Law

This Article builds upon an ongoing community economic development (CED) action research project at The George Washington Law School Small Business and Community Economic Development Clinic that explores progressive strategies to economical empower formerly incarcerated individuals as they return home from prison. Formerly incarcerated individuals in America — appropriately called “returning citizens” but more frequently labeled “ex-felons” — are shackled with the stigma of their prison record long after serving time behind bars, a stigma that impairs their civil rights and limits their prospects for economic prosperity in the job market. This Article discusses recent legislation in the District of Columbia that promotes economic empowerment for returning citizens, the D.C. Incarceration to Incorporation Entrepreneurship Program (IIEP) Act of 2015. One of the critical challenges facing the D.C. IIEP Act is a lack of funding for program implementation. Accordingly, the Article follows by exploring whether the social impact bond model of impact investing can turn the tide and help reduce returning citizen recidivism.

This Article was drafted as part of a symposium — Lessons from Baltimore and Washington, D.C.: Working with Community-Based Organizations to Build Capacity and Fight for Economic Justice — held at the Association of American Law Schools Conference on Clinical Legal Education, April 30–May 3, 2016, in Baltimore, Maryland. The conference theme, “Clinics and Communities: Exploring Community Engagement Through Clinical Education,” was a platform for examining “the role of law and lawyers in aggravating or alleviating suffering, and in collaborating on legal efforts to build communities’ strengths and address harms experienced by those who seek their assistance.”

Since Andrew Carnegie penned his famous Gospel of Wealth in 1889, corporate philanthropists have championed considerable public good around the world, investing in a wide range of social programs addressing a diversity of public issues, from poverty to healthcare to criminal justice. Nevertheless, the problem of “the Rich and the Poor,” as termed by Andrew Carnegie in his famous essay, remains unsolved. Socially conscious investors have recently called for America to reimagine a new “gospel of wealth”, one that not only grapples with the what of social injustice, but also explores the how and the why of systemic social and economic inequality. An emerging social finance tool, the social impact bond (“SIB”), has been praised as a promising platform that can help solve many of our social challenges by targeting impact investments toward traditionally underfunded social welfare programs.

This Article sets forth a critical examination of the new SIB model, highlighting some of the opportunities for the social finance tool to promote social impact, while also revealing several of its challenges that may hinder its broader adoption in communities across America. In the process, this Article exposes key flaws inherent in the design of the SIB model, including its neoliberal emphasis on market-based economic development strategies and its disregard for the primary role of government in the protection and advancement of the public good. It concludes by calling for a more progressive economic development framework to guide the implementation of the SIB model, one that can help development practitioners, philanthropists, and impact investors wrestle with the deficiencies of our global capitalist economic system and overcome the entrenched systemic barriers to economic justice in America.

Since the end of the American Civil War, scholars have debated the efficacy of various models of community economic development, or CED. Historically, this debate has tracked one of two approaches: place-based models of CED, seeking to stimulate community development through market-driven economic growth programs, and people-based models of CED, focused on the removal of structural barriers to social and economic mobility that prevent human flourishing. More recently, scholars and policymakers have turned to a third model from the impact
investing community—the social impact bond, or SIB. The SIB model of CED ostensibly finds a middle ground by leveraging funding from private impact investors to finance social welfare programs within marginalized communities. SIBs seemingly answer the call of local government law scholars of the New Regionalists movement who advocate for governmental mechanisms that facilitate regional cooperation, address equity concerns, and respect local government autonomy. However, this Article argues that the SIB model of impact investing will struggle to advance metropolitan equity due to its grounding in the politics of neoliberalism.

After highlighting limitations of the SIB, this Article links contemporary debates about CED theory to historical contestations within the black community about economically-oriented racial uplift strategies. Placing historical figures, such as W.E.B. Du Bois and Booker T. Washington, in conversation with more contemporary theorists of political philosophy, this Article offers an alternative conceptual framework of CED. Termed justice-based CED, this framing distinguishes a typology of social change that places democracy at the epicenter of the development debate and points toward the political principles of the solidarity economy as guideposts for law reform. The justice-based approach rests upon three core values: social solidarity, economic democracy, and solidarity economy. Taken together, this perspective reflects a vision of political morality that embodies one of America’s most foundational democratic values—human moral dignity.

Disparities in food access and the resulting inequities in food security are persistent problems in cities across the United States. The nation's capital is no exception. The District of Columbia's 's geography of food insecurity reveals a history of uneven food access that has only been amplified by the vulnerability of food supply chains during the COVID-19 pandemic. This paper examines the history of food insecurity in Washington, D.C., and explores new opportunities presented by advances in urban agriculture. Innovations in food production can offer urban communities sustainable alternatives to food access that simultaneously address local food security and green infrastructure needs. They also bring persistent sociopolitical barriers into greater focus. The current COVID-19 pandemic and its imposed social isolation exacerbates these barriers, rendering conventional food access solutions inadequate to deliver on their well-intentioned aims. The ability to order groceries and home goods on mobile devices, for example, may seem fortuitous. Yet, it also exposes the deep disadvantages of marginalized populations and the isolating nature of structural racism. Contrary to the market-centered focus of traditional food access policies, such as public-private partnerships, this paper highlights community-centered strategies that help dismantle existing sociopolitical barriers in an age of crisis and help shift the food justice discourse from food access to the broader goal of community empowerment.

The resurgence of worldwide protests by activists of the Movement for Black Lives (BLM) has ushered a global reckoning with the meaning of this generation’s rallying cry – “Black Lives Matter.” As citizens emblazon their streets with this expression in massive artistic murals, the Trump administration has responded with the militarized policing of non-violent public demonstrations, revealing not merely a disregard for public safety, but far worse, a concerted dismantling of protestors’ First Amendment rights. Nevertheless, BLM protests have persisted. Accordingly, this Essay considers the implications of this generation’s acclamation of Black humanity amidst the social tensions exposed during the era of COVID-19. What does the Trump administration’s militarized response to BLM protests mean in a world mutilated by the scars of racial oppression, a wound laid bare by America’s racially biased, aggressive, and supervisory culture of policing?

In response, much in the way Cheryl Harris revealed Whiteness as Property, this Essay suggests and defends Black identity itself, or Blackness – whether articulated by the pure speech of racial justice activists who affirm Black humanity, or embodied by the symbolic speech of Black bodies assembled in collective dissent in the public square – as “fighting words” in the consciousness of America, a type of public speech unprotected by the Constitution. The very utterance of the phrase “Black Lives Matter” tends to incite imminent violence and unbridled rage from police in city streets across America. Discussions of “Black Lives Matter” by pundits conjure images of subversion, disorder, and looting, the racialized narratives of social unrest commonly portrayed by the media. Yet, the words “Black Lives Matter” and the peaceful assembly of Black protestors also encapsulate the fire of righteous indignation burning in the hearts of minoritized citizens. This dynamic reflects unresolved tensions in the First Amendment’s treatment of race relations in America. Even more, it exposes the role of policing in smothering the Constitutional rights of Black and Brown citizens.

This Essay provides three contributions to the ongoing discourse on policing in the United States. First, it reveals how unresolved racial tensions in the First Amendment – focusing specifically on ambiguities in the fighting words doctrine – perpetuate the racially biased, aggressive, and supervisory culture of American policing. Second, it analyzes how such unresolved racial tensions cast a dark shadow over the liberty of Black and Brown citizens who experience racism at the hands of police officers, yet avoid acts of protest for fear of bodily harm or arrest. Third, it illuminates the embeddedness of racism in American policing culture, more generally; a culture that not only constructs and reconstitutes the racial social order, but also degrades the dignity of Black and Brown citizens. Collectively, these insights lend support toward demands for police abolition from BLM activists. As this Essay concludes, until we as a nation wrestle with the unresolved racial subtext of modern policing – a racist culture woven into law that not only silences the legitimate protests of minoritized citizens in violation of their First Amendment rights, but also rationalizes callous violence at the hands of law enforcement – Black America will remain a peril to the veil of white supremacy that looms over the American constitutional order.

The COVID-19 pandemic has exposed the fragility of American democracy in at least two important ways. First, the coronavirus has ravaged Black communities across the United States, unmasking decades of inequitable laws and public policies that have rendered Black lives socially and economically isolated from adequate health care services, educational resources, housing stability, environmental security, stable and living wage jobs, generational wealth, and other institutional structures necessary for resilience. Second, government-mandated social distancing in response to the coronavirus has failed to dampen America’s racially biased, violent, and supervisory policing culture, reigniting demands from the Movement for Black Lives for police abolition and, more generally, the dismantling of white supremacy in sociopolitical life. In response, scholars have called for a radical (re)imagination of American democracy.

This Article argues that resolving the fragility of American democracy amidst the terrors of COVID-19 warrants a renewed commitment to the emancipatory language of human rights. This assertion rests on three claims, using the challenges of housing insecurity as a guiding explanatory thread. First, the geography of health inequity in Black communities across the United States embodies not merely governmental neglect, but more poignantly, the rituals of white supremacy that create and reconstitute the racial social order. As a result, beyond coordinated public health measures and short-term economic stimulus plans to address human vulnerability, the future of American democracy demands new tools to confront racial ritualization in everyday life. Second, human rights discourse challenges the normative underpinnings of contemporary public policy, which are shaped by liberal assumptions about the human condition that enshrine structural inequality and propagate economic power. Third, human rights discourse expands the social imagination, fostering innovation in lawmaking by deconstructing antiquated valuations of equality and reconstructing contextualized notions of liberty. Taken together, these insights reveal human rights discourse as a project of reimagining legal subjectivity and state responsibility.

To further elucidate the benefits of human rights discourse in view of compelling arguments to move beyond rights-based framings of equality and discrimination, this Article places Martha Fineman’s theory of vulnerability in conversation with Ralph Ellison’s articulation of the Black American experience during Jim Crow segregation in his novel, Invisible Man. This dialogue reveals the erasure of “sacrifice” from ongoing discussions of social and economic inequality. As this Article argues, sacrifice is a critical dimension of democratic citizenship that has been rendered invisible in contemporary rights-based discourse and emergent strategies for poverty alleviation. Drawing insights from the Movement for Black Lives and contemporary theorists of political philosophy, this dialogue clarifies the central role of “dignity” in establishing the preconditions for an engaged citizenry in the context of American racial capitalism.

Residents of low-income, metropolitan communities across the United States frequently live in "food apartheid" neighborhoods-areas with limited access to nutrient-rich and fresh food. Local government law scholars, poverty law scholars, and political theorists have long argued that structural racism embedded in America's political economy influences the uneven development of such Black urban ecologies. Accordingly, food justice scholars have called for local governments to develop urban agricultural markets that combat racism in global corporatized food systems by localizing food development. These demands have only amplified during the COVID-19 pandemic, which has ravaged Black communities where residents suffer from preexisting health conditions and weakened immune systems associated with food insecurity. However, while local governments are increasing development of urban agriculture in Black urban spaces, in some instances, this has only driven Black and minoritized residents to compete against one another for access to healthy food and scarce farmland. Thus, the development of urban agriculture may function to recreate the very problems of racial capitalism and neoliberalism embedded in America's political economy that animate food insecurity in the first place. This Article argues that urban agriculture imbued with racial capitalist norms and neoliberal politics-e.g., "neutral" and "colorblind" policies that ignore historic state-sponsored racial discrimination, limit governmental market interventions, and promote individualistic competition and private ownership-will fail to mitigate the structural oppression that drives food insecurity in Black urban landscapes marred by environmental degradation, or Black urban ecologies. Instead, such forces distort urban agriculture into a weapon of exploitation, expropriation, and erasure, each foundational elements of a social theory of ecological systems change this Author calls structural extermination. This Article illustrates the theory of structural extermination, which has broad explanatory power, by examining Washington, D.C.'s history of urban farming legislation, beginning with the passage of the Food Production and Urban Gardens Program Act of 1986 and continuing, most recently, with the Urban Farming Land Lease Amendment Act of 2019. By documenting a visible shift in political discourse about Washington, D.C.'s urban farming program, from a community-oriented initiative for gardening and food donation to a market-centered program for land leasing and tax abatement, this analysis reveals how decontextualized and dehistoricized urban agriculture risks legitimating and rationalizing competitive market structures that enact violence upon the poor, and push low-income residents out of the city altogether. Finally, this Article calls for the democratization of ecological placemaking in Black urban geographies, a decolonial praxis that would embrace a justice-based vision of community economic development premised upon the principles of social solidarity, economic democracy, and solidarity economy.

The COVID-19 pandemic not only exposed the socio-political and economic hardships that plague vulnerable communities across the United States, but it also challenged academicians with caregiving responsibilities. Teaching from home threatened the very notion of work-life balance. Compounding these pressures, faculty members were tasked with teaching online amidst the traumas of the continued police killings of unarmed Black people, the unanswered demands of Black Lives Matter protestors, the divisive rhetoric of a contentious presidential election, and the concentrated health effects of the coronavirus in low-income and minoritized communities nationwide. This Essay argues that such trauma weighs heavily on Black and other racially and ethnically minoritized law faculty who must balance teaching a legal doctrine that is often portrayed as neutral and colorblind, yet in many instances defines their very marginality, both inside and outside of the classroom. For such faculty, and for many law students alike, the idea of masking and social distancing and fighting the urge to succumb to physical, cultural, and spiritual fatigue are tools of survival that have been employed for far longer than the emergence of the novel coronavirus. These insights suggest that the true threat surfaced by the COVID-19 pandemic is not the coronavirus itself. Instead, it is something residing far deeper within us all.

In the United States, Black cultural expressions of democratic life that operate within specific historical-local contexts, yet reflect a shared set of sociocultural mores, have been historically crowded out of the law and policymaking process. Instead of democratic cultural discourse occurring within an open and neutral marketplace of ideas, the discursive production and consumption of democratic culture in American politics has been rivalrous. Such rivalry too often enables dominant White supremacist cultural beliefs, values, and practices to exercise their hegemony upon law’s production and meaning. The result has been tragedy for politically disempowered and socioeconomically excluded communities.

This Article uses the origin story of hip-hop music to advance this thesis, making three claims about law and culture. First, it argues that cultural theories of poverty and crime (embedded with racial stereotypes and cultural biases) shaped the political response to the growth of Black urban ghettos in New York City during the 1970s and 1980s. Second, via a textual analysis of Grandmaster Flash & The Furious Five’s 1982 hip-hop song The Message, this Article contends that early hip-hop cultural views of democratic life were in rivalry with the dominant cultural discourse of conservative politicians and leading public intellectuals. Third, this Article breaks new ground by conceptualizing the socioeconomic inequities that plague Black urban ghettos as “tragedies of the cultural commons.” Building upon Garrett Hardin’s famous Tragedy of the Commons allegory, this framing employs the concept of the commons to illuminate how racism can mold the symbiotic relationship between law and democratic culture.

Taken together, this Article’s critical legal history of the rise of early hip-hop culture suggests that if law is in fact both constitutive of and constituted by dominant cultural views, then in the United States, Black cultural expressions of democratic life have historically labored under the hegemonic rivalry of a White supremacist vision of law and order. Further, hip-hop culture emerges as a counter-cultural vision of democratic life—an example of what Sheila R. Foster calls “urban collective action” or what Lisa T. Alexander calls “cultural collective efficacy.” If racial injustice in America is indeed the byproduct of law’s flawed empire, then perhaps reforming law’s empire demands a reconstruction of the democratic cultural commons.

The American Bar Association Model Rules of Professional Conduct calls
upon lawyers, as public citizens, to embrace a special responsibility for the quality of justice in the legal profession and in society. Yet, some law professors have historically adopted a formalistic and doctrinally neutral approach to law teaching that elides critical perspectives of law, avoids the intersection of law and politics, and tends to overlook the way law can construct the very social injustices that it seeks to contain. The objective, apolitical, and so-called “colorblind” jurisprudential stance in many law classrooms inflicts intellectual violence upon law students who discover a legal doctrine in conflict with their own lived experiences, yet who feel silenced and unprepared to reckon with the moral legitimacy of unjust laws. Perhaps as a result, in recent years, law schools have begun to
rethink legal education altogether, devising anti-racist curricula, professional identity trainings, and novel experiential learning programs to produce a new generation of critically conscious lawyers for the crises of our modern age.

Building upon such efforts, alongside recent scholarship in legal education and philosophical legal ethics, this Essay proposes foundational pedagogical principles to teach public citizenship lawyering. This Essay defines public citizenship lawyering as a democratic conception of professional responsibility whereby lawyers engage in routine critique of their lawyering practice through the lens of justice as a moral virtue. This pedagogy finds normative grounding in the ABA Model Rules based upon the contention that a skewed vision of professional lawyering identity has hindered a justice-oriented interpretation of the lawyer’s public citizen charge. Specifically, this Essay articulates four pedagogical principles: (1) deconstructive framing, which guides the law professor in teaching the lawyer’s ethical duty of candor; (2) ethical reposturing, which guides the law professor in teaching the lawyer’s ethical duty of competence and professional judgment; (3) reconstructive ordering, which guides the law professor in teaching the lawyer’s ethical duty to improve the law; and (4) liberatory lawyering, which guides the law professor in teaching the lawyer’s ethical duty to assist the client and others in gaining competence. Collectively, these principles assert
a counter-cultural vision of practice readiness that empowers law students to affirmatively challenge social and economic injustice in the legal profession and the rule of law. More than exalting a democratic conception of professional lawyering identity, these principles affirm the legal academy as law’s laboratory for progressive social change.

When President Donald Trump launched an assault on diversity training, critical race theory, and The 1619 Project in September 2020 as “divisive, un-American propaganda,” many law students were presumably confused. After all, law school has historically been doctrinally neutral, racially homogenous, and socially hierarchical. In most core law school courses, colorblindness and objectivity trump critical legal discourse on issues of race, gender, or sexuality. Yet, such disorientation reflects a longstanding debate over the fundamental purpose of law school. As U.S. law schools develop anti-racist curricula and expand their experiential learning programs to produce so-called practice-ready lawyers for the crises exposed by the COVID-19 pandemic, scholars continue to question whether and how, if at all, the purpose of law school converges with societal efforts to reckon with America’s legacy of White supremacy.

This Article argues that the anti-racist, democratic, and movement lawyering principles advocated by progressive legal scholars should not be viewed merely as aspirational ideals for social justice law courses. Rather, querying whether legal systems and political institutions further racism, economic oppression, or social injustice must be viewed as endemic to the fundamental purpose of legal education. In so doing, this Article makes three important contributions to the literature on legal education and philosophical legal ethics. First, it clarifies how two ideologies—functionalism and neoliberalism—have threatened to drift law school’s historic public purpose away from the democratic norms of public citizenship, inflicting law students, law faculty, and the legal academy with an existential identity crisis. Second, it explores historical mechanisms of institutional change within law schools that reveal diverse notions of law school’s purpose as historically contingent. Such perspectives are shaped by the behaviors, cultural attitudes, and ideological beliefs of law faculty operating within particular social, political, and economic contexts. Third, and finally, it demonstrates the urgency of moving beyond liberal legalism in legal education by integrating critical legal theories and movement law principles throughout the entire law school curriculum.

If my grandmother had survived the sickness of old age and were alive to witness the economic injustices wrought by capitalist culture, what would she think? If my grandmother were alive to observe familiar technologies for exterminating household pests-surveillance, capture, imprisonment, disposal-being increasingly aimed toward low-income Black communities, what would she believe? If my grandmother were alive to discover, in the palm of her hands, a digital platform for spreading information (and misinformation) to the masses and painting new futures into the minds of lawmakers and politicians, what would she say? Studies have shown that low-income individuals are more likely to suffer physiological and psychological harms than middle-and high-income individuals due to the substandard conditions of their communities. Yet, such indignities are justified by market opportunities to grasp for better-to take "personal responsibility" and "pull yourself up by the bootstraps"-even when the process of grasping for upward social mobility inflicts its own trauma. This Essay explores the trauma of grasping for better in the United States where wealth inequities only seem to be getting worse. In so doing, it considers whether capitalism's competitive and individualistic culture-a spirit that thrives on the exploitation of the weak to further the capital accumulation of the strong-not only normalizes violence as a mechanism for social mobility but sews division and strife where alternative futures, perhaps even Afro-futures, might finally set us all free.

Public health experts trace the heightened risk of mortality from COVID-19 among historically marginalized populations to their high rates of diabetes, asthma, and hypertension, among other diet-related comorbidities. However, food justice activists call attention to structural oppression in global food systems, perhaps best illuminated by the prevalence of unhealthy fast-food restaurants (and the lack of healthy alternatives) in low-income Black and Hispanic/Latinx neighborhoods nationwide. In response, local governments have begun to prioritize local food production to reduce food insecurity. Yet, even well-intentioned food justice initiatives, such as urban farming programs, can perpetuate structural inequities by glorifying entrepreneurialism or privatization as effective solutions to poverty. Further still, when lawmakers propose targeted relief programs for food insecure communities, such as the Biden Administration’s federal debt relief program for socially disadvantaged farmers, they are routinely challenged on constitutional grounds for preferencing non-White racial and ethnic groups. Thus, food insecurity in the urban ghettos and rural towns of America persists.

To defeat this impasse, this Article advocates an abolition constitutionalist framing of food insecurity in the United States. Specifcally, it argues that framing the problem of food insecurity in historically marginalized communities as a badge of the antebellum system of chattel slavery invokes the legislative potential of the Thirteenth Amendment’s Enforcement Clause. Although the Supreme Court has empowered Congress to pass laws necessary for abolishing all badges and incidents of slavery, there remains a lack of clarity on the scope of material conditions or forms of discrimination that constitute such lingering harms, leading some lower courts to limit the Amendment’s enforcement to literal slavery or involuntary servitude. Accordingly, this Article proposes a dignity-based normative framework to assess the nature of injuries or material conditions that are proximately traceable to the political economic system of American slavery. Using the problem of food insecurity as a guiding explanatory thread, this framework reveals how modern badges of slavery can infict: (i) equality-based; (ii) liberty-based; and (iii) integrity-based dignitary harms. These dignitary harms, individually and collectively, can perpetuate the types of oppression levied by chattel slavery; in this instance, the exploitative, marginalizing, and violent harms of food oppression. Whether modern-day food oppression is animated by state action (or inaction) or by private actors, it not only hinders public health and degrades democracy, but most importantly, it also violates the spirit and letter of the Thirteenth Amendment.

During the early months of the COVID-19 pandemic, so-called essential workers from minoritized racial and ethnic groups were disproportionately subjected to workplace indignities that resembled, in the words of Keeanga-Yamahtta Taylor, a modern “Black plague.” Some observers expressed faith in existing corporate governance regimes, noting that many business leaders were steadily improving their management of competing stakeholder interests. Others, from essential workers to organized labor, demanded more stringent workplace regulations to combat irresponsible corporate behavior and limited worker bargaining power. However, a few turned to speculative fiction—such as Octavia Butler’s dystopian novel Parable of the Sower—for answers. For legal scholars, the fictional writings of Butler and other “Afrofuturist” literature— works that resurrect untold Black histories and imagine Black technocultural futures—not only contain plot elements that seemingly predict mod-ern societal calamities but also offer pathways to reimagine law and political economy. This Essay provides two contributions to this emerging “Afrofuturism and the Law” movement.

First, this Essay advances an Afrofuturist legal critique of the modern workplace that challenges the form and function of business enterprises in advanced capitalist markets. Three themes of Afrofuturist literature ground this critique: (1) Afrofuturism calls for the disruption of elitist, identity- based hierarchies that undermine human dignity; (2) Afrofuturism urges the reformation of legal systems that foster alienation in political and economic society; and (3) Afrofuturism demands the abolition of hegemonic framings of the human condition that naturalize involuntary human sacrifice (both literal and figurative) in everyday life. Second, this Essay articulates an Afrofuturist legal praxis that emphasizes the dialogical, constitutive, and legitimating nature of law. Afrofuturism’s legal critique of the modern workplace suggests that business enterprises cannot simultaneously manage competing stakeholder interests and uphold worker dignity without reckoning with the alienation and human sacrifice that are endemic to capitalist economies.

As Catherine looks out across the water, she wonders what her life will be like when she reaches Virginia. She knows that conditions will be hard, but life in England was also hard. At least in the colony, there is the possibility of improvement. The Virginia Company has assured her and the other women that they will have their choice of marriage partners. They have promised that the men are wealthy, or at least will be wealthy with the women's help. Moreover, in Virginia, as a married woman she has the right to share in her husband's wealth. Catherine knows it is a risk, but she has been assured she can always return home if she changes her mind. Regardless, Catherine expects to stay. There is little for her back in England. She will marry a colonist and help found a nation.