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LPE Originals

The Law and Political Economy of Sex Work: Symposium

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People interested in law and political economy have a particular reason to listen to people in the sex trades. The conversations that sex workers are having are about markets, work, and coercion under neoliberalism. They are critiques of a legal system that implements policing to keep the “sacred” out of markets while enabling corporations to profit on the caging of human beings.
LPE Originals

Reclaiming Notice and Comment: Part II

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Here we discuss a type of organizing that has followed in the wake of mass commenting efforts, focused on analyzing the content of comments and ensuring their due consideration. Our central example comes from the Department of Education’s recent notice of a proposed rulemaking (NPRM) regarding the meaning of Title IX for complaints of sexual harassment (an umbrella legal term that includes sexual violence). Perhaps unsurprisingly, given the activism around the ED’s interpretation of Title IX in the Obama years, the agency recorded over 124,000 comments—and spurred the creative cataloging initiative we spotlight here. By analyzing comments themselves, participants in this initiative seek to support public engagement with administrative law and vindicate the democratic values at the heart of notice-and-comment mandates.
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.
LPE Originals

Reclaiming Notice and Comment

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In this anti-regulatory moment, notice-and-comment might seem a quaint artifact from a bygone age: with such meager regulatory output, especially aimed at industry, what is left to comment on?  Instead, however, notice-and-comment has become a key tool of opponents of the current administration—a vehicle for mobilizing “grassroots experts” and enabling marginalized voices to speak against dehumanizing agency action.
LPE Originals

Democratizing Administrative Governance: How the Civil Rights Movement Shaped Medicare’s Implementation

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Medicare would serve as the first real test of Title VI of the 1964 Civil Rights Act, which banned the allocation of any federal funds to entities that discriminated on the basis of race. The success of Title VI would depend on forging a strong relationship between officials administering the program and the civil rights movement. The change that ultimately resulted from this collaboration offers a concrete example of how democratic movements can leverage grassroots pressure, public enforcement and government spending power to transform sectors of the economy.

LPE Originals

Medicare for All as a Democratic Movement

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Over the past three decades, the primary policy solution to the mismatch between high spending and poor outcomes has been to turn to consumerism and market competition for a fix. The underlying theory is that if people have options—options for health plans, hospitals, prescription drugs, providers, and so on—they will choose the higher-value options. In turn, competitors will in theory produce higher-value options to win more customers.
LPE Originals

Privacy Legislation, not Common Law Duties

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The value of Balkin’s fiduciary framework, I argue, resides not in providing an enforceable legal relationship but providing a framework for privacy legislation. The existing frameworks – the Privacy Principles adopted by the Organization for Economic Co-operation and Development (OECD) in 1980 which rely heavily on notice and consent and the property framework introduced by Louis Brandeis in “The Right To Privacy” (both of which I discuss in this privacy white paper) – have significant limitations. Balkin’s proposed fiduciary framework provides a model for legislation that recognizes that the nature of the relationship between information collectors and aggregators requires imposing additional duties and restrictions to adequately protect consumers, while still enabling commerce and facilitating competition.
LPE Originals

Radical Skepticism About Information Fiduciaries

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Khan and Pozen are right to note the fundamental conflict between “information fiduciary” duties and shareholder interests. I only wish to add two further points in service of a radical skepticism towards the information fiduciary concept.
LPE Originals

When All You Have Is a Fiduciary

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The concept of an “information fiduciary” is a helpful way of describing the privacy interests that users have in data about them held by online platforms. It provides a good starting point for thinking about platforms’ recommendations. And it has nothing useful to say about other urgent problems online platforms pose.
LPE Originals

Scaling Trust and Other Fictions

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The multiple, capitalist information fiduciaries of the Balkin proposal and the regulatory regime that Khan and Pozen appear to imagine seem to have little in common. But they are responses to the same problem: that of governing data-driven algorithmic processes that operate in real time, immanently, automatically, and at scale.
LPE Originals

Money & Memory, Capital & Communion

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In their essence, monetary systems are all very simple. But that essence can be buried and hidden from view by accretions of practices over time. Money systems give rise to additional, ‘emergent’ properties as the groups that develop them grow in size and complexity.