Law

In the early years of COVID-19, our willingness to swiftly modify workplaces, classrooms, and other commons generated access at unprecedented scale. These de facto accommodations belied conventional thought about whether institutions can dismantle environments, structures, and practices known to exclude or harm. Decision-makers nationwide improvised under traditional disability law—even if unevenly—generating <i>mass accommodations</i> that represented tens of millions of people problem-solving, experiencing structural access and safety, and intensively collaborating on organizational design over a concerted period. This Article’s argument is two-fold. First, by applying an experiential analysis, legal and non-legal audiences may understand them as disability-informed phenomena that spanned diverse disabilities and accommodations frameworks. Second, mass accommodations signal hidden doctrines we may leverage outside the courts that bolster the role of organizational theory and other models in legal persuasion. By doing so, we decline to concede away normative gains for disability and civil rights law, nor their potential to reconfigure our political economy in the future.

The precedent mass accommodations created, even when flawed and imperfect, still points toward more expansive ways for all to describe structural exclusion and remediation. During COVID-19 two normatively important institutions—worksites and schools—generated new ground in the changes experienced at scale. In spaces for incarceration, however, pandemic policies revealed brute racial and class stratifications that, catastrophically, excluded and ravaged the lives of millions. Evaluating mass accommodations through the lenses of Universal Design theory, the Theory of Racialized Organizations, and aggregate legal approaches—at the meso-level—demonstrates how we might decenter current doctrine and methods as political constraints upon jurisprudence. Conceivably, the collective labor processes that produce “law” at the hyperlocal level may yet help institutions tackle the complex relationships among race, disability, and labor.

The Americans with Disabilities Act (ADA) requires employers to restructure exclusionary environments upon the request of employees with disabilities so that they may continue working. Under a virtually unexamined aspect of the mandate, however, the parties must negotiate in good faith over every accommodation request. This “interactive process,” while decentralized and potentially universal, occurs on a private, individualized basis.

Although the very existence of the mandate has been heavily debated, the scholarship has yet to acknowledge that the ADA is actually ambivalent to individuals’ relative power to effect organizational change through bargaining. This Article is the first to critique the law’s interactive requirements. The process does not appear in the statute, but is an agency’s conceptualization of the mandate as an idealized exchange. By evaluating new empirical evidence relating to race, class, and gender outcomes against the meso-level theories underlying the mandate, this Article argues that the process disempowers employees through deficits of information, individuated design, and employers’ resistance to costs. Nonetheless, there is growing momentum to replicate the mandate to accommodate pregnancy and other workers’ needs.

As the workplace is increasingly deemed essential to societal well-being, this new frame reveals the law’s design flaws and unfulfilled potential. In response, the Article proposes reallocations of power so that the state may: gather and publicize organizational precedent to facilitate structural analysis, regulation, and innovation at scale; legally recognize that dismantling ableist environments and antidiscrimination work are collective endeavors; and expand the social insurance model for accommodations. Perhaps, then, the ADA’s original vision of institutional transformation may become possible.

Theorizing work and its regulation has held enduring appeal for legal theorists. Yet intellectual movements that wish to theorize worker coercion within a broader critique of law often sidestep race. Since Lochner, landmark opinions involving race, labor, or both, have served as showpieces for the legal liberal tenets underpinning work law’s doctrines and institutions. Each iteration of the public/private divide instantiates an ideological—but avowedly race-neutral—structure for how we study, teach, and propose to reshape work law. Scholars, judges, and lawmakers typically cede this ground, perhaps because law itself is under right-wing attack.

This Article asks: What if work law allowed us to understand racism as central to legal liberal frames, rather than ancillary or topical? Deploying history and political theory, I demonstrate how public/private dyads within work law have generated unworkable and often divisive understandings of race, solidarity, and commerce. The Article then theorizes the links between work law’s capture by public/private divides and the harms they pose to our centuries-long pursuit of a thriving, multiracial democracy. Reexamining the development of labor and employment law in this light recovers a crucial point of synergy between Critical Race Theory and law and political economy (LPE) analysis.

Building on these insights, I describe work law’s current state as <i>privatized public law</i>. The term historicizes and, for the sake of argument, facilitates closer study of the link between legal liberal conceptions of commerce and the law’s maintenance of racial subordination. Conversely, it allows us to recognize the small- and large-scale frame transformations ordinary people have achieved through mass social movements, with the goal of strengthening all labor movements from within.

Centering race in a reassessment of work law opens up possibilities for unifying the field’s development, charts alternatives to liberal tenets within political economic thought, and provides a starting point for unraveling similarly contested fields of law. We may then “see” how the countertheories that popular movements pose against legal liberalism not only bear epistemic, doctrinal, and political importance, but also foreground the law’s normative distribution of power between public and private, racially solidaristic or radically individualistic. Work law’s tension with popular movements on matters of race, solidarity, and commerce therefore suggests how we may break the theoretical impasse over how to build more just economic and political systems over time.

Lawmakers, prosecutors, homeowners, policymakers, investors, news media, scholars and other commentators have examined, litigated, and reported on numerous aspects of the 2008 Financial Crisis and the role that residential mortgage-backed securities (RMBS) played in that crisis. Big banks create RMBS by pooling mortgage notes into trusts and selling interests in those trusts as RMBS. Absent from prior work related to RMBS securitization is the tax treatment of RMBS mortgage-note pools and the critical role tax enforcement should play in ensuring the integrity of mortgage-note securitization.

Related-party exchanges raise the issue of improper extension of the Section 1031(a)(3) 45-day identification and 180-day exchange periods. Related-party exchanges also call into question the amount of boot a related party may receive without triggering an abusive cash-out. A recent letter ruling involving two sequential related-party Section 1031 exchanges makes these issues doubly evident.