The Liberty of Free Riders: The Minimum Coverage Provision, Mill’s “Harm Principle,” and American Social Morality

In this Article, the authors show that cost-shifting and adverse selection problems link the federalism dimension of the debate over the Affordable Care Act to the doctrinally separate and suppressed individual rights dimension. As the scope of these free-rider problems justifies federal power to require individuals to obtain health insurance coverage, so the very existence of the free-rider problems illuminates the difficulty of arguing directly — as opposed to indirectly through the Commerce Clause — that the minimum coverage provision infringes individual liberty. The interdependence between some people’s decisions to forgo insurance and the well-being of other people means that refusing insurance is far from being a purely self-regarding action. For reasons rooted in this interdependence, serious obstacles confront anyone who aims to establish that the liberty claims of free riders should be constitutionally or morally decisive. The authors identify these obstacles to recognition of the claimed liberty interest with help from law, economics, and philosophy. First, they show that an economic substantive due process objection to the minimum coverage provision is doctrinally unavailable. Indeed, its unavailability explains why opponents of the provision take the less straightforward doctrinal approach of recasting the Commerce Clause in libertarian terms. Second, we invoke the long-standing tradition of argument in economics that market failures justify government regulation. Finally, the authors draw from the “harm principle” of John Stuart Mill’s On Liberty. Mill’s deep commitment to libertarianism, which reflects the same anti-authoritarian spirit that moves many libertarians today, does not condemn the minimum coverage provision. This is because Mill’s criterion categorically forbids only paternalism in law-making, and the provision is justified on non-paternalistic grounds. When the regulation under consideration is not paternalistic, Mill’s libertarianism points explicitly to law and social morality to resolve boundary questions about what members of a society owe one another. In our judgment, these considerations — from federal and state safety net programs to charitable hospital practices — weigh in favor of the permissibility of the minimum coverage provision

The Long Environmental Justice Movement

The standpoint of environmental justice has become integral to environmental law in the last thirty years. Environmental justice criticizes mainstream environmental law and advocacy institutions on three main fronts: for paying too little attention to the distributive effects of environmental policy; for emphasizing elite and professional advocacy over participation in decision making by affected communities; and for adhering to a woods-and-waters view of which problems count as “environmental” that disregards the importance of neighborhoods, workplaces, and cities. This Article highlights the existence of a “long environmental justice movement” that, like the long movements for racial equality and labor organizing, put questions of economic power and distribution, democracy, and workplaces and neighborhoods at the center of environmental politics for many decades before the watershed era of environmental law making, 1970–77. The mystery is why this long environmental justice movement did not have more effect on the mainstream environmental law that arose in that period. The Article shows that we can better understand the omissions of environmental justice concerns by appreciating that mainstream environmental law was the last major legal product of “the great exception,” the decades of the mid-twentieth century when, unlike any other time in modern history, economic inequality was declining and robust growth was widely shared. The assumptions of that time, along with key contingent decisions by the Ford Foundation, labor unions, and other early funders produced an environmental law that, more than much of the preceding environmental politics, neglected questions of justice. To give both environmental law and environmental justice their due, we must both locate environmental law within our new historical understanding of patterns of economic inequality and recognize that environmental justice is a recovery and extension of an essential and neglected strand of politics and law

Some Pluralism about Pluralism: A Comment on Hanoch Dagan\u27s Pluralism and Perfectionism in Private Law

Hanoch Dagan is among “those who think it advantageous to get as much ethics into the law as they can,” in the phrase of Oliver Wendell Holmes, Jr. His pluralism is a perfectionism for polytheists: There are many human goods, and each has its domain, including some portion of the law of property. Depending on where we stand on the property landscape at any time, we may be community-minded sharers, devoted romantics in marriage, or coolly rational market actors, and the local property law will smooth each of these paths for us. Property law is built on the design of the multifarious human heart, or, if you prefer, the many purposes we pursue in our projects and relationships. Each of these implies a way of regarding others – as arm’s length collaborators, joint venturers, or other halves whose purposes we have joined to ours; property’s default rules anticipate and confirm these various attitudes

The Politics of Nature: Climate Change, Environmental Law, and Democracy

Legal scholars’ discussions of climate change assume that the issue is one mainly of engineering incentives, and that “environmental values” are too weak, vague, or both to spur political action to address the emerging crisis. This Article gives reason to believe otherwise. The major natural resource and environmental statutes, from the acts creating national forests and parks to the Clean Air and Clean Water Acts, have emerged from precisely the activity that discussions of climate change neglect: democratic argument over the value of the natural world and its role in competing ideas of citizenship, national purpose, and the role and scale of government. This Article traces several major episodes in those developments: the rise of a Romantic attachment to spectacular landscapes, a utilitarian ideal of rational management of resources, the legal and cultural concept of “wilderness,” and the innovation of “the environment” as a centerpiece of public debate at the end of the 1960s. The Article connects each development to changes in background culture and values and the social movements and political actors that brought them into public debate and, eventually, legislation. The result is both a set of specific studies and the outline of an account of the ways that the political struggles of a democratic community have created new, and always contested, ideas of “nature” throughout American history. The Article then shows how past episodes cast light on the present: today’s climate politics, including the seemingly anomalous (even “irrational”) choices by municipalities to adopt the Kyoto carbon-emissions goals, makes most sense when understood as an extension of a long tradition of political argument about nature, which does not simply take “interests” as fixed, but changes both interests and values by changing how citizens understand themselves, the country, and the natural world

Overcoming the Great Forgetting: A Comment on Fishkin and Forbath

Fishkin and Forbath’s (F&F’s) manuscript is a project of recovery. It portrays the present as a time marked by a “Great Forgetting” of a tradition of constitutional political economy. F&F name what has been forgotten the “democracy of opportunity” tradition. Recovering it would mean again treating the following three principles as linked elements at the core of our Constitution: (1) an anti-oligarchy principle that works to prevent wealth from producing grossly unequal political power; (2) a commitment to a broad middle class with secure, respected work; and (3) a principle of inclusion that opens participation in both citizenship and the economic middle class to all, particularly members of historically excluded groups. This kind of recovery project is also a certain form of imaginative literature. In the spirit of Langston Hughes’s poetic call to “let America be America again” – meaning, let America become the country it has never been but always should have been – it invites us to envision and identify with a counterfactual country, also called the United States, with the same constitutional text as ours and much of the same history. What kind of laws, what kind of public culture, and what kind of judges would that country have? This kind of counterfactual narration, like various genres of intentional fiction (sci-fi, utopian literature, and counterfactual history), helps readers get our own world, the actual world, into better focus by deliberately changing a few key aspects of it and asking what else might follow. In F&F’s hands, it is also a hortatory and reforming project, urging us readers, much as Hughes did, to put our shoulders to the wheel of constitutional change

That We Are Underlings: The Real Problems in Disciplining Political Spending and the First Amendment

We’re gathered at the intersection of professional reason and popular passion. The roughly two-thirds of Americans who have said they strongly oppose Citizens United don’t have a theory of the First Amendment; they have a felt sense that the decision is an emblem of the political condition that unites Tea Partiers, Occupiers, and the Warren wing of the Democratic Party in shared disgust: the superior political influence and access of big business and great fortunes. This is the condition, or a subset of the condition, that Larry Lessig and Zephyr Teachout call corruption rightly understood: structural corruption that tethers the attention and loyalty of officials to the concerns of their financial patrons

Beyond the Bosses\u27 Constitution: The First Amendment and Class Entrenchment

The Supreme Court’s “weaponized” First Amendment has been its strongest antiregulatory tool in recent decades, slashing campaign-finance regulation, public-sector union financing, and pharmaceutical regulation, and threatening a broader remit. Along with others, I have previously criticized these developments as a “new Lochnerism.” In this Essay, part of a Columbia Law Review Symposium, I press beyond these criticisms to diagnose the ideological outlook of these opinions and to propose an alternative. The leading decisions of the antiregulatory First Amendment often associate free speech with a vision of market efficiency; but, I argue, closer to their heart is antistatist fear of entrenchment by elected officials, interest groups, and bureaucrats. These opinions limit the power of government to implement distributional judgments in key areas of policy and, by thus tying the government’s hands, constrain opportunities for entrenchment. This antidistributive deployment of market-protecting policy is the signature of neoliberal jurisprudence. But this jurisprudence has deep problems in an order of capitalist democracy such as ours. Whenever the state cannot implement distributional judgments, markets will do so instead. Market distributions are, empirically speaking, highly unequal, and these inequalities produce their own kind of entrenchment – class entrenchment for the wealthy. A jurisprudence that aims at government neutrality by tying the distributional hands of the state cannot achieve neutrality but instead implicitly sides with market inequality over distinctively democratic forms of equality. Once we see that any constitutional vision involves some relationship between the “democratic” and the “capitalist” parts of capitalist democracy, it becomes possible not just to criticize the Court’s siding with market winners but also to ask what kinds of equality-pursuing policies the Constitution must permit to reset that balance in favor of democracy

Coming into the Anthropocene

Cannon’s debut book, Environment in the Balance, sets itself an ambitious task: to overcome this division by showing that environmental law, much as it may appear dry and dull, is deeply infused with conflicts over values. Cannon’s project is to reveal the green ghost in the gray machine, the soul of disagreement that lends shape to arguments that may otherwise seem aridly technical. He does this by carefully reading thirty major Supreme Court decisions in environmental law and teasing out the differences in worldview that animate the Justices’ reasoning – divisions that are not simply over abstract legal questions, but rather reflect divergent views of the natural world and the human place in it. This Review places Cannon’s arguments at the cusp of a new era in environmental law, politics, and culture that is also a new era of planetary history: the Anthropocene, or “age of humanity.” In the Anthropocene, people have become a force, arguably the force, in the development of the planet. From atmospheric chemistry and global weather patterns to biodiversity, the world we inhabit is increasingly the world we are creating. This suite of changes has great meaning for understanding environmental law

People as Property: On Being a Resource and a Person

Property law facilitates the efficient use and allocation of scarce resources and recognizes and protects aspects of personhood – the bases of dignity and self-respect. Human beings, who are both resources for one another and the persons whose moral importance the legal system seeks to protect. This article explores how property law has addressed this paradox in the past and how might in the future. I analyze two bodies of nineteenth-century law where the paradox was highlighted: the legal regimes of labor discipline for slaves in the antebellum South and for free workers in the laissez-faire Lochner era. The law struggled over how to regard laborers’ bodies as resources and how to understand them as persons. I then show how these jurisprudential problems tracked contemporary debates in political and economic thought about the nature of property in human beings. I argue that property regimes always define a boundary between personhood and resource value. I apply this analysis to two areas: voluntary peer production in digital media and the entrance of Indian women into the paid workforce. Both demonstrate how changes in how people are able to approach others as resources – specifically changes in the direction of increased reciprocity – help produce a more robust conception of personhood and a more egalitarian and attractive social life. I offer the increase in reciprocity as a normative touchstone for assessing property regime