In A Theory of Stategraft, Bernadette Atuahene advances the concept of “stategraft” to describe situations in which “state agents transfer property from persons to the state in violation of the state’s own laws or basic human rights.” This Essay delineates the ways in which criminal legal system fees and fines can be characterized as stategraft and explores the value of this concept for social movements. In many ways, the stategraft frame, with its focus on illegality, fits well with much of the litigation and advocacy against unconstitutional fees-and-fines practices that have occurred over the last decade. Exposing illegal practices such as the operation of debtors’ prisons laid the groundwork for a more fundamental critique of the use of the criminal legal system as a revenue generator for the state. The Essay cautions, however, against relying too heavily on illegality to describe what is wrong with fees-and-fines regimes in light of courts’ reluctance to impose robust legal protections against state practices that saddle those who encounter law enforcement with debt. Relying on an illegality critique may make it harder to attack entrenched practices that courts are inclined to bless as legal and obscure more fundamental dynamics of predation and regressive revenue redistribution. At this juncture, calling attention to these structural issues is likely to be more fruitful both as an organizing tactic and as a description of the harms posed by fees and fines.
State and Local Government Law
Professor Bernadette Atuahene’s theoretical framework for “stategraft” denotes actions by which state agents transfer cash or property from the people to the state in violation of the law or basic human rights norms. Because illegality is central to stategraft, attention to it may push other forms of state predation—those that are legal or whose legality are uncertain—out of the realm of reform given the dearth of funding for legal advocacy and difficulties in marshalling lawmaker attention. This Essay suggests, however, that consideration of stategraft provides opportunities for advocates to push back against legal, or not yet illegal, predatory practices. It does so by looking to recent advocacy efforts related to two types of predatory behaviors outside the bounds of stategraft: the use of fines and fees, and civil forfeiture practices.
The Midas Touch: Atuahene’s “Stategraft” and Unregulated Artificial Intelligence: A Response to A Theory of Stategraft
Professor Bernadette Atuahene’s article, A Theory of Stategraft, develops the new theoretical conception of “stategraft.” Professor Atuahene notes that when state agents have engaged in practices of transferring property from persons to the state in violation of the state’s own laws or basic human rights, it sits at the nexus of illegal behavior and revenue-generating activity for the government. Although there are countless instances of “stategraft,” one particularly salient example is when the state uses artificial intelligence to illegally extract resources from people. This Essay will apply stategraft to an algorithm implemented in Michigan that falsely accused recipients of unemployment benefits of fraud and illegally garnished their paychecks and intercepted their IRS tax refunds.
Civil forfeiture is a mechanism by which law enforcement can seize and keep property purportedly connected to a crime absent the arrest, formal charging, or even conviction of the property owner. Forfeiture laws also allow law enforcement to keep a portion, and sometimes all, of the seized property for agency use and, in some jurisdictions, even for the salaries and benefits of law enforcement personnel directly. In the past several decades, forfeiture laws have distorted law enforcement priorities by shifting the focus away from other activities and toward revenue generation. Civil forfeiture illustrates Professor Atuahene’s theory of stategraft: state agents transferring property from residents “to the state in violation of the state’s own laws or basic human rights,” often during times of budgetary austerity. But this Essay identifies important elements of forfeiture that do not comport with the theory. It suggests ways in which the conceptualization of stategraft may be expanded to encompass laws, regulations, and systems that legally, although arguably unjustly, allow or encourage state actors to exploit their fellow residents for the benefit of the bureaucrat’s budget. The Essay concludes with recommendations for reform of civil forfeiture laws and stategraft more generally.
Neoliberalism and its accompanying austerity measures are shrinking local and
national government budgets, even though constituent needs remain pressing. In
desperation, public officials sometimes replenish public coffers through illicit
extraction from segments of the population poorly positioned to fight back. In
Detroit, for example, city officials inflated property tax assessments in violation of
the Michigan Constitution, leading to illegally inflated property taxes that many
homeowners could not afford to pay. Consequently, since 2009, one in three homes
have completed the property tax foreclosure process, the highest number of property
tax foreclosures in American history since the Great Depression. These
unlawful practices are not just occurring in Detroit, but also in other American
cities such as Ferguson, Philadelphia, and New Orleans.
Nevertheless, because corruption is universally defined as corrupt acts that are for
private or personal gain, there is currently no lexicon to describe illegal acts that
principally benefit the public treasury. I have coined the term “stategraft” to
describe this overlooked phenomenon: when state agents transfer property from
persons to the state in violation of the state’s own laws or basic human rights. To
establish stategraft as an essential theoretical framework, this Article elaborates its
definitional elements, demonstrates its conceptual value, and shows how it extends
existing discourses on corruption, state crime, and the predatory state.
In the 2010s, the United States entered a pedestrian safety crisis that is unique among wealthy nations. Deaths of people on foot surged more than 46% that decade, outpacing the increase in all other traffic deaths by nine to one. The early 2020s have seen an intensification of this trend. These fatalities magnify racial disparities, placing Black pedestrians at a two-thirds higher risk of being killed than their white counterparts. While the pedestrian safety crisis has many causes, there is growing evidence that the enlargement of the American vehicle has played a key role. Auto companies earn higher profit margins on large vehicles, and consumers prefer their greater creature comforts. But the size, height, and weight necessary for those comforts has been shown to make these vehicles far deadlier for those who have the misfortune of being struck by them. Carmakers do not disclose these risks to the car-buying public—but even if they did, individual consumers lack appropriate incentives to internalize the social costs of the vehicles they buy. Like pollution, this negative externality presents a classic case for regulation. Yet America’s vehicle safety regulator (the National Highway Transportation Safety Administration, or NHTSA), conceived in the wake of the Ralph Nader consumer revolution of the 1960s, considers the safety of pedestrians—who are third parties rather than consumers—almost completely alien to its mission.
This Essay presents a different model, based on NHTSA’s own statutory mandate to protect “the public” as a whole from risks posed by motor vehicles. It argues that pedestrians are, quintessentially, a group whose well-being vehicle safety regulators should prioritize—even though when acting as pedestrians they are not consumers of the regulated product. Pedestrians are maximally exposed to dangerous vehicles, and by definition they benefit from neither vehicle comforts nor most occupant-focused safety features. They may even be endangered by some of them. NHTSA should expressly incorporate the welfare of pedestrians and other non-occupants into its mission. To that end, this Essay develops four policy actions NHTSA should undertake as part of a policy update it launched in 2022: include pedestrian safety in its marquee safety evaluation program; regulate the design of vehicles to protect people outside of them; use technology to protect pedestrians; and update its safety tests so they are more representative of common fatal pedestrian crash victims and scenarios.
A century ago, captains of industry and their allies in government launched a social experiment in urban America: the abandonment of mass transit in favor of a new personal technology, the private automobile. Decades of investment in this shift have created a car-centric landscape with Dickensian consequences. In the United States, motor vehicles are now the leading killer of children and the top producer of greenhouse gases. Each year, they rack up trillions of dollars in direct and indirect costs and claim nearly 100,000 American lives via crashes and pollution, with the most vulnerable paying a disproportionate price. The appeal of the car’s convenience and the failure to effectively manage it has created a public health catastrophe. Many of the automobile’s social costs originate in individual preferences, but an overlooked amount is encouraged—indeed enforced—by law. Yes, the United States is car-dependent by choice. But it is also car-dependent by law. This Article conceptualizes this problem and offers a way out. It begins by identifying a submerged, disconnected system of rules that furnish indirect yet extravagant subsidies to driving. These subsidies lower the price of driving by comprehensively reassigning its costs to non-drivers and society at large. They are found in every field of law, from traffic law to land use regulation to tax, tort, and environmental law. Law’s role is not primary, and at times it is even constructive. But where it is destructive, it is uniquely so: Law not only inflames a public health crisis but legitimizes it, ensuring the continuing dominance of the car. The Article urges a reorientation of law away from this system of automobile supremacy in favor of consensus social priorities, such as health, prosperity, and equity.