Donald J. Trump’s presidency taught left-leaning Americans an important lesson about the consequences of federal control over so much social and economic policy. The last generation’s progressives acted with the expectation that a US Supreme Court populated with justices such as Brennan and Marshall would lead the way in expanding constitutionally protected rights. Today’s progressives face a reality where in just four years, Trump appointed almost a quarter of all federal judges (Gramlich Reference Gramlich2020; Daily Chart 2020). Progressives in the last quarter of the twentieth century relied on the creation of federal agencies to protect the environment, workplace rights, and consumer safety. Today, analyses like Michael Lewis’s The Fifth Risk (Reference Lewis2018) reveal Trump’s long-lasting impact on such agencies. As a result, many progressives have mobilized to swing the pendulum in our federalist system of government back toward local control over the very issues that progressives of the 1960s tried to push out of the realm of local control. In these attempts, they are learning firsthand about the extent to which their progressive predecessors succeeded in preventing just such a pendulum swing.
It is impossible not to be aware of the most obvious examples. At a moment when the United Nations reports that we have fewer than twelve years remaining to avoid catastrophic harms resulting from climate change (IPCC 2018, para. C.1.), progressives have sought to amend local zoning laws and develop energy microgrids to prepare communities for global warming’s long-term impacts. Yet even such very local efforts have been constrained by claims that federal (and state) environmental and energy laws occupy the field, limiting campaigns to achieve energy independence and climate justice (Engel Reference Engel2020, 132–36; Wiseman Reference Wiseman2016). Similarly, in the face of increasingly restrictive federal immigration policies, immigrants’ rights advocates have turned to local arenas for support. Sanctuary cities are one recent example of local responses. In this domain, too, progressives have faced pushback by federal regulators, exemplified by the threat to withdraw funding from sanctuary cities (Schragger Reference Schragger2018, 1217). Indeed, federal assertions of priority have at times been quite punitive, such as the recent filing of criminal charges against volunteers providing water to those crossing the southern border (Phillips Reference Phillips2019).
Although they have been less prominent in the headlines, similar struggles have occurred in domains such as labor activism and workplace rights. For example, after decades of policymaking by the National Labor Relations Board (NLRB) that constrained the power of labor unions, the Obama administration’s appointments to the NLRB resuscitated unions to some degree. This in turn revitalized efforts to provide living wages in sectors of the economy that had become characterized by low-wage labor and exploitation. The progressive gains made during that period, however, were diminished by the Trump administration, and even under Obama, the federal minimum wage was not increased. The response in an increasing number of cities and states was to raise the minimum wage in their own jurisdictions. But these efforts could only go so far because of the hierarchy of lawmaking authority in our federalist system. For example, the NLRB still controls key rights and responsibilities of labor unions, and this in turn limits unions’ ability to organize workers to seek higher wages.Footnote 1
As these examples remind us, progressive activism today cannot occur in an insulated local space. Consequently, one of the most important legal doctrines for today’s progressives to understand is the doctrine of preemption. While it may have been perceived historically as an esoteric subject, preemption is now a hot button issue, crossing the presumed boundary between the “legal” and the “political.” The purpose of this essay is to examine preemption as a key barrier to progressive policymaking at the state and local level. With the benefit of Scott Cummings’s recent book, Blue and Green: The Drive for Justice at America’s Port, this essay’s purpose is also to consider how preemption shapes progressive activism, creating both obstacles and opportunities for change.
Preemption Today: Its Scope and Influence
As a legal matter, preemption has always been a foundational concept. The preemption doctrine lies at the heart of the federalist structure of government established in the US Constitution (US Const. art. VI, cl. 2.). It dictates a hierarchy in the rule of law, whereby federal law takes priority over (i.e., preempts) conflicting state law and (further down the hierarchy), state law preempts conflicting local (typically municipal) law (Schragger Reference Schragger2018). The blue city, existing in a larger jurisdiction that progressives perceive as hostile to their politics and norms, is perhaps the driving force behind the popularization of the preemption doctrine. But it is important to remember the entire hierarchy, with federal law at the top, and local (municipal or county-level) law at the bottom. Consider several current examples.
Many consumer activists would argue that the Great Recession of 2008 was precipitated in meaningful part by the deregulation of the banking industry, important aspects of which have been governed by federal laws. Because these laws were disassembled over the course of several decades, purportedly to ensure that banks with federal charters could compete on a level playing field with banks and other financial institutions that are not federally chartered, many financial institutions were able to offer “exotic” mortgage loans with terms that were so attractive that they made viable repayment impossible. The resulting subprime mortgage crisis degenerated into a broader financial crisis that reverberated across the globe. Perhaps surprisingly, some state regulations aimed at preventing future crises, such as usury laws that cap interest rates on consumer loans, continue to be preempted on the grounds that federal laws occupy the regulatory field (Marquette Nat’l Bank of Minneapolis v. First of Omaha Serv. Corp., 439 U.S. 299 (1978); Sykes Reference Sykes2019).
Another example of preemption occurs when the absence of regulation is claimed as a basis for preventing the enactment of laws by a lawmaking body lower down in the hierarchy. Such “deregulatory preemption” establishes both a floor and a ceiling for regulation by a state or local body. One example of deregulatory preemption—which interferes with local efforts to limit greenhouse gas emissions—is the Federal Aviation Administration Authorization Act (FAAAA). This statute explicitly precludes state and local attempts to regulate not just aviation, but a broad range of transportation industries, including trucking, providing that states “may not enact or enforce a law, regulation, or other provision having the force or effect of law related to a price, route, or service of any motor carrier” (49 U.S.C. § 14501(c)(1)). States and cities attempting to impose more rigorous pollution controls on local trucking industries thus are limited by the FAAAA’s broad preemption of regulations of price and service (Cummings Reference Cummings2014).
In contrast to these two examples of federal regulation, the federal minimum wage does not “occupy the regulatory field.” This means that states are free to enact minimum wage laws that raise the minimum wage from that established by federal law. But this is an instance in which preemption lower down the hierarchy has interfered with some efforts to raise the minimum wage. When progressive (“blue”) cities are located in more conservative (“red”) states, state regulators have sometimes limited municipal lawmaking to raise the minimum wage on the grounds that state law occupies the field and establishes both the “floor” and the “ceiling” for minimum wages in the state (Schragger Reference Schragger2018, 1174–78). Thus, minimum wages can vary by state and city, and cities with high minimum wages are generally located in “blue” states.
These examples show that progressives need to understand preemption, and to learn how to work around it. The learning curve is steep. For one thing, preemption doctrine is old and complex. Part of the complexity results from the fact-based inquiries that preemption questions regularly require; the outcomes of preemption disputes often differ because of seemingly subtle factual differences. A key example of this complexity is the market participation exception. This exception allows a local governmental agency to bypass the preemptive effect of a federal statute when the agency acts as a market participant purchasing goods or services in the marketplace. The rationale for this exception is that in doing so, the agency is behaving like any private market actor rather than as a regulatory authority, and thus the agency is not regulating in conflict with the federal regulatory scheme.Footnote 2 Despite the large number of cases about the market participation exception, however, its scope and applicability in any given context are quite unclear.
For nonlawyers, the learning curve is also steep because legal experts, whom it would be natural to ask for an education about the relevance of preemption to any given local effort, themselves have a limited perspective on preemption. Ask the average lawyer—or for that matter, legal scholar—for a lesson on preemption, and they will turn to opinions written by the US Supreme Court and other appellate courts. While these cases will provide the contours of the doctrine, they will leave many questions unanswered. Cases do not capture, describe, or interpret what happens on the ground before a legal dispute develops. Nor, crucially, do they provide information about what happens after. In short, they do not tell activists, policymakers, and others interested in reform how to act or react beyond the boundaries of the particular doctrinal points covered in the cases. Reading a range of cases on a given point helps in some respects—but only some. Returning to the market participant exception, for example, most cases will leave open many important questions: Does the market participant exception shield a local government agency in making any contract that it wants when it acts as a market participant, no matter how broad the contract is in its effect? Would it be reasonable in some instances to seek softer forms of contract, where the court of public opinion would replace any credible threat of litigation for breach of contract? Would it be reasonable at times to assume that the only safe space for progressive lawmaking is where there is no risk of (even deregulatory) preemption?
Indeed, these are among the paradigmatic questions faced by the community economic development (CED) movement, a movement of activists, planners, and lawyers working largely through nonprofit organizations to support economic development and alleviate poverty in urban core neighborhoods (Simon Reference Simon2001; Cummings Reference Cummings2001; Clay and Jones Reference Clay and Jones2009). While preemption may be a new barrier to action for many progressive activists, it is a familiar impediment for CED activists. This movement has always had to negotiate federal law and power in order to accomplish change at the local level. When developing affordable housing, supporting small businesses, increasing financial access, and addressing myriad other neighborhood-level needs in many urban neighborhoods, CED activists and lawyers have had to decide whether to oppose or support market entrants such as Walmart, McDonalds, and Uber, whose entitlements are often determined by federal law. They have had to consider whether by supporting such institutions, they could leverage the neighborhood’s power—as consumers, voters, protestors, and residents—to win some level of investment by businesses whose market emphasis on the global and generic seems fundamentally defiant of the local and distinctive. They have had to consider how their efforts at activism or law reform address long-range issues such as gentrification and automation. Preemption shapes their attempts to answer such questions, though it does not provide all the answers. CED is thus a field rich with examples—and perhaps also lessons—that are increasingly relevant to progressive activists in the United States today.
Dancing Around, and Away from, Preemption
It is both timely and fortunate, then, that a recent book by Scott Cummings explores a significant community development effort that encountered preemption (in all its complexity and difficulty) and that developed creative and inspiring responses to this obstacle. The effort was multidimensional, involving both labor and environmental activists, each with their own unique but intersecting preemption issues. Preemption fundamentally shaped their behaviors. But to succeed, these activists had to find paths that took them beyond preemption’s threat.
Blue and Green: The Drive for Justice at America’s Port, describes a campaign by labor unions, environmental justice organizations, and others to create a local space for the cleaner and more equitable operation of the short haul trucking industry at the ports of Los Angeles and Long Beach, California, an industry that is an essential link in the supply chain from ocean-going vessels to warehouses for retail giants such as Walmart and Amazon. For more than two decades, the campaign pursued the twin goals of forcing the industry to switch from diesel trucks to greener trucks and from using a labor force of drivers who had the formal status of “independent contractors” to drivers who were formally employed by the trucking firms. As Cummings describes, the coalition hoped to address two negative externalities: on the one hand, the health and other harms resulting from pollution to the communities surrounding the ports, and on the other hand, the drivers’ low wages, lack of health benefits, and inability to unionize. Both externalities disproportionately harmed low-income communities of color living and working at and near the ports.
While it would be unfairly reductionist to claim that Blue and Green is about any one subject, the doctrine of preemption is at the legal heart of this book, intertwining in complex ways with the stories of social and legal mobilization, local politics, and lawyering that the book tells. Thus, the book holds enormous significance for progressive activists today: it teaches lessons about the doctrine of preemption that simply could not be learned from reading appellate cases about this doctrine. These lessons come not from analysis of legal cases, but rather from Cummings’s analysis of a case study. The book adopts a qualitative empirical methodology, examining the “blue and green” campaign as it planned for the possibility of preemption and then experienced preemption’s effects.
In the relatively progressive, “blue” state of California, the red state/blue city divide was not the source of the preemption problems for the progressive campaign the book describes. The problem was the impact of federal statutes. The particularly problematic source of preemption was the FAAAA. The FAAAA was relevant to the campaign’s work because the campaign chose to focus on short-haul truck drivers at the ports, whom the campaign sought to organize in pursuit of better wages and work conditions. To fulfill its vision of a local space in which low-income workers could make a living wage, the campaign needed to push for the workers to be given the status of employees, rather than independent contractors, because independent contractor status required the employees to bear the costs of health insurance and other employment benefits. As independent contractors, the drivers also bore the cost of buying or leasing their own trucks. Correspondingly, independent contractor status allowed the trucking companies to externalize these costs. Moreover, and crucially, independent contractor status prevented the truck drivers from unionizing because doing so would violate antitrust laws, which treat each individual driver as a small business that cannot coordinate with other businesses within the same industry on issues of wages and other “market” conditions.
This is exactly the set of issues faced by Uber drivers and many other workers in the so-called “sharing economy,” who also have the status of independent contractors. For consumers, Uber is a bargain because it is so much less expensive than a taxi. But this reduction in revenue is borne directly by the drivers, many of whom are unable to make a living wage—or to organize for the purpose of demanding one. The value of independent contractor status to firms such as Uber is evidenced by the proliferation of this business model, a recent manifestation of which is an offer of a “bonus” by Amazon to drivers willing to forego employment status and instead organize as independent small businesses (Matsakis Reference Matsakis2019). Conversely, the relevance of employee status in the “gig economy” and beyond signifies its importance to the labor organizations involved in the blue-green campaign at America’s Port. Both for the drivers involved in the campaign, and for the labor organizations concerned about the evisceration of employment status across the American economy, the stakes were high.
It is hard to imagine a more sophisticated group of lawyers than those whom the blue-green coalition gathered to advise it about the possibility that the FAAAA would impede the attainment of employee status for short-haul truck drivers at the port. These lawyers began their work just as most lawyers would: by reading the appellate cases about preemption. As it turns out, and as the bulk of the book describes, this was not enough. Instead, there were a multitude of factors that produced enormous nonlinear effects on the goals, strategies, directions, and results of the decades-long effort to reform the short-haul trucking industry in the shadow of preemption.
One of the most significant factors was the complexity of the legal doctrine involved. Although preemption can be defined in one sentence, its applicability in any given context is much more complicated. In this particular case, while the preemptive effect of the federal FAAAA over state and local regulation of issues that the FAAAA addressed was challenging enough, it was made even more daunting by the interaction of the FAAAA with the federal Motor Carrier Act (Pub. L. No. 96-296, 94 Stat. 793 (1980)). In effect, the FAAAA radically broadened the preemptive effect of the Motor Carrier Act. The preemption analysis was also complicated by the question of how well the ports’ actions fit within the market participant exception. A key question for the coalition was whether the ports could avoid preemption by the FAAAA on the basis of this exception. There was a very strong argument that by contracting with local trucking firms and many other service providers at the ports, the ports were acting as market participants, much like airport authorities act as market participants when they contract with restaurants and others to provide food and other goods in airports. Lawyers for both the coalition and the ports believed that, as market participants, the ports could require in their contracts with trucking service providers that the trucking firms employ their drivers rather than hire them as independent contractors. But as I have described, the cases on the market participant exception were and still are indeterminate about its scope, leaving these assumptions untested.
A second factor that intersected with the first in complex ways was the enormous power of the ports to drive or shape local development in the neighborhoods where they were located. As Cummings recounts in a sweeping historical review, the ports had for generations been the dominant driver of economic development—and economic degradation—in the surrounding communities, at times lifting these communities by making them trading hubs and at times treating them as dumping grounds for the waste and pollution the ports produced. Much like sports stadiums and other major institutions, the ports had the ability to support the creation of thousands of well-paying, stable jobs and also the ability to take those jobs away, or to make them transitory or low-wage.
For several decades now, stadiums have been the sites of experimentation for community activists, who have sometimes negotiated soft contracts, known as community benefits agreements, to provide more and better jobs and other contributions to help rectify some of the costs imposed by such developments (Cummings Reference Cummings2008; Salkin and Lavine Reference Salkin and Lavine2008; Schragger Reference Schragger2009, 508–12). The market participant exception created a possibility of using essentially the same mechanism—private contracts—as a basis for offsetting or redistributing some of the costs imposed by the ports on local communities. By wielding their power as private parties to major contracts for access to the ports, the ports had enormous potential to create good jobs, support local small businesses, empower schools and other local institutions, and help entire communities.
Indeed, the neighborhood organizations involved in the blue-green campaign pointed out that as governmental agencies, the ports had a heightened obligation to do so. While there is a growing literature on the social obligations associated with the private ownership of property (e.g., Alexander Reference Alexander2009), it has long been understood that public ownership of property presumes investment in the public good.Footnote 3 This duty to serve the public good through market participation reintroduced the intriguing possibility of using private contracts as a basis for progressive change. The cities of Los Angeles and Long Beach had invested massively in public infrastructure at the ports in order to accommodate more and larger ships, and thus more of the shipping market at their ports. While the environmental organizations in the coalition could use the threat of litigation against further development of that infrastructure as a means of forcing cleanup at the ports, the labor organizations contemplated a different strategy. Their approach was to leverage the dollars invested in port development so that those who contracted for use of the infrastructure could not externalize the obligations owed to their workers. Although those involved may not have thought of it in such terms, this was arguably a form of corporate social responsibility—of forcing the ports and the parties with whom they contracted to pay for the right to play (Williams Reference Williams2002; Branson Reference Branson2002; Shamir Reference Shamir2011).
But as units within the Cities of Los Angeles and Long Beach, the ports were also governmental bodies, which led circuitously but ineluctably back to the question of whether their leveraging of the power of contract was really the same as the leveraging of that power by a private entity. Specifically, did the logic of corporate social responsibility influence the ports’ behavior as market participants? If so, did they act out of a developing sense that all businesses (whether private or public) must pay attention to their impact on the communities in which they operate? Or were the ports doing so out of a sense of public duty? Or were they doing so with an eye toward political loss and gain, given the threat by one of the local communities to secede from the City of Los Angeles, the presumed history (whether truth or fiction) of labor union influence, and the election campaigns of the various candidates for mayor in both Los Angeles and Long Beach? Unfortunately, although these questions fundamentally implicate preemption and the market participation exception, the cases on preemption cannot provide the answers.
Another factor was the complexity—and importance—of the coalition of blue and green organizations involved in the campaign. As Cummings discusses, the tensions between the environmental and labor movements in this country are both longstanding and vexing, in no small part because these movements are arguably the two most powerful progressive movements in the United States. Each movement has its own complicated history. Each has its own objectives, which regularly seem to conflict as recently evidenced by the opposition of some labor unions to the Green New Deal (Dolsak, et al. Reference Dolsak2019). Neither movement is monolithic in voice or action. Moreover, the campaign at the ports resurfaced some of the divisions within each movement: “mainstream” enviro vs. environmental justice; Teamsters vs. Longshoremen; White vs. Black. Inspiringly, the campaign worked for decades to hold itself together while genuinely representing the interests of all of its constituents. Distressingly, the countermobilization by the trucking industry resulted in litigation that rent the coalition asunder, upholding the green parts of the campaign but not the blue, and revealing that the campaign ultimately did not succeed in protecting all the interests that it had sought to protect. Preemption was a primary basis for the building of a blue-green coalition. As it turns out, preemption was also the basis for its destruction.
While the story Cummings tells is both extraordinary and unique, each of these individual factors has been the subject of community economic development investigation, activism, and effort. Moreover, each has been the subject of local lawmaking. And as the community economic development movement has discovered time and again, these questions are too complex to be answered by means of addressing one factor at a time. In part, what makes this book compelling is that it so vividly demonstrates the futility of lawmaking—about preemption and a great deal more—as an exercise in finding the right switch to turn on. One clear take-away of Cummings’s story is that these factors interacted over the course of decades in unexpected and complicated ways; there is no simple way to quantify or generalize the story. Instead, the lessons this book teaches have everything to do with the arc of the story, which involved an iterative process of strategy building in the face of ever-changing circumstances. In this respect, Blue and Green inspires progressive activists to ask important questions that they might not otherwise think to ask. These questions deeply implicate preemption, but it is impossible to answer them just by reading legal cases about preemption.
Perhaps the best demonstration of this point is the penultimate chapter of Cummings’s book. By that point in the story, the blue-green coalition had essentially been split apart, having lost the labor part of its campaign largely as a result of a decision by the US Court of Appeals for the Ninth Circuit. Specifically, the Ninth Circuit held that the ports’ contractual requirement that trucking businesses providing services at the ports convert their drivers to employee status was not within the scope of the market participant exception. This devastating loss led, almost by a process of gradual accretion, to a new “sue and strike” strategy for the labor organizations involved in the coalition. The suing part of the strategy involved filing individual claims at the state Department of Labor Standards Enforcement, while also bringing private class actions, all raising a range of claims relating to mistreatment and misclassification of drivers by the trucking industry. By establishing that the drivers were employees, these lawsuits provided a basis for claiming that trucking firms were engaging in an unlawful labor practice—a violation of federal labor law—in misclassifying drivers. This noneconomic basis for striking protected the drivers’ right to return to work without being permanently replaced by the trucking firms.Footnote 4 The striking part of the strategy involved increasingly larger and more disruptive strikes at the ports, taking advantage of the “ambulatory picketing” rights of drivers to strike in any location where they were allowed to drive their trucks, including at the lots, warehouses, and at the ports themselves.
This new strategy allowed the campaign to pursue individual claims in fora that were more receptive to their concerns than the federal courts were by that time. It allowed the campaign to focus on the individualized interests of the drivers bringing those claims, thereby more directly ensuring that their needs and voices were heard. It also allowed the drivers to raise their voices in protest. Meanwhile the large number of individual and class action claims allowed for a collective strategy and broad impact. Surprisingly and perhaps most importantly, it even allowed the campaign to convert more drivers to employee status than the campaign could possibly have anticipated. The campaign had initially considered and rejected a strategy of seeking employee conversion through individualized misclassification claims on the grounds that doing so would be too costly and slow. It opted instead for a strategy linking employee conversion to truck conversion to clean fuels, which relied on the firms having to buy and maintain the trucks rather than externalizing that cost to the drivers. The “sue and strike” strategy provided a new opportunity to challenge misclassification that turned out to be a more durable approach (from a labor law perspective) than a strategy linked to clean trucking. Yet it was also one that required driver buy-in because of the extraordinary risks it created for the drivers.
To a lawyer who had originally advised the campaign in the shadow of preemption, this must have felt like a surprising turn of events, one that would be very hard to anticipate. However, perhaps the most important lesson from Cummings’s book is that this is exactly the kind of planning progressive activists must attempt as they chart new courses through complex waters. While it is obviously a challenging proposition to “plan” with such a long view and so little clarity on the future development of preemption doctrine, Cummings provides a great deal of detail from which progressives can begin to do this work. For example, this case study inspires a variety of new questions that both lawyers and nonlawyers would likely not have thought to ask. Might there be other fora for pursuing the individual claims of the drivers that would better protect their voices and interests? Would it be possible to pursue a parallel strategy of filing claims in those fora even while seeking employee conversion alongside truck conversion? Who would be most harmed if the dominant strategy failed, and how could those individuals and groups best be protected against anticipated harms? What new conflicts might a strategy of empowering a city agency as a market participant create? What duties does a city agency have when it is the most powerful market force in a neighborhood, and to whom does it owe those duties? Who has the “right to a city” and what is the nature of that right?
In the end, some of the most significant lessons Blue and Green teaches about preemption may well be lessons about how to dance around—and away from—this doctrine. This is doubtless a more complex dance than the activists who initiated the blue-green campaign decades ago anticipated, even though they did anticipate a great deal. But for now, it may define the reality that progressives face as they turn to local sites as the primary fora for their activism.
Beyond Preemption: Progressive Lawyering for Our Times
Blue and Green is not just a compelling story about law; it is also a compelling story about lawyering. Moreover, it is one of a number of recent books that use case studies and other qualitative methodologies to reexamine law and lawyering.Footnote 5 In this final section, I reflect on three broader lessons about legal thinking, lawmaking, and lawyering that are informed, and indeed advanced, by the methodologies used in Blue and Green and other recent books.
Factual Relevance
As I have described, one of the core skills of lawyering is to read appellate cases, compare the facts of those cases to the facts described by one’s own client, and use that comparison to advise the client about how the law will affect the client’s plans. This predictive skill requires judgment about what facts are relevant, a question that even Legal Realists have associated with the operation of formal legal institutions. As Karl Llewellyn (Reference Llewellyn1960, 71–76) has famously described, most lawyers think of legal relevance as a question of what they can convince a judge is relevant in deciding a legal dispute.
Cummings’s use of the case study methodology turns the question of what facts are relevant somewhat on its head. The labor lawyers involved in the blue-green campaign had exceptionally broad factual perspectives, which included sensitivity to the tensions between different unions operating at the ports, deep knowledge of the federal and state fora in which labor issues are decided, and awareness of the local political context. Yet I doubt even those lawyers knew the detailed history of the regional transportation industry, its place in the global supply chain, and its relationship to the neighboring communities, all of which Cummings describes. But in the end, from the perspectives of the communities and the truck drivers that the coalition tried to serve, these things turned out to be highly relevant.
We see similar examples in other recent work. In her book on eminent domain, Debbie Becher (Reference Becher2014) uses a mixed quantitative and qualitative methodology that includes data from in-depth interviews with people who had been impacted by an eminent domain action in Philadelphia. In so doing, she provides detailed perspectives on the effects of eminent domain on real lives and neighborhoods, and these perspectives inform her broader analysis of the law of eminent domain and its continuing viability on the ground. Also using a mixed quantitative and qualitative methodology, Douglas Massey and his collaborators (Reference Massey2013) describe the perceptions of residents and neighbors of the famous Mount Laurel, New Jersey affordable housing development after it had been built. While the book presents a compelling argument about the importance of desegregating residential housing in America, the data gathered from the interviews of residents also implicitly convey a cautionary tale about the burdens on residents of affordable housing developments to meet community expectations about “appropriate” standards of living.
Studies such as these invite lawyers and nonlawyers alike to reexamine the question of factual relevance as we continue to examine broader questions about how, and by whom, law is made.Footnote 6 Moreover, the telling of such complex stories from historical, socioeconomic, and anthropological perspectives provides a rich basis for evaluating what legal and nonlegal strategies worked, what did not work, and perhaps even why. They provide fresh insights into questions of causation as well as context.
Representation and Voice
The idea of zealous representation is the subject of extensive positivist and critical scholarship—and of law, including rules of professional ethics. As the critical scholarship on representation exposes, this concept can mean many things and the act of representing another is a highly contested and value laden endeavor.Footnote 7 Moreover, the quest for voice, and the pursuit of the ideal lawyer-client relationship is a perennial one in CED. For decades, progressive lawmakers and legal scholars have experimented with different models of representation and voice in everything from affordable housing management to community banking (Cummings Reference Cummings2001). But the answers have always had their shortcomings and the question still remains: How can lawyers ensure that their clients are true constituents—with voice and the opportunity to control their future?
In Blue and Green, the more specific form of this question is related to preemption: why, to what extent, and for whom did the law of preemption matter? Cummings describes the tensions experienced by particularly the labor organizations, both in trying to unionize truckdrivers at the port (in an effort to unionize the entire supply chain) and in representing the interests of the truck drivers who were not members of the union and thus had no official voice or representation from the union. He describes the painful lessons learned when the burden from losing the preemption argument fell most heavily on the unrepresented drivers. He also relates the unions’ genuine self-evaluation in developing a new strategy that provided more meaningful voice and representation. In doing so, Cummings provides a model for lawyers in what should be a continual process of reexamining their role as representatives of others.
On this issue as well, other legal scholars have contributed important qualitative studies that serve as models. For example, Corey Shdaimah (Reference Shdaimah2009) has relied on the case study methodology to explore how progressive lawyers undertake the task of “negotiating justice” for their marginalized clients. She develops this understanding on the basis of in-depth interviews with both lawyers and their clients, examining the perception of each interviewee about the lawyer’s work and value added. In We Want What’s Ours (Reference Atuahene2014), Bernadette Atuahene uses in-depth interviews of land restitution claimants in post-Apartheid South Africa to develop the novel legal concept of “dignity takings,” which anchors a legal argument that those who have suffered dignitarian harms alongside the economic harms of government takings of their property should receive compensation for both kinds of harms.
One of the lessons from these and other studies is straightforwardly temporal. Telling detailed stories as they unfolded over decades may be one of the most effective ways to help others think deeply and broadly about issues of voice and representation. But the studies are also cautionary tales in their own right, exposing the biases and reflexive reactions of genuinely well-meaning lawyers and lawmakers that ought to serve as mirrors for those who engage in the work of representing others. Moreover, Blue and Green reveals that these crucial questions about representation and voice are not just questions for and about lawyers. They are also questions for nonlawyers, such as the unions who worked for decades to organize and represent drivers at the port. While scholars should continue to examine the complexities of lawyerly representation, they should also broaden their scope of examination to other actors and activists, both for the comparative value in doing so and for the purpose of developing broader visions for preserving and protecting the voices of those who are represented by others.
The Role and Value of Precedent
A third broad lesson about lawyering that Blue and Green helps to teach is about the role and value of precedent. Blue and Green is an important intervention in modern legal practice that highlights the Legal Realist observation that “precedent” can be made in a wide variety of contexts beyond court. The setting for the blue-green campaign is one such context. If we broaden the milieu of litigation settings to include administrative adjudications in agencies such as the state and federal departments of labor, then it is certainly clear that concerns about court and agency litigation informed the activism and lawyering in the blue-green campaign. For example, it was critical for the labor lawyers and activists to think carefully about whether, when, and in what forum to bring driver misclassification claims. These were not just questions of cost, but also questions of precedential value and impact.
Yet it is also clear that there were many considerations for the members of the campaign beyond even administrative law and lawyering. One consideration that was lurking in the background, without much explicit mention in the book, was the perennial CED issue of gentrification. While the market participation exception and other strategies for avoiding preemption still today provide potent possibilities for increasing the income and stability of port truck drivers, the ports could also leverage such strategies to gentrify the communities surrounding the ports. Ultimately, as has happened in many urban cores, such gentrification could push out the very communities (including the drivers) whom the blue-green coalition has worked for decades to empower and support.
In these respects, the blue-green campaign is typical of many CED endeavors. This movement is challenged by multiple priorities that seem regularly in tension with one another. Gentrification is an example of the goal of economic development at times swallowing the goal of poverty alleviation (Li Reference Li2016). Residential desegregation is another example; as recent studies of mixed income housing and the Low Income Housing Tax Credit have shown, the imperative of social integration appears at times to have overwhelmed the imperative of poverty alleviation (McFarlane Reference McFarlane2019; Weiss Reference Weiss2018). This imperative has also put pressure on efforts to preserve community voice and participation. These tensions in turn have sparked important conversations about—and redefinitions of—foundational concepts such as “community,” “urban,” and “development.”Footnote 8 Moreover, given their representation of those who are marginalized on the basis of race, income, ethnicity, immigration status, and geography, CED lawyers often feel (as well they should) a heightened duty to anticipate and guard against long-term risks that unfold over the course of years or even decades, at times contributing to degrading cycles of predation and loss. Studies such as Blue and Green inspire those lawyers to examine strategies to avoid preemption, while also guarding against the possibility of gentrification in communities such as those surrounding the ports of Los Angeles and Long Beach. They also provide the context and detail that might be conducive to doing so.
In raising crucial questions about the way lawyers think and the way law is made, Blue and Green is a significant contribution to the developing field of New Legal Realism and more broadly to the contemporary study of law and society. It examines the far-reaching relevance of a formidable doctrine that has impacted planning, development, and decision making well beyond the courts and law offices where the doctrine initially took shape. It also provides crucial insights about the challenges of lawyering and activism in contemporary society. In its reanalysis of preemption from the perspective of diverse stakeholders, Cummings’s analysis serves as a cross-disciplinary model.
While studies about law’s effect on the ground have always been important, I believe they are particularly crucial today, given the increasing fragility of the “the rule of law.” It seems inevitable that the interconnected and layered health, financial, and social crises of 2020 will be felt for many years to come. American cities have emerged as sources of leadership and stability in the face of that chaos. It is all the more important then to gain a deeper understanding of local movements for change, and the role of law, in the cities where they occur.
