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  • Abolition Economics

    Over the past several decades, Law & Economics has established itself as one of the most well-known branches of interdisciplinary legal scholarship. The tools of L&E have been applied to a wide range of legal issues and have even been brought to bear on Critical Race Theory in an attempt to address some of CRT’s perceived shortcomings. This Article seeks to reverse this dynamic of influence by applying CRT and related critical perspectives to the field of economics. We call our approach Abolition Economics. By embracing the abolitionist ethos of “dismantle, change, and build,” we seek to break strict disciplinary habits of modelling and identification, destabilize value systems implicit in mainstream economics, model society more fully as made up of interconnected humans, and develop a richer and more realistic understanding of racialized economic inequality, hierarchy, and oppression. We argue that, contrary to accepted disciplinary conventions, such an endeavor does not introduce new (inappropriate) ideological content into (objective) economics; rather, this endeavor is necessary to fully reveal the ideological content already embedded in mainstream economics as it is currently practiced, and the consequences of that embedding in supporting the functioning of systems of racial capitalism and racial injustice. We believe that imagining the possibility of a different economics—an Abolition Economics—can be an act not only of resistance but, crucially, of freedom-making.

  • Racism Pays: How Racial Exploitation Gets Innovation Off the Ground

    Recent work on the history of capitalism documents the key role that racial exploitation played in the launch of the global cotton economy and the construction of the transcontinental railroad. But racial exploitation is not a thing of the past. Drawing on three case studies, this Paper argues that some of our most celebrated innovations in the digital economy have gotten off the ground by racially exploiting workers of color, paying them less than the marginal revenue product of their labor for their essential contributions. Innovators like Apple and Uber have been able to racially exploit workers of color because they have monopsony power to do so. Workers of color have far fewer outside options than white workers, owing to intentional and structural discrimination against workers on the basis of their race. In the emerging digital economy, racial exploitation has paid off by giving innovators a workforce that is cheap, easy to scale, flexible, and productive—the kind of workforce that is especially useful in digital markets, where a first-mover advantage often translates to winner-take-all. This Paper argues that these workers should be paid the marginal revenue product of their labor, and it proposes a number of potential ways to do so: by increasing worker compensation or worker power. More generally, I argue that we should value the essential contributions of workers of color and immigrant workers who make innovation possible.

  • Teaching Slavery in Commercial Law

    Public status shapes private ordering. Personhood status, conferred or acknowledged by the state, determines whether one is a party to or the object of a contract. For much of our nation’s history, the law deemed all persons of African descent to have a limited status, if given personhood at all. The property and partial personhood status of African-Americans, combined with standards developed to facilitate the growth of the international commodities market for products including cotton, contributed to the current beliefs of business investors and even how communities of color are still governed and supported. The impact of that shift in status persists today. The commodities markets and the nations that rose and prospered would not be possible without the slave trade, and that trade would not be possible without the legal, business, and social norms in place to facilitate private ordering and growth while reinforcing the subjugation of African-Americans. Yet, many business and commercial law professors devote class time to teaching foundational and historical material, without any consideration of the impact of slavery. To avoid slavery in business and commercial law courses is to ignore an institution that plays a pivotal role in much of what we do today. Slavery is not a frolic, it is foundational. Many American universities played a role in the slave trade—either by receiving funds from the enterprise or receiving the enslaved as donations and using their labor or disposing of them for the financial advancement of the institution. In my Core Commercial Concepts course, a Uniform Commercial Code (UCC) survey class covering Articles 2, 3, 4, and 9, I devote time and space to discussions of race and the law by making the connection between the history of commercial concepts, slavery, and the role of the cotton industry in the shaping of international commercial law norms. In my simulation, described in this Essay, I teach the story of Washington and Lee University’s sale of individuals for the purpose of ensuring the institution’s financial survival, then extrapolate from the facts to review the high points of commercial law. I incorporate materials on the legacy of slavery at my own institution to provide students with a scenario based on the acquisition of real property and construction of buildings they engage with on campus. In this Essay I explain the methods I use to explore these concepts. Working in a framework that focuses on classification and status, my students consider issues of federalism and the impact of statutory definitions on private ordering, while discussing how these definitions shape the relationship of African-Americans to commerce.

  • Bankruptcy in Black and White: The Effect of Race and Bankruptcy Code Exemptions on Wealth

    Bankruptcy law in the United States is race-neutral on its face but, in practice, race matters in bankruptcy outcomes. Our original research provides an empirical look at how the facially neutral laws that allow debtors to retain assets in bankruptcy cases result in disparate outcomes for Black and white debtors. Racial differences in asset retention in bankruptcy cases play a role in perpetuating wealth inequality between Black and white debtors. Existing bankruptcy data lacks individual-level characteristics such as race, which inhibits researchers’ ability to adequately assess biases or unintended consequences of laws and policies on subsets of the population. Thus, we construct a novel data set using bankruptcy data from Washington D.C. in 2011 and imputing race. The data demonstrates that facially race-neutral bankruptcy laws contribute to racially disparate outcomes by allowing white debtors to keep larger amounts of both personal and real property. First, exemption laws allow every bankruptcy filer to retain some personal property even if they do not repay their creditors in full. At the median, white filers in the District of Columbia claimed $10,150 in exemptions, relative to $8,359 for Black filers. In other words, the median white filer kept roughly $1,800 more of their property than Black filers, despite reporting similar overall personal property values. Second, exemption laws allow every bankruptcy filer to retain some (or all) equity in their home. Unlike personal property, where Black and white debtors enter bankruptcy with about the same amount of property, white debtors enter bankruptcy with more home equity than Black debtors ($585,000 compared with $251,600 at the median). Unsurprisingly, then, white debtors also leave bankruptcy with more home equity (e.g., the median Black filer retains roughly 80% less in home equity than white filers). Although bankruptcy laws do not inflate the value of white filers’ personal or real property values relative to Black debtors, our exemption rules contribute to white debtors leaving bankruptcy with greater wealth than Black debtors. By protecting certain assets like home equity, which are unevenly distributed in our sample across Black and white debtors, bankruptcy law appears to play a role in perpetuating wealth inequality. Even where assets are more evenly distributed, as personal property was in our sample, bankruptcy law leaves Black debtors with a less robust “fresh start” than white debtors.

  • Urban Decolonization

    National fair housing legislation opened up higher opportunity neighborhoods to multitudes of middle-class African Americans. In actuality, the FHA offered much less to the millions of poor, Black residents in inner cities than it did to the Black middle class. Partly in response to the FHA’s inability to provide quality housing for low-income blacks, Congress has pursued various mobility strategies designed to facilitate the integration of low-income Blacks into high-opportunity neighborhoods as a resolution to the persistent dilemma of the ghetto. These efforts, too, have had limited success. Now, just over fifty years after the passage of the Fair Housing Act and the Housing Choice Voucher Program (commonly known as Section 8), large numbers of African Americans throughout the country remain geographically isolated in urban ghettos. America’s neighborhoods are deeply segregated and Blacks have been relegated to the worst of them. This isolation has been likened to colonialism of an urban kind. To combat the housing conditions experienced by low-income Blacks, in recent years, housing advocates have reignited a campaign to add “source of income” protection to the federal Fair Housing Act as a means to open up high-opportunity neighborhoods to low-income people of color. This Article offers a critique of overreliance on integration and mobility programs to remedy urban colonialism. Integration’s ineffectiveness as a tool to achieve quality housing for masses of economically-subordinated Blacks has been revealed both in the historically White suburbs and the recently gentrified inner city. Low-income Blacks are welcome in neither place. Thus, this Article argues that focusing modern fair housing policy on the relatively small number of Black people for whom mobility is an option (either through high incomes or federal programs) is shortsighted, given the breadth of need for quality housing in economically-subordinated inner-city communities. As an alternative, this Article proposes, especially in the newly wealthy gentrified cities, that fair housing advocates, led by Black tenants, insist that state and local governments direct significant resources to economically depressed majority-minority neighborhoods and house residents equitably. This process of equitable distribution of local government resources across an entire jurisdiction, including in majority-minority neighborhoods, may be a critical step towards urban decolonization.

  • Without Representation, No Taxation: Free Blacks, Taxes, and Tax Exemptions Between the Revolutionary and Civil Wars

    This Essay is the first general survey of the taxation of free Blacks in free and slave states between the Revolutionary and Civil Wars. A few states treated all equally for tax purposes, but most states enacted taxation systems that subjected free Blacks to different requirements. Both free and slave states viewed free Blacks as an undesirable population, and this Essay posits that—within the relevant political constraints—states used taxes and tax exemptions to dissuade free Black immigration and limit the opportunities for free Blacks within their borders. This topic is salient for at least two reasons. First, the Essay sheds light on laws and events that the literature—and the American educational system—has largely ignored. It directly contradicts the commonly held belief that free Blacks largely enjoyed the same set of rights and privileges as their White counterparts until Jim Crow and the Black Codes set in after the Civil War. Second, by juxtaposing then-widely prevailing views with historical tax laws, this Essay underscores the inherent relationship between tax policy and social policy. Taxes have never been just about bolstering the public fisc. Although this Essay will hopefully never have direct applicability to contemporary events, it can provide insight into current and future tax policies and the extent to which history, prejudice, and economic concerns inform policymakers’ decisions.

  • Litigating against an Epidemic: HIV/AIDS and the Promise of Socioeconomic Rights in South Africa

    With one of the highest incidence rates in the world, the HIV/AIDS epidemic has taken a large toll on South Africa. Despite medical advances that have made the disease more manageable, many South Africans still do not have access to the medicines needed to control the disease. At the same time, the Constitution of South Africa grants individuals far-reaching socioeconomic rights, including the right to access health care. This Comment explores the intersection of the socioeconomic rights and the HIV/AIDS crisis. Although the Constitutional Court has developed a deferential approach to enforcing socioeconomic rights, substantial room remains to litigate on behalf of those afected by HIV/AIDS. Building off the judgment in the Treatment Action Campaign case, this Comment argues that further litigation should be used to hold the government to the standards of the Constitution and to mitigate the impact of the epidemic.

  • Race, Educational Loans & Bankruptcy

    This Article reports new data from the 2007 Consumer Bankruptcy Project revealing that college graduates and specifically White graduates are less likely to file for bankruptcy than their counterparts without a college degree. Although these observations suggest that a college degree helps graduates to weather the setbacks that sometimes lead to financial hardship as measured by bankruptcy, they also indicate that a college degree may not help everyone equally. African American college graduates are equally likely to file for bankruptcy as African Americans without a college degree. Thus, a college education may not confer the same protective benefit against financial hardship for African Americans that it does for their White counterparts. These observations draw attention to the tension between two federal policies with respect to educational attainment: educational lending policy that encourages Americans to take on debt to finance their educations and bankruptcy policy that makes discharge of educational debt practically impossible. Given preexisting wealth, educational loan borrowing, and post-graduate income data concerning African Americans, these data suggest that African Americans may experience Congress's restrictive educational loan discharge policy more acutely than Whites. Indeed, African Americans are more likely to borrow money for college, earn less after graduation, and yet are bound by the same duty to repay educational loans. Ultimately, these educational loan policies may reveal who, as a practical matter, should and who should not be going to college. More troubling is that this division seems to track socioeconomic and racial lines. Accordingly, this Article considers whether these findings should persuade Congress to reformulate its policy on the discharge of educational loans in bankruptcy or alternatively, to change the manner in which it supports educational attainment.

  • Sliding Towards Educational Outcomes: A New Remedy for High-Stakes Education Lawsuits in a Post-NCLB World

    Sheff v. O'Neill ushered in a new wave of education reform litigation that may challenge the constitutionality of de facto segregation under state education clauses, but its remedy has been inadequate. This Note proposes a new desegregation remedy-the sliding scale remedy-to address socioeconomic isolation in this unique constitutional context. The remedy employs varying degrees of equity power depending on students' academic outcomes. It balances concerns over local control and separation of powers with the court's need to effectuate right, establishes a clear remedial principle, and ensures that states and school districts focus on students as they implement remedies.

  • Employee Free Choice or Employee Forged Choice? Race in the Mirror of Exclusionary Hierarchy

    The Employee Free Choice Act (EFCA) is arguably the most transformative piece of labor legislation to come before Congress since the enactment of the National Labor Relations Act of 1935 (NLRA). One of the newest attempts to transform labor relations is the EFCA. The first to disappear under the EFCA would be a system of union democracy whereby unions could only obtain the rights of exclusive representation for firms if they could prevail in a secret-ballot election. Second, the EFCA would eliminate tile necessity of a freely negotiated collective bargaining agreement between management and labor and instead substitute compulsory arbitration. While some labor union advocates contend that law ought to be conceived of as a vehicle to democratize tile workplace by redistributing power in labor markets in favor of workers, while concurrently demolishing hierarchical command structures that entrench gender, race and class lines, this proposal would likely expand labor hierarchy, labor market cartelization and diminish the employment prospects of racial minorities. As such, the EFCA is marked by contradiction. This Article deploys Critical Race Reformist theory, economics and apartheid-era South African labor history in order to shot' that rather than embracing freedom for workers, eliminating, poverty, and expanding opportunities for all, this proposal would likely invert such goals and instead operate consistently with the record of exclusion and subordination tied to American Progressivism and the labor movement.