Yvette Butler (Indiana University Maurer School of Law) has posted Traditionally Suspect: Common Occupations and the Right to Earn a Living (Washington and Lee Law Review, forthcoming) on SSRN. Here is the abstract:
This Article is the first to fill a major gap in the literature on the scope of the right to earn a living. Courts have defined the right to earn a living as the right of an individual to earn their livelihood through any lawful, honest, and common calling, business, profession, or vocation they may choose, as long as the individual is not restricted by generally applicable and reasonable laws, such as criminal laws or occupational licensing requirements. Scholars have argued that economic liberties, such as the right to earn a living and occupational freedom, should be recognized as fundamental rights. As such, laws that overburden economic liberties, such as the right to earn a living, should be subject to meaningful judicial scrutiny. This article does not take issue with that claim.
Instead, this article argues that whether the right to earn is fundamental is not as relevant as (1) addressing the many threshold questions that the doctrine requires, especially the meaning of a “common occupation” and (2) articulating a just version of economic liberty that accounts for the relevant histories and experiences of multiple stakeholders, including marginalized groups. Thus, I argue that the right to earn a living should be interpreted in a way that accounts for multiple stakeholders, historical injustices, and present day realities.
In doing so, I show that the threshold “common occupation” inquiry essentially operates as a history and tradition test subject to the very same critiques as the one created by the Roberts Court. Under this test, an occupation is common only if it is not “traditionally suspect.” This may be demonstrated where there are a “host of cases” protecting the claimed interest. This test rewards litigants whose work the law has already embraced. It leaves the occupations that were historically condemned without an on-ramp to recognition. That structure risks building epistemic injustices into the threshold itself because it asks whether an activity was once condemned while not also asking why, and by whom.
Highly Recommended!
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