law; subversive lawyering; policy-making
Policymaking in American democracy is often a process that happens to people rather than by them. This is especially the case with respect to policy that affects people with less power in low-income communities and communities of color. Urban policy, in particular, has historically been driven by business elites and white homeowners’ interests, which have shaped exclusionary policies, such as redlining and single-family zoning— etching racial and economic segregation into the fabric of city space. Even when outsider interest groups and social movement organizations gain enough power to shape the policy agenda, give input into the content of policy, and lobby for policy changes that advance their interests, the standard conception of regulatory design is elite-driven: people whose lived reality will be impacted by policy decisions tend to be consulted, if at all, after policy ideas are already articulated and have gained traction in the halls of power. This Essay seeks to elevate an alternative model of policymaking “by the people” that views the policy process as a means of designing more responsive regulation that emanates from the experiences of marginalized constituencies, while creating an opportunity to build democratic power. Policy by the people involves: identifying problems from the perspective of those suffering harm, developing solutions based on lived experiences of what works, conducting policy design through an iterative process in which solutions are translated into law, elevating leadership of the people in advocating for policy change, and ensuring that successful policy is not an end goal but rather a starting point in promoting democratic inclusion and community power. This approach therefore seeks to enable policy design by people that responds to their material interests—what we call responsive regulation—as it simultaneously promotes power-building over time. This Essay aims to fill critical gaps in the literature on lawyering for social change and policy design, while offering a set of principles to guide the role of lawyers in bottom-up policymaking.
Scott L. Cummings and Doug Smith,
Policy by the People, for the People:Designing ResponsiveRegulation and BuildingDemocratic Power,
90 Fordham L. Rev. 2025
Available at: https://ir.lawnet.fordham.edu/flr/vol90/iss5/7