Non-Reformist Reforms and Struggles over Life, Death, and Democracy
abstract. Today’s left social movements are challenging formal law and politics for their capitulation to a regime of racial capitalism. In this Feature, I argue that we must reconceive our relationship to reform and the popular struggles in which they are embedded. I examine the turn of left social movements to “non-reformist reforms” as a framework for reconceiving reform: not as an end goal but as struggles to reconstitute the terms of life, death, and democracy. Non-reformist reforms aim to undermine the prevailing political, economic, social order, construct an essentially different one, and build democratic power toward emancipatory horizons. Today’s thinking about non-reformist reform is both an effort to rethink the kinds of laws, policies, norms, relationships, and modes of organization that we might build to govern society, and an effort to democratize relations of power: to have fundamentally different people at the helm.
Part I identifies the return of a commonsense on the left that racism and capitalism are entangled and co-constitutive of the unequal and undemocratic world. Part II lays out left critiques of reformism and offers a schematic history for “non-reformist reforms” as a competing conceptual frame to the neoliberal or liberal reformism dominant in the legal academy. In centering productive contradictions between reform and revolution, the heuristic requires engaging with systems as they are, allows one to hold in view bold and radical horizons, and facilitates the identification of strategic battles that might serve as a bridge through popular agitation.
Because non-reformist reforms emerge from theories of change rooted in building popular power, Part III attends to actually existing sites of struggle in the United States: abolition and decriminalization; decolonization and decommodification; and democratization. I turn to major campaigns, including #StopCopCity in Atlanta; organizing to cancel rent by KC Tenants in Kansas City, Missouri, and to cancel student debt by the Debt Collective; and the Democratic Socialists of America’s (DSA) joint campaign for the Protect the Right to Organize (PRO) Act and the Green New Deal.
Part IV turns to the disciplinary reorientations required for engaging law as a partial terrain of mass politics. I outline four fundamental distinctions between non-reformist reforms and liberal and neoliberal approaches to reform. Non-reformist reforms require a horizon beyond legalism; they embrace antagonism and conflict rather than depoliticization and neutrality; they aim to shift the balance of power; and they build mass organization and prepare the people to govern.
author. Charles W. Ebersold and Florence Whitcomb Ebersold Professor of Law, The Ohio State University, Moritz College of Law. My deepest thanks to the people who read drafts and talked to me about the ideas presented here, and to the many social-movement organizations, organizers, and activists, past and present, working to build a more just world against extraordinary odds. Many of those people and organizations are acknowledged in the footnotes through citation to their works. But the long list includes: Abbye Atkinson, Alex Colston, Alyssa Battistoni, Andrea Ritchie, Amy J. Cohen, Amy Kapczynski, Anna Roberts, Angela P. Harris, Aslı Ü. Bâli, Aziz Rana, Benjamin Levin, Bernard E. Harcourt, César Cuauhtémoc García Hernández, Corinne Blalock, Cynthia Bowman, Daria Roithmayr, Deborah N. Archer, Derecka Purnell, Douglas NeJaime, Erin Murphy, Felix Chang, Gina Dent, Guy Uriel-Charles, James Brandt, Jawziya F. Zaman, Jocelyn Simonson, Kate Redburn, K-Sue Park, Karen M. Tani, Lucie White, Marbre Stahly-Butts, Martha T. McCluskey, Nikolas Bowie, Noah D. Zatz, Omavi Shukur, Paul Butler, Rachel Herzing, Ryan D. Doerfler, Ruth Colker, Sa’dia Rehman, Sameer M. Ashar, Sanjay Jolly, Sean Hill, Sharon Dolovich, Silky Shah, E. Tendayi Achiume, Veena B. Dubal, Vincent M. Southerland, William E. Forbath, and Yochai Benkler. Workshops sharpened ideas in dialogue: the Race, Care, Capitalism Workshop at Yale Law School; the Harvard Law School Law and Political Economy Workshop; the NYU Law School Race and Inequality Colloquium; the UCLA Advanced Critical Race Theory Seminar; the Association for the Promotion of Political Economy and the Law (APPEAL) workshop; and faculty workshops at Michigan, Georgetown, Syracuse, Ohio State, Wake Forest, and the University of Southern California. Librarians extraordinaire Kaylie Vermillion, Natasha Landon, and Jey Hernandez provided indispensable labor, as did research assistants Arabella Colombier, Breeana Minton, Daria Mateescu, Divya Korada, Eleni Christofides, Jason Ketchum, Jesse Vogel, Kendall Beard, Laïssa Christelle Alexis, Megan Porter, Sara Dagher, and Thomas Pope. Special thanks to Fernando Rojas, Charles Jetty, Malina J. Simard-Halm, Caroline L. Parker, and the many editors at the Yale Law Journal that worked tirelessly on this piece. Four weeks at the Hedgebrook Writer-in-Residence Program on Whidbey Island made this writing possible.
Introduction
In the United States, law is idealized as a product of tripartite government, an exercise of democratic process or popular will held in place by checks and balances. But whichever branch you examine—the judiciary, the legislature, or the executive—individually or collectively, at the local, state, or federal level, you will not find a map of democratic process or popular will. The Supreme Court is composed of nine Justices with life tenure and the power to veto legislation and executive action; Congress is captured by corporate power and gerrymandered districts with two senators per state regardless of population; and the route to the presidency is carved out of the Electoral College rather than the popular vote.1 Both parties have closer ties to billionaires, millionaires, and each other than they do to the people they purport to represent.2 Even the vote—the ostensible center of electoral democracy—is subject to rampant suppression and disenfranchisement.3 Antidemocratic institutional features in our system of laws are rife.4
It is unclear whether law’s aspiration can even be described as democratic. Legal, legislative, and administrative processes are exercises in technocratic expertise—defined by those with concentrated economic and political power.5 The violence of policing and incarceration is an engine of the state.6 Courts facilitate political, economic, and social stratification by providing cover for evictions, deportation, incarceration, debt collection, and family separation against the poor and working class.7 Environmental and infrastructural catastrophe are a feature of life across the United States into its colonies and territories, as are depressed wages, widespread hunger, ballooning debt, reduced life expectancy, sprawling housing insecurity, and a healthcare system that puts profit over people.8 The state ignores or facilitates these problems. No wonder public faith in the U.S. government is hovering near record lows.9
For those of us who see the world around us on fire, the question is what is to be done. For the law professor, the lawyer, and even the law student, reform and regulation are the ever-present terrain.10 In courtrooms, classrooms, and law reviews, the circuitry of conversation moves from diagnosing a problem to suggesting a reform. Not long ago, it felt as if conversations about reform assumed the legitimacy of the prevailing political, economic, social, and juridical order: tweaks of doctrine or, perhaps, policy; the audience and discussants one and the same—our colleagues, the courts, agencies, bureaucrats, perhaps legislators.11 These debates often felt inflected by such hopelessness that I sometimes felt the political horizon was not much further than my nose. That a “reform” could be imagined as a “solution” suggested our discourse reduced questions of life and death to the tiniest of “problems”—now solvable by the expert and political classes.
Neoliberal reform projects have funneled social problems into the market and the prison to solve; and both are insulated from popular input.12 Legal scholarship often mirrors the fundamental faith in the market and the prison. Private-law scholarship emphasizes “overcom[ing] inefficiencies and press[ing] toward wealth-maximizing outcomes” while public-law scholarship focuses on “narrowly defined differential treatment of individuals, especially by the state.”13 Across scholarly siloes, concern for economic power or distribution is diminished, obscuring the structuring force of concentrated economic power.14 Faith in markets is too often paired with a deep “pessimism about . . . politics and the effectiveness of the state,” rendering collective action the task of fools.15
But over the almost two decades of my career as a lawyer and law professor, conversations about reform have shapeshifted.16 In 2011, three years after the global financial crisis hit, Tunisian produce vendor Mohamed Bouazizi immolated himself in protest of unemployment, indebtedness, and police harassment.17 His act sparked the Arab Spring, which, in turn, set off Occupy Wall Street in New York City.18 Since then, a drumbeat of protest has disrupted seemingly settled terms of law and policy.19 These popular protests cannot be read as simple or linear—they are uneven and filled with contradictory impulses.20 In the United States, mass protests took place during the summer of 2020 in response to the police murder of George Floyd, and expressed hope and futility by tens of millions of people.21 These protests meditated not on questions of efficiency or wealth maximization but on life and death.22 They embodied popular revolts against the state, the status quo, and electoral democracy.23
This decade-plus of riots and social movements is like nothing we have seen since the 1960s and 1970s. It is impossible to know when this period of heightened protest will die down. We may already be within its recesses. But that the struggles are global, popular, and iterative speaks to the systemic nature of the problems.24 In the United States, large majorities of the public support greater regulation of guns and the environment, easy access to abortion, some version of Medicare for All, a higher minimum wage, paid sick and parental leave, and greater taxation of millionaires and billionaires—and yet these preferences rarely take shape in law and policy.25 It is curious the extent to which the political class has chastised grassroots demands like defunding the police or the Green New Deal for their unpopularity, when it is increasingly clear that the structures of the state fortress law and policy from public needs and aspirations.26 To put it plainly: what does popularity have to do with law and policy anyway?
A familiar scholarly posture for the law professor is to defend and defer to formal law and politics, its forums, and processes: the courtroom, the vote, notice-and-comment, and so on. This posture typically involves skepticism of protest as anarchy and of radical demands as counterproductive.27 There are whole bodies of scholarship oriented toward legitimating state power, even state violence.28 Law faculty come in and out of judicial, legislative, and executive offices, often at the highest echelons of state power. We advise corporations and the police.29 We serve on commissions and working groups to study problems raised by streets protests.30 We do this work often to the exclusion of those who organized, protested, and even risked or lost their lives for the state to take these issues seriously. We are essential parts of the state’s arsenal to reassert the status quo in which inequality and violence flourish.31
In this Feature, I argue that we must reconceive our relationship to reforms and the popular struggles in which they are embedded.32 I examine the turn of left social movements to “non-reformist reforms” as a framework for reconceiving reform: not as an end goal but as struggles to reconstitute the terms of life, death, and democracy. Today’s left social movements are challenging formal law and politics for their capitulation to a regime of racial capitalism and how it reproduces raced, classed, and gendered domination, exploitation, dispossession, and exposure to premature death.33 The turn to non-reformist reform is part of a larger meditation on what strategies and tactics will help build a more equal and just society, one that works for the many rather than the few, where people have their needs met and democracy extends to all realms of life well beyond the ballot box.34
Non-reformist reforms aim to undermine the prevailing political, economic, social order, construct an essentially different one, and build democratic power toward emancipatory horizons. They seek to redistribute power and reconstitute who governs and how. Today’s thinking about non-reformist reform is both an effort to rethink the kinds of laws, policies, norms, relationships, and modes of organization that we might build to govern society, and an effort to democratize relations of power: to have fundamentally different people at the helm.
Social movements highlight the relationships between our understanding of the world around us (criticism), the world we fight for (horizon), and the reforms, strategies, and tactics that might bridge the two (praxis). The discourse on non-reformist reforms, then, reflects theories of social change35 on the margins of legal scholarship.36 There is an underlying argument within the Feature—I do not go to any real length to substantiate it—that protest and organizing put pressure on and transform law. But I avoid fetishizing law as the ultimate object of emancipatory projects that aim to change the many lifeworlds we inhabit.37
Law and lawyers have a place in social-change work, but to assert the roles as primary is to capitulate to a conception of power that is top-down and centralized rather than everywhere and relational. What does it mean to think about law in relation to emancipation and long freedom struggles?38 To begin, it requires that we understand law as a site of domination, exploitation, expropriation, and legitimation—and lawyers as central partners therein.39 Law is neither above nor below politics or reason, nor is it the entire domain of politics or reason itself. Law is a partial and dynamic terrain of political, economic, and social struggle. It is a place and a language where power is shaped and contested, and where relations of class, race, gender, and ability are made and remade.40 It is a tool, a strategy, a tactic, and it contributes to the terms of life, death, and democracy.41
Part I identifies the broad return of a commonsense on the left that racism and capitalism are entangled and co-constitutive of the unequal and undemocratic world around us.42 This turn toward materializing racism asserts the dynamic relationship of racism to economic processes and relations.43 It understands racism as rooted in and reproducing uneven structures of organized exploitation (e.g., wage labor), expropriation (e.g., gentrification), and violence (e.g., incarceration). The turn to antiracist and anticapitalist politics has reconstituted the terrain of racial-justice discourse and organizing and attendant conversations on law and policy. Once racism and capitalism are understood as soldered together, it becomes clear that emancipatory projects must take them on together. That freedom struggles cannot succeed by approaching law narrowly, with trust, or in isolation. As horizons of emancipation are illuminated, the strategies and tactics expand beyond formal legal process and law itself. Reform and regulation can no longer be end goals; instead, they live among an array of contradictory strategies and tactics for emancipation.44
Part II lays out left critiques of reformism and offers a schematic history for “non-reformist reforms” as a competing conceptual frame to the neoliberal or liberal reformism dominant in the legal academy. In centering productive contradictions between reform and revolution, the heuristic facilitates strategic and tactical questions that “reformist reforms” do not: it requires engaging with systems as they are, allows one to hold in view bold and radical horizons, and facilitates the identification of strategic battles that might serve as a bridge through popular agitation. Rooted in the mid-twentieth-century writings of the French Austrian philosopher André Gorz and recently retooled by the geographer Ruth Wilson Gilmore, non-reformist reforms are a response to the impasse of liberal reformism and traditional conceptions of armed revolution.45 They offer another way of responding to the capture of law, politics, and the state.
Because non-reformist reforms emerge from theories of change rooted in building popular power, Part III attends to actually existing sites of struggle in the United States: abolition and decriminalization; decolonization and decommodification; and democratization.46 I turn to major campaigns, including #StopCopCity in Atlanta; organizing to cancel rent by KC Tenants in Kansas City, Missouri, and to cancel student debt by the Debt Collective; and workers organizing for collective power, and the Democratic Socialists of America’s (DSA) joint campaign for the Protect the Right to Organize (PRO) Act and the Green New Deal. While others may disagree with my characterizations of these as prevailing winds, I offer the assessment to provoke debate about the sort of reform projects legal scholars may pursue in alignment with the emancipatory organizing of our time.47 This work of “movement law”—thinking in conversation with emancipatory movements—provides a distinctive way to deploy expertise through more collaborative practices than scholars typically pursue.48
Part IV turns to the disciplinary reorientations required for engaging law as a potential terrain of mass politics. I outline four fundamental distinctions between non-reformist reforms and liberal and neoliberal approaches to reform. Non-reformist reforms require a horizon beyond legalism; they embrace antagonism and conflict rather than depoliticization and neutrality; they aim to shift the balance of power; and they build mass organization and prepare the people to govern.
See generally Pamela S. Karlan, The New Countermajoritarian Difficulty, 109 Calif. L. Rev. 2323 (2021) (arguing that the Electoral College, along with the Senate, functions to disproportionately empower a numerical minority of white conservatives); Franita Tolson, Countering the Real Countermajoritarian Difficulty, 109 Calif. L. Rev. 2381 (2021) (raising a similar argument).
E.g., Karl Evers-Hillstrom, Majority of Lawmakers in 116th Congress Are Millionaires, Open Secrets (Apr. 23, 2020, 9:14 AM), https://www.opensecrets.org/news/2020/04/majority-of-lawmakers-millionaires [https://perma.cc/FNR4-R8QZ]; Nikolas Bowie, Corporate Personhood vs. Corporate Statehood, 132 Harv. L. Rev. 2009, 2013, 2025 (2019) (reviewing Adam Winkler, We the Corporations: How American Businesses Won Their Civil Rights (2018)).
See Nikolas Bowie, Antidemocracy, 135 Harv. L. Rev. 160, 172-74 (2021) (arguing that antidemocracy is structured into the state and our laws, and involves the “protection of property-based social hierarchies”); Jacob M. Grumbach, Laboratories Against Democracy: How National Parties Transformed State Politics 195 (2022) (arguing that the “nationalization of the parties has upended the role of states as ‘laboratories of democracy,’ . . . converting Republican states in particular to laboratories against democracy”); see also Jeremy Waldron, The Core of the Case Against Judicial Review, 115 Yale L.J. 1346, 1353 (2006) (judicial review “disenfranchises ordinary citizens and brushes aside cherished principles of representation and political equality”); Jocelyn Simonson, Police Reform Through a Power Lens, 130 Yale L.J. 778, 806 (2021) (“[T]he criminal legal system is itself antidemocratic: by inflicting punishment and mass enforcement and surveillance, the criminal legal system takes away political power through a variety of simultaneous and complementary means.” (first citing Janet Moore, Democracy Enhancement in Criminal Law and Procedure, 2014 Utah L. Rev. 543; and then citing Dorothy E. Roberts, Democratizing Criminal Law as an Abolitionist Project, 111 Nw. U. L. Rev. 1597 (2017))); Chris Maisano, It Would Be Great if the United States Were Actually a Democracy: An Interview with Aziz Rana, Jacobin (Feb. 16, 2021), https://www.jacobinmag.com/2021/02/us-constitution-interview-aziz-rana [https://perma.cc/3PVY-M8K8] (quoting Aziz Rana as explaining that “[t]he central eighteenth-century architects of the federal constitution were deeply suspicious of mass democracy . . . [and] created a legal-political framework that placed massive roadblocks in the path of ordinary people using the vote to exercise majority rule” and simultaneously “conducive to capture by . . . corporations and forces of white supremacy”).
Ursula Huws, Decommodification in the Twenty-First Century, Verso (Feb. 18, 2021), https://www.versobooks.com/blogs/5001-decommodification-in-the-twenty-first-century [https://perma.cc/H25D-HLFS] (theorizing that in response to the “massive decommodification” involved in the postwar welfare state, neoliberalism required a “global wave of recommodification”).
See, e.g., Joe Soss & Vesla Weaver, Police Are Our Government: Politics, Political Science, and the Policing of Race-Class Subjugated Communities, 20 Ann. Rev. Pol. Sci. 565, 567 (2017) (arguing that police are the face and modality of the state in race-and-class subjugated communities); Traci Burch, Trading Democracy for Justice: Criminal Convictions and the Decline of Neighborhood Political Participation 133 (2013) (“[T]he criminal justice system has a demobilizing effect on disadvantaged communities.”); Amy E. Lerman & Vesla M. Weaver, Arresting Citizenship: The Democratic Consequences of American Crime Control 18-22 (2014) (arguing that the criminal law and carceral power undermine democracy and the citizenship of directly impacted people).
There is a growing body of scholarship showcasing the wide array of courts and their social function. See, e.g., Alexandra Natapoff, Criminal Municipal Courts, 134 Harv. L. Rev. 964 (2021); Daniel Wilf-Townsend, Assembly-Line Plaintiffs, 135 Harv. L. Rev. 1704 (2022); Shaun Ossei-Owusu, Kangaroo Courts, 134 Harv. L. Rev. F. 200 (2021); Kathryn A. Sabbeth, Eviction Courts, 18 U. St. Thomas L.J. 359 (2022); Tonya L. Brito, Kathryn A. Sabbeth, Jessica K. Steinberg & Lauren Sudeall, Racial Capitalism in the Civil Courts, 122 Colum. L. Rev. 1243 (2022); Lauren Sudeall & Daniel Pasciuiti, Praxis and Paradox: Inside the Black Box of Eviction Court, 74 Vand. L. Rev. 1365 (2021); Matthew Clair & Amanda Woog, Courts and the Abolition Movement, 110 Calif. L. Rev. 1 (2022); Angélica Cházaro, Due Process Deportations, 98 N.Y.U. L. Rev. 407 (2023); Lina Foster, The Price of Justice: Fines, Fees and the Criminalization of Poverty in the United States, 11 U. Mia. Race & Soc. Just. L. Rev. 1 (2020).
See, e.g., Life Expectancy in the U.S. Dropped for the Second Year in a Row in 2021, Ctrs. for Disease Control & Prevention (Aug. 31, 2022), https://www.cdc.gov/nchs/pressroom/nchs_press_releases/2022/20220831.htm [https://perma.cc/F2NY-3EZY]; Noam Levy, Some Hospitals Rake in High Profits While Their Patients Are Loaded with Medical Debt, NPR (Sept. 28, 2022, 5:01 AM ET), https://www.npr.org/sections/health-shots/2022/09/28/1125176699/some-hospitals-rake-in-high-profits-while-their-patients-are-loaded-with-medical [https://perma.cc/2Q4Z-EDHF].
For discussions by legal scholars of fundamental problems with U.S. democracy and the public’s faith in the political system, see, for example, Michael J. Klarman, The Supreme Court, 2019 Term—Foreword: The Degradation of American Democracy—and the Court, 134 Harv. L. Rev. 1 (2020); and Kate Andrias & Benjamin I. Sachs, Constructing Countervailing Power: Law and Organizing in an Era of Political Inequality, 130 Yale L.J. 546 (2021).
Across fields, “[t]he agent of law reform” has been conceived as “not the people but the technician: the judge, economist, or bureaucrat who would calculate hypothetical consumer and producer surplus to order law and policy to serve the aims of wealth maximization.” Jedediah Britton-Purdy, David Singh Grewal, Amy Kapczynski & K. Sabeel Rahman, Building a Law-and-Political-Economy Framework: Beyond the Twentieth-Century Synthesis, 129 Yale L.J. 1784, 1800 (2020).
Id. at 1807, 1812, 1817, 1828. Neoliberal law and politics have pushed a “‘color-blind’ mantra of individual achievement and meritocracy” combined with “the liberal multicultural politics of ‘recognition,’” a “formal commitment to legal equality,” and the relegation of racism as the “outcome[] of ‘individual choices’ exercised through the market.” Andy Clarno, Neoliberal Apartheid, Palestine/Israel and South Africa After 1994, at 12 (2017).
Britton-Purdy et al., supra note 11, at 1790, 1806; see Ganesh Sitaraman, The Puzzling Absence of Economic Power in Constitutional Theory, 101 Cornell L. Rev. 1445 (2016) (arguing that constitutional theory must overcome or mitigate the influence of economic power). See generally Joseph Fishkin & William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (2022) (theorizing that the Constitution imposes a duty on government to fight oligarchy).
Id. at 1791, 1805 (noting that the Twentieth-Century Synthesis has “obscured from view the kinds of political mobilization that are essential for engaging . . . fundamental questions” about the shape of the state, the economy, and the social). To the extent these policies and discourses manifest in “critiques of ‘big government,’” they are deployed against “programs perceived as racially redistributive—such as affirmative action, reparations, or indigenous land claims.” Clarno, supra note 12, at 12; see Arun Kundnani, What Is Racial Capitalism?, Kundnani (Oct. 23, 2020), https://www.kundnani.org/what-is-racial-capitalism [https://perma.cc/8HJH-3DFU] (“Political opposition to market systems mounted by movements of the global South or racialized populations in the North is then read by neoliberal ideology as no more than the acting out of cultures inherently lacking in the appropriate traits of individualism and entrepreneurial spirit. . . . The surplus dispossessed come to be represented through a series of racist figures—‘welfare queens,’ ‘Muslim extremists,’ ‘illegals,’ ‘narcos,’ ‘super-predators’ . . . distinctive to the neoliberal era.”).
See, e.g., Gianpaolo Baiocchi, We, the Sovereign (2018) (cataloguing contemporary left and anti-neoliberal movements and moments of protest around the world); Claire Harbage & Hannah Bloch, The 2010s: A Decade of Protests Around the World, NPR (Dec. 31, 2019, 9:37 AM ET), https://www.npr.org/sections/pictureshow/2019/12/31/790256816/the-2010s-a-decade-of-protests-around-the-world [https://perma.cc/8HMA-WWFQ].
See Jackie Wang, Carceral Capitalism 276-77 (2018) (counseling against flattening narratives about protests). And of course, there are right-wing protests. E.g., Jennifer Smola Shaffer, Drag Storytime Organizers, Police Offer Different Explanations amid Proud Boys Protest, Columbus Dispatch (Dec. 3, 2022, 7:25 PM ET), https://www.dispatch.com/story/news/local/2022/12/03/royal-oak-school-drag-storytime-canceled-proud-boys-protest-columbus/69691753007 [https://perma.cc/4FUN-CTAW].
Or of the sort that Nigeria saw in fall 2020, also against police; that India saw that winter into the spring, with 250 million farmers, workers, and students protesting the deregulation and privatization of agriculture; that Brazil saw in 2013 in the face of public transit fare hikes; that France saw in 2018 against gas taxes. See Baiocchi, supra note 19, at 2-3; Veena Dubal & Navyug Gill, “Long Live Farmer-Laborer Unity”: Contextualizing the Massive Resistance Going on in India, LPE Project (Dec. 28, 2020), https://lpeproject.org/blog/long-live-farmer-laborer-unity-contextualizing-the-massive-resistance-going-on-in-india [https://perma.cc/27PG-4LCY]; Emmanuel Akinwotu, ‘The Lights Went Out and the Shooting Start’: #EndSars Protestors Find No Justice One Year On, Guardian (Nov. 1, 2021, 03:01 PM EDT), https://www.theguardian.com/global-development/2021/nov/01/nigeria-end-sars-protesters-find-no-justice-one-year-on [https://perma.cc/CX6Z-YP4R]; Adam Nossiter, France Suspends Fuel Tax Increase that Fueled Violent Protests, N.Y. Times (Dec. 4, 2018), https://www.nytimes.com/2018/12/04/world/europe/france-fuel-tax-yellow-vests.html [https://perma.cc/E29E-GWTX].
See Astra Taylor, Democracy May Not Exist, but We’ll Miss It When It’s Gone 9 (2019) (describing in the United States “a highly proscribed notion of democracy . . . that limits popular power to the field of electoral politics, ignoring the other institutions and structures (workplaces, prisons, schools, hospitals, the environment, and the economy itself) that shape people’s lives”).
Martin Gilens & Benjamin I. Page, Testing Theories of American Politics: Elites, Interest Groups, and Average Citizens, 12 Persps. on Pol. 564, 577 (2014). Martin Gilens and Benjamin I. Page further report the finding of a statistical model that economic elites and organized business groups have substantial independent impacts on American policymaking, while the general public has little to no impact. Id.
See id. at 577; K. Sabeel Rahman & Kathleen Thelen, The Role of the Law in the American Political Economy, in The American Political Economy: Politics, Markets, and Power 76, 94, 96 (Jacob S. Hacker, Alexander Hertel-Fernandez, Paul Pierson & Kathleen Thelen eds., 2021) (arguing that “business interests” have “leveraged legal doctrine to shift the balance of power between capital and labor through cases that undercut the countervailing power of workers and other groups to exercise political voice and to contest the political interests of business” and “establish[ed] limitations on the very capacities of government itself,” so as to “preclud[e] more far-reaching regulations or redistributive policies”).
Consider the new wave of academic work critical of abolition and protest. See, e.g., Rachel E. Barkow, Promise or Peril?: The Political Path of Prison Abolition in America, 58 Wake Forest L. Rev. (forthcoming), https://ssrn.com/abstract=4232267 [https://perma.cc/8NZJ-G9DL] (providing reasons why an abolitionist framework may “ultimately produce more harm than good”); see also Tommie Shelby, The Idea of Prison Abolition 150-95 (2022) (arguing that prison, if reformed, can be a legitimate tool to fight crime).
Consider, for example, the procedural-justice scholarship focused on policing. E.g., Tom R. Tyler, Procedural Justice, Legitimacy, and the Effective Rule of Law, 30 Crime & Just. 283, 350 (2003). For a powerful critique, see Monica C. Bell, Police Reform and the Dismantling of Legal Estrangement, 126 Yale L.J. 2054, 2083-87, 2126-47 (2017).
There are also scholarly traditions, and centers and clinics at law schools, that take seriously protest and organizing, social movements and movement lawyering. For a survey of some of this work, see Amna A. Akbar, Sameer M. Ashar & Jocelyn Simonson, Movement Law, 73 Stan. L. Rev. 821, 832-37 (2021). Some relevant articles also include Scott L. Cummings, Movement Lawyering, 2017 U. Ill. L. Rev. 1645, 1646-60; Jeena Shah, Rebellious Lawyering in Big Case Clinics, 23 Clinical L. Rev. 775, 776-80 (2017); Renee Hatcher, Solidarity Economy Lawyering, 8 Tenn. J. Race Gender & Soc. Just. 23 (2019); Nicole Smith Futrell, The Practice and Pedagogy of Carceral Abolition in a Criminal Defense Clinic, 45 N.Y.U. J.L. & Soc. Change 159 (2021); Justin Hansford, Demosprudence on Trial: Ethics for Movement Lawyers, in Ferguson and Beyond, 85 Fordham L. Rev. 2057 (2017); Amy J. Cohen & Bronwen Morgan, Prefigurative Legality, 48 Law & Soc. Inquiry (forthcoming 2023), https://ssrn.com/abstract=4268294 [https://perma.cc/WG9D-Z7L8]; and Veryl Pow, Grassroots Movement Lawyering: Insights from the George Floyd Rebellion, 69 UCLA L. Rev. 80 (2022).
E.g., NYU Law Professor Barry Friedman to Aid in Investigation of NYPD as Special Advisor to the NY Attorney General, N.Y.U. (June 15, 2020), https://www.nyu.edu/about/news-publications/news/2020/june/nyu-law-professor-barry-friedman-to-aid-in-investigation-of-nypd.html [https://perma.cc/K3B6-FLP6]. There are whole host of relatively new university centers at elite universities including at law schools that have police funding. See Our Partners & Funders, N.Y.U. Sch. of L. Policing Project, https://www.policingproject.org/our-partners [https://perma.cc/FPN6-CE9G]; Isabella Tapia, Teach-In Condemns NYU Law Policing Project, Wash. Square News (Apr. 25, 2022), https://nyunews.com/news/2022/04/25/teach-in-nyu-law-policing-project [https://perma.cc/5CBE-6X57]; Letter from NYU Students to Trevor Morrison, Dean, N.Y.U. L. Sch. (Apr. 15, 2022), https://docs.google.com/document/d/1qHWVP2gPqirTFQDXhd4schKiJU9EAYiKsQqOkmC1Vns/edit [https://perma.cc/7PZJ-3ZT2]; Angela Koenig, UC Public Safety Research Center Established: New Center Is a Resource Hub for Law Enforcement, Community, and Elected Officials, UC News (Feb. 7, 2022), https://www.uc.edu/news/articles/2022/02/uc-public-safety-research-center-opens-in-school-of-criminal-justice.html [https://perma.cc/E5LR-M3GN].
See Final Report of the President’s Task Force on 21st Century Policing, President’s Task Force on 21st Century Policing, at v (May 2015), https://cops.usdoj.gov/pdf/taskforce/taskforce_finalreport.pdf [https://perma.cc/FW3F-D873]; Barry Friedman, Brandon L. Garrett, Rachel Harmon, Christy E. Lopez, Tracey L. Mears, Maria Ponomarenko, Christopher Slobogin & Tom R. Tyler, Changing the Law to Change Policing: First Steps, Just. Collaboratory et al., https://law.yale.edu/sites/default/files/area/center/justice/document/change_to_change_final.pdf [https://perma.cc/WBX3-6KR2]; Commissioners and Staff, N.Y. State L. Rev. Comm’n, https://lawrevision.state.ny.us/commissioners-and-staff [https://perma.cc/N4BN-VVXH]. We also staff commissions to study problems raised by other elites, including our colleagues. Final Report, Presidential Comm’n on the Sup. Ct. of the U.S. 2-4 (Dec. 8, 2021), https://www.whitehouse.gov/wp-content/uploads/2021/12/SCOTUS-Report-Final-12.8.21-1.pdf [https://perma.cc/7RSY-M9P5].
See, e.g., Isaac D. Balbus, The Dialectics of Legal Repression: Black Rebels Before the American Criminal Courts 86-88 (1973) (describing a meeting convened in Los Angeles to address “ghetto revolts” following the 1968 assassination of Dr. Martin Luther King, Jr., where “no effort was made to include anyone who even in the vaguest sense could be called a representative of the ghetto”).
The Law-and-Political-Economy (LPE) framework requires shifting from concerns with efficiency to power. Britton-Purdy et al., supra note 11, at 1818, 1823-24, 1827. They elaborate strategies to “reorient legal institutions and thought toward” democracy: “strengthening existing institutions of electoral democracy”; creating a “democratic political economy . . . answerable to its citizens’ rule”; and “experiment[ing] with alternatives to the prevailing technologies of elite governance,” including “reconceiv[ing] regulatory bodies as sites of democratic contestation.” Id. at 1929-31.
A concern with racism and capitalism undergirds an understanding of racism as the “state-sanctioned or extralegal production and exploitation of group-differentiated vulnerability to premature death.” Ruth Wilson Gilmore, Golden Gulag: Prisons, Surplus, Crisis, and Opposition in Globalizing California 28 (2007).
I use vocabulary—like “the capitalist class”—uncommon in legal scholarship, precisely for how reconstituting the terms of debate might broaden and multiply roads of possibility. See generally Matthew T. Huber, Climate Change as Class War: Building Socialism on a Warming Planet 19-21 (2022) (explaining that for Marxists, “class is an objective material relationship to production” and that “the classes who control production also possess oversized power over society as a whole” as opposed to liberal conceptions that focus on levels of wealth, income, and lifestyle (emphasis omitted)).
Lani Guinier & Gerald Torres, Changing the Wind: Notes Towards a Demosprudence of Law and Social Movements, 123 Yale L.J. 2740, 2749-50 (2014) (“[D]emosprudence focuses on [how] ongoing collective action by ordinary people can permanently . . . chang[e] the people who make the law and the landscape in which that law is made.”); see also Bowie, supra note 2, at 2032-40 (examining the mobilizing of the IWW and its 1912 strike in a Lawrence, Massachusetts textile mill to argue “the Supreme Court isn’t the only place where corporate rights have been protected or taken away”); Douglas NeJaime & Reva Siegel, Answering the Lochner Objection: Substantive Due Process and the Role of Courts in a Democracy, 96 N.Y.U. L. Rev. 1902, 1922-33 (2021) (attending to “the [protest] practices . . . innovated by groups facing conditions of overwhelming subordination” from which “modern substantive due process decisions grew”).
See Angela P. Harris, Foreword: The Jurisprudence of Reconstruction, 82 Calif. L. Rev. 741, 746 (1994) (“[T]he crits sought to show that legal doctrine is contradictory; that legal rules are indeterminate; and that the operation of legal institutions is systematically biased in favor of economically and socially privileged elites.” (footnotes omitted)).
To think of law as a site of struggle builds on the insights of critical scholars past and present. See Akbar et al., supra note 28, at 825-27; see also Mari Matsuda, Looking to the Bottom: Critical Legal Studies and Reparations, 22 Harv. C.R.-C.L. L. Rev. 323, 325 (1987) (calling for scholars to root their critiques of law in the experience of “people of color in America”); David Kairys, Introduction to The Politics of Law: A Progressive Critique 1, 6 (David Kairys ed., 1982) (calling for law to “acknowledge the fundamental conflicts in society”).
See Nicos Poulantzas, State, Power, Socialism 146-47 (Patrick Camiller trans., 1978); Stuart Hall, Chas Critcher, Tony Jefferson, John Clarke & Brian Roberts, Policing the Crisis: Mugging, the State and Law and Order 183-84 (2d ed. 2013); Balbus, supra note 31, at 256-62; John Whitlow, If You Can Unmake It Here: Crisis, Contingency, and Law in the Making and Unmaking of Neoliberal New York, 121 S. Atl. Q. 339, 340 (2022).
See, e.g., Donna Murch, Assata Taught Me: State Violence, Racial Capitalism, and the Movement for Black Lives 87-158 (2022); David McNally, It’s Called Capitalism: Naming the System Behind Systemic Racism: An Interview with Keeanga-Yamahtta Taylor, Spectre J. (June 1, 2022), https://spectrejournal.com/its-called-capitalism-naming-the-system-behind-systemic-racism [https://perma.cc/V23L-P5BA].
These conversations are not linear or teleological. Almost three decades ago, Angela P. Harris called for a “jurisprudence of reconstruction” that would have “some understanding of how [race,] material relations of production and consumption and discourse affect one another.” Harris, supra note 39, at 777-78.
E.g., Beatrice Adler-Bolton & Artie Vierkant, Health Communism, at xiv (2022) (“[E]ven as we fight within the US for policies like Medicare for All, the task at hand is much greater . . . . It is the total reformation of the political economy of health, and in so doing, the total reformation of the political economy.”).
I am drawing on an archive focused on the Movement for Black Lives, the Democratic Socialists of America (DSA), the Red Nation, Sunrise Movement, Critical Resistance, and other organizations I name throughout the text and footnotes. I have examined interviews, podcasts, media coverage, campaign and political education materials, litigation and legislation. While detail is lost with breadth, my hope is that new possibilities become visible.
My account is necessarily incomplete and subjective. The social-movement ecosystems I write about are sprawling, multifaceted and contradictory. This is especially true because I construe social movements broadly, for example, by including the DSA, which some may conceive of as an electoral organization, as well as labor organizing. Cf. Catherine L. Fisk & Diana S. Reddy, Protection by Law, Repression by Law: Bringing Labor Back into the Study of Law and Social Movements, 70 Emory L.J. 63, 138 (2020) (“By examining [how] one movement’s experience with law shapes other movements’ experience with law over time we are better able to generalize about law and social movements, plural.”).