Article
Law and Historical Materialism
Jeremy Kessler | PDF
Since the financial crisis of 2008, left-leaning legal thought has experienced a renaissance within the American academy. From law and political economy to critical race theory to feminist legal studies to Marxist legal theory, new perspectives have flourished, and marginalized traditions have been revived and revised. These new perspectives and revisionist projects all share an intellectual debt to the critical legal studies (“CLS”) movement of the late 1970s and 1980s. That movement’s critique was focused on functional accounts of law: accounts that understood legal change as primarily responsive to the demands of extralegal social and economic forces. Some of those accounts, such as that of the law and society school, were associated with the political center. Others, most especially historical materialism, hailed from the political left. For CLS and its successors, the failure of historical materialism to account for the indeterminacy of law, the contingency of legal development, and the autonomous causal power of law and legal actors to shape society was—and remains—disqualifying.
This Article argues that CLS erred, and that its successors continue to err, in sidelining historical materialism as a viable framework for left-leaning legal thought. The historical materialist account of law has the resources to make sense of the apparent indeterminacy, contingency, and autonomy of law and legal actors at least as well as CLS and its successors. It can also make better sense of three additional phenomena with which CLS and its successors have struggled: the tendency of legal development to reproduce existing social and economic hierarchies; the relationship between law and capitalism; and the relationship between law and the natural world.
Lecture
History and Tradition? Anatomy of a Constitutional Revolution
Noah Feldman | PDF
Notes
Punishment, Penal Reform, and Alternatives to Incarceration in Durham, North Carolina, 1869-Present
Michael DeLuca | PDF
In the years following the Civil War, communities throughout the United States reckoned with divergent ideas about crime and punishment. Southern states in particular faced questions related to race and the legacy of slavery as they defined new crimes, designed penal facilities, and filled local jails. During this period, North Carolina adopted a new state constitution that manifested the transition from corporal punishment to incarceration that was occurring throughout the country. Like many states, North Carolina looked to New York and Pennsylvania for lessons to be gleaned from those states’ experiences with penitentiaries—new facilities that promised to rehabilitate incarcerated people and deter crime.
Founded in 1869, Durham, North Carolina, encountered the urgent need to design a criminal justice system in this unsettled environment. Because of its establishment at a pivotal moment in U.S. history, subsequent struggles with mass incarceration, and current role as a pioneer in criminal justice reform, Durham offers a rich case study for the evolution of criminal punishment at the local level. This Note provides the first comprehensive examination of Durham’s penal facilities and the decisions that shaped them from the city’s founding to the present. It also identifies factors that have contributed to the success and failure of reform efforts, raising questions about the trajectory of ongoing criminal justice reform, illustrating the constraints that reformers face, and offering lessons to communities seeking alternative responses to crime.
Winning at Any Cost: Overcoming Professional Sports Team Rent Seeking Through the Sports Broadcasting Act
Omar S. Mattar | PDF
U.S. professional sports teams are integrally linked with the identity of the cities they play in. Because of this prominence, they are some of the most valuable privately owned assets on earth. Their leagues are monopolies, insulated by entry costs that make competition from smaller competitors almost impossible. Owners rent seek using this leverage by demanding states and cities subsidize teams’ operating costs or risk the franchise departing for more generous taxpayer funding elsewhere, creating a race to the bottom. The most gratuitous of these subsidies, to build and renovate stadiums, will cost state and local taxpayers at least $20 billion between 2020 and 2030. Congress can protect states and cities from this rent seeking by amending the Sports Broadcasting Act (“SBA”), a statute that exempts professional leagues and their joint agreements from antitrust scrutiny. An amended SBA would require teams and leagues fulfill certain conditions and refrain from extorting the states and cities they operate in.