on gross output measures without evidence that any alleged increases in output actually benefit consumers.
    • Reading Regents and the Political Significance of Law

      Rodriguez, Cristina (2020 Supreme Court Review, 2021)
      When the Supreme Court handed down its decision in Department of Homeland Security v. Regents of the University of California, in June 2020, advocates celebrated. DACA—an acronym that no longer requires definition —lived to see another day.1 Newspaper headlines marked the decision as a decisive rebuff of the Trump administration’s efforts to end the Obama-era program that shielded so-called Dreamers from deportation while authorizing them to work in the United States. Initiated in 2012, the Deferred Action for Childhood Arrivals pro-gram had survived almost four years of a presidential administration overtly hostile to immigrants and immigration—a government bent on unraveling as much of the administrative and political legacy of its immediate predecessors as possible. The Supreme Court largely affirmed the Ninth Circuit’s holding that efforts by the Department of Homeland Security (DHS) to rescind DACA were arbitrary and capricious and therefore invalid, sending DHS back to the drawing board to accomplish its objectives.4 With the 2020 presidential elec-tion less than five months away and the very real possibility of regime change in the air, the decision seemed decisive. The Supreme Court had saved DACA, at least for the time being.
    • The Supreme Court 2020 Term Foreword: Regime Change

      Rodriguez, Cristina (Harvard Law Review, 2021)
      On the last day of oral argument this Term, in an atypical May convening, the Justices of the Supreme Court grappled with how to integrate two recent reforms to the federal sentencing regime in the case of Terry v. United States.1 In 2010, Congress had enacted the Fair Sentencing Act and reduced the by-then notorious i00:i sentencing disparity between crack and powder cocaine offenses to i8:i. The Act was a triumph for criminal justice reformers after decades of advocacy highlighting the racially disproportionate and loaded nature of the disparity.
    • Puzzles of Prisoners and Rights: An Essay in Honor of Frank Johnson

      Resnik, Judith (Alabama Law Review, 2020)
      Frank Johnson's landmark opinions in the 1970s recognized prisoners as rights-holders who were entitled to safety, sanitary conditions, health care, actMies, and fair decision-making. In 2020, we take these propositions or granted, just as we also take for granted the power of prisoners to seek-and sometimes to in-judicial help in stopping the state from imposing certain forms of punishment on people convicted of crimes.
    • Partial "Global Peace": Federalism and the Long Tail of Remedies in Opiod Litigation,

      Resnik, Judith (DePaul Law Review, 2020)
      The Opioid Litigation yields important insights for federalism and for remedies in complex multi-party and multi-prong cases. This sprawling set of cases underscores that essentialized ideas of a set of fixed "state" and "federal" interests do not capture the diverse and often conflicting goals of states and subunits or of the national government. Likewise, this litigation serves as a reminder of the need to reframe assumptions about the role courts ought to play when considering settlements aiming "for global peace." Large-scale litigation is often thought to be a two-step process entailing a first decision to aggregate and a second step of either a trial or a settlement. But these forms of lawsuits do not end there. Law needs to clarify that a third step is needed because, even when interests are sufficiently homogenous to warrant aggregation at a litigation's inception and conclusion, differences can emerge thereafter when implementing remedies. Judges should use their authority to ensure that aggregated plaintiffs continue to have access to courts during all three phases of large-scale litigation. Recognition is needed that resolutions are partial because, after liability issues have been resolved, additional information often emerges about the individuals and entities to whom remedies are supposed to flow, and readjustments may be needed in the structure and allocation of relief.
    • Willis Van Devanter: Chancellor of the Taft Court

      Post, Robert (Journal of Supreme Court History, 2020)
      Although William H. Taft was president for only four years, he appointed a remarkable five justices to the Supreme Court. But only two of these appointments remained on the Court when Taft became chief justice– Mahlon Pitney and Willis Van Devanter. Pitney would be gone within eighteen months, but Van Devanter would remain as “one of the most enduring achievements of the Taft Administration, and very possibly its greatest."
    • Writing the Dissent in Abrams

      Post, Robert (Seton Hall Law Review, 2021)
      Much has been written about how Oliver Wendell Holmes, in November 1919, came to write his pathbreaking dissent in Abrams v. United States,' which virtually invents First Amendment doctrine. The most complete account may be found in Thomas Healy's superb book, The Great Dissent Holmes's accomplishment in Abrams is all the more astonishing because eight months previously, in March 1919, Holmes had authored decisions sustaining criminal convictions for those who had dared to speak out against World War I. Holmes's friends and supporters were appalled by these opinions, most especially by Debs v. United States, in which Holmes upheld the conviction under the Espionage Act of 19174 of a prominent socialist leader for what amounted to a political speech opposing American participation in the war.5 In Debs, Holmes deemed First Amendment protections irrelevant if political speech had its "natural tendency and reasonably probable effect to obstruct the recruiting service" of the United States. Virtually all anti-war speeches, and certainly all successful anti-war speeches, have this tendency and effect. Throughout the spring and summer of 1919, Holmes "was both defensive and defiant" about his opinion in Debs.7 He went so far as to draft (but not send) a letter of protest to Herbert Croly, editor of The New Republic, a magazine normally appreciative of Holmes. But even The New Republic had published an article sharply critical of Debs. Holmes wanted to say to Croly: I hated to have to write the Debs case ... and I think it quite possible that if I had been on the jury I should have been for acquittal but I cannot doubt that there was evidence warranting a conviction on the disputed issues of fact. Moreover, I think the clauses under consideration not only were constitutional but were proper enough while the war was on. When people are putting out all their energies in battle I don't think it unreasonable to say we won't have obstacles intentionally put in the way of raising troops-by persuasion any more than by force. But in the main I am for aeration of all effervescing convictions-there is no way so quick for letting them get flat.
    • Tension in the Unitary Executive: How Taft Constructed the Epochal Opinion of Myers v. United States

      Post, Robert (Journal of Supreme Court History, 2020)
      William H. Taft is the only person ever to have served as both president of the United States and as chief justice of the Supreme Court of the United States. That unique confluence of roles is evident in Myers v. United States, an “epoch-making” and “landmark”case that Taft considered “one of the important opinions I have ever written.” The precise question in Myers was “whether under the Constitution the President has the exclusive power of removing executive officers of the United States whom he has appointed by and with the advice and consent of the Senate.” Myers was the first decision in the history of the nation to invalidate a congressional statute on the grounds that it violated an inherent Article II power of the president. It was as if fate itself had reserved Myers until Taft could take his seat at the center of the Court.
    • Judge Stephen F. Williams, 1936-2020

      Parrillo, Nicholas (Administrative & Regulatory Law News, 2020)
      The field of administrative law has lost one of its most important and beloved figures, Judge Stephen F. Williams of the D.C. Circuit, who was 83 years old when he died on August 7, 2020. Since his appointment by President Reagan in 1986, Williams held a reputation as one of the nation’s most formidable judicial minds in the realm of regulation. An early member of the law-and-economics movement during his years as a professor at the University of Colorado Law School (1969-1986), Williams became known on the bench for the economic sophistication of his opinions and for being the D.C. Circuit’s foremost expert in that most complex and consequential area, energy law. In the words of his colleague David Tatel in 2006: “This former law professor converts each case into an intellectually challenging seminar on economics, regulation and administrative law. If we [the judges of the D.C. Circuit] received graduate credit for sitting with Professor Williams, we’d all have our LLMs by now.”
    • T.H. Marshall, the Moral Economy, and Social Rights

      Moyn, Samuel (Humanity: An International Journal of Human Rights, Humanitarianism, and Development, 2020)
      At a crucial juncture in his famous lectures on “Citizenship and Social Class,” English sociologist T. H. Marshall explained that the new social rights he associated with the invention of the twentieth-century welfare state were in fact a blast from the past—a bequest from the moral economy to a later age grappling with political economy run amok. For this reason, Marshall’s celebrated theory of social rights provides one aperture through which to intervene in a dispute brewing between starkly alternative views of the moral economy tradition he invoked. “The original source of social rights was membership of local communities,” Marshall related. The Elizabethan Poor Law backed up this ramshackle local approach. Just before the triumph of capitalism, the late-eighteenth-century Speenhamland modifications to the Poor Law system provided “a guaranteed minimum wage and family allowances, combined with the right to work or maintenance,” as Marshall recalled from Karl Polanyi’s presentation of 1790s innovations in The Origin of Our Time (as the English version of The Great Transformation was known). Marshall enthused that this provision was “a substantial body of social rights, even by modern standards.” Polanyi had not used the language of social rights, but otherwise Marshall directly incorporated his storied account of the endurance and transformation of the moral economy directly into his own. That incorporated narrative proceeded through the displacement and return of the moral economy. The Elizabethan Poor Law helped delocalize the very social protection it intended to buttress, and inadvertently paved the ways for ideologies of transactional freedom to conquer old moral cultures of interdependence. To the extent that the moral economy remained live into the nineteenth century, “citizenship was divided against itself,” Marshall explained. To resolve the conflict, premodern social rights were liquidated in the name of the civil ones of modern liberalism. A premodern moral economy that had once fostered duty to others and a sensitivity to basic needs fell to modern political economy, with individual liberties of transaction safeguarded from the annoyance of countervailing norms of solidarity. Some “mercy” remained in the new Poor Law (1834), Marshall acknowledged, but it was of bare significance and no longer defined the entitlements of citizenship.
    • Introduction: History, Ideology, and the Crisis of Legal Critique

      Moyn, Samuel (Yale Journal of Law & the Humanities, 2021)
      This symposium occupies the intersection of recent developments in the vicissitudes of critique. One is the ongoing discussion across the humanistic disciplines about whether critique—the standard mode of humanistic argument for decades—has had its day, or is in need of critique itself. And, more particularly, the symposium asks: how has this discussion been received in the domain of critical legal theory, if it has been received at all? A prominent thread in the pages that follow is a renewed question about the viability of Marxism—perhaps the ur-version of critique. Ironically, Marxism has had a complex or even distant relation to the dominant modes of critique in recent decades, both inside and outside the legal academy. With another wave of interest in the 1960s, the Marxist theories that were emphasized as time passed tended to represent Marxism’s culturalist forms (pre-eminently the work of the Frankfurt School). But all varieties of Marxism suffered in relation to post-Marxist social thought, including various forms of poststructuralism. Yet especially since the economic crisis of 2008, many believe Marxism needs to come back—and in its economistic and even materialist forms—for legal critique to be “truly” possible. The contemporary manifestation of the “critique of critique” dates at least as far back as Bruno Latour’s question in 2004: “Why has critique run out of steam?”1 Since then, a number of voices among literary critics—Rita Felski’s most notably—have gone further, flirting with the resuscitation of an appreciative mode of engagement with even deeply compromised works from the past. This approach is grounded on the notion that treating canonical works as irredeemable loses touch with the original purposes of literary study, all while forsaking constructive impulses and normative grounding. For some, that concern courts an even worse risk of restoring a status quo ante of belletristic complacency. But there is no doubt that— especially in an age of declining interest in critical theory—such arguments have had a powerful effect. The positions pro and con are, of course, only partly applicable to legal scholarship. It had never been in the business of a kind of pre-critical model of scholarship grooming its readers to appreciate law in the same way aesthetic discourses did. But legal scholarship certainly had its canon of cases, and its doctrinal and historical work could imaginably return to fashion if it were decided that legal critique has had its day.