Sovereignty Considerations and Social Change in the Wake of India\u27s Recent Sodomy Cases

American constitutional law scholars have long questioned whether courts can really drive social reform, and this position remains largely unchallenged even in the wake of recent landmark decisions affecting the LGBT community. In contrast, court watchers in India — spurred by developments in a special type of legal action developed in the late 1970s known as “public interest litigation,” or “PIL” — have only recently begun questioning the judiciary’s ability to promote progressive social change. Indian scholarship on this point has veered between despair that PIL cases no longer reliably produce good outcomes for India’s most disadvantaged, and optimism that public interest litigation can be returned to its glory days of heroic judicial intervention. And no pair of cases so nicely captures this dichotomy as the 2009 decision in Naz Foundation, which decriminalized sodomy, and the 2012 decision in Suresh Kumar Koushal, which overruled Naz. This paper uses public interest litigation and India’s recent sodomy cases to demonstrate that the relationship between state actors (like courts) and society is often far less stable than the democratic ideal of “citizen sovereignty” would suggest. I argue, first, that supporters of public interest litigation should neither give up on PIL suits as a means of effecting social reform nor imagine that PIL suits can ever reliably produce desirable outcomes. As a type of legal action, public interest litigation simply cannot be reverse engineered in this way. But second, I reinterpret the documented and widely critiqued shift in PIL cases from protecting fundamental rights during the 1970s and ‘80s to protecting the interests of advantaged litigants in the 1990s and 2000s. While earlier PIL cases reflect the Indian Constitution’s commitment to government-led social reform and the sharing of sovereignty between citizens and the state, contemporary PIL cases reflect the Constitution’s commitment to an agency theory of sovereignty whereby government merely acts on behalf of citizens. Because neither vision of sovereignty is paramount over the long run, shifts in public interest litigation reflect the productive and dynamic equilibrium between the two

Sovereignty and Social Change in the Wake of India’s Recent Sodomy Cases

American constitutional law scholars have long questioned whether courts can truly drive social reform, and this uncertainty remains even in the wake of recent landmark decisions affecting the LGBT community. In contrast, court watchers in India—spurred by developments in a special type of legal action developed in the late 1970s known as public interest litigation (PIL)—have only recently begun to question the judiciary’s ability to promote progressive social change. Indian scholarship on this point has veered between despair that PIL cases no longer reliably produce good outcomes for India’s most disadvantaged and optimism that public interest litigation can be returned to its glory days of heroic judicial intervention. Perhaps no pair of cases so nicely captures this dichotomy as the 2009 decision in Naz Foundation v. Government of NCT of Delhi, which decriminalized sodomy, and the 2012 decision in Koushal v. Naz Foundation, which overruled Naz. This paper uses public interest litigation and India’s recent sodomy cases to demonstrate that the relationship between state actors and citizens is often far less stable than the democratic ideal of “citizen sovereignty” would suggest. I argue, first, that supporters of public interest litigation should neither give up on PIL suits as a means of effecting social reform nor imagine that PIL suits can ever reliably produce desirable outcomes. As a type of legal action, public interest litigation simply cannot be reverse engineered in this way. But second, I show why this unreliability is not as worrisome as it might first appear to be, by analyzing the well-documented and widely critiqued shift in PIL cases at the end of the twentieth century. While earlier PIL cases reflect the Indian Constitution’s commitment to government-led social reform and the sharing of sovereignty between citizens and the state, contemporary PIL cases reflect the Constitution’s commitment to an agency theory of sovereignty whereby government merely acts on behalf of citizens. Neither vision of sovereignty is paramount over the long run, and shifts in public interest litigation reflect the productive and dynamic equilibrium between the two

Sweet Old-Fashioned Notions: Legal Engagement With Anthropological Scholarship

The study of law, we are told often and generally with approval, has become a potluck to which everyone is invited. Over there stand the historians bearing their retrospectively informed insights; across from them are the experimental psychologists hoisting their pleasingly social-scientific brew; in the corner lurk philosophers chatting calmly over some first principles. The center of the room is quite naturally taken up by the economists, laughing exuberantly over their spread of nifty models, intimidating formulae, and soothing predictions. In the midst of this lively affair, circulating among the invitees like a dutiful host, rejecting nothing, sampling everything, and exulting, not very slyly, in the dazzling array of theories and methodologies brought together for its delectation, is law. Law borrows from everyone in this delightful scene, it accommodates everyone, and if some of its esteemed guests seem more esteemed than others that is only because their offerings were seasoned to taste. Why, then, is anthropology so conspicuously absent from the party? The rest of this introductory Essay provides context for one half of an effort, now several years in the making, to think through the intersection of law and anthropology with others who, by inclination or by necessity, would like there to be one. It is one-ha![ of that effort because it is addressed to law folk; its companion-appearing elsewhere-is addressed to anthropologists. That these conversations have occurred at all is exciting. That they appear separately is telling

Temples, Courts, and Dynamic Equilibrium in the Indian Constitution

Must all states have fixed constitutional identities Does democracy necessarily entail citizensovereignty This paper uses ethnographic data from India to argue that the answer to both questions is no In the aftermath of a massive stampede in 2011 the Kerala High Court initiated an overhaul of the complex executive legislative and judicial network that governs the famous Hindu temple at Sabarimala The court\u27s conflicting goals were to avoid further consolidating government authority over the temple and to further empower officials so that they could undertake needed reforms Ultimately the court did both ” and neither ” in an instance of judicial balancing that reflects the two visions of sovereignty in India On the one hand Indian constitutional law and judicial practice reflect a conventional vision of sovereignty in which sovereign authority is wholly vested in citizens and merely exercised on their behalf by the state On the other hand there exists a vision of divided sovereignty in which the state as the agent of reform has sovereign authority independent of citizens The productive tension between these two visions according to which sovereignty is both vested wholly in citizens and divided between citizens and state is the dynamic equilibrium at the heart of Indian democrac

Data Deficits in Municipal Rideshare Collaborations

In the last two to three years alone rideshare companies ” mostly but not exclusively Uber ” have increasingly come to bid on public services contracts for transportation provision Cities that contract with rideshare platforms do so because they are captivated by the chance to offer existing services at lower costs However it is becoming increasingly clear that the real value generated by driver activity is the unprecedented amount of information created by the labor that drivers perform Ridesharing is inherently built on the ability to collect astoundingly granular data about individuals as well as equally tantalizing insights about aggregate behavior From the perspective of municipal actors this information is valuable not only for what it can reveal about the working conditions of rideshare drivers no small thing to set aside but also because it offers insights about the success of pilot programs and the scope of future urban infrastructure demandsbrbrThis paper draws on semistructured interviews with policy analysts transportation advocates and government officials across the United States to make two arguments First I argue that the data produced by rideshare drivers is as if not more valuable than the transportation itself And second I caution that many municipal actors may either be failing to recognize the importance of rideshare data or have been unsuccessful at translating this realization into improved contracts with rideshare platforms b

Essentializing Labor Before, During, and After the Coronavirus Pandemic

In the era of COVID-19, the term essential labor has become part of our daily lexicon. Between March and May 2020, essential labor was not just the only kind of paid labor occurring across most of the United States; it was also, many argued, the only thing preventing utter economic and humanitarian collapse. As a result of this sudden significance, legal scholars, workers\u27 advocates, and politicians have scrambled to articulate exactly what makes essential labor essential. Some commentators have also argued that the rise of essential labor as a conceptual category disrupts or should disrupt longstanding patterns in the way the nation regulates work. Contrary to this emerging narrative, this Article argues that essentiality is not at all new to the way we conceptualize and regulate labor in the United States. If anything, essential labor replicates and exacerbates an attitude that has always been central to American work law: the idea that work should be measured, classified, regulated, and remunerated according to how much it benefits someone other than the worker. The only thing that has changed as a result of the coronavirus pandemic is the referent in this analysis: essential to whom? Before the pandemic, the United States considered work to be essential when it was essential to the employer; during the pandemic, essential labor has come to mean tasks that are essential to society as a whole. In neither scenario is the relationship between the worker and their work at the center of legislation, adjudication, or business operations. This Article therefore offers a novel proposal: a worker-centric analysis demonstrates that, in the United States, labor is always essential to the worker. This is both legally true, in the sense that this country ties physical and financial well-being to employment status more than any other highly developed nation, and it is morally true, in that social science scholarship and human rights discourse have established the critical relationship between work and human flourishing. In light of this, the Article contends that the longstanding and idiosyncratically American concept of at-will employment, whereby work relationships can be terminated upon no notice and for any reason, fails because it neglects to account for the extent to which labor is essential to workers. Relinquishing the concept of at-will employment will not by itself solve all the problems bedeviling American work law, but it is an important and necessary first step toward fixing those problems and implementing the true labor and employment law lesson of COVID-19